Retailer Terms And Conditions
1. Our agreement
1.1 These terms and conditions apply to the exclusion of any other terms that you seek to impose or incorporate or which are implied by practice or course of dealing.
1.2 Your order is an offer to purchase the goods or any part of them (Goods) as set out in your purchase order, in accordance with these terms and conditions.
1.3 Your order will be placed in the form prescribed by us, using our purchase order form. You are responsible for ensuring that your purchase order is complete and accurate.
1.4 Your order will only be accepted when we issue a pro-forma invoice accepting your order.
1.5 Any samples, drawings, descriptions or advertising produced by us are produced only to give an approximate idea of the Goods. They do not form part of this agreement.
1.6 A quotation for the Goods given by us is not an offer. Any quotation will only be valid for 20 days from when it is issued.
2. Goods
2.1 The Goods are described in our specifications for the Goods, as amended from time to time (Specification).
3. Delivery
3.1 Delivery terms will be agreed at the point of order. We offer a range of terms: Ex-Works, DAP and FCA (Incoterms 2022).
3.2 Delivery costs are dependent on order size and delivery address. A quote for the cost of delivery will be provided on receipt of your order.
3.3 Deliveries will be treated as complete once you (or your agent) have signed for the Goods. Any discrepancy in deliveries should be noted on the delivery note or shipping document and advised to the driver at the point of delivery. We will ensure that:
3.3.1 each delivery of the Goods is accompanied by a delivery note that shows the date of the order, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered in installments, the outstanding balance of Goods remaining to be delivered; and
3.3.2 if we require you to return any packaging materials to us, that is clearly stated on the delivery note. You will then make the packaging materials available for collection at the time that we may reasonably request. Return of packaging materials will be at our expense.
3.4 We will deliver the Goods to the location set out in your order (delivery location) at any time after we notify you that the Goods are ready.
3.5 Any dates quoted for delivery are approximate only. We will not be liable for any failed or delayed delivery of the Goods that is caused by an event or circumstance beyond our reasonable control or your failure to provide adequate delivery instructions.
3.6 If you fail to accept delivery of the Goods, then, except where that failure or delay is caused by an event or circumstance beyond your reasonable control or our failure to comply with the obligations of this agreement:
3.6.1 delivery of the Goods will be deemed to have been completed at 9.00 am on the day on which you failed to accept delivery; and 3.6.2 we will store the Goods until actual delivery takes place, and charge you for all related costs and expenses.
3.7 If, 10 days after deemed delivery has taken place under clause 3.6.1, you have not accepted delivery of the Goods, we may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to you for any excess over the price of the Goods or charge you for any shortfall below the price of the Goods.
3.8 We may deliver the Goods in installments, which will be invoiced and paid for separately. Any delay in delivery or defect in an installment will not entitle you to cancel any other installment.
4. Quality
4.1 We warrant that on delivery and for 12 months from the date of delivery (warranty period), the Goods will:
4.1.1 conform in all material respects with the Specification;
4.1.2 be free from material defects in design, material and workmanship;
4.1.3 be of satisfactory quality; and
4.1.4 be fit for any purpose held out by us.
4.2 Subject to clause 4.3, if:
4.2.1 you give notice in writing to us 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
4.1; and 4.2.2 we are given a reasonable opportunity to examine the Goods; and
4.2.3 you (if asked to do so by us) return the Goods to us (at our cost), we will, at our option, repair or replace the defective Goods or refund the price of the defective Goods in full.
4.3 We will not be liable for the Goods’ failure to comply with the warranty set out in clause 4.1 in any of the following events:
4.3.1 you make any further use of the Goods after giving notice in accordance with clause 4.2.1;
4.3.2 the defect arises because you failed to follow our instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there arenone) good trade practice regarding the same;
4.3.3 you alter or repair the Goods without our written consent;
4.3.4 the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal storage or working conditions; or
4.3.5 the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements, or ongoing product improvements.
4.4 Except as provided in this clause 4, we will have no liability to you in respect of the Goods’ failure to comply with the warranty set out in clause 4.1.
4.5 These conditions will also apply to any repaired or replacement Goods supplied by us.
5. Title and risk
5.1 Risk in the Goods will pass to you on delivery, in accordance with the Incoterm agreed (as specified in clause 3.1).
5.2 Title to the Goods will not pass to you until the earlier of:
5.2.1 our receiving payment in full for the Goods, in which case title to the Goods will pass at the time of payment; or
5.2.2 you reselling the Goods, in which case title to the Goods will pass to you at the time specified in clause 5.4.
5.3 Until title to the Goods has passed to you, you will:
5.3.1 store the Goods separately from all other goods held by you, so that they remain readily identifiable as our property;
5.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
5.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks;
5.3.4 notify us immediately if you become subject to any actual or threatened insolvency, liquidation or equivalent action; and
5.3.5 give us any information relating to the Goods as we may require.
5.4 Subject to clause 5.5, you may resell or use
the Goods in the ordinary course of your business before we receive payment for the Goods. If you resell the Goods before we receive payment:
5.4.1 you do so as principal and not as our agent; and
5.4.2 title to the Goods will pass from us to you immediately before the resale by you occurs.
5.5 If, before title to the Goods passes to you, you become subject to any actual or threatened insolvency, liquidation or equivalent action, then, without limiting any other right or remedy you may have:
5.5.1 your right to resell the Goods or use them in the ordinary course of your business ceases immediately; and
5.5.2 we may:
(i) require you to deliver to us all Goods in your possession that have not been resold; and if you fail to do so promptly,
(ii) enter your premises or any third party premises where the Goods are stored in order to recover them.
6. Price and payment
6.1 The price of the Goods will be in our pro-forma invoice.
6.2 We may, by giving notice to you at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
6.2.1 any factor beyond our control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
6.2.2 any request by you to change the delivery date(s), quantities or types of Goods ordered; or
6.2.3 any delay caused by any of your instructions or your failure to give us adequate or accurate information or instructions.
6.3 The price of the Goods:
6.3.1 excludes amounts in respect of value added tax or equivalent sales tax, which you will pay to us at the prevailing rate, subject to the receipt of a valid VAT/sales tax
invoice; and
6.3.2 excludes the costs and charges of packaging, insurance and transport of the Goods, which will be invoiced to you separately.
6.4 You will pay the invoice in full and in cleared funds prior to taking delivery of the Goods, unless otherwise agreed. Payment will be made to our nominated bank account.
6.5 If you fail to make any payment by the due date, then you will pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Interest will accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You will pay the interest together with the overdue amount.
6.6 You will pay all amounts due under this agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). We may, at any time, without limiting any other rights or remedies we may have, set off any amount owing to us by you against any amount payable by us to you.
7. Sales channels, marketing materials and support
7.1 The protection of our brand name is very important to us. This includes the way the Goods are positioned for sale by you and the way our trade marks, copyright and imagery are portrayed.
7.2 We will provide you with brand guidelines and other policies for how to display and advertise the Goods, and we will provide marketing materials (e.g. video and photography of the Goods and approved copy for sales messages) to enable you to display the Goods in the appropriate manner.
7.3 You will not copy or use any of our other copyrighted text, images or graphics other than as approved by us. These include product descriptions and photos on our websites, social media and other listings. You will not mimic our websites or other online assets so that visitors might think they are buying from us and not from you.
7.4 You will not make any defamatory remarks regarding us or the Goods, during this
agreement or afterwards.
7.5 You will not solicit for custom on our websites and social media pages, or through any other means where we are publicising events or marketing (e.g. by leaving comments on pages such as ooni.com/blogs/recipes, Ooni Community Group on Facebook, our Instagram feed etc or through guerrilla marketing tactics at any of our events).
7.6 We take protection of our online brand and presence extremely seriously. The portrayal of our brand in the correct manner is essential to our and your mutual success. Accordingly, you will not establish any “Ooni” branded websites or social media profiles, or acquire any “Ooni” web domains, websites or social media presences, without our written permission.
Sales channels
7.7 We authorise you to advertise the Goods for sale:
7.7.1 online on your own branded web store,
7.7.2 in any physical store that you trade in,
7.7.3 at pop up events or trade shows, provided that we are not exhibiting at the same pop-up event or show.
7.8 You are prohibited from listing the Goods for sale on any online third party marketplace. Examples of restricted marketplaces include Amazon, Ebay, Walmart, BOL, Wayfair, Etsy, Rakuten, Wish, Alibaba, Taobao, Tmall, JD.COM and Houzz.
8. Termination
8.1 Either you or we may terminate this agreement at any time with immediate effect by giving written notice.
8.2 On termination of this agreement, you will immediately pay us all outstanding unpaid invoices and interest. We will have no obligation to fulfill orders received from you after the date we give written notice to terminate this agreement.
8.3 Termination of this agreement will not affect the rights and remedies of either party that have accrued as at termination, including the right to claim damages in respect of any breach of this agreement that existed at or before the date of termination.
8.4 Any provision of this agreement that, expressly or implicitly, is intended to come into or continue in force after termination will remain in full force and effect.
9. Limitation of liability
9.1 Nothing in this agreement will limit or exclude our liability for:
9.1.1 death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors (as applicable);
9.1.2 fraud or fraudulent misrepresentation; or
9.1.3 any matter in respect of which it would be unlawful for us to exclude or restrict liability.
9.2 Subject to clause 9.1:
9.2.1 we will not be liable to you, 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 this agreement; and
9.2.2 our total liability to you in respect of all other losses arising under or in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will not exceed the price of the Goods.
10. General
Intellectual Property
10.1 All copyright, patent, trade mark, trade secret and other proprietary and intellectual property rights (IPR) in the Goods and information which we may provide in relation to the goods shall remain vested in us. You may not copy or imitate the Goods or do or omit to do, or permit any third party to do or omit to do, anything which may damage the IPR. You undertake not to take any action which might invalidate our title to any of the IPR. Any goodwill arising from the use of the IPR shall accrue to us.
Assignment
10.2 We may assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all of our rights or obligations under this agreement.
10.3 You may not assign, transfer, mortgage,
charge, subcontract, declare a trust over or deal in any other manner with any or all of your rights or obligations under this agreement.
Confidentiality
10.4 Each party undertakes that it will not disclose any confidential information concerning the business, affairs, pricing, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 10.5.
10.5 Each party may disclose the other party’s confidential information:
10.5.1 to its employees, officers, representatives or advisers who need to know that information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party will ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 10.5; and
10.5.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.6 Neither party will use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
Sharing personal data
10.7 We take great pride in offering world-class customer service to our end consumers. In certain circumstances, you may need to share the details of an individual private person with us, such as where an individual is a purchaser of the Goods and requires access to the Ooni Experience Customer Support team, to remedy any defects in the Goods.
10.8 In these circumstances, you will ensure that the individual has provided the appropriate consent to enable their personal information (such as name, email address, address or phone number) to be shared with us.
10.9 You will ensure that the consent described in clause 10.8 is appropriate in the context of all applicable privacy legislation.
Compliance
10.10 You and we will comply with all applicable laws, including those relating to bribery, competition law, modern slavery and tax evasion.
Entire agreement
10.11 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between you and us.
Governing law and jurisdiction
10.12 The table below refers to a number of Ooni companies that are all involved in the sale of Goods. The actual Ooni company which will sell the Goods to you will be specified in the pro-forma invoice that we send you. Depending on which company that is, the governing law and jurisdiction of these terms specified below.
|
Contracting Entity |
Applicable Governing Law |
Applicable venue |
|
Ooni Limited (Company No. 08316049), a company registered in England with its registered address at 105 Hopewell Business Centre Unit 20, Hopewell Drive, Chatham, Kent, ME5 7DX. |
English |
England |
|
Ooni Inc. (Tax ID EIN is 38-4042248), a company registered in Delaware with its registered address at 2140 South Dupont Hwy, Camden, Delaware 19934, United States of America. |
Texan |
Austin,Texas |
|
Ooni GmbH (Company No. HRB 98327), a company registered in Germany, with its registered address at Simrockstraße 11, 53113 Bonn, Germany. |
German |
Bonn |
|
Ooni Pty Ltd (ACN 660203832), a company registered in Australia with its registered address at Macpherson Kelley, Level 7, 600 Bourke Street, Melbourne VIC 3000 |
Australian |
Victoria |
|
Ooni NZ Ltd (Company No. 8367081) a company registered in New Zealand, with its registered address at Tompkins Wake, Level 17, 88 Shortland Street, Auckland Central, Auckland,1010, New Zealand |
New Zealand |
Auckland |
|
Ooni Canada (Company No. 1000246600) Inc a company registered in Canada with its registered address at 66 Wellington Street West, Suite 4100, Toronto, Ontario, Canada, M5K 1B7 |
Canada |
Ontario |
10.13 This agreement, and any disputes arising from it, will be governed exclusively by the applicable governing law described in the table above, without giving effect to any conflicts of law rules or principles. You and we submit to the exclusive jurisdiction of the relevant courts described above to adjudicate any dispute arising out of or relating to this agreement.
