1. Interpretation

1.1 Definitions:

Ashwood Gifts: Ashwood Gifts Limited (registered in England and Wales with company number 09275336).

Bargain Packs: means products 4468 25p Bargain Pack, 5176 50p Bargain Pack, 4175 £1 Bargain Pack and each Bargain Pack contains a random assortment of toy and gift items which have a normal trade value that is higher than the Bargain Pack price.

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.3.

Contract: the contract between Ashwood Gifts and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from Ashwood Gifts.

Credit Account Application Form: an application form completed and submitted to Ashwood Gifts by which a Customer applies for a credit account with Ashwood Gifts.

Force Majeure Event: an event or circumstance beyond a party’s reasonable control. 

Goods: the goods (or any part of them) set out in the Order including Grotto Items and Seasonal Items.

Grotto Items: Goods which are intended for use by the Customer in a Christmas grotto. 

Grotto Bargain Packs: each Bargain Pack contains a random toy suitable for a Christmas grotto gift which will have a normal trade value that is higher than the Bargain Pack price.

Order: the Customer's order for the Goods.

Seasonal Items: Goods which are themed for any Seasonal Period other than Grotto Items.  

Seasonal Period: means Christmas, Easter, Halloween and such other period that Ashwood Gifts may decide from time to time.

Specification: any specification for the Goods that is agreed by the Customer and Ashwood Gifts.


1.2 Interpretation

(a) A reference to a statute or statutory provision is a reference to such statute or 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.

(b) 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.

(c) A reference to writing or written includes faxes and emails.


2. BASIS OF CONTRACT

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.

2.3 The Order shall only be deemed to be accepted when Ashwood Gifts receives an Order from the Customer, at which point the Contract shall come into existence.

2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

2.5 Any samples, drawings or advertising produced by Ashwood Gifts and any illustrations contained in Ashwood Gifts’ catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

2.6 A quotation for the Goods given by Ashwood Gifts shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.


3. GOODS

3.1 The Goods are described in Ashwood Gifts’ catalogue as modified by any applicable Specification.

3.2  The Customer shall indemnify Ashwood Gifts 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 reasonable professional costs and expenses) suffered or incurred by Ashwood Gifts in connection with any claim made against Ashwood Gifts for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Ashwood Gifts’ use of the Specification. This clause 3.2 shall survive termination of the Contract.

3.3 Ashwood Gifts reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.


4. DELIVERY

4.1 Ashwood Gifts shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.

4.2 Ashwood Gifts shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Ashwood Gifts notifies the Customer that the Goods are ready.

4.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.

4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.

4.5 If Ashwood Gifts has attempted delivery but the Customer has not taken delivery of the Goods, Ashwood Gifts may, entirely at its discretion, resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.

4.6 If Ashwood Gifts delivers up to and including 10% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.

4.7     Ashwood Gifts may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.


5.  QUALITY

5.1 Ashwood Gifts warrants that on delivery, the Goods shall conform to the Specification, be of satisfactory quality and be fit for any purpose held out by Ashwood Gifts.

5.2 If:

(a) the Customer gives notice in writing to Ashwood Gifts within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;

(b) Ashwood Gifts is given a reasonable opportunity of examining such Goods; and

(c) the Customer (if asked to do so by Ashwood Gifts) returns such Goods to Ashwood Gifts’ place of business at Ashwood Gifts’ cost, Ashwood Gifts shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

5.3    Ashwood Gifts shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:

(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;

(b) the defect arises because the Customer failed to follow Ashwood Gifts’ oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

(c) the defect arises as a result of Ashwood Gifts following any drawing, design or Specification supplied by the Customer;

(d) the Customer alters or repairs such Goods without the written consent of Ashwood Gifts;

(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

5.4 Except as provided in this clause 5, Ashwood Gifts shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.

5.5 These Conditions shall apply to any repaired or replacement Goods supplied by Ashwood Gifts.


6. TITLE AND RISK

6.1 The risk in the Goods shall pass to the Customer on completion of delivery.

6.2 Title to the Goods shall not pass to the Customer until the earlier of:

(a) Ashwood Gifts receives payment in full (in cash or cleared funds) for the Goods and any other goods that Ashwood Gifts has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums; and

(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.

6.3 Until title to the Goods has passed to the Customer, the Customer shall:

(a) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(b) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(c) notify Ashwood Gifts immediately if it becomes subject to any of the events listed in clause 9.1; and

(d) give Ashwood Gifts such information relating to the Goods as Ashwood Gifts may require from time to time.

6.4  Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Ashwood Gifts receives payment for the Goods. However, if the Customer resells the Goods before that time:

(a) it does so as principal and not as Ashwood Gifts’ agent; and

(b) title to the Goods shall pass from Ashwood Gifts to the Customer immediately before the time at which resale by the Customer occurs.

6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.1, then, without limiting any other right or remedy Ashwood Gifts may have, Ashwood Gifts may, entirely at its discretion, at any time:

(a) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and

(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.


7. RETURNS

7.1 The Customer shall be entitled, at the entire discretion of Ashwood Goods, to return Goods to Ashwood Gifts, subject to clause 7.5, in accordance with this clause 7.

7.2 The Customer must notify Ashwood Gifts in writing that it intends to return:

(a) Grotto Items by no later than the 31 January immediately following the date of the Order, subject to a maximum value of returned items of 10% of the Order;

(b) Seasonal Items by no later than 21 Business Days after the Customer took delivery of such Seasonal Items, subject to a maximum value of returned items of 10% of the Order; or

(c) any Goods other than Grotto Items or Seasonal Items by no later than 12 consecutive months after the Customer took delivery of such Goods, (returns period).

7.3 Where notification is received by Ashwood Gifts in accordance with clause 7.2 the Goods must be received by Ashwood Gifts within seven Business Days of such notice being received.

7.4 Subject to clause 7.5, if:

(a) the Customer gives notice in writing to Ashwood Gifts during the returns period;

(b) Ashwood Gifts is given a reasonable opportunity of examining such Goods; and

(c) the Customer (if asked to do so by Ashwood Gifts) returns such Goods to Ashwood Gifts place of business or to the nearest Post Office to Ashwood Gifts at Ashwood Gifts’ cost,

Ashwood Gifts shall, at its option, provide a credit note to the Customer in the sum of the price of the Goods.

7.5 Ashwood Gifts shall not be required to take receipt of the Goods pursuant to clause 7.1 in any of the following circumstances:

(a) the value of the Goods returned pursuant to clause 7.2(c) in any 12 month period exceeds the higher of either 25% of the Customer’s previous calendar year’s Order expenditure or £3,000 but Ashwood Gifts shall take receipt of any Goods below this value;

(b) the Goods are not in the same condition as they were when the Customer took delivery of them, including where the Customer opens, alters, repairs or attaches RRP stickers to such Goods;

(c) the Goods have been discontinued from sale by Ashwood Gifts or were originally supplied as Bargain Packs or Grotto Bargain Packs;

(d) there is a defect with the Goods which arises because the Customer failed to follow Ashwood Gifts’ oral or written instructions as to the storage, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

(e) where the Goods are printed with a logo, are bespoke or specially made or Bargain Packs;

(f) the Customer is in arrears with any payments due to Ashwood Gifts;

(g) Grotto Items are not full, unopened cartons of presents (whether wrapped or unwrapped);

(h) there is a defect with the Goods which arises as a result of Ashwood Gifts following any drawing, design or Specification supplied by the Customer; or

(i) there is a defect with the Goods which arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.

7.6 Ashwood Gifts reserves the right to request reasonable evidence, including photographs, of Goods which any Customer claims are defective.

7.7 Title to, and risk in, the Goods shall pass to Ashwood Gifts on taking delivery of the returned Goods.


8.    PRICE AND PAYMENT

8.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Ashwood Gifts’ published price list in force as at the date of delivery.

8.2 Ashwood Gifts may, by giving notice to the Customer at any time up to 15 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

(a) any factor beyond Ashwood Gifts’ control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or

(c) any delay caused by any instructions of the Customer or failure of the Customer to give Ashwood Gifts adequate or accurate information or instructions.

8.3 The price of the Goods:

(a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Ashwood Gifts at the prevailing rate, subject to the receipt of a valid VAT invoice; and

(b) excludes the costs and charges of packaging, insurance and transport of the Goods, which may be invoiced to the Customer.

8.4 Ashwood Gifts may invoice the Customer for the Goods on or at any time after the completion of delivery.

8.5 The Customer shall pay the invoice in full and in cleared funds within the period specified in the Credit Account Application Form or, where no such period is specified, within five Business Days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Ashwood Gifts. Time for payment is of the essence.

8.6 If the Customer fails to make any payment due to Ashwood Gifts under the Contract by the due date for payment then, entirely at the discretion of Ashwood Gifts, the Customer shall pay interest on the overdue amount at the rate of 8.0% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

8.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Ashwood Gifts may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Ashwood Gifts to the Customer.


9. TERMINATION

9.1 Without limiting its other rights or remedies, Ashwood Gifts may terminate this Contract with immediate effect by giving written notice to the Customer if:

(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing to do so;

(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) the Customer’s financial position deteriorates to such an extent that in Ashwood Gifts’ opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

9.2 Without limiting its other rights or remedies, Ashwood Gifts may suspend provision of the Goods under the Contract or any other contract between the Customer and Ashwood Gifts if the Customer becomes subject to any of the events listed in clause 9.1(a) to clause 9.1(d), or Ashwood Gifts reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

9.3 Without limiting its other rights or remedies, Ashwood Gifts may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

9.4 On termination of the Contract for any reason the Customer shall immediately pay to Ashwood Gifts all of Ashwood Gifts’ outstanding unpaid invoices and interest.

9.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.

9.6 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.


10. LIMITATION OF LIABILITY

10.1 Nothing in these Conditions shall limit or exclude Ashwood Gifts’ liability for:

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); 

(b) fraud or fraudulent misrepresentation;

(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;

(d) defective products under the Consumer Protection Act 1987; or

(e) any matter in respect of which it would be unlawful for Ashwood Gifts to exclude or restrict liability.

10.2 Subject to clause 10.1:

(a) Ashwood Gifts shall under no circumstances whatsoever be liable to the Customer, 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) Ashwood Gifts’ total liability to the Customer 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 £1,000,000.


11. FORCE MAJEURE

Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for two weeks, the party not affected may terminate this Contract by giving 5 Business Days written notice to the affected party.


12.  GENERAL

12.1 Assignment and other dealings.

Ashwood Gifts or the Customer may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

12.2 Entire agreement.

(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

12.3 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

12.4 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

12.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

12.6 Notices.

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.

(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.6(a); if sent by pre-paid first class post or other next working day delivery service, at 9:00 am on the two Business Day after posting; 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 or email, one Business Day after transmission.

(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

12.7 Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.

12.8 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.

12.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.