Wholesale & B2B Terms and Conditions

Functional Backpacks Ltd Terms and Conditions for the Supply of Products to Business Customers

1. Interpretation

The following definitions and rules of interpretation apply in these Conditions.

• Definitions:

Business Day	a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions	these terms and conditions as amended from time to time in accordance with clause 10.8.
Contract	the contract between FBL and the Customer for the supply of Products in accordance with these Conditions.
Customer	the person or firm who purchases the Products from FBL.
FBL	Functional Backpacks Ltd, incorporated and registered in England and Wales with company number 11688850, whose registered office is at The White House, Greenalls Avenue, Warrington, England, WA4 6HL.
Force Majeure Event	has the meaning given to it in clause 9.
Order	the Customer's order for the supply of Products, as may be set out in the Customer's purchase order in agreed format, or an order placed on the Website in the case of online sales.
Products	FBL’s Built For Athletes products and/or accessories supplied to the Customer by FBL  under any Contract.
Specification	the applicable FBL’s specification or description for the Products, as may be set out on the Website or FBL’s product catalogue.
Website	FBL’s website at https://builtforathletes.com/.

Interpretation:

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

A reference to a party includes its personal representatives, successors and permitted assigns.

A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

A reference to writing or written includes email.

2. Basis of contract
   • The Order constitutes an offer by the Customer to purchase the Products in accordance with these Conditions. The Order shall only be deemed to be accepted when FBL issues written acceptance of the Order at which point and on which date the Contract shall come into existence.
   • Supply of Products under any Order is subject to a successful credit check and subject to Orders not exceeding the Customer’s credit limit agreed by FBL.
   • The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
   • Any samples, drawings, descriptive matter, advertising and any descriptions (including sizes, dimensions and colours) of the Products contained on the Website or otherwise issued by FBL in marketing materials or product catalogues are issued or published for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract nor have any contractual force.
   • 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 law, trade custom, practice or course of dealing. 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.
   • All Products Ordered are subject to availability. FBL may at any time between the date of an Order and the date of despatch cancel all or any part of the Order or vary quantities of all or any part of the Order placed by the Customer at its own discretion on written notice to the Customer.
   • By entering into the Contract, the Customer represents and warrants that it is acting in the course of its trade or business.
3. Products
   • FBL may make changes to the Specification, provided the changes do not adversely affect the quality or nature of the Products or substantially deviate from the original size, dimensions or colour.
   • The Customer acknowledges and agrees that variation may occur from one dye batch to another and FBL shall not be liable for any such variation in colour of the Products.
   • The Customer acknowledges and agrees that when a sample of the Products has been shown to or inspected by the Customer, any consequent sale does not constitute a sale by sample.
   • FBL warrants that on delivery, the Products shall:
     • conform in all material respects with the Specification;
     • be free from material defects in design, material and workmanship; and
     • be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
   • Subject to clause 1, if:
     • the Customer gives notice in writing to FBL within three (3) Business Days of delivery that some or all of the Products do not comply with the warranty set out in clause 4;
     • FBL is given a reasonable opportunity of examining such Products;
     • it is shown to FBL’ reasonable satisfaction that any delivery of Products materially fails to comply with the warranty given in clause 4; and
     • the Customer (if asked to do so by FBL) returns such Products to FBL,

FBL shall, at its option, replace the defective Products or refund the price of the defective Products in full.

• FBL shall not be liable for the Products' failure to comply with the warranty set out in clause 4 if:
  • the Customer makes any further use of such Products after giving a notice in accordance with clause 5;
  • the defect arises because the Customer failed to follow FBL's instructions as to the storage or use of the Products or (if there are none) good trade practice regarding the same or as a result of wilful damage or negligence;
  • the Customer alters or repairs such Products without the written consent of FBL; or
  • the Products differ from the Specification as a result of changes made in accordance with clause 1.
• Except as provided in clause 4, FBL makes no other warranty and makes no representation as to description or quality.
• These Conditions shall apply to any repaired or replacement Products supplied by FBL.

4. Delivery of Products
   • Delivery shall be made in accordance with any delivery terms agreed between FBL and the Customer in writing. Orders placed online via the Website will be delivered to the Customer’s premises as provided by the Customer when placing the Order.
   • If FBL agrees to deliver the Products to the Customer:
     • FBL shall be entitled to nominate a carrier; and
     • the Customer shall acknowledge receipt of the Products by signing the appropriate delivery note and forward the signed delivery note to FBL as indicated on the relevant invoice.
   • Orders placed online via the Website will be fulfilled within 5 Business Days of receipt by FBL of payment for Products in full. All other Orders will be fulfilled within 10 Business Days of receipt by FBL of payment for Products in full.
   • Any dates and lead times quoted for delivery of the Products are approximate only, and the time of delivery is not of the essence.
   • FBL may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract.
   • The Customer shall examine the Products as soon as reasonably practicable after delivery. It is the Customer’s responsibility to check the size, style, fabric content, Specification, quality, and colour and/or any other matters relating to the Products on receipt of the Products and to verify that the Products delivered are in accordance with the Order.
   • The Customer shall notify FBL in writing within three (3) Business Days of delivery, (which the Customer agrees is a reasonable time) of any incomplete or failed delivery and of any loss or damage during carriage, failing which the Customer shall be treated as having waived all claims connected with such incomplete or failed delivery and all claims connected with such loss or damage.
5. Title and risk
   • The risk in the Products shall pass to the Customer on delivery.
   • Where and to the extent payment for the Products is made in advance, title to the Products shall pass to the Customer on delivery. In all other cases, title to the Products shall not pass to the Customer until the earlier of:
     • FBL receives payment in full and in cleared funds for the Products, in which case title to the Products shall pass at the time of payment of such sums; and
     • the Customer resells the Products, in which case title to the Products shall pass to the Customer at the time specified in clause 4.
   • Until title to the Products has passed to the Customer, the Customer shall:
     • store the Products separately from all other products held by the Customer so that they remain readily identifiable as FBL' property;
     • not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
     • maintain the Products in their original condition and keep them insured against all risks for their full price from the date of delivery;
     • notify FBL immediately if it becomes subject to any of the events listed in clause 1.2 to clause 8.1.4; and
     • give FBL such information as FBL may reasonably require from time to time relating to the Products.
   • Subject to clause 5, the Customer may resell or use the Products in the ordinary course of its business (but not otherwise) before FBL receives payment for the Products. However, if the Customer resells the Products before that time:
     • it does so as principal and not as FBL' agent; and
     • title to the Products shall pass from FBL to the Customer immediately before the time at which resale by the Customer occurs.
   • At any time before title to the Products passes to the Customer, FBL may:
     • by notice in writing, terminate the Customer's right under clause 4 to resell the Products or use them in the ordinary course of its business; and
     • require the Customer to deliver up all or some Products in its possession that have not been resold and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.

6. Price and payment
   • The price for Products:
     • for online Customers placing Orders via the Website shall be as set out in FBL’s catalogue for business customers applicable as at the date of the Order, as shall be made available to the Customer via its online account; and
     • for all other Customers, unless otherwise agreed between the parties in writing, shall be as set out in FBL’s price list applicable as at the date of the Order for the Customer’s territory, as shall be made available to the Customer.
   • Unless otherwise agreed between the parties in writing, the price for Products shall exclude costs of insurance, transport and delivery of the Products. FBL reserves the right to charge shipping costs and any other applicable costs in addition to the price for Products. The applicable shipping charges for online Orders shall be as stated on the Website.
   • The Customer shall pay the price for Products as follows:
     • online Customers placing Orders via the Website shall pay the price in advance, at the time of the Order; and
     • all other Customers shall pay the price in accordance with any payment terms agreed by FBL and confirmed in writing to the Customer for the relevant Order, and unless so agreed, within 30 days of the date of FBL’s invoice (which FBL may raise before, on or after delivery),

in full and in cleared funds to a bank account nominated in writing by FBL.

• Unless otherwise agreed in writing or stated in FBL’s catalogue or price list (as applicable), all amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax (VAT) and any other applicable taxes or duties chargeable from time to time.
• If the Customer fails to make a payment due to FBL by the due date, then, without limiting FBL' remedies, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
• All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

7. Limitation of liability
   • The restrictions on liability in this clause 7 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
   • Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
     • death or personal injury caused by negligence;
     • fraud or fraudulent misrepresentation; and
     • breach of the terms implied by section 12 of the Sale of Goods Act 1979.
   • Subject to clause 2, FBL's liability to the Customer in connection with the supply of Products shall not exceed the price of the Products supplied under the relevant Order in respect of which the liability arose.
   • Subject to clause 2, FBL shall not be liable to the Customer for:
     • loss of profits;
     • loss of sales or business;
     • loss of agreements or contracts;
     • loss of anticipated savings; and
     • indirect or consequential loss.
   • Subject to clause 2, FBL shall have no liability to the Customer in respect of the Products' failure to comply with the warranty set out in clause 3.4 except as set out in clause 3, and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
   • This clause 7 shall survive termination of the Contract.
8. Termination
   • Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
     • the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 60 days after receipt of notice in writing to do so;
     • the other party 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), obtaining a moratorium, 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
     • the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
     • the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
   • Without affecting any other right or remedy available to it, FBL may suspend all further deliveries of Products under the Contract or any other contract between the Customer and FBL if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 1.2 to clause 8.1.4, or FBL reasonably believes that the Customer is about to become subject to any of them.
   • On termination of the Contract the Customer shall immediately pay to FBL all of FBL' outstanding unpaid invoices and interest and, in respect of Products supplied but for which no invoice has been submitted, FBL shall submit an invoice, which shall be payable by the Customer immediately on receipt.
   • Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
   • Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
9. Force majeure
   • Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for eight (8) weeks, the party not affected may terminate the Contract by giving four (4) weeks' written notice to the affected party.
   • If due to a Force Majeure Event FBL has insufficient stocks to meet all its commitments, FBL may apportion available stocks between its customers at its sole discretion.
10. General
    • FBL may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
    • The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of FBL.
    • The Contract, together with any documents referred to in it, constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of the Contract.
    • Both parties acknowledge that, in entering into the Contract it does not rely on any statement, representation, assurance or warranty of any person (whether a party to the Contract or not) other than as expressly set out in the Contract.
    • Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties.
    • If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
    • Failure or delay by a party in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
    • Except as set out in the Contract, no variation of the Contract shall be effective unless it is expressly agreed in writing by FBL. FBL may vary these Conditions from time to time.
    • The parties do not intend that any term of this agreement shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
    • The formation, existence, construction, performance, validity and all aspects of the Contract and any and all matters relating to it shall be governed by English law and the parties submit to the exclusive jurisdiction of the courts of England and Wales.