1. R International Ltd. (T/A Rag-International), a Second Party incorporated in England and Wales (registration number 11276596) having its registered and trading office at Sherwood House, Southwick St, Southwick, West Sussex, BN42 4TE; and
2. R Sourcing Ltd. (T/A Rag-Sourcing), a Second Party incorporated in England and Wales (registration number 11278966) having its registered and trading office at Sherwood House, Southwick St, Southwick, West Sussex, BN42 4TE; and
3. R Retail Ltd. (T/A Rag-Retail and Rag-Creative), a Second Party incorporated in England and Wales (registration number 11279037) having its registered and trading office at Sherwood House, Southwick St, Southwick, West Sussex, BN42 4TE; and
4. R Intellectual Ltd. (T/A Rag-Retail and Rag-Creative), a Second Party incorporated in England and Wales (registration number 11279082) having its registered and trading office at Sherwood House, Southwick St, Southwick, West Sussex, BN42 4TE;
(the “First Parties”); and
5. Any Company or Individual deemed to have worked with the First Parties (a company or individual is considered to have worked with the First Parties if an invoice, order, service or contract has been raised by the First Parties to the company or individual, regardless of payment of invoice or fulfilment of order, services or contract).
(the “Second Party”).
Second Parties attention is particularly drawn to Clause 4.2.9 and 5.1.4
For good and valuable consideration, the receipt and legal sufficiency of which are hereby expressly acknowledged, Both Parties hereto agree as follows:
WHEREAS the Second Party wishes to warehouse and fulfil orders of the Property with the First Party and the First Party has accepted to warehouse and fulfil orders the Property for the Second Party the whole upon the terms and subject to the conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and the mutual Agreements and covenants herein contained (the adequacy of which consideration parties hereto hereby covenant and agree as follows):
1.1.1 The terms defined herein shall have, for all purposes of this Agreement, the following meanings, unless the context expressly or by necessary implication otherwise requires.
1.1.2 Any terms defined herein made in the singular also mean the plural, any in plural also mean singular. Any terms defined herein made in the masculine also mean the feminine, any terms defined herein made in the feminine also mean the masculine.
1.1.3 “Both Parties” means both the First and Second Parties
1.1.4 “Either Party” mean either the First or Second Party
1.1.5 “Property” means the stock of the Second Party, including but not limited to any packaging materials, contained therein shipped by or on behalf of the Second Party to the First Party, which Property is to be dealt with by the First Party as set forth herein.
1.1.6 “Goods In” means the First Party will take delivery, un-pack and check the Property quality and quantity of every SKU delivered. The Property will be placed into Picking Locations or Bulk Locations ready for subsequent order fulfilment.
1.1.7 “SKU” mean an individual item of stock of the Property.
1.1.8 ‘Picking Locations” means picking locations for the SKU’s
1.1.9 “Bulk Locations” means excess bulk SKU’s not in Picking Locations
1.1.10 “Premises” means the First Parties primary premises and any other premises as occupied by the First Party from time to time.
1.1.11 “Term” means the term of this Agreement, commencing in accordance with Clause 4.1 and ending in accordance with Clause 5.1.
1.2 Entire Agreement
1.2.1 This Agreement, together with the Agreements and other documents to be delivered pursuant hereto, constitutes the entire Agreement between Both Parties pertaining to the subject matter hereof and supersedes all prior Agreements, understandings, negotiations and discussions, whether oral or written, of Both Parties and there are no warranties, representations or other Agreements between Both Parties in connection with the subject matter hereof except as specifically set forth herein or therein.
1.2.2 No supplement, amendment, modification, waiver or termination of this Agreement shall be binding unless executed in writing by Either Party to be bound thereby.
1.2.3 No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided.
1.3.1 The Article and Section headings contained herein are included solely for convenience, are not intended to be full or accurate descriptions of the content thereof and shall not be considered part of this Agreement.
1.4 Applicable Law
1.4.1 This Agreement shall be interpreted in accordance with the laws on England and Wales, whose courts shall have exclusive jurisdiction.
2 Storage of the Property
2.1 Storage Premises
2.1.1 The First Party shall store the Property of the Second Party at its primary premises located at Sherwood House, Southwick St, Southwick, West Sussex, BN42 4TE, United Kingdom (the “Premises”). The First Party hereby represents to the Second Party that the Premises are leased by the First Party from GOODMAN GILBERT PROPERTIES LIMITED (the “Landlord”), whose address for notice pursuant to such lease is: Focus House, Ham Road, Shoreham-By-Sea, England, BN43 6PA.
2.1.2 The First Party acknowledges that the Second Party reserve the right to give notice to the Landlord of the Second Parties ownership of the Property.
2.1.3 From time to time the Second Party accept it may be necessary for the First Party to store the Property of the Second Party at other premises other than the Frist Parties primary premises. For Example;
188.8.131.52 Excess bulk stock stored separately to picking stock;
184.108.40.206 During stock checks;
220.127.116.11 During stock movements.
2.2 Property Undertakings
2.2.1 The First Party hereby undertakes to keep the Property warehoused separate and identifiable at all times as the Property of the Second Party throughout the term of this Agreement from that of any other property of the First Party or any third party other than the Second Party located in or on the Premises.
2.2.2 Save as to Clause 4.2.9 and 5.1.4, the First Party further undertakes that it shall give the Second Party 30 [thirty] days written notice prior to moving or relocating the Property from the primary Premises and furthermore that it shall not return, release or deliver physical possession of the Property or allow physical possession of the Property to be returned, released or delivered to any person or entity except in conformity with the provisions hereof and with the prior written consent of the Second Party.
2.2.3 The First Party further undertake that any Property of the Second Party stored outside of the First Parties primary premises will be governed by this Agreement as if the Property were at the First Parties primary premises.
2.2.4 The First Party further undertake that any Property of the Second Parties stored outside of the First Parties primary premises, that upon request from the Second Party, the First Party will provide full details of such premises including the address, the Property stored there and any other information as the Second Party may require.
3 Treatment of Product
3.1.1 Save as to Clause 4.2.9 and 5.1.4, title to the Property shall remain in and with the Second Party at all times throughout the term of this Agreement and thereafter and the First Party shall keep the Property free of any hypothecs, privileges, liens, mortgages, charges, pledges and encumbrances of any kind whatsoever.
3.1.2 The First Party shall not remove, cover, or otherwise render invisible the identification of the property of the Second Party, including, without limitation, the purchase order number, serial number, stock number and description marked by the Second Party.
3.2 Delivery of the Property
3.2.1 The First Parties general trading hours are Monday – Friday, 09:00 – 17:00GMT (excluding weekends and bank holidays) these are the First Parties “Working Hours” however, the First Parties can only accept deliveries between the hours of Monday – Friday 09:00 – 15:00GMT.
3.2.2 Any deliveries made by the Second Party to the First Party should be informed to the First Party with 48 [forty eight] hours notice, or as much notice as is reasonably possible. Where possible as much information about the delivery should be informed to the First Party. For example;
18.104.22.168 Carrier or courier;
22.214.171.124 Delivery date and time;
126.96.36.199 Number of cartons;
188.8.131.52 Carton sizes;
184.108.40.206 Gross Weight;
220.127.116.11 Quantity of stock expected;
18.104.22.168 Packing list;
22.214.171.124 Delivery note;
126.96.36.199 Any hazardous or otherwise prohibited contents;
188.8.131.52 Any other information as might be relevant.
3.2.3 Due to restricted access, deliveries must not be made on any articulated lorries. Fixed wheelbase lorries and vans up to 7.5tons are acceptable. Lorries require a forklift or tailgate.
3.2.4 The First Party shall not be liable to Second Party for any loss or damage whether arising directly or indirectly from the late delivery or short delivery.
3.2.5 The First Party shall only be deemed to have accepted the Property once the delivery has been checked against any delivery note or packing list to ensure the correct quantity of cartons have been delivered and a representative of the First Party signing for the delivery.
3.2.6 Should the First Party deem any part of the delivery to be missing or damaged the First Party undertakes to use its reasonable endeavours to take photographs of any discrepancies, but does not guarantee to do so.
3.2.7 Whilst delivery of the Property is deemed to have been accepted by the First Party upon signing for the delivery, the First Party accept no responsibility for the accuracy of the Property included inside the delivery. For example
184.108.40.206 The First Party take no responsibility for the quality, faults or accuracy of the Property from the Second Party or their suppliers;
220.127.116.11 The First Party accept no responsibility for the accuracy of the quantity of the Property contained inside the delivery.
3.2.8 Once the Property is delivered to the First Party, the First Party will undertake a Goods In procedure. The First Party will provide the Second Party with an updated SKU, quantity and pick location report. The Second Party is responsible for updating their sales channels with this information for accurate fulfilment of orders.
3.2.9 The First Party undertake to the Second Party that the Goods In procedure will take no more than 72 [seventy two] working hours after delivery however, the First Party will endeavour to make this process as fast as possible.
3.2.10 Due to the time of year and workload on the lead up to the Christmas festive period, new stock deliveries are at the discretion of the First Party between November – December.
3.3 Fulfilment of Orders
3.3.1 Upon receipt of written instructions from the Second Party (for example, upon receipt of an order from the Second Parties website) hereof, The First Party shall pick, pack and fulfil the Property as identified in such written communication to the customer of the Second Party named therein.
3.3.2 The First Party undertake to the Second Party to use its reasonable endeavours to maintain the highest accuracy rate for picking and packing of orders. The First Party endeavour to maintain a 98% [ninety eight percent] accuracy level of SKU’s picked and packed.
18.104.22.168 For the avoidance of doubt, the 98% [ninety eight percent] accuracy rate is based on individual SKU’s picked, not individual orders sent (several orders include multiple SKU’s)
3.3.3 The First Party accept no liability for mis-picked orders whereby there was an inaccuracy on the part of the Second Party. For example;
22.214.171.124 Incorrect SKU numbers;
126.96.36.199 Incorrect product titles;
188.8.131.52 Incorrect picking bin ID locations;
184.108.40.206 Incorrect stock levels;
220.127.116.11 Incorrect customer or address details.
3.3.4 Save as to Clause 5.2, in the unfortunate event of a mis-pick at the fault of the First Party, the First Party undertake to the Second Party to use all reasonable endeavours to rectify the issue for the Second Parties customer. For example;
18.104.22.168 Covering the cost of returns postage;
22.214.171.124 Covering the cost of dispatching a replacement item;
126.96.36.199 Covering the cost price (not retail price) of the incorrect item sent if the item cannot be returned and is unrecoverable.
3.3.5 The Second Party undertake to the First Party to only seek compensation from the First Party whereby they are at a direct loss from their customer. For example, should the Second Party not have had to refund their customer for a mis-picked return then the Second Party undertake not to penalise the First Party.
188.8.131.52 For the avoidance of doubt, the First Party is only liable for mis-picks or mistakes in the control of the First Party however, in this event will only become liable to the Second Party if the Second Party is directly at a loss. The First Party is only liable for the cost of any returns postage, the cost of postage for sending a replacement item and/or the cost price (not the retail price) of any Property unrecoverable. The First Party are not responsible for any loss of profits or loss of sales of any mis-picked orders.
3.3.6 The First Party undertakes to the Second Party to use its reasonable endeavours to dispatch all orders on the same working day (Monday – Friday, excluding weekends and bank holidays) if received before 13:00GMT however, does not guarantee to do so. Whilst the First Party will endeavour to dispatch all orders on the same working day, in some cases this is not possible therefore, the First Party undertake to the Second Party to dispatch all orders within 2 (two) working days of receipt or will inform the Second Party if there is any reason why this isn’t possible. Express orders will be prioritised.
3.3.7 The First Party undertake to fulfil such orders in accordance with the Second Parties wishes regarding packaging, materials and postal or couriers used.
3.4 Stock Checks
3.4.1 The First Party undertake 2 [two] main stock checks per annum. One in the months of January – February and a second in June – July. The exact date of the Second Parties stock check cannot be guaranteed by the First Party as is based on workload. The cost of the stock check will be born by the Second Party.
3.4.2 Save as to clause 3.4.3, should the Second Party require additional stock checks they can request in writing a stock check to be undertaken at any time. The First Party undertake to the Second Party to complete any stock checks within 72 [seventy two] working hours after the request is received however, the First Party will use all endeavours to complete any stock checks earlier where possible. Any additional stock checks will be billed to the Second Party.
3.4.3 Due to the time of year and workload on the lead up to the Christmas festive period, stock checks may not be requested by the Second Party between October – December.
3.5 Postal or Courier Services
3.5.1 The First Party undertake to the Second Party to endeavour to fulfil all orders in accordance with the wishes of the Second Party with their preferred couriers and services however, the First Party do not guarantee to do so. The First Parties primary responsibility to the Second Party is in storing, picking, packing and dispatching orders of the Property. It is of secondary importance to the First Party to ensure orders are dispatched on any particular third party courier specified by the Second Party.
3.5.2 The Second party accept that the First Party rely upon third party couriers to deliver orders and therefore the First Party offer no guarantee over the service level, quality, lost parcels or delivery lead times of any third party courier.
3.5.3 All orders will be sent on the First Parties respective courier accounts and will be billed to the Second Party in accordance with Clause 4.2.
3.5.4 Should there be any problems with any third party courier deliveries, the First Party will endeavour to assist the Second Party in resolving any such issues with the third party couriers (including, where applicable and subject to service level, making any insurance claims for lost or damaged orders). The Second Party accept to provide the First Party with any information to assist in any such claims.
3.5.5 Whilst the First Party will endeavour to assist the Second Party with any claims for lost or damaged deliveries, the Second Party understand that the First Party offer no direct compensation or insurance to the Second Party for any lost of damaged orders as the result of any third party courier .
3.5.6 The First Party undertake to the Second Party that any successful insurance or compensation claims made against any third party couriers for lost or damaged deliveries, that the First Party will reimburse the Second Party to the same amount that the First Party received from the third party courier.
3.5.7 The Second Party understand the claims procedures with the third party couriers can be very different for each courier provider and can also take several months to process. The Second Party understand the First Party are not liable for any claim until such time the claim is successfully reclaimed by the First Party from the third party couriers.
3.6 Customer Service – Return, Refunds and Exchanges
3.6.1 The First Party will supply the Second Party with a returns form which includes all the prescribed information the First Party requires when receiving a return from the Second Parties customers. The Second Party undertake to the First Party that whilst processing a return with their customers that the Second Party will endeavour to instruct their customers to fill out the returns form in full, or as much information as possible.
3.6.2 Save as to Clause 3.3.4, the First Party accept no responsibility for the costs of any returned orders. Should the First Party have to pay any returns postage charges, these will be billed to the Second Party as set out in Clause 4.2
3.6.3 The First Party also accept no responsibility for the quality of any returned orders. Should an order be returned to the Frist Party which is received damaged or has missing items, the First Party will endeavour to inform the Second Party as soon as possible.
3.6.4 The First Party undertake to the Second Party that any returned orders, where the items are of re-sale quality, that the First Party will re-process the items and put them back into stock. The Second Party understands that the First Party has the ability to re-fold and re-pack products only. The First Party does not have the ability to clean, re-label or re-press any returned items.
3.6.5 Upon receiving any returned orders, the Frist Party undertake to inform the Second Party of the return, including the order number, customer name, reason for return and SKUs returned
3.6.6 Upon receiving any returned orders, the First Party undertakes to the Second Party to use its reasonable endeavours to inform the Second Party of the returned orders received before 13:00GMT within the same working day, including as much information as possible in order to identify the order or customer (order number, customer name, reason for return, SKUs returned, quantity returned and any further instructions where applicable), however does not guarantee to do so. Whilst the First Party will endeavour to inform the Second Party of returned orders on the same working day, in some cases this is not possible therefore, the First Party undertake to the Second Party to inform the Second Party of any returned orders within 2 (two) working days of receipt of the return or will inform the Second Party if there is any reason why this isn’t possible. Returned orders which require an Exchange will be prioritised.
3.6.7 The Second Party accept it is their responsibility to keep their sales channels up to date with any stock movements as they may be informed to do so by the First Part.
3.7 Risk, Insurance and Standard of Care
3.7.1 All risk with respect to loss or damage to the Property shall remain with the Second Party, and the Second Party shall obtain and maintain such insurance coverage in respect of the Property against such risks as it shall, within its sole discretion, deem necessary.
3.7.2 Notwithstanding the foregoing, the First Party shall safely keep the Property for the Second Party, shall take all reasonable care to protect the Property from loss or damage, and, save as to Clause 4.2.9 and 5.1.4, shall return the Property to the Second Party upon the termination of this Agreement, whether by expiry of the term or otherwise, in as good condition as when received.
3.7.3 In the event that the Property is lost or damaged through the negligence of the First Party, the First Parties total liability to Second Party in respect of any losses arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall under no circumstances exceed £3000.00GBP [three thousand pounds sterling].
4 Term and Renumeration
4.1 Agreement Term
4.1.1 The term of this Agreement shall commence on the date hereof and shall remain in force throughout the lifetime of this Agreement.
4.2.1 In consideration of the storage and fulfilment of orders by the First Party of the Property, the Second Party shall pay the First Party any freight, Goods In, storage, picking, packing, packaging, materials, postal, courier or third party ancillary costs as they may arise, for the term of this Agreement.
4.2.2 It is at the First Parties discretion whether to invoice the Second Party on a monthly or weekly basis for the previous month or weeks activities. Such decision by the First Party is likely to be made based on the volume of orders of the Second Party, and subsequently any postal and courier costs incurred by the First Party, as they may reasonably be comfortable exposing themselves to on behalf of the Second Party.
4.2.3 The First Party shall provide the Second Party with an itemised list of all billable activities and postage costs from the previous period.
4.2.4 The Second Party undertake to the First Party that all invoice amounts will be paid within 14 [fourteen] days of the invoice date.
4.2.5 The Second Party further undertake to the First Party that any disputes arising from an invoice (for example if the Second Party believes a credit may be due) should inform the First Party in writing within 7 [seven] days of the invoice date. Any disputes arising from an invoice outside the 7 [seven] days may not retrospectively be credited later against any subsequent invoices.
4.2.6 Should any dispute arise from an invoice, the Second Party further undertake to the First Party not to withhold payment of any part of an invoice not in dispute.
184.108.40.206 For the avoidance of doubt, should a dispute arise over part of an invoice, the entire balance of the undisputed parts of the invoice remains in full and will be paid by the Second Party to the First Party in accordance with this Agreement. The Second Party may not unreasonably withhold payment of any parts of the invoice which are undisputed whilst the disputed amounts are resolved.
4.2.7 Should an invoice be overdue or unpaid by the Second Party to the First Party, the First Party reserve the right to add interest and charges on any outstanding balance at a rate of 8.5% [eight and half percent] on a daily basis. The First Party also reserve the right to charge any additional storage, handling or ancillary fees for holding the Property until such time the invoice, including interest and charges, are settled in full.
4.2.8 Should the Second Party fail to settle any invoices, interest and charges within 14 [forteen] days of the invoice date, the First Party reserve the right to stop fulfilling the orders of the Second Party until such time any disputes are resolved or until such time any outstanding invoice balances are cleared in full.
4.2.9 THE SECOND PARTIES ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
Should the Second Party fail to settle any invoices, interest and charges within 60 [sixty] days of the invoice date, the First Party withhold the right to dismantle and sell, in full or in part, the Property of the Second Party to any third party of the First Parties choice, to recoup any outstanding amounts owed to the First Party by the Second Party. The Second Party undertake to the First Party that any such sale of the Property to a third party in lieu of any outstanding invoice balances is undertaken free of any Good Will, Intellectual Property, Trademark, Title, Risk or any other such infringement of the Second Party by the First Party.
220.127.116.11 The First Party undertake to the Second Party that they will not dismantle or sell the Property of the Second Party without first seeking all means possible to resolve any disputes or outstanding invoices first.
18.104.22.168 In the unfortunate event the First Party is required to dismantle or sell the Property of the Second Party, the First Party undertake to the Second Party to only sell or dismantle the Property to the value of any outstanding balances. The First Party undertake not to sell any Property exceeding any outstanding balances owed by the Second Party.
22.214.171.124 Furthermore, in the unfortunate event the First Party is required to dismantle or sell the Property of the Second Party, the First Party undertake to provide the Second Party with formal written notification no less than 30 [thirty] days prior to any such sale in order to give the Second Party enough notice in which to settle any disputes or outstanding invoice balances.
5.1 Termination of the Agreement
5.1.1 Should the Second Party wish to terminate this Agreement they must do so in writing to the First Party and provide the First Party with a minimum 1 [one] full months’ notice.
126.96.36.199 For the avoidance of doubt, should the Second Party wish to terminate this Agreement part way through a month, they must first see out the current month and then see out one full month notice thereafter.
5.1.2 Should the First Party wish to terminate this Agreement they must do so in writing to the Second Party and provide the Second Party with 30 [thirty] days notice.
5.1.3 This Agreement will also terminate should the occurrence of any of the following events transpire;
188.8.131.52 Either Parties breach of any of the terms or conditions of this Agreement;
184.108.40.206 Either Party becoming insolvent or being unable to pay its debts as they generally fall due;
220.127.116.11 Either Party making an assignment for the benefit of creditors or filing a petition in bankruptcy;
18.104.22.168 Either Party being adjudicated insolvent or bankrupt or petitioning or applying to any tribunal for any receiver, trustee, liquidator or sequestrator;
22.214.171.124 Either Party becomes aware of any commencing proceeding relating to the other Party whether now or hereafter in effect, providing for the reorganization, arrangement or readjustment of debt, dissolution, winding-up, adjustment, composition or liquidation; or
126.96.36.199 Any proceeding being commenced against Either Party, or any receiver, trustee, liquidator or sequestrator of or for Either Party or any of its property being appointed, provided such appointment is not vacated within 30 [thirty] days of it being made.
188.8.131.52 The Second Party does not pay any amount outstanding of the invoices specified in Clause 4.2 hereof due and owing to the First Party within 60 [sixty] days of the invoice date.
5.1.4 THE SECOND PARTIES ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
Upon the termination of this Agreement the Second Party undertake to the First Party that any balances of invoices outstanding will be settled in full, including any interest and charges, prior to the First Party releasing the Property to the Second Party.
184.108.40.206 For the avoidance of doubt, the First Party reserve the right to withhold the entire Property of the Second Party until such time any balances of invoices outstanding, including interest and charges, are settled in full by the Second Party.
5.1.5 Notwithstanding any balances of invoices outstanding at the time of termination of this Agreement, the First Party shall, upon termination of this Agreement, return to the Second Party all the Property currently in the possession of the First Party.
5.2.1 The First Party shall not be liable to the Second Party for compensation, reimbursement or damages on account of loss of prospective profits on anticipated sales or on account of expenditures, investments or commitments in connection with the storage or fulfilment of the Property.
6.1 Successors and Assigns
6.1.1 This Agreement shall ensure to the benefit of and be binding upon Both Parties hereto and their respective successors and assigns.
6.2.1 Any notice required or permitted to be given hereunder shall be given by signed for registered mail, postage prepaid.
6.3 No Waiver
6.3.1 No waiver by Either Party or any breach by any other Party of its covenants, obligations and Agreements hereunder shall be a waive of any subsequent breach of any other covenant, obligation or Agreement, nor shall any forbearance to seek a remedy for any breach be a waiver of any rights or remedies with respect to such or any subsequent breach.
6.4.1 In the event that any clause, condition or term, or any part thereof, contained in this Agreement shall be unenforceable or prohibited by law or by any present or future provincial or legislation, then such clause, condition, term or part thereof, shall be amended and is hereby amended so as to be in compliance with said legislation but, if such clause, condition or term, or any part thereof cannot be amended so as to bring it in compliance with any such legislation, that such clause, condition, term or part thereof shall be severable from this Agreement, and all the other clauses, terms and conditions or parts thereof contained herein shall remain unimpaired.
6.5 Relationship of the Parties
6.5.1 Nothing in this Agreement shall be deemed in any way or for any purpose to cause to the parties hereto partners in the conduct of any business or otherwise. Save as to Clause 4.2.9 and 5.1.4, the First Party is and shall remain at all times an independent contractor and shall have no authority to bind the Second Party, with respect to the sale of the Property or otherwise.
6.6.1 Both Parties hereby agree that this Agreement may be executed in counterparts, each of which shall be an original, and all of which together shall constitute but one and the same instrument.