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Terms and Conditions
ENESCO LTD CONDITIONS OF SALE FOR AUTHORISED RETAILERS OF BRANDED GIFTWARE PRODUCTS
These conditions of sale (“these Conditions”) shall form part of all contracts for the supply of branded giftware products (“the Goods”) manufactured and produced by Enesco Ltd. (“ Enesco”) to any retailer approved as an authorised reseller of the Goods (“the Authorised Retailer”) and shall prevail over any oral or written terms or conditions submitted by the Authorised Retailer unless otherwise expressly agreed in writing by Enesco.
2. Orders subject to Acceptance
2.1 No quotation which Enesco may make shall be a binding offer. An order placed by the Authorised Retailer shall be binding on Enesco only upon the earlier of Enesco’s acceptance in writing of the order and its appropriation of the Goods to the order.
2.2 Enesco may refuse to accept any order placed by the Authorised Retailer. The acceptance of any order does not constitute an obligation or promise to provide the Goods to the Authorised Retailer pursuant to any further subsequent orders placed by the Authorised Retailer.
3. Cancellation of Orders
Enesco reserves the right to refuse any cancellation or purported cancellation of orders placed by the Authorised Retailer where the Goods are ready for dispatch or are in the process of manufacture.
4.1 Delivery estimates are given in good faith and Enesco shall endeavour to adhere to them but time of delivery shall not be of the essence and no responsibility whatsoever is accepted by Enesco for any loss arising from delay in delivery.
4.2 Unless previously agreed in writing, and subject to Clause 8 of this Agreement, delivery shall be made to the premises of the Authorised Retailer and the Authorised Retailer shall be deemed to accept the Goods on delivery.
4.3 Enesco shall be entitled to deliver the Goods in instalments, in which case each instalment shall be treated as an entirely separate contract and any default or breach by Enesco in respect of any instalment shall not entitle the Authorised Retailer to cancel any other instalment or treat the contract for the sale of all the Goods as a whole as being repudiated.
5.1 Subject to compliance with Enesco’s prevailing minimum shipment values, all prices quoted by Enesco shall include the cost of packing and delivery to the Authorised Retailer’s premises. Where the value of a shipment falls below Enesco’s prevailing minimum shipment value, Enesco shall be at liberty to make such additional charge as it considers reasonable. Unless otherwise stated the prices quoted shall be net of all taxes, duties, fees and other charges which shall additionally be paid by the Authorised Retailer.
5.2 Prices are subject to change and the actual price to be paid for the Goods by the Authorised Retailer shall be the price ruling at the time when the Goods are despatched by Enesco.
6.1 The Authorised Retailer shall make payment to Enesco, in the manner specified by Enesco, in respect of all invoices relating to the Goods in the currency stated in Enesco’s invoice in full and without any deduction or set off (whether in relation to such invoice or otherwise) within thirty (30) days, or such other period as Enesco and Authorised Retailer shall mutually agree, of the date of the invoice which may be issued by Enesco as soon as the Goods have been despatched.
6.2 The time of payment for all sums due from the Authorised Retailer to Enesco shall be of the essence. Any late payment by the Authorised Retailer shall entitle Enesco to treat as void any other unexecuted contract then existing between the Authorised Retailer and Enesco. In those circumstances Enesco shall have no liability whatsoever to the Authorised Retailer.
6.3 Enesco may charge interest at the rate of 2% per month or part of a month or such other rate as Enesco may notify to the Authorised Retailer from time to time on any balance outstanding after the due date until full settlement is received (whether before or after any judgment).
6.4 All payments shall be applied to invoices, goods listed in such invoices and to interest due to Enesco in the order determined in its discretion by Enesco.
6.5 Where appropriate, prompt payment discount may be shown on the face of the invoice. Enesco reserves the right to vary the terms of such prompt payment discount from time to time.
7. Property and Risk
7.1 From the time of the delivery to the Authorised Retailer the Goods shall be at the risk of the Authorised Retailer. The Authorised Retailer shall then be solely responsible for their custody, maintenance and insurance.
7.2 The Goods shall remain Enesco’s property until Enesco has received payment in full for the Goods and all sums due in connection with the supply of all other goods and services to the Authorised Retailer by Enesco at any time or until the Goods are sold by the Authorised Retailer in good faith in the ordinary course of business at full market value.
7.3 Until the sale by the Authorised Retailer of the Goods as aforesaid the Authorised Retailer shall hold the Goods as bailee and keep them separate and identifiable from all other goods in the Authorised Retailer’s possession. For the avoidance of doubt the Goods and all other goods supplied to the Authorised Retailer by Enesco at any time shall be deemed to belong to Enesco unless the Authorised Retailer can prove otherwise.
7.4 In the event of their sale by the Authorised Retailer as aforesaid or in any other event whereby title to the Goods passes from Enesco, the Authorised Retailer shall account to Enesco in respect of the proceeds of sale or other consideration received by the Authorised Retailer including insurance proceeds, shall hold such proceeds or consideration or any claim therefore upon trust for Enesco and separate from any other monies or property of the Authorised Retailer or third parties and shall stand in a strictly fiduciary capacity in respect thereof. The Authorised Retailer shall maintain records of the persons to whom it sells or disposes of the Goods and of the payments made by such persons for the Goods and shall (to the extent it is able to do so in accordance with applicable data protection legislation) allow Enesco to inspect such records and the Goods themselves on request. Enesco shall be entitled to trace to the proceeds of sale or otherwise of the Goods.
7.5 Until title to the Goods or any of them passes to the Authorised Retailer the Authorised Retailer shall, if Enesco so requests, deliver up the Goods or any of them to Enesco on demand. If the Authorised Retailer fails to do so Enesco shall be entitled to enter upon any premises of the Authorised Retailer or any third party where the Goods are stored and repossess them. The Authorised Retailer shall procure that any third party which holds them shall permit Enesco to take possession of them. Enesco shall be entitled to use or dispose of the Goods as it wishes. Unless Enesco expressly elects otherwise any contract between it and the Authorised Retailer for the supply of the Goods shall remain in existence notwithstanding any exercise by Enesco of any of its rights under this clause.
7.6 The Authorised Retailer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods but if the Authorised Retailer does so all monies owed by the Authorised Retailer to Enesco shall (without prejudice to any other right of Enesco) forthwith become due and payable.
8. Liability for Defective Goods or Short Delivery
8.1 Enesco shall replace any of the Goods which are defective provided:
8.1.1 the defect is proved to Enesco’s reasonable satisfaction to be due to bad workmanship or materials or to negligence on the part of Enesco;
8.1.2 Enesco is advised of the alleged fault as soon as possible and in any event within 7 days of the Goods in question having been received by the Authorised Retailer; and
8.1.3 the Goods alleged to be defective are adequately packed to prevent damage and are returned to Enesco in accordance with Enesco’s instructions.
8.2 If any of the Goods shall prove to be defective such defects shall not entitle the Authorised Retailer to refuse delivery of, or payment for, the remainder of the Goods.
8.3 Enesco shall have no liability to the Authorised Retailer for any short delivery unless Enesco is advised of such short delivery within 7 days of the invoice date.
8.4 Enesco shall be liable for any death or personal injury arising from use or supply of the Goods only to the extent that it results from the proven negligence of Enesco or its employees,
8.5 Enesco shall be liable to the Authorised Retailer for any direct physical damage other than death or personal injury to the extent that it results from the negligence of Enesco or its employees up to a maximum of £50,000.
8.6 Enesco’s total liability for any indirect, special or consequential damages, howsoever arising, (including, but not limited to, loss of anticipated profits) in connection with, or arising out of, the furnishing, functioning or use of the Goods or any item or service supplied by Enesco shall be limited to the purchase price of the Goods and Enesco shall not be liable for any damages except as provided in these Conditions.
8.7 There are no warranties, conditions, guarantees or representations as to suitability or fitness for a particular purpose of the Goods or other warranties, conditions, guarantees or representations whether express or implied, oral or in writing, except as expressly stated in these Conditions or as provided by operation of law.
9.1 Enesco shall endeavour to ensure that descriptions and specifications which it provides are correct when given, but reserves the right to alter such specifications and descriptions without notice.
9.2 If a sample of the Goods has been exhibited to and Inspected by the Authorised Retailer then such sample was exhibited and inspected solely to enable the Authorised Retailer to judge the quality of the bulk of the Goods end not so as to constitute a sale by sample.
9.3 Enesco shall have no liability in respect of any deviations from any description or specification of the Goods and any such deviation shall not be a ground for refusal to accept delivery or cancellation of any contract or order for the Goods, except as provided by operation of law.
9.4 The Authorised Retailer shall be responsible for ensuring that the quantity and description of the Goods on Enesco’s Order Acknowledgement form corresponds with the goods that the Authorised Retailer wishes to be supplied with and Enesco shall not be responsible for any wrong delivery of goods which results from any misdescription on the Order Acknowledgement form.
10. Consumer Sales
No provision contained in these Conditions in any way alters any statutory rights available to the Authorised Retailer who buys as a consumer.
11. Marketing and Sales
11.1 The Authorised Retailer shall sell the Goods as principal only.
11.2 The Authorised Retailer has been approved by Enesco as a retailer of the Goods, Enesco being satisfied that the Authorised Retailer shall market and sell the Goods in a manner that maintains the high quality public image, branding and reputation of the Goods and shall operate high standards of shopfitting and display in respect of the Goods.
11.3 Unless with the prior written consent of Enesco, the Authorised Retailer shall only market and sell the Goods from its own retail premises (including its own website) and shall at all times ensure that its marketing and sales activities maintain the high quality public image, branding and reputation of the Goods. Enesco undertakes only to withhold its consent to a third-party website where there is a genuine risk of the goods being wrongly attributed to the third-party.
11.4 All catalogues, literature, advertisements and other promotional copy used by the Authorised Retailer (including material used on its own website or on other websites) in its promotion or resale of the Goods which incorporate references to Enesco, its corporate name or any of the Brand Names (“Brand Names” being the name Enesco and any brand names of the Goods forming part of the collections Enesco displays on its website at www.enesco.co.uk from time to time) must be submitted to Enesco for written approval prior to printing, use or publication by or on behalf of the Authorised Retailer.
11.5 The Authorised Retailer must not represent itself or its business, whether by way of its website, its internet marketing or otherwise, in a manner which is likely to cause the viewer to believe that the Authorised Retailer is, or that it or its website is associated or affiliated with or endorsed by, Enesco (and/or Enesco LLC) in any capacity other than as an authorised reseller of the Goods. Without limitation to the generality of this obligation, the Authorised Retailer must ensure that it does not register or use a domain name that consists of or includes any of the Brand Names, or any confusingly similar term to any of the Brand Names.
11.6 Enesco reserves the absolute right to terminate the contract in accordance with clause 15 should it believe the marketing and sales activities of the Authorised Retailer are damaging the public image, branding and reputation of the Goods.
12. Willow Tree Brand Restrictions
12.1 The following provisions of this clause 12 apply specifically and additionally to the Willow Tree brand and are without prejudice to clause 11 above.
12.2 The Authorised Retailer may not use a domain name that includes the terms “willow tree” (as two words, one word or in any form).
12.3 The Authorised Retailer’s website must display a prominent disclaimer stating: “Willow Tree is a registered trademark of Susan Lordi. The right to distribute Willow Tree® products in licenced territories is granted under a licence exclusive to Enesco, LLC and its subsidiaries. Other than in its capacity as an independent authorised reseller, neither the owner of this website nor this website is affiliated with, endorsed by or sponsored by Susan Lordi, DEMDACO, Enesco Ltd and/or Enesco, LLC.”
12.4 Any copyright notice displayed on a reseller’s website that refers to copyright ownership of the website (as opposed to the copyright ownership of the Willow Tree products) must be in the name of the owner of the website and may not include the term “willow tree.” For example, if ABC Company operates a website on which authorised Willow Tree products are sold, the copyright notice for the website (not the Willow Tree products) should read: “© 2019 ABC Company.” The Authorised Retailer must not present its website or use its internet marketing efforts in a manner which would cause the viewer to believe that the website is associated with or endorsed by Willow Tree, DEMDACO, Enesco Ltd and/or Enesco LLC in any capacity other than an authorised reseller of Willow Tree® products.
12.5 If the Authorised Retailer decides to market online in a manner inconsistent with these conditions, Enesco may exercise its right not to make further sales to that account, as well as take such action as may be necessary to protect the intellectual property rights associated with Willow Tree® products.
13. Licences, Consents and Confidentiality
13.1 If any licence or consent of any nature whatsoever is required by the Authorised Retailer for the acquisition, carriage or use of the Goods then the Authorised Retailer shall obtain the same at its own expense. Failure to do so shall not entitle the Authorised Retailer to withhold or delay any payment due to Enesco nor shall it entitle the Authorised Retailer to cancel any contract or order for the Goods.
13.2 All designs, specifications, drawings, documents, information and know-how disclosed by Enesco to the Authorised Retailer shall be treated by the Authorised Retailer as confidential. The Authorised Retailer shall not disclose deal with or use such information except as authorised by Enesco. The Authorised Retailer shall indemnify Enesco against any loss or damage including costs and expenses arising as a result of any breach by the Authorised Retailer of the provisions of this sub clause.
14. Third Party Rights
14.1 Enesco shall at its expense defend any action against the Authorised Retailer and pay all damages and costs awarded against the Authorised Retailer (except to the extent that the Authorised Retailer is entitled to recover such sums under any policy of insurance) based on a claim in any court in Europe that any of the Goods constitute an infringement of any patent or copyright or other intellectual property rights in a European jurisdiction or misuse any confidential information belonging to any third party (“a Claim”) provided that:
14.1.1 Enesco shall be notified promptly in writing by the Authorised Retailer of any notice of a Claim;
14.1.2 Enesco shall have the sole control of the defence of any action based on a Claim and all negotiations for settlement or compromise;
14.1.3 the Authorised Retailer shall allow its name to be used in proceedings if necessary and provide all reasonable assistance in defending any action;
14.1.4 the Authorised Retailer shall not make any admissions, and shall not act, or omit to act, in any way which may be prejudicial to the defence or settlement of any action; and
14.1.5 the Authorised Retailer shall take all steps reasonably possible to mitigate or reduce any damages and costs which may be awarded against it as a result of a Claim.
14.2 If a Claim is successful or Enesco considers that it is likely to be successful, Enesco may, at its option or as part of a settlement or compromise, procure for the Authorised Retailer the right to continue selling the goods, modify the goods so that they are non-infringing or terminate the contract between the parties in so far as it applies to those Goods subject to the Claim, in which latter case Enesco shall refund to the Authorised Retailer the price paid for such Goods.
14.3 This clause states the entire obligation and liability of Enesco with respect to claims that any of the Goods constitute an infringement of any patent copyright or other intellectual property rights or misuse of confidential information belonging to a third party.
15.1 Enesco shall be entitled to terminate the contract between the parties forthwith by notice in writing to the Authorised Retailer:
15.1.1 if the Authorised Retailer commits an irremediable breach of these conditions, persistently repeats a remediable breech or commits any remediable breach and fails to remedy it within 30 days of receipt of notice of the breach requiring remedy of the same; or
15.1.2 if the Authorised Retailer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of solvent amalgamation or reconstruction) or the Authorised Retailer ceases, or threatens to cease, to carry on business or an encumbrancer takes possession, or a receiver or administrative receiver or manager is appointed of any of the property or assets of the Authorised Retailer or if Enesco reasonably apprehends that any of such events is about to occur in relation to the Authorised Retailer and notifies the Authorised Retailer accordingly.
15.2 In the event of termination by Enesco pursuant to clause 15.1 above then without prejudice to any other right or remedy available to Enesco, Enesco shall be entitled to suspend and/or cancel any further deliveries, or existing orders, without any liability to the Authorised Retailer and, if the Goods have already been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary and Enesco shall be entitled to charge interest (both before and after any judgment) at the rate of 2% per month or part thereof from the time of such termination until Enesco receives payment.
16. Severability and Waiver
16.1 If any term of these Conditions is or becomes invalid or unenforceable that term shall be modified to delete the invalid or unenforceable parts of it and shall be binding as so modified. All other terms shall remain in full force and effect.
16.2 Any failure by Enesco to exercise any right or remedy available to it under this agreement shall not operate as a waiver by Enesco of such right or remedy and shall in no way affect Enesco’s right later to enforce or exercise it or alter the obligations of the Authorised Retailer.
The Authorised Retailer shall not, directly or indirectly, sell the Goods for resale in any country other than a member state of the European Economic Area (EEA) nor actively solicit purchasers for the Goods, whether for resale or otherwise, in any other country within the EEA, where (in the case of EEA member states) the country is reserved to an exclusive distributor or exclusive retailer or exclusively to Enesco itself.
This agreement is personal to the Authorised Retailer and the Authorised Retailer may not assign, transfer, sub-contract or otherwise part with it or any right or obligation under it without Enesco’s prior written consent.
19. Whole Agreement
These Conditions set out the Entire Agreement between Enesco and the Authorised Retailer in relation to the subject matter of these Conditions.
20. Force Majeure
20.1 In this clause “Force Majeure” shall mean any circumstances beyond the reasonable control of Enesco including, without limitation, any strike, lock out, or other form of industrial action.
20.2 If Enesco is affected by Force Majeure it shall as soon as reasonably possible notify the Authorised Retailer of the nature and extent thereof.
20.3 Enesco shall not be in breach of this agreement or otherwise liable to the Authorised Retailer by reason of any delay in performance or non-performance of any of its obligations under these Conditions to the extent that such delay or non performance is due to any Force Majeure of which it has notified the Authorised Retailer and the time of performance of that obligation shall be extended by the same length of time as the Force Majeure lasts.
21. Applicable Law
These Conditions shall in all respects be construed in accordance with the laws of England and the parties accept the jurisdiction of the English Courts.
22. Data Protection
22.1 Information about the Authorised Retailer or its employees or agents will be retained by Enesco to update and develop Enesco’s records, to enable Enesco to administer the Authorised Retailer’s account and for assessment and analysis and may be disclosed to Enesco’s representative body, The Giftware Association, and to other companies who are members of The Giftware Association for monitoring and administrative purposes. Enesco may also inform you from time to time by e-mail, telephone, or mail about relevant news, information, services or products which it believes may be of interest to the Authorised Retailer.
22.2 Enesco will (to the extent it is able to do so in accordance with applicable data protection legislation) exchange information about the Authorised Retailer, its employees and agents with credit reference agencies which may be shared with other organisations in carrying out credit checks, assessing applications for credit and other facilities for preventing fraud and tracing debtors.
22.3 The Authorised Retailer may transfer the information which it collects to the USA, where data protection laws are not as comprehensive as in the European Union. In such cases, the Authorised Retailer has taken appropriate steps to ensure the same level of protection for such information in the USA as there is in the European Union.
23.1 Any notice required or permitted to be given under the Contract by either party shall be delivered by hand or sent by recorded delivery mail or by facsimile to the other party at its address and shall be deemed to have been given when actually received or, if recorded delivery mail, is marked “gone away” or to the like effect, on return of such recorded delivery mail.
23.2 In the event of any conflict between the English language version of these Conditions and a translation of them, the English language version shall prevail.