WU.ER STUDIO WHOLESALE TERMS & CONDITIONS

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The customer's attention is drawn in particular to the provisions of clause 9.

1. Interpretation

   1. Definitions. In these Conditions, the following definitions apply:

      1. "Business Day" a day (other than a Saturday, Sunday or public holiday) when banks in Germany and the territory of the Customer are open for business.

      2. "Conditions" the terms and conditions set out in this document as amended from time to time in accordance with clause 12.5.

      3. "Contract" the contract between Miista and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

      4. "Customer" the person or firm who purchases the Goods from Miista.

      5. "Force Majeure Event" has the meaning given in clause 11.

      6. "Goods" the goods (or any part of them) set out in the Order

      7. "Group" means in relation to a company, that company, its subsidiaries, its holding companies and their subsidiaries (in each case as defined in Section 1159 Companies Act 2006);

      8. "wu.er studio" wu.er studio Limited, a company registered in Germany company number 07261088 and having its registered office at 33 Wadeson Street, London, E2 9DR or EEight (Fashion) Ltd, a company registered in England and Wales with company number 09346375 and having its registered office at 33 Wadeson Street, London, E2 9DR.

      9. "Order" the Customer's order for the Goods, as set out in the Customer's purchase order form.

      10. "Specification" any specification for the Goods, including any related drawings and samples, that is agreed in writing by the Customer and wu.er studio
           

2. Construction. In these Conditions, the following rules apply:

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

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

   3. 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.

   4. 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.

   5. A reference to writing or written includes faxes and emails.
       

    

Basis of contracts

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. 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 submitted by the Customer are complete and accurate.

3. The Order shall only be deemed to be accepted when Miista issues a written acceptance of the Order, at which point the Contract shall come into existence.

4. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Miista which is not set out in the Contract.

5. Any samples, drawings, descriptive matter, or advertising produced by Miista and any descriptions or illustrations contained in Miista’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
    

1. Goods

   1. The Goods are described in the Specification.

   2. The Customer hereby authorises Miista to use any intellectual property rights of the Customer or its licensors in the Specification or otherwise to be incorporated into the Goods to the extent required for the purposes of, and as set out in, this Agreement.

   3. To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, or incorporating intellectual property rights belonging to the Customer or its licensors, the Customer shall indemnify Miista 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 Miista in connection with any claim made against Miista for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Miista's use of the Specification. This clause 3.3 shall survive termination of the Contract.

   4. Miista reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
       

1. Delivery

   1. wu.er studio shall ensure that: 

   2. each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and wu.er studio reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and if wu.er studio requires the Customer to return any packaging materials to wu.er studio, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Miista shall reasonably request. Returns of packaging materials shall be at wu.er studio's expense.

   3. wu.er studio 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 wu.er studio notifies the Customer that the Goods are ready.

   4. Unless otherwise agreed, the Delivery Location shall be Ex Works at wu.er studio premises.

   5. Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.

   6. Any dates quoted for delivery are approximate only, and the time of delivery is not “of the essence”. Miista 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 Miista with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

   7. If 60 Business Days after the day on which Miista notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, Miista may 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.

   8. wu.er studio may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
       

1. Quality

   1. wu.er studio warrants that on delivery, and for a period of six months from the date of delivery (warranty period), the Goods shall:

1. 1. conform in all material respects with the Specification; and

   2. be free from material defects in material and workmanship.
       

2. Subject to clause 5.3, if:

3. 1. the Customer gives notice in writing to Miista during the warranty period 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;

   2. Miista is given a reasonable opportunity of examining such Goods; and

   3. the Customer (if asked to do so by Miista) returns such Goods to Miista's place of business at the Customer’s cost,

wu.er studio shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.  Miista will use its own quality control records to assess the validity of claims that the warranty in clause 5.1 has been breached and reserves the right to reject claims where its quality control records show no defect in the Goods in question.  The Customer shall bear the costs of returns of Goods, which wu.er studio shall reimburse only if it accepts that the returned Goods did not comply with clause 5.1.

1. 1. wu.er studio 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:

   2. 1. the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;

      2. the defect arises because the Customer failed to follow wu.er studio oral or written instructions, or good practice as to the storage or use, of the Goods;

      3. the defect arises as a result of wu.er studio following any drawing, design or Specification supplied by the Customer;

      4. the defect arises as a result of the use of material which the Customer has chosen and directed wu.er studio to purchase for use in the Goods;

      5. the Customer alters or repairs such Goods without the written consent of wu.er studio;

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

      7. the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

   3. Except as provided in this clause 5, wu.er studio shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.

   4. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

   5. These Conditions shall apply to any repaired or replacement Goods supplied by wu.er studio.

2. Title and risk

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

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

   3. 1. wu.er studio receiving payment in full (in cash or cleared funds) for the Goods and any other goods that wu.er studio has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums; and

      2. the Customer reselling the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.

   4. Until title to the Goods has passed to the Customer, the Customer shall:

   5. 1. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as wu.er studio's property;

      2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

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

      4. notify wu.er studio immediately if it becomes subject to any of the events listed in clause 8.2; and

      5. give wu.er studio such information relating to the Goods as wu.er studio may require from time to time.

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

   7. 1. it does so as principal and not as wu.er studio agent; and

      2. title to the Goods shall pass from wu.er studio to the Customer immediately before the time at which resale by the Customer occurs.

   8. If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, then, without limiting any other right or remedy Miista may have:

   9. 1. the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and

      2. Miista may at any time:

      3. 1. cancel or suspend orders for un-delivered Goods;

         2. retain shipping documents for any Goods in transit, and recover such Goods upon their arrival at their destination port;

         3. require the Customer and any member of the Customer's Group to deliver up all Goods in its possession (whether at warehouses or retail outlets) which have not been resold, or irrevocably incorporated into another product;

         4. if the Customer fails to do so promptly, enter any premises of the Customer or of any third party (including members of the Customer's Group) where the Goods are stored in order to recover them; and

         5. resell any such un-delivered or recovered Goods to a third party. 

4. Price and payment

5. 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 wu.er studio’s published price list in force as at the date of delivery.

   2. If:

   3. 1. any factor beyond wu.er studio’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

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

      3. any delay caused by any instructions of the Customer or failure of the Customer to give wu.er studio adequate or accurate information or instructions

results in an increase in the cost of manufacturing the Goods, wu.er studio may notify the Customer and the parties shall negotiate in good faith to discuss the effect on the Price.

1. 1. The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

   2. The price of the Goods is exclusive of amounts in respect of value added tax, sales tax or duties (Tax).  If applicable, the Customer shall, on receipt of a valid invoice from wu.er studio, pay to wu.er studio such additional amounts in respect of Tax as are chargeable on the supply of the Goods.

   3. Unless otherwise agreed in an order, wu.er studio may invoice the Customer for the Goods as follows:

   4. 1. a deposit of 30% of the price of the Goods shall become payable upon acceptance of the Order by wu.er studio; and

      2. the balance of 70% of the price, and any additional cost of packaging, insurance and freight, shall become payable immediately prior to delivery.

   5. The Customer shall pay invoices issued in accordance with clause 7.5.1 within 30 days of issue (or prior to delivery, if sooner), and shall pay invoices issued in accordance with clause 7.5.2 prior to shipment, and no later than one week after the date of the invoice in full and in cleared funds.  Unless otherwise agreed, the Customer shall pay all other invoices in cleared funds within 30 days of the date of issue. Payment shall be made to the bank account nominated in writing by wu.er studio. Time of payment is of the essence.

   6. If the Customer fails to make any payment due to wu.er studio under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8.0% per annum above HSBC Bank PLC’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.

   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). wu.er studio 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 wu.er studio to the Customer.

2. Termination and suspension

3. 1. If the Customer becomes subject to any of the events listed in clause 8.2, wu.er studio may terminate the Contract with immediate effect by giving written notice to the Customer.

   2. For the purposes of clause 8.1, the relevant events are:

   3. 1. the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;

      2. the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

      3. (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;

      4. (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;

      5. (being a company) the holder of a qualifying floating charge over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;

      6. a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;

      7. (being an individual) the Customer is the subject of a bankruptcy petition or order;

      8. a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;

      9. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2.1 to clause 8.2.6 (inclusive);

      10. the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;

      11. the Customer's financial position deteriorates to such an extent that in wu.er studio's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and

      12. (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

      13. The Customer (i) fails to pay for the Goods when due, or (ii) commits a material breach of a Condition, in each case either under the Contract or any other contract it has with wu.er studio for the supply of Goods or goods similar to the Goods.

   4. Without limiting its other rights or remedies, wu.er studio may suspend provision of the Goods under the Contract or any other contract between the Customer and wu.er studio if the Customer becomes subject to any of the events listed in clause 8.2.1 to clause 8.2.12, or wu.er studio reasonably believes that the Customer is about to become subject to any of them, or if clause 8.2.13 applies.

   5. On termination of the Contract for any reason the Customer shall immediately pay to wu.er studio all of wu.er studio’s outstanding unpaid invoices and interest.

   6. Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.

   7. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

4. CANCELLATION BY THE CUSTOMER

5. 1. The Customer has no automatic right to cancel an Order for Goods which is the subject of a Contract.  If the Customer wishes to cancel the Contract, in whole or in part, wu.er studio may accept such cancellation at its discretion.

   2. Unless otherwise agreed, the Customer shall be required to pay the following amounts if it cancels an Order for Goods (in whole or in part) which are the subject of a Contract:

   3. 1. if written notice of the cancellation is received by wu.er studio 4 weeks or more prior to the intended delivery date specified on the Order, an amount equal to 20% of the price payable in respect of the cancelled Goods;

      2. if written notice of the cancellation is received by wu.er studio more than 2 weeks but less than 4 weeks prior to the intended delivery date specified on the Order, an amount equal to 50% of the price payable in respect of the cancelled Goods;

      3. if written notice of the cancellation is received by wu.er studio more than 1 week but less than 2 weeks prior to the intended delivery date specified on the Order, an amount equal to 75% of the price payable in respect of the cancelled Goods; and

      4. if written notice of the cancellation is received by wu.er studio less than 1 week prior to the intended delivery date specified on the Order or if wu.er studio does not accept the cancellation, an amount equal to the full price payable in respect of the cancelled Goods.

6. Limitation of liability

7. 1. Nothing in these Conditions shall limit or exclude wu.er studio's liability for:

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

      2. fraud or fraudulent misrepresentation;

      3. breach of the terms implied by section 12 of the Sale of Goods Act 1979;

      4. defective products under the Consumer Protection Act 1987; or

      5. any matter in respect of which it would be unlawful for wu.er studio to exclude or restrict liability.

   3. Subject to clause 10.1:

   4. 1. wu.er studio shall under no circumstances whatever 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

      2. wu.er studio's 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 100.0% of the price paid by the Customer for the Goods.

8. Force majeure

Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.

1. General

2. 1. Assignment and other dealings.

   2. 1. wu.er studio 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.

      2. The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of wu.er studio.

   3. Notices.

   4. 1. 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.

      2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2.1; if sent by pre-paid air mail at 9:00 am on the fifth 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.

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

   5. Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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.

   6. Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.

   7. Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by wu.er studio.

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

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