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ECA Footwear 21 Limited (company number 14356713 (“we”, “us”, “our”), is a company registered in England and Wales and our registered office is at 1 Half Moon Street, London, UK, W1J 7AY. Order acceptance is subject to the below Terms and Conditions and any other mutually agreed terms. Your particular attention is drawn to conditions 6, 8, 9 and 10. By signing these Terms and Conditions and also under the circumstances set out below, you accept these Terms and Conditions. Copies of these Terms and Conditions are available on request.
1. CONTRACT BETWEEN YOU AND US
1.1. These terms and conditions (“Conditions”) apply to the order by you and supply by us of Mahabis branded products (“Goods”).
1.2. Orders are placed through our online retailer portal or otherwise. You are responsible for ensuring that your order is complete and accurate. Each order is an offer by you to buy the Goods subject to these Conditions.
1.3. Any order which is accepted by us will be accepted only upon these Conditions. No other terms are implied by trade, custom, practice or course of dealing. These Conditions shall prevail over any contrary, different or additional terms or conditions (if any) submitted, proposed or stipulated by you whether in writing or orally and in whatever form and at whatever time and no addition, alteration or substitution of these Conditions will bind us or form part of any contract unless they are expressly accepted in writing by us.
1.4. Any order which is submitted to us by or on your behalf shall be accepted entirely at our sole discretion. We shall not be deemed to have accepted any order unless:
1.4.1. In the case of orders for delivery at a future date, we have issued to you a formal written confirmation (“Order Confirmation”); or
1.4.2. In the case of orders for immediate delivery via our online retailer portal, we have sent to you an email that confirms that the Goods have been dispatched (“Dispatch Confirmation”); at which time the contract (“Contract”) between you and us shall be formed. Orders accepted by us shall be referred to as “Order” hereunder.
1.5. Notwithstanding this, your acceptance of delivery of the Goods or (if earlier) you giving to us or any third party acting on our behalf delivery instruction shall constitute unqualified acceptance by you of these Conditions.
1.6. You shall have no right to vary or cancel an Order (whether in whole or in part) after it has been sent to us or to otherwise fail to take delivery of the Goods in accordance with these Conditions, without our prior written consent and such consent may be subject to terms specified by us at the time, and you shall defend, indemnify and hold us harmless in full against all loss (including consequential loss and loss of profit), costs (including the cost of all transport, storage, labour and materials used), damage, charges and expenses incurred by us as a result of variation, cancellation or failure to take delivery, without prejudice to any other right or remedy we may have.
1.7. We shall have the right to cancel an Order in whole or in part at any time until the agreed delivery date and our liability to you in respect of the same shall extend only to a refund the price paid by you to us in respect of the relevant Order or relevant part thereof.
1.8. These Conditions and the Contract are made only in the English language.
2. RESALE
You may only resell the Goods to consumers and in accordance with our written pre-agreed terms.
3. MARKETING
3.1. We shall provide to you such marketing material in respect of the Goods as we see fit (“Marketing Material”).
3.2. The only packaging, merchandising or marketing materials that may be used on or in association with the retail or marketing of the Goods are the Marketing Materials. Notwithstanding this, you shall ensure that all Marketing Materials are translated into the local language and you:
3.2.1. Warrant and undertake that such translations shall comply with the local laws and regulations;
3.2.2. Warrants and undertakes that such translations shall be accurate when
compared with any Marketing Material and any other guidance provided by us; and
3.2.3. Shall bear the costs of such translation.
3.3. You shall be responsible for ensuring that all marketing and promotional materials and activities in respect of the Goods comply with local laws and regulations.
3.4. Ownership of all Marketing Materials shall be retained by us unless purchased by you. Any complimentary Marketing Materials shall be retained by you in good condition (subject to reasonable wear and tear).
3.5. Notwithstanding the passing of ownership in the Marketing Materials, all Marketing Materials shall, at your expense, be returned to us or disposed of in accordance with our instructions, at our discretion.
4. PRICE OF GOODS AND DELIVERY CHARGES
4.1 The wholesale-to-retailer prices of the Goods will be as quoted on our site or otherwise as agreed with you in writing at the time you submit the Order (“Price”). We take all reasonable care to ensure that the prices of Goods are correct at the time when the relevant information was entered onto the system. However, in the event that, despite our reasonable efforts, some of the Goods you have ordered are incorrectly priced we will contact you to give you the option of continuing to purchase the Goods at the correct price or cancelling the Order. We will not process the Order until we have your instructions. If we are unable to contact you, we will treat the Order as cancelled and notify you in writing. If we mistakenly accept and process your order where a pricing error is obvious and unmistakable and could reasonably have been recognised by you as a mispricing, we may cancel supply of the Goods and refund you any sums you have paid.
4.2. Prices may change from time to time, but changes will not affect existing Order.
4.3. The Price is exclusive of VAT or any similar tax.
4.4. The Price of the Goods does not include delivery charges. Our delivery charges are as advised to you during the check-out process, before you confirm your order.
4.5. We shall be entitled to invoice for the Price at such time as the Goods are ready for delivery.
4.6. All invoices in respect of any Orders shall be paid by you in cleared funds on or prior to despatch, whether the complete Order or part thereof.
4.7. In the event that you have expressly been permitted credit terms, all invoices shall be paid by you in cleared funds within thirty (30) days from the date of the invoice or otherwise when due as agreed in writing by us, to our bank account as notified to you. We may withdraw credit terms at any time without liability to you and all sums due outstanding shall become due on a prepayment basis.
4.8. Notwithstanding condition 4.7, payment for Goods delivered shall become due immediately if:
4.8.1. You convene a meeting of creditors (whether formal or informal), or enters into a company voluntary arrangement or any other arrangement or compromise for the benefit of any creditors, or you enter into liquidation, whether voluntary or compulsory, or have a receiver and/or manager, administrator or administrative receiver appointed over your undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator, or notice of intention to appoint an administrator is given by you or your directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of your business or the granting of an administration order in respect of your business, or any proceedings are commenced in relation to the insolvency or possible insolvency of your business; or
4.8.2. You are unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 or you cease to trade;
4.8.3. You are deemed unable to pay or has no reasonable prospect of being able to pay your debts within the meaning of Section 268 of the Insolvency Act 1986, or a petition for a bankruptcy order is made against you or a bankruptcy order is made against you; or
4.8.4. You are affected by any event analogous to those listed above in any other jurisdiction, (together, “Events of Insolvency”).
5. DELIVERY, DEFECT AND RISK
5.1. We deliver to the countries listed on our website www.mahabis.com
(“International Delivery Destinations”), as updated by us from time to time. In the event that the Goods under the Order are intended for shipment and/or resale outside of the United Kingdom, you shall be responsible for obtaining any necessary import or other licences or permits necessary for the entry of the Goods into your territory, or their delivery to you, and (where permitted) any export licences necessary for cross-border transportation within your territory. You shall also be responsible for any and all customs duties, clearance charges, taxes, brokers’ fees,freight, insurance and other amounts payable in connection with the importation and delivery of the Goods. You shall be responsible for ensuring that the Goods and all distribution complies with local laws and regulations.
5.2. Delivery shall be made to the address you have specified in the Order (“Delivery Address”).
5.3. We shall agree delivery dates with you from time to time. Any dates so specified by us for delivery are intended to be an estimate and whilst we shall take all reasonable steps to deliver the Goods as scheduled, time for delivery shall not be of the essence. In the event of a delay in scheduled delivery, we shall provide details of the delay as soon as reasonably possible. Subject to the other provisions of these Conditions, we shall not be liable for any direct, indirect or consequential loss (which
shall include, without limitation, pure economic loss, loss of profits, loss of business, ex gratia payments, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods,nor shall any delay entitle you to terminate or rescind the Contract unless such delay exceeds ninety (90) days.
5.4. Our liability for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Order rate against any invoice raised for such Goods.
5.5. Risk of damage to or loss of the Goods shall pass to you on an ExWorks (Incoterms 2020) basis.
5.6. Notwithstanding delivery and the passing of risk in the Goods or any other provision of these Conditions legal and equitable ownership of the Goods shall not pass to you until the later of delivery to the Delivery Address or we have received in cleared funds payment in full of the price of the Goods those particular Goods and all other sums which are or which become due to us from you on any account.
5.7. You shall be entitled to resell or use the Goods in the ordinary course of business but, until such time as ownership of the Goods passes to you, you shall account to us for the proceeds of sale or otherwise of the Goods whether tangible or intangible including insurance proceeds and your shall keep all such proceeds separate from any monies or your property and that of third parties and in the case of tangible proceeds properly stored protected and insured.
5.8. Until such time as ownership of the Goods passes to you (and provided the Goods are still in existence and have not been resold):
(a) you shall hold the Goods as our fiduciary agent and bailee and shall keep the Goods separate from those of your own and third parties and properly stored protected and insured and identified as our property and shall not destroy, deface or obscure any identifying mark on or packaging on or relating to the Goods or the packaging thereof; and
(b) we shall be entitled at any time to require you to deliver up the Goods to us and if you fails to do so forthwith, you grant an irrevocable licence to us, our agents and employees to enter upon any of your premises or any third party where the Goods are stored and repossess the Goods; and
(c) your right to possession and resale of the Goods shall terminate immediately and all monies due from you to us shall become forthwith due and payable, if you:
(i) are affected by any of the Events of Insolvency (see below);
(ii) suffer or allow any execution, whether legal or equitable, to be levied on your property or to be obtained against you;
(iii) encumber or in any way charge any of the Goods; or (iv) fail to observe or perform any of your obligations under any Contract. Recovery of Goods under this condition shall diminish your debt to us to the extent that such Goods are in first-class resalable condition and in accordance with the following buy back value:
Time elapsed from the discontinuance
by us of the specific Goods SKU recovered/ Value of the Goods
released to the recovery/ release date ("Buy Back Value")
0 days (Goods still in-season 95% of price
1-729 days 50% of price
730+ days 20% of price
5.9. We shall be entitled to maintain an action for the Price (and any other sums payable in accordance with these Conditions), notwithstanding that either or both of the legal and equitable title in such Goods has not passed to you.
5.10. Where we are unable to determine whether any Goods are the goods in respect of which your right to possession has terminated, you shall be deemed to have sold all goods of the kind sold by us to you in the order in which they were invoiced to you.
5.11. Notwithstanding that any delivery may be made ExWorks (Incoterms 2020), the Goods shall be deemed to have been delivered when they are placed at your disposal in accordance with ExWorks (Incoterms 2020), the location of the works to be determined by us from time to time; and we may agree to arrange shipment on your behalf, in which case:
5.11.1. We shall act as your agent in arranging shipment;
5.11.2. Such agreement shall not affect the point at which risk passes to you or the time at which delivery is effected;
5.11.3. The Price shall not include the cost of such shipment; and
5.11.4. We shall be under no obligation to give notice to you under section 32(3) of the Sale of Goods Act 1979.
5.12. If for any reason you fail to take delivery of any of the Goods when they are ready for delivery, or we are unable to deliver the Goods on time because you have not provided or put in place appropriate instructions, documents, licences, arrangements, or authorisations, then (a) risk in the Goods shall pass to you (including for loss or damage caused by our negligence); (b) the Goods shall be deemed to have been delivered; and (c) we may store the Goods until you shall arrange for their retrieval, and you shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
5.13. In the event that you fail to take possession of the Goods within a reasonable time (reasonableness shall be determined in our sole discretion) following the delivery date notified by us, we shall be entitled to consider the Order cancelled by you in breach of this Contract and we shall be entitled to release the Goods for use by us in whatever manner we see fit, without liability to you, except to refund to you the Buy-Back Value of the Goods. We shall have the right to charge you for all reasonable costs and losses incurred by us in connection with your failure to take possession of the Goods.
5.14. The quantity of any consignment of Goods as recorded by us on despatch from our place of business shall be conclusive evidence of the quantity received by you on delivery unless you can provide conclusive evidence to the contrary.
5.15. If we deliver to you a quantity of Goods of up to five per cent (5%) more or less than the quantity on your order, you shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such Goods (or be credited) at the pro rata rate of the Order.
5.16. We may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Order. Each instalment shall be deemed a separate Order and no cancellation or termination of any one Order relating to an instalment shall entitle you to repudiate or cancel any other Order or instalment.
5.17. You shall inspect the Goods at the Delivery Address and shall inform us by notice in writing of any discrepancy between the Goods and the Order and any patent defects or damage within twenty five (25) Working Days (“Working Days” shall mean any day on which the Bank of England is open for business) of the date of receipt by you or on your behalf of the Goods, following which we shall be given a reasonable opportunity to examine such Goods and you (if asked to do so by us) shall return such Goods to us at our cost. Where such Goods are proved to the reasonable satisfaction of both Parties to be damaged or defective solely due to our
faulty design or defects in material or workmanship in breach of condition 6.5, they shall be deemed defective and subject to condition 6.
5.18. This condition shall survive termination.
6. OUR WARRANTY
6.1. The images and descriptions of the Goods on our site are for illustrative purposes only. Although every effort has been made to display the colours accurately, we cannot guarantee that your computer’s display of the colours accurately reflect the colour of the Goods. This is not a sale by sample.
6.2. We reserve the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirement.
6.3. The Goods are intended for use only in the UK. We do not warrant that the Goods comply with the laws, regulations or standards outside the UK.
6.4. We provide a warranty that on delivery and for a period of 3 months from delivery, the Goods shall:
6.4.1. Be of satisfactory quality (within the meaning of the Sale of Goods Act 1979)
6.4.2. Be reasonably fit for any purpose held out by us.
6.5. Subject to condition 5.16, if:
6.5.1. You give us notice in writing within 14 days of discovery that some or all of the Goods do not comply with the warranty set out in condition 6.4;
6.5.2. We agree that the Goods do not comply with the warranty set out in condition 6.4
6.5.3. We will, at our option, repair or replace the defective goods, or refund the price of the defective goods in full.
6.6. We will not be liable for breach of the warranty set out in condition 6.4 if:
6.6.1. You make any further use of the Goods after giving notice to us under condition 6.5.1; Goods (or be credited) at the pro rata rate of the Order.
5.16. We may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Order. Each instalment shall be deemed a separate Order and no cancellation or termination of any one Order relating to an instalment shall entitle you to repudiate or cancel any other Order or instalment.
5.17. You shall inspect the Goods at the Delivery Address and shall inform us by notice in writing of any discrepancy between the Goods and the Order and any patent defects or damage within twenty five (25) Working Days (“Working Days” shall mean any day on which the Bank of England is open for business) of the date of receipt by you or on your behalf of the Goods, following which we shall be given a reasonable opportunity to examine such Goods and you (if asked to do so by us) shall return such Goods to us at our cost. Where such Goods are proved to the reasonable satisfaction of both Parties to be damaged or defective solely due to our
faulty design or defects in material or workmanship in breach of condition 6.5, they shall be deemed defective and subject to condition 6.
5.18. This condition shall survive termination.
6. OUR WARRANTY
6.1. The images and descriptions of the Goods on our site are for illustrative purposes only. Although every effort has been made to display the colours accurately, we cannot guarantee that your computer’s display of the colours accurately reflect the colour of the Goods. This is not a sale by sample.
6.2. We reserve the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirement.
6.3. The Goods are intended for use only in the UK. We do not warrant that the Goods comply with the laws, regulations or standards outside the UK.
6.4. We provide a warranty that on delivery and for a period of 3 months from delivery, the Goods shall:
6.4.1. Be of satisfactory quality (within the meaning of the Sale of Goods Act 1979)
6.4.2. Be reasonably fit for any purpose held out by us.
6.5. Subject to condition 5.16, if:
6.5.1. You give us notice in writing within 14 days of discovery that some or all of the Goods do not comply with the warranty set out in condition 6.4;
6.5.2. We agree that the Goods do not comply with the warranty set out in condition 6.4
6.5.3. We will, at our option, repair or replace the defective goods, or refund the price of the defective goods in full.
6.6. We will not be liable for breach of the warranty set out in condition 6.4 if:
6.6.1. You make any further use of the Goods after giving notice to us under condition 6.5.1;
7. INTELLECTUAL PROPERTY RIGHTS
7.1. You shall not do or permit to be done or omit to do any act or make any statement in any medium to any third party that will or may create notoriety or bring our name, logos, brands (including, without limitation, the Mahabis trademark), the Goods, business or reputation into public disrepute or reflect adversely on us or our products, or otherwise devalue our trademarks or our associated brands and all rights of the same or similar effect or nature in any jurisdiction (“Intellectual Property
Rights”) owned or licensed to us relating to the Goods, including but not limited to in any way dealing in or being involved in any business or with any products which breach our Intellectual Property Rights or may be deemed copycat products.
7.2. Except as expressly provided in these Conditions, you shall have no rights in respect of our Intellectual Property Rights and you acknowledges that, except as expressly provided in these Conditions, you shall not acquire any rights in respect thereof and that all such Intellectual Property Rights are and shall remain vested in
or controlled by us.
7.3. No warranty is given to you in respect of any claims of infringement of the Intellectual Property Rights of a third party arising from the use, promotion or sale of the Goods or Marketing Material supplied by us.
7.4. You shall immediately inform us of any infringement of our Intellectual Property Rights relating to the Goods or of any claim that the Goods or our Intellectual Property Rights infringe the Intellectual Property Rights of a third party and shall:
7.4.1. Provide us (at our cost) with all reasonable assistance in respect of taking or defending any action in respect of such infringement; and
7.4.2. Not make any statement to any third party which may prejudice our position, our bringing or defence of any claim and the conduct of any associated settlement negotiations.
8. INDEMNITY
8.1. You shall indemnify us and keep us indemnified immediately on demand against all loss (including consequential loss and loss of profits), expense, damage, claim, fine, demand, proceeding, charge, or cost directly or indirectly suffered or incurred by us as a result of your breach of these Conditions.
8.2. This condition is without prejudice to any of our other rights or remedies, whether under any Contract or not.
9. LIABILITY
9.1. Nothing in these Conditions limits or excludes our liability for
(a) Death or personal injury caused by our negligence;
(b) Fraud or fraudulent misrepresentation;
(c) Any other liability that cannot be limited or excluded by law.
9.2. Subject to condition 9.1, we will under no circumstances be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
9.2.1. Any loss of profits, sales, business, or revenue;
9.2.2. Loss or corruption of data, information or software;
9.2.3. Loss of business opportunity;
9.2.4. Loss of anticipated savings;
9.2.5. Loss of goodwill; or
9.2.6. Any indirect or consequential loss.
9.3. Subject to condition 9.1, our total liability to you for all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will in no circumstances exceed the Price of the Goods purchased by you from us in the 12 months preceding the event leading to the claim.
10. TERMINATION
10.1. Without limiting any of our other rights, we may suspend the supply or delivery of the Goods to you, or terminate the Contract with immediate effect by giving written notice to you if:
10.1.1. You commit a material breach of any term of the Contract and (if such a breach is remediable) fail to remedy that breach within 10 days of you being notified in writing to do so;
10.1.2. You fail to pay any amount due under the Contract on the due date for payment;
10.1.3. You are affected by any Events of Insolvency;
10.1.4. You suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business; or
10.1.5. Your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy.
10.2. Upon termination, all invoices and other sums outstanding shall become immediately due to us.
10.3. Termination of the Contract shall not affect your or our rights and remedies that have accrued as at termination.
10.4. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
11. FORCE MAJEURE
11.1. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (“Force Majeure Event”).
11.2. If Force Majeure Event takes place that affects the performance of our obligations under the Contract our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Force Majeure Event. Where the Force Majeure Event affects our delivery of Goods to you, we will arrange a new delivery date with you after the Force Majeure
Event is over.
11.3. You may cancel the Contract affected by an Force Majeure Event which has continued for more than 90 days.
12. COMMUNICATIONS BETWEEN US
12.1. When we refer to “in writing” in these Conditions, this includes email.
12.2. All notices given pursuant to this Agreement by the parties shall be in writing and signed by or on behalf of the party giving it and shall be deemed to be given when delivered in person or received by post or courier to the address notified in the Order or to such other addresses as any Party may notify to the other in writing.
12.3. Any notice given pursuant to these Conditions by post shall be deemed, unless the contrary is proved, to have been received on the day emailed, two (2) Working Days from the date of posting if from and to an address in the UK and five (5) Working Days from the date of posting if from and/or to an address elsewhere.
13. GENERAL
13.1. Each of our rights or remedies under any Contract is without prejudice to any of our other rights or remedies, whether under any Contract or not.
13.2. If any condition or part of any condition shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable in any way, such invalidity or unenforceability shall in no way impair or affect any other Condition or part of any Condition, all of which shall remain in full force and effect and shall not be affected thereby.
13.3. You shall keep confidential and shall not without our prior written consent disclose to any third-party any technical, know-how, data or other commercial information which you have acquired from us as a result of discussions, negotiations and other communications between us relating to the Goods and any Contract.
13.4. We may assign or transfer our rights and obligations under the Contract to another entity. You may only assign or transfer your rights or your obligations under the Contract to another person if we agree in writing.
13.5. The Contract is the entire agreement between us in relation to its subject matter. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
13.6. Any variation of the Contract only has effect if it is in writing and signed by you and us.
13.7. Failure or delay us in enforcing or partially enforcing any provision of any
Contract shall not be construed as a waiver of any of our rights under that or
any other Contract. Any waiver by us of any breach of, or any default under, any
provision of the Contract by you shall not be deemed a waiver of any subsequent
breach or default and shall in no way affect the other terms of that Contract.
13.8. No term of any Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.9. These Conditions and any Contract and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law, and the parties irrevocably submit to the exclusive jurisdiction of the English courts.