Terms of Condition of Sale
‘Contract’: the contract between Wild and Wolf and the Customer for the sale and purchase of the Goods in accordance with these Terms;
‘Customer’: the person, firm or company who purchases the Goods from Wild and Wolf;
‘Delivery Date’: the date and time for delivery of the Goods specified in the Confirmation Order and agreed by Wild and Wolf;
‘Dispatch Note’: the dispatch note which shall accompany each delivery of Goods and which shall include the quantity and description of the Goods to be supplied by Wild and Wolf to the Customer in relation the relevant Order Confirmation and details of the relevant order number, dispatch date, dispatch number, Customer order number, order date and the Customer’s account number;
‘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 Confirmation Order;
‘Order Confirmation’: written or emailed confirmation of the Goods to be supplied by Wild and Wolf in response to the relevant Purchase Request which shall contain details of the Goods to be supplied, the Delivery Date and the Delivery Location and which shall constitute acceptance of the Purchase Request;
‘Price’: the price(s) contained in the Wild and Wolf price list applicable at the date of the Confirmation Order or as otherwise agreed in writing between Wild and Wolf and the Customer, subject to the provisions of clause 4.2 below;
‘Pro-forma’: full payment made by the Customer to Wild and Wolf in respect of the Goods in advance of delivery;
‘Purchase Request’: the Customer’s request to purchase Goods, as may be communicated by the Customer to Wild and Wolf by any means whether orally or in writing;
‘Relevant Information’: the details of the Customer including the full name of the proprietor or company, addresses, telephone number, bank details and two trade references.
‘Terms’: Wild and Wolf’s standard Terms and Conditions of Sale set out here.
‘Wild and Wolf': Wild and Wolf Limited (registered in England and Wales with company number 05382617) with registered office: 20 Manvers Street, Bath, BA1 1JW, U.K.
2. BASIS OF CONTRACT
2.1 These Terms alone shall govern the Contract, rather than any others subject to which any Purchase Request is made or purported to be made by the Customer. If there is any conflict between these Terms and any Customer’s terms, these Terms shall prevail. If, however, there is any conflict between these Terms and any Order Confirmation, the Order Confirmation shall prevail.
2.2 The Purchase Request constitutes an offer by the Customer to purchase the Goods in accordance with these Terms. The Customer is responsible for ensuring that the terms of the Purchase Request are complete and accurate.
2.3 The Purchase Request shall only be deemed to be accepted when Wild and Wolf issues an Order Confirmation in response to a Purchase Request, at which point the Contract shall come into existence.
3. ORDERS AND ORDER SIZE
3.2 For orders to most parts of mainland UK:
3.2.1 Subject to the provisions of this clause and clause 5.4, the minimum order value in respect of each consignment of Goods is £200 (excluding value added tax (VAT)) or such other amount as may be notified by Wild and Wolf to the Customer from time to time. Minimum order quantities may also apply to each range.
3.2.2 Back orders are kept until shipped by Wild and Wolf or cancelled by the Customer or Wild and Wolf.
3.2.3 Back orders below £100 will not be shipped. For back orders below £100 Wild and Wolf will contact the Customer in order to discuss an increase in the order value. However back orders of £100 and above will be shipped at the discretion of Wild and Wolf. These back orders will not incur a carriage charge.
3.3 The Goods bought from Wild and Wolf’s UK sales office have been specified and produced to UK & EU standards; the Goods bought from its US sales office have been specified and produced to US & Canadian standards and the Goods bought from its Australian sales office have been specified and produced to Australian Standards.
Wild and Wolf can supply evidence where requested that Goods of this type pass these standards: test reports supplied will be a maximum 12 months old for toys and 24 months old for all other products, based on the “Goods Ready Date”. If the Customer requires its particular Goods to be tested, or a more recent report, the Customer will have to pay an additional charge. Wild and Wolf recommends that if Customers want to ship their Products outside the sales territory, they contact Wild and Wolf who can advise if the Products are compliant for the destination territory.
If the Customer requires the Goods to comply with any standards outside US, CAN, EU or AUS requirements, it must advise Wild and Wolf in detail at the quotation stage. Wild and Wolf will confirm whether or not the Goods can comply with such standards and will also notify the Customer of any necessary additional test costs in connection with this. If such additional test costs are agreed by the Customer, such costs will be notified to the Customer and must be paid for by the Customer by return.
It is the Customer’s responsibility to:
3.3.1 Pay for the agreed testing to their market standards (if different from US/CAN/EU/AUS. See also paragraph above.)
3.3.2 If new labelling is needed to comply with other territories’ legislation, then the Customer is responsible for this and for the translation, as appropriate.
3.3.3 Any advance samples required for additional testing required by the Customer must be specified at time of quotation (how many needed etc.) – so Wild and Wolf can advise of extra costs/whether possible.
3.3.4 The Customer must let Wild and Wolf know at the time of quotation if release of Goods to freight forwarder is dependent on results of additional tests and also how long is required between receipt of samples and results of testing.
3.3.5 Wild and Wolf will supply an English version of the Declaration of Conformity and translations are the Customer’s responsibility to arrange.
3.3.6 For sales to Europe only: Wild and Wolf requires 30 days’ notice to supply the technical file according to the New Toy Safety Directive 2009/48/CE. The technical file will be formatted as Wild and Wolf would normally supply it; any adaptations to be made by the Customer following supply of such technical file.
4. PRICE AND PAYMENT
4.1 The Price for the Goods is exclusive of VAT, applicable from time to time and any other duties or charges whatsoever for which the Customer shall additionally be liable and which shall be invoiced to the Customer.
4.2 Wild and Wolf reserves the right to increase the Price:
4.2.1 by giving not less than 1 month’ notice in writing and the Price as so altered shall apply to all Goods delivered on or after the applicable date of the increase; and
4.2.2 by giving notice to the Customer at any time before the Delivery Date, to reflect any increase in cost to Wild and Wolf due to any factor beyond Wild and Wolf’s control.
4.3 Excepting those orders made on a Pro Forma basis, Wild and Wolf may invoice the Customer for the Goods on or at any time after dispatch of the Goods from Wild and Wolf to the Delivery Location. The time for payment shall be of the essence of the Contract. The Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. If the Customer fails to pay Wild and Wolf the full amount by the due date then without prejudice to any other remedy available to Wild and Wolf, Wild and Wolf reserves the right to implement The Late Payment of Commercial Debt (Interest) Act 1998 including:
4.3.1 charging the Customer interest on the amount unpaid at the rate of 4% per annum above the base rate of Barclays Bank Plc. Interest will accrue from day to day and will be compounded on the last day of each calendar month until payment is made in full;
4.3.2 cancelling any contracts with the Customer or suspend any further deliveries to the Customer under these Terms or any other contract; or
4.3.3 reverting to Pro-Forma basis in respect of any other contract with the Customer at any time thereafter.
4.4 The Customer shall not be entitled to set off any claims it might have against Wild and Wolf against any sums due to Wild and Wolf under the Contract.
5. DELIVERY, RISK AND TITLE
5.1 Wild and Wolf shall ensure that each delivery of the Goods is accompanied by a Dispatch Note.
5.2 Wild and Wolf shall deliver the Goods on the Delivery Date to the location set out in the Order Confirmation or such other location as the parties may agree (Delivery Location). The Delivery Date is approximate only, and the time of delivery is not of the essence. Wild and Wolf shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Wild and Wolf with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.3 Delivery is completed on completion of unloading of the Goods at the Delivery Location.
5.4 In respect of Goods to be supplied:
5.4.1 within the UK with an order value of less than £400 (excluding VAT) the Customer shall pay £12.50 (excluding VAT) for transport and packing. For orders above £400, the Customer will not be charged carriage;
5.4.2 ROI and Channel Islands: minimum order value is €250. For orders between €250 - €500, the Customer shall pay €30 per order. For orders above €500, the Customer will not be charged carriage; and
5.4.3 in relation to any other destination, such orders shall be charged at Wild and Wolf’s carrier cost or on such terms as agreed in advance between Wild and Wolf and the Customer. Any Customs clearance charges and local taxes that may apply shall also be paid by the Customer.
5.5 The cost of insurance of the Goods from Wild and Wolf’s premises (or other agreed premises of its agents) to the agreed destination shall be borne by Wild and Wolf. This means that the risk of loss of or damage to the Goods shall pass from Wild and Wolf to the Customer upon delivery of the Goods to the agreed address of the Customer or its agent.
5.6 Notwithstanding delivery of the Goods and the risk in the Goods passing to the Customer on delivery pursuant to clause 5.5, title to the Goods shall be retained by Wild and Wolf until all sums due from the Customer to Wild and Wolf under any Contract or otherwise have been paid in full. Payment of the full Price of the Goods shall include the amount of any interest or other sum payable under these Terms and any other contract between Wild and Wolf and the Customer under which the Goods were delivered.
5.7 Until title to the Goods has passed to the Customer pursuant to clause 5.6, the Customer shall:
5.7.1 hold all Goods in its possession on a fiduciary basis as Wild and Wolf’s bailee;
5.7.2 store the Goods (at no cost to Wild and Wolf) separately from all other goods of the Customer or any third party in such a way that the Goods remain readily identifiable as Wild and Wolf’s property;
5.7.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
5.7.4 maintain the Goods in satisfactory condition and keep them insured on Wild and Wolf’s behalf for their full price against all risks to the reasonable satisfaction of Wild and Wolf. On request the Customer shall produce the policy of insurance to Wild and Wolf.
5.8 If the Customer fails to pay any amount due to Wild and Wolf under a Contract by the due date (time being of the essence), Wild and Wolf shall have the right (without prejudice to any of its other rights) to re-possess and/or resell any Goods in the Customer’s possession and may enter the Customer’s premises for that purpose.
6.1 Nothing in this Contract shall limit or exclude Wild and Wolf’s liability for death or personal injury caused by its negligence or the negligence of its employees, for fraud or fraudulent misrepresentation or for any matter in respect of which it would be unlawful for Wild and Wolf to exclude or restrict liability. Wild and Wolf 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.
6.2 Any claim by the Customer in relation to:
6.2.1 damage to the Goods;
6.2.2 shortages in the Goods; or
6.2.3 any other discrepancies in relation to the Goods
caused in transit shall be notified in writing or by email to Wild and Wolf within 5 working days of delivery of the Goods to the Delivery Location. For the avoidance of doubt, the Customer shall safeguard the Goods which are the subject of this clause 6.2 until such time as Wild and Wolf, in its sole discretion, instructs the Customer to return the Goods to Wild and Wolf, or make the Goods available for collection by Wild and Wolf, or dispose of the Goods.
6.3 If the Customer does not notify Wild and Wolf in accordance with clause 6.2, the Customer shall not be entitled to reject the Goods and Wild and Wolf shall have no
liability for any such damage, and the Customer shall be bound to pay the full amount as if the Goods had been delivered in accordance with the Confirmation Order.
7. 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 three (3) months, the party not affected may terminate this Contract by giving 28 days’ written notice to the affected party.
8.1 Without limiting its other rights or remedies, Wild and Wolf may terminate these Terms with immediate effect by giving written notice to the Customer if:
8.1.1 the Customer commits a material breach of any term of the Terms and (if such breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
8.1.2 the Customer takes any step in connection with its entering administration, provisional liquidation or any composition 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;
8.1.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or part of its business; or
8.1.4 the Customer’s financial position deteriorates to such an extent that in Wild and Wolf’s opinion the Customer’s capability to adequately fulfil its obligations under these Terms has been placed in jeopardy.
8.2 Without limiting its other rights or remedies, Wild and Wolf may suspend provision of the Goods under the Contract or any other contract between the Customer and Wild and Wolf if the Customer becomes subject to any of the events listed in clause 8.1.1 to 8.1.4, or Wild and Wolf 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.
8.3 Without limiting its other rights and remedies, Wild and Wolf 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 and remains in default not less than 14 days after being notified in writing to make such payment.
8.4 On termination of the Contract for any reason the Customer shall immediately pay to Wild and Wolf all of Wild and Wolf’s unpaid invoices and interest.
8.5 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.
8.6 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.
9. COPYRIGHT AND INTELLECTUAL PROPERTY
9.1 ‘Wild and Wolf’ may not be used by the Customer as a domain name or part of a domain name associated with selling the Goods.
9.2 Any images featuring the Goods or any other Wild and Wolf products can only be used with prior written consent by an authorised officer of Wild and Wolf.
9.3 The Customer may not reproduce or use the rights (including but not limited to brand names, trademarks and descriptions of Goods) owned by Wild and Wolf in relation to the Goods or otherwise, except with Wild and Wolf’s prior written consent.
10.1 Unless expressly provided in the Contract, no term of the Contract is enforceable as a result of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
10.2 The Contract constitutes the entire agreement and understanding between the parties and replaces any previous agreements between them. No variation of these Terms shall be binding unless agreed in writing or by e-mail by the authorised representative of both parties.
10.3 The Customer shall not assign or sub-licence its obligations under the Contract without the prior written consent of Wild and Wolf. Wild and Wolf shall be entitled to assign the Contract within the DC Thompson group companies (as defined in the Companies Act 1985, as amended).
11. LAW AND JURISDICTION
11.1 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 and construed in accordance with the law of England and Wales.
11.2 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.
(March 2019 version)