BWI


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BWI MERCHANDISING LIMITED - TERMS AND CONDITIONS

1. BASIS OF CONTRACT
1.1 Your purchase order (Order) constitutes your offer to purchase ancillary services (Services) and licensed apparel including processed garments (Goods) in accordance with these terms and conditions (Conditions).
1.2 The Order shall only be deemed to be accepted when we issue written confirmation of the Order at which point and on which date a contract between us for the supply of Goods and Services in accordance with these Conditions (Contract) shall come into existence.
1.3 The Contract constitutes the entire agreement between us. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in the Contract.
1.4 Any drawings, descriptive matter or advertising issued by us, and any descriptions or illustrations contained in our catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Goods or Services described in them. They shall not form part of the Contract or have any contractual force. You acknowledge in particular that if you request for approval purposes a drawing or other pictorial representation of a printed garment instead of a physical sample, the colours shown will be approximates only of the ink colours printed on the finished garments.
1.5 These Conditions apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice, any supplier manual or a course of dealing.
1.6 Any quotation given by us shall not constitute an offer, and is only valid for a period of 28 days from its date of issue.
1.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2. SUPPLY OF GOODS AND SERVICES
2.1 We shall supply the Goods and Services to you in accordance with the specification agreed between us (Specification) in all material respects.
2.2 We shall use our reasonable efforts to meet any performance dates specified on the Order (or otherwise agreed between us in writing) but any such dates shall be estimates only and time shall not be of the essence for performance of the Services or delivery of the Goods.
2.3 We shall have the right to make any changes to the Goods or Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Goods or Services, and we shall usually notify you in any such event.
2.4 The Services do not include individual bagging and/or labelling of Goods unless this is stated on our confirmation of Order.
3. YOUR OBLIGATIONS
3.1 You shall:
(a) co-operate with us in all matters relating to the provision of the Goods and Services;
(b) provide us with such information and materials as we may reasonably require in order to supply the Goods and Services, and ensure that such information and the terms of the Order and the Specification are accurate in all material respects; and
(c) where you supply garments for the provision of Services, ensure that they are of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and provide an excess quantity of at least 2% to allow for seconds.
3.2 If our performance of any of our obligations under the Contract is prevented or delayed by any act or omission by you or your nominated supplier or your failure or your nominated supplier's failure to perform any relevant obligation, including the supply of garments or ancillary goods or services for the provision of Services (Customer Default):
(a) we shall without limiting our other rights or remedies have the right to suspend performance of the Services or delivery of any Goods until you remedy the Customer Default, and to rely on the Customer Default to relieve us from the performance of any of our obligations to the extent the Customer Default prevents or delays our performance of any of our obligations;
(b) we shall not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from our failure or delay to perform any of our obligations as set out in this clause 3.2; and
(c) you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from the Customer Default.
4. CHARGES AND PAYMENT
4.1 The charges payable by you for the supply of the Goods and Services (Charges) shall be as set out in our confirmation of order or as otherwise subsequently agreed between us in writing.
4.2 We reserve the right to increase the Charges, by giving notice to you at any time before delivery, to reflect any increase in the cost of the Goods or Services to us that is due to:
(a) any factor beyond our control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by you to change the delivery date(s), quantities or types of Goods or Services ordered, or Specification; or
(c) any delay caused by any instructions from you in respect of the Goods or Services or any delay caused by Customer Default.
4.3 Unless we agree to provide you with credit facilities, we shall invoice you (and payment will be due) prior to the commencement of the Services and the supply of the Goods.
4.4 If we agree to provide you with credit facilities, we shall invoice you on completion of the Services and delivery of the Goods and you shall pay each invoice submitted by us:
(a) within 28 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by us, and
(c) time for payment shall be of the essence of the Contract.
4.5 We will provide credit facilities at our sole discretion subject to:
(a) your completion of our standard credit application form in use from time to time; and
(b) satisfactory completion of credit checks (which you hereby irrevocably authorise us to carry out upon you on submission of a credit application form).
We shall be entitled to revoke credit facilities at any time at our sole discretion.
4.6 All amounts payable by you under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by us to you, you shall, on receipt of a valid VAT invoice from us, pay to us such additional amounts in respect of VAT as are chargeable on the supply of the Goods and Services at the same time as payment is due for the supply of the Goods and Services.
4.7 Without limiting any other right or remedy we may have, if you fail to make any payment due to us under the Contract by the due date for payment (Due Date), we shall have the right to charge interest on the overdue amount in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
4.8 You shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and you shall not be entitled to assert any credit, set-off or counterclaim against us in order to justify withholding payment of any such amount in whole or in part. We may, without limiting our other rights or remedies, set off any amount owing to us by you against any amount payable by us to you.
5. TITLE AND RISK
5.1 Where we apply Services to garments supplied by you (Customer Property) the title in such Customer Property shall remain vested in you until the application of the Services, at which point title shall pass to us automatically and immediately and such garments shall be deemed to be Goods.
5.2 Title to Goods (whether processed Customer Property or otherwise) shall not pass to you until we have received payment in full (in cash or cleared funds) for:
(a) the Goods and Services; and
(b) any other goods or services that we have supplied to you.
5.3 Until title to the Goods has passed to you, you shall:
(a) hold the Goods on a fiduciary basis as our bailee;
(b) store the Goods separately from all other goods held by you so that they remain readily identifiable as our property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify us immediately if you become subject to any of the events listed in clause 10.1(b)) to clause 10.1(l); and
(f) give us such information relating to the Goods as we may require from time to time,
but you may resell or use the Goods in the ordinary course of your business.
5.4 If before title to the Goods passes to you, you become subject to any of the events listed in clause 10.1(b)) to clause 10.1(l), or we reasonably believe that any such event is about to happen and notify you accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy we may have, we may at any time require you to deliver up the Goods and, if you fail to do so promptly, enter any premises of you or of any third party where the Goods are stored in order to recover them.
5.5 We shall hold a lien over any Customer Property held by us until we have received payment in full (in cash or cleared funds) for:
(a) the Goods and Services; and
(b) any other goods or services that we have supplied to you.
5.6 The risk in the Goods shall pass to you on completion of delivery.
5.7 The risk in Customer Property shall ordinarily remain with you and you shall be responsible for insuring it notwithstanding that it is stored at our premises. Where we agree however, risk in the Customer Property shall pass to us when Customer Property is safely delivered to our premises in which case we will insure the Customer Property. This is however subject to you paying any insurance contribution which we reasonably require to account for any additional costs incurred by us.
6. DELIVERY OF GOODS
6.1 Unless we agree otherwise (including circumstances where we agree a delivery timetable with you), you shall collect the Goods from our premises within three working days of us notifying you that the Goods are ready. Where we agree a delivery timetable with you, you agree that you will collect the Goods within the collection window notified to you. If we agree to arrange delivery of the Goods (whether as set out on our confirmation of Order or otherwise), we shall do so as your agent and subject to you being responsible for all costs thereof (including but not limited to carriage, insurance and any applicable import or export duties).
6.2 Delivery of the Goods shall be completed on the completion of their loading at our premises.
6.3 If you fail to take or accept delivery of the Goods within the timescales referred to at clause 6.1 above, then:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the delivery date calculated pursuant to clause 6.1; and
(b) we shall store the Goods until delivery takes place, and charge you for all related costs and expenses (including insurance).
6.4 You shall not be entitled to reject the Goods if we deliver up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from you within three days of delivery that the wrong quantity of Goods was delivered. You shall not be entitled to reject the Goods if any variation of greater than 5% is notified to us later than 3 days after delivery. Refunds will not be processed where the tolerance regarding the delivery quantity v invoiced quantity is less than +/- 2%.
6.5 We may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle you to cancel any other instalment.
6.6 If we agree to arrange delivery on your behalf to a location outside the United Kingdom, you shall comply with all import and export regulations (including the payment of any customs duties or other taxes), notify us of any such regulations applicable to the supply of the Goods and Services and indemnify us against all costs, losses and expenses we suffer or incur as a result of such regulations.
7. QUALITY
7.1 We warrant that on delivery, and for a period of 1 month from the date of delivery (Warranty Period):
(a) the Services shall conform in all material respects with any sample supplied by us to you prior to bulk production; and
(b) where we supply the Goods to be processed, they will be free from material defects in design, material and workmanship and be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
7.2 Subject to clauses 7.3 and 7.4, if:
(a) you give notice in writing to us during the Warranty Period within a reasonable time of discovery that some or all of the Goods or Services do not comply with the warranty set out in clause 7.1;
(b) we are given a reasonable opportunity of examining the relevant Goods; and
(c) you return the Goods to our place of business at your cost,
we shall, at our option, repair the defective Goods, replace the defective Goods or refund the price of the defective Goods and/or Services in full.
7.3 We shall not be liable for failure of the Goods or Services to comply with the warranty set out in clause 7.1 in any of the following events:
(a) you or your customers make any use of the Goods after giving notice in accordance with clause 7.2;
(b) the defect arises because you failed to follow our oral or written instructions as to the storage of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of us following or using any drawing, design, dye, third party supplier requirement, paint, chemical composition or any other instruction supplied or specified by you;
(d) you alter or repair such Goods without our written consent;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence or laundering carried out contrary to advice given by us;
(f) the Goods differ from any sample as a result of changes made to ensure they comply with applicable statutory or regulatory requirements;
(g) the Goods differ from any photographic sample as a result of differences between photographic ink colour shades and screen printing ink colour shades;
(h) the defect arises as a result of an inherent defect in Customer Property; or
(i) the defect is connected with a defect in the products or services supplied by a nominated supplier which you require us to use in connection with the Goods or Services.
7.4 Where any failure of the Goods or Services to comply with the warranty set out in clause 7.1 arises from an inherent defect in garments supplied to us by our suppliers or sub-contractors, we shall only be liable to the extent that such suppliers or sub-contractors indemnify us in respect of the defect.
7.5 Except as provided in this clause 7, we shall have no liability to you in respect of the Goods' or Services' failure to comply with the warranty set out in clause 7.1.
7.6 We warrant to you that any ancillary Services will be provided using reasonable care and skill.
7.7 Other than as set out in this clause 7, all warranties, conditions and other terms implied by statute or common law (including terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 and sections 13 to 15 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
7.8 These Conditions shall apply to any repaired or replacement Goods supplied by us.
8. INTELLECTUAL PROPERTY RIGHTS AND THIRD PARTY LICENSORS
8.1 Unless specified otherwise on our written confirmation of your Order, all intellectual property rights (including but not limited to patents, rights to inventions, copyright and related rights) in or arising out of or in connection with the Goods or Services shall be owned by us.
8.2 Where we provide any designs as part of the Specification, they will be delivered to you as low-resolution image files prior to bulk production and you are strictly prohibited from using them for any purpose other than evaluating our designs and you may not disclose the images to any third party. Upon bulk production we shall grant you a non-exclusive licence to use any such designs solely to the extent necessary for you to sell or otherwise dispose of the printed garments.
8.3 You shall indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by us in connection with any infringement by you of our intellectual property rights. This clause 8.3 shall survive termination of the Contract.
8.4 We warrant that all designs produced by us pursuant to any Specification will not infringe any third party's intellectual property rights.
8.5 To the extent that the Goods or Services are to be delivered in accordance with any designs or Specifications provided to us by you, you shall indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by us in connection with any claim made against us relating to actual or alleged infringement of a third party's intellectual property rights. This clause 8.5 shall survive termination of the Contract.
8.6 Where your Order involves the supply of Goods and/or Services under the licence (Licence) of a third party (Licensor) you acknowledge and agree that we will rely on your instructions in respect of such Order and accordingly:
(a) you warrant that all instructions given to us by you shall be given strictly in accordance with the terms of the Licence;
(b) you shall notify us specifically of any obligations set out in the Licence (including compliance with overseas laws or regulations) that may be applicable to the Order;
(c) you shall notify us immediately if the Licence expires or is terminated;
(d) you shall remain liable for the full price of Goods and Services under the Order whether or not any Goods are seized by or on behalf of the Licensor (whether from our premises, your premises or otherwise) unless such seizure is caused by our act or omission; and
(e) you shall indemnify and keep us indemnified against all costs, losses and expenses incurred by us caused (directly or indirectly and whether in whole or in part) by your failure to comply with the terms of this clause 8.6.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude our liability for:
(a) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability that cannot lawfully be limited or excluded.
9.2 Subject to clause 9.1:
(a) we shall under no circumstances whatsoever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) our total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Charges.
9.3 This clause 9 shall survive termination of the Contract.
10. TERMINATION
10.1 Without limiting our other rights or remedies, either of us may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.1(b) to clause 10.1(i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
10.2 Without limiting our other rights or remedies, we may terminate the Contract with immediate effect by giving written notice to you if you fail to pay any amount due under this Contract or any other contract between us on the due date for payment.
10.3 Without limiting our other rights or remedies, we shall have the right to suspend provision of Services or delivery of Goods under the Contract or any other contract between you and us if you become subject to any of the events listed in clause 10.1(b)) to clause 10.1(l), or we reasonably believe that you are about to become subject to any of them, or if you fail to pay any amount due under this Contract or any other contract between us on the due date for payment.
10.4 You may not terminate the Contract other than as set out in this clause 10 or with our written consent, which we shall be entitled to withhold at our sole discretion. For the avoidance of doubt, any consent will be conditional upon you reimbursing us in full for all costs and losses expended or incurred by us prior to the termination date up to the full amount of the Charges.
11. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason:
(a) you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Goods or Services supplied but for which no invoice has been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
(b) you shall return any Goods which have not been fully paid for. If you fail to do so, then we may enter your premises and take possession of them. Until they have been returned, you shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry;
(d) we shall be entitled to sell any Customer Property or Goods in our possession at a price which we determine in our sole discretion and apply such sale proceeds against any amounts from time to time owed by you to us including but not limited to any Goods which include any IPR licensed to us pursuant to these terms and conditions and for the avoidance of doubt the IPR provisions at clause 8.5 shall continue to apply to such post termination sale of Goods by us; and
(e) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
12. GENERAL
12.1 We shall not be liable to you as a result of any delay or failure to perform our obligations under this Contract as a result of any event beyond our reasonable control including but not limited to strikes, lock-outs or other industrial disputes (whether involving our workforce or the workforce of any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. If the Force Majeure Event prevents us from providing any Services or delivering any Goods for more than 4 weeks, we shall, without limiting our other rights or remedies, have the right to terminate this Contract immediately by giving written notice to you.
12.2 We may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights under the Contract and may subcontract or delegate in any manner any or all of our obligations under the Contract to any third party or agent. You shall not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under the Contract.
12.3 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second working day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next working day after transmission. This clause 12.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall include e-mails only to the extent that a read receipt or other form of acknowledgement is received by the sender.
12.4 A waiver by us of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default by you. No failure or delay by us in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy by us shall preclude or restrict the further exercise of that or any other right or remedy. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
12.5 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.6 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between you and us, nor constitute either of us the agent of the other for any purpose. Neither of us shall have authority to act as agent for, or to bind, the other in any way.
12.7 A person who is not a party to the Contract shall not have any rights under or in connection with it.
12.8 Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by us.
12.9 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and both of us irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
13. INTERPRETATION
13.1 In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; and
(d) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.