These terms and conditions (the terms) apply to all wholesale (B2B) business with Awake Limited. These conditions are updated every 6 months, next review is the 1^st of September 2024.

 

Information about us and contacting us

We operate the website www.awakestore.co.uk. We are Awake Ltd, a company registered in England and Wales under company number 13653338 and our registered office and trading address is Phoenix House, Lamport Drive, Daventry, Northamptonshire, NN11 8YH. Our VAT number is 412717714.

You can contact us at b2b@awakestore.co.uk or write to

Awake Ltd
Phoenix House,
Lamport Drive,
Daventry,
Northamptonshire
NN11 8YH.

Tel.: +4407542507644

Monday – Thursday 09:00-16:00 Friday 09:00-15:00

 

Definitions and rules of interpretation

 1.1 In these Conditions, the following definitions and rules of interpretation apply: “Brand” means the trademark “Awake” and the “Awake” logo, all Product names from time to time and any other brand name, trade mark, trade name, logo and/or get up used by Awake from time to time in connection with the Products; “Brand Guidelines” means the guidelines in respect of the use of the Brand as may be notified or provided to the Customer (Retailer) by Awake from time to time;

1.2 “Business Day” means a day, other than a Saturday, Sunday, or public holiday in England, when banks in London are open for business.

1.3 “Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between Awake and the Customer.

1.4 “Contract” means the contract for the sale and purchase of the Products constituted by the Order and by Awakes acceptance of the Order in accordance with these Conditions, and which includes these Conditions.

1.5 “Customer” means the person or firm purchasing the Products from Awake, including any person appointed as that person or firm’s agent for the purposes of communicating with Awake in connection with the Order.

1.6 “Delivery” means completion of delivery of Products, in accordance with clause 6.2;

1.7 “Delivery Address” means the address stated on the Order for delivery of the Products;

1.8 “Delivery Date” means the anticipated date for delivery of the Products notified by Awake.  

1.9 “Insolvency Event” occurs when: (a) a party becomes unable to pay its debts as they fall due, or the value of its assets is less than the amount of its liabilities taking into account its contingent and prospective liabilities; (b) in relation to a party, a statutory demand is served, a receiver is appointed or any insolvency procedure under the Insolvency Act 1986 is instituted or occurs; (c) any order is made for or there occur proceedings constituting main proceedings in any member state of the European Union; or (d) any analogous demand, appointment or procedure is instituted or occurs in relation to a party elsewhere than in England and Wales.

1.10 “Awake” means Awake Limited, a company registered in England and Wales under company number 13653338, our registered office and trading address is Phoenix House, Lamport Drive, Daventry, Northamptonshire, NN11 8YH. Our VAT number is 412717714.

1.11 “Order” means an order for the Products made by the Customer to Awake.

1.12 “Price” means the amount specified in clause 4.

1.13 “Price List” means Awakes price and specification list for the Products published from time to time.

1.14 “Products” means the products to be supplied by Awake to the Customer under the Agreement.

1.15 “Territory” means that territory set out in the Order or if no territory is specified, the United Kingdom.

1.16 Clause headings shall not affect the interpretation of these Conditions.In these Conditions, unless the context otherwise requires words importing one gender shall be treated as importing any gender; words importing individuals shall be treated as importing corporations and vice versa; words importing the singular shall be treated as importing the plural and vice versa; a reference to a statute or other law shall include references to any amendment, modification, extension, consolidation, replacement, or re-enactment of; and references to “include” and “including” (or any similar term), are not to be construed as implying any limitation.

Acceptance of the Terms

2.1 These Terms shall apply to the extent that no other written agreement is made between Awake Limited and the customer. Any general terms and conditions of Retailer shall not apply to orders placed at Awake Limited.

Application and Selective Distribution

3.1 Unless otherwise stipulated in writing by Awake, these Conditions constitute the sole terms and conditions upon which Awake is willing to vend the Products to the Customer. These Conditions together with the accepted Order shall constitute the whole agreement between the Customer and Awake and shall govern the Contract to the entire exclusion of any other terms and conditions (including those implied by trade, custom or practice). Any reference within the Order to the Customer’s specification, quality manual, price list or like document shall be solely for the purpose of describing the Products to be supplied and no terms and conditions endorsed upon, delivered with, or referred to in the Order shall apply to the Contract.

3.2 Awake Limited has curated a beautiful collection of quality sustainable products for children and babies including tableware, clothing, and accessories. We want to create lasting relationships with retailers who share the same values as us at Awake.

3.3 Each customer will need to fill out our Become a Retailer form which can be found here or at the footer of our website named “Become a retailer”. We will carefully review your website/shop and decide if we want to grant the customer access to our online B2B store and enter into a contract with you. We will send the customer a confirmation email confirming the success of your application.

3.4 We will only grant customers access to our B2B store and allow retailers to sell Awake Limited's products if they sell products within a similar category ie baby/children items or those deemed compatible by Awake Limited's opinion. 

3.5 Our Products are recognized for their luxury, quality, and sustainability. We are committed to upholding high standards of quality, presentation, and service through our trusted distributors and retailers. To maintain the Products' reputation and protect consumer interests, Awake operates a selective distribution system in Europe, including the UK. Only authorized retailers who demonstrate excellence in their brand, reputation, locations, and service quality will be entrusted with Awakes Products. Ensure that all aspects of the Conditions are understood in this way. The image, name, and presentation of each authorized outlet and website, along with the service and advice provided by sales personnel, should align with the esteemed and global reputation of Awakes luxury products without compromising the Awake brand.

3.6 Products delivered to the customer must be sold in the agreed upon shop/shops and/or website. If any circumstance changes; it is the customer's responsibility to notify Awake at which point Awake can decide to continue or terminate the contract.

3.7 If the customer changes the URL (Website address), you must notify Awake Via email at b2b@awakestore.co.uk or by post. We have the right to decide if we want to continue the relationship or terminate the contract. If the customer changes its brick-and-mortar address, you must notify Awake Via email at b2b@awakestore.co.uk or by post. We have the right to decide if we want to continue the relationship or terminate the contract.

3.8 If the Customer does not comply and stops selling products within the baby/children category. Awake Limited reserves the right to end the business relationship with the customer immediately.  Awake Limited has the option to buy back the remaining stock of Awake Limited products from the Retailer at a cost price. The customer will be responsible for all freight costs, taxes and duties associated with this transaction.

Price and payment

4.1 The price for the Products shall be the price stated on the Price List on our b2b website. Prices do not include VAT, taxes, tolls, customs charges, and tariffs. Prices are exclusive of: (a) any applicable VAT, which shall be payable by the Customer on receipt of a valid VAT invoice from Awake; and (b) all charges for shipping, carriage, insurance, and delivery of the Products to the Delivery Address and any duties, imposts or levies.

4.2 Awake reserves the right to vary the Price from time to time, including to reflect any increase in the cost of the Products at any time prior to delivery. We pride ourselves on being transparent, prices can decrease if there are changes in materials, labour costs, or legislation and these will be fairly represented in our prices.

4.3 Fixed prices are only valid within periods set out in terms of acceptance and delivery timeframes.

4.4 Payment terms: Once the Customer has received their order confirmation an invoice will be sent via email within 1 working day requesting 30% of the invoice value to confirm your order. Once we have received and allocated the customer's stock from Awakes supplier a final invoice will be sent with the customer's final balance unless a net term has been agreed in writing between Awake and the customer. The Final invoice needs to be paid within 5 working days. Once payment has been received the customer’s order will be fulfilled and ready for shipment. All payments need to be paid in the currency stated on the invoice. Please reference the specific invoice number or order reference to which they relate. Time of payment is of the essence.

4.5 If at any time Awake is not satisfied as to the Customer’s creditworthiness it may give notice to the Customer that no further credit will be allowed and in which event no further Products will be delivered other than against immediate payment and notwithstanding the provisions of this clause, all amounts owing by the Customer to Awake shall be immediately payable.

4.6  If the Customer fails to make any payment or any part thereof due to Awake under the Contract by the due date for payment, then Awake shall be entitled to charge interest (both before and after judgement) on the overdue amount at the rate of 4 per cent per annum above Bank of England plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount.  

4.7 The Customer shall pay all other amounts incurred by Awake in relation to the recovery of any sum due by it to Awake.

4.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as strictly required by law.

4.9 If the Customer disputes the whole or any portion of the amount claimed in an invoice submitted by Awake, the Customer must pay the portion of the amount stated in the invoice that is not in dispute and must notify Awake in writing (within 5 days of receipt of the invoice) of the reasons for disputing the remainder of the invoice.  If it is resolved that some or all of the amount in dispute ought to have properly been paid at the time of the first invoice, then the Customer shall promptly pay the amount finally resolved.

4.10 Awake shall be entitled at any time, without limiting any other rights or other remedies it may have, to set off any amount owing to it by the Customer against any amount payable by Awake to the Customer, and to withhold or suspend delivery of the Products to the Customer under the Contract, if any sums are due by the Customer to Awake.

4.11 For the avoidance of doubt, any and all expenses, costs and charges incurred by the Customer in the performance of its obligations under this Agreement shall be the responsibility of the Customer unless otherwise expressly set out in these Conditions.  

4.12 Awake will determine the recommended prices and provide these to the customer, Awake allows a +10% or -5% on the recommended price. If you would like to determine a price which is outside of our recommended range, please email b2b@awakestore.co.uk and we will come to a written agreement. 

Retention of title

5.1 Awake Limited retains all title to the products until the order has been fully paid for by the Retailer.

Order

6.1 Please note all B2B orders are pre-order only. Awake is a sustainable business model and pre-orders help manage a correct stock level without waste.

6.2 Orders are final when Awake Limited confirms the Retailer’s order by sending an order confirmation by email. Unless the customer objects to the order confirmation within 5 working days. Hereafter, the customer cannot cancel, change or postpone the order without a written agreement from Awake Limited.

6.3 Each Order shall be deemed a separate offer by the Customer to purchase the Products on the terms set out in these Conditions. Awake and the Customer acknowledge and agree that each order made by the Customer, including multiple orders for the same Products, shall be treated as separate Orders for these Terms and Conditions.

6.4 Any changes or cancellations regarding the order between the Customer and Awake will only be accepted if these are addressed in writing to Awake Limited either by email at b2b@awakestore.co.uk or a letter headed cancellation to Awake Limited, Phoenix House, Lamport Drive, Daventry, Northamptonshire, NN11 8YH, within 5 working days of receiving the order confirmation. If there are no changes from the customer side that are addressed within the 5 working days the order is deemed final and confirmed. Awake Limited has the right to claim a fee of 30% of the total amount of the order excluding VAT, if changes or cancellations are requested after the order is deemed final and confirmed.

6.5 Awake Limited reserves the right to cancel a pre-order and apply a 30% cancellation fee once the delivery window is overdue and the Retailer has failed to clear its outstanding payments or before the end of the delivery window.

6.7 Minimum orders (apply unless agreed otherwise in writing by Awake Limited). £500 is the minimum order amount. If you do not meet this criteria, you will not be able to complete your order.

Within this order minimum, you can mix colours and styles,

The process of an order:

• The customer places an order.

• The customer receives an order confirmation.

• The customer receives a prepayment invoice to pay 30%

• The order is confirmed.

• Awake receives stock.

• The customer receives the final payment invoice.

• Once payment has been received your order will be fulfilled and shipped.

• The retailer receives the shipment and checks everything is correct.

Delivery

We do not stock wholesale items and open pre-orders for our customers to order, details of delivery dates and pre-order cut-off dates can be found on our website.

7.1 Awake shall deliver the Products to the Delivery Address specified in the Order. All shipping is at the customer’s expense and risk. The Delivery Date for the Products is approximate only and the time of delivery of the Products is not of the essence. Except where Awake notifies the Customer otherwise, delivery of the Products shall be made ex-works (as defined in Incoterms 2020).

7.2 Delivery of Products is completed when they arrive at the Delivery Address stated on the order.

7.3 Every effort is made to find the best shipping cost to offer you the best delivery experience, all of our shipping costs include insurance for the whole order. These costs are not negotiable. Customs, taxes, and toll charges are at the expense of the customer.

7.4 Without prejudice to the Customer’s rights under clause 14.1, delays in delivery will not entitle the Customer to refuse to take delivery of the Products, claim damages, or terminate the Contract.

7.5 If the Customer fails to take delivery of the Products, unless such failure is caused by Awake’s failure to comply with its obligations under the Contract, (a) the Products shall be deemed to be delivered by 6 pm on the Delivery Date; (b) Awake will store the Products until delivery takes place; and (c) Awake will charge the Customer, and the Customer will pay, for all related costs and expenses (including insurance) in respect of any such storage.

7.6Delivery is approximately set to 5 times annually from Awake Limited. The order confirmation indicates the applicable delivery window(s).

7.7 If the customer causes a delay in the delivery, the time of delivery will be extended in circumstances deemed reasonable.

7.8 If Awake notifies the Customer that it requires the Customer to return any packaging materials to Awake, such packaging materials shall remain Awake’s property, and the Customer will make them available for collection by Awake at any time at Awake’s reasonable request. Returns of packaging materials shall be at Awake’s expense.

7.9 Awake shall not be liable for any non-delivery of the Products unless written notice is given by the Customer to Awake within 5 Business Days of the date when the Products would in the ordinary course of events have been delivered.

7.10 Any liability of Awake for non-delivery or any discrepancy in the quantity of the Products delivered shall be limited to replacing the Products within a reasonable time or issuing a credit note for the purchase price paid by the Customer for such Products.

Events outside of our control

8.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by an Event Outside Our Control.

8.2 An Event Outside Our Control means any act or event beyond our reasonable control. Including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.

8.3 If an Event Outside Our Control takes place that affects the performance of our obligations under a contract, our obligations under a contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects our delivery of products to you, we will arrange a new delivery date with you after the Event Outside Our Control is over.

8.4 If delivery is prevented for a period longer than three months, Awake is entitled to cancel the placed order without being liable towards the customer.

Acceptance and defective products

8.1 Awakes products are designed and made with the highest quality materials and processes. We only work with the most prestige suppliers that we trust and have many years of experience in the industry. All of our products go through vigorous testing making sure you and your customers receive the best product.

8.2 At Awake we pride ourselves on the quality of our products, however, we know in rare instances issues can arise and we want to correct these as soon as possible.  If any Products supplied by Awake under the Contract are unsatisfactory or not as described ('Defective Products'), If the Customer notifies Awake within 10 working days after delivery and returns a sample of the Products to Awake promptly thereafter, and if Awake determines that the returned Products are defective, Awake will replace the Defective Products at no additional expense to the Customer as soon as possible after receiving the sample.  If the Customer fails to notify Awake within 10 working days, they are deemed to have accepted the Products and cannot reject them, even if they are Defective Products. Awake is not liable for any defects or failures. Please note the sample shipping cost will be refunded if Awake determines the product defective.

8.3 If shortcomings in the delivered goods are detected within a year, Awake Limited may at its sole discretion decide whether to credit the customer for the returned defective goods, which shall be returned at the expense of the customer. The aforementioned obligations require the customer to collect a minimum of 5 claims from its customers and complain in writing to Awake Limited. Retailers shall be obliged to obtain the defective goods from the customers complaining and shall forward the defective goods with a description of the claim to Awake Limited.

8.4 Awake Limited is not liable for errors or defects attributable to improper handling, transport, storage, assembly or otherwise misconduct by anyone other than Awake Limited, or for unusual or usual wear and tear.

8.5 Awake shall not be liable for any claim in relation to the Products under clauses 9.1 and 9.2 if: (a) the defect arises because the Customer or its customer failed to follow Awake’s oral or written instructions as to the storage of the Products or (if there are none) good trade practice; or (b) the Customer or its customer alters or repairs the Products.

8.6 Except as set out in clause 9.1, Awake gives no other warranty or condition (except as to title) in relation to the Products, (including warranties or conditions as to the condition of the Products, time of delivery or effectiveness of the Products, or any warranties, conditions or terms implied by statute to the fullest extent permissible by law).

8.7 If the Customer rejects Products in accordance with clause 9.1, the Customer shall be entitled (as its sole and exclusive remedy) to require that Awake: (a) repair or replace the rejected Products; or (b) repay the Price of the rejected Products in full. The terms of the Contract shall apply to any repaired or replacement Products supplied by Awake.

Product recalls

9.1 The customer is obliged to use its best efforts to assist Awake Limited in case of product recalls. This involves all reasonable steps necessary for contacting customers who have bought products subject to recall. Customers must take such steps immediately after being notified of recalled products by Awake Limited. The customer is not entitled to any reimbursements for Customer assistance in connection with product recalls. The Retailer shall keep sufficient records of its sale of Awake Limited products to enable a recall procedure.

9.2 The Customer shall be responsible for locating and recovering any defective Products and shall be responsible for conducting any product recalls at Awake Limited’s cost (except where a product recall is as a result of any of the Customer acts or omissions) in accordance with any product recall procedures adopted by Awake and any regulatory procedures in the UK. Without prejudice to the preceding sentence, the Customer shall provide Awake with all such assistance and information as Awake may require in connection with a product recall. 

Title and Risk

10.1 The title of the Products shall only transfer from Awake to the Customer once full payment has been received by Awake (in cleared funds) for such Products. The risk associated with the Products shall pass to the Customer upon delivery.

10.2 Until full payment has been received by Awake (in cleared funds) in respect of the Products, the Customer warrants, and agrees, on an ongoing basis that it shall:

(a)   hold the Products as Awake fiduciary agent and bailee, and the Products will be kept in its sole possession and control, separate from any of its products or products of any third party, and shall not be removed or relocated without the prior written consent of Awake;

(b)  not assign any right or interest of Awake in or to the Products;

(c)   keep and maintain the Products free and clear of all liens, charges and encumbrances, other than the interests of Awake;

(d)  promptly furnish to Awake a statement detailing any loss or damage to any of the Products; and

(e)   permit Awake to affix to the Products appropriate labels indicating Awake’s ownership interest in the Products, and the Customer shall not cause or permit any such labels to be removed, defaced or covered in any way.

10.3 Awake reserves the right to repossess and resell any Products to which it has retained title without prior notice.

10.4 Notwithstanding the provisions of clause 11, Awake is entitled to bring an action against the Customer for the Price of the Products in the event of non-payment by the Customer by the due date even though property of the Products has not passed to the Customer.  

Storage, handling, and inspection

11.1 The Customer shall store, transport and sell the Products:

(a)   in conditions that preserve the Products in good condition and free from contamination.

(b)  in accordance with these Conditions; and

(c)   at all times in accordance with any instructions given or additional conditions specified by Awake.

11.2 The Customer shall allow Awake, on reasonable notice, to undertake an audit of its accounts, records, and sales aids (including catalogues, sales brochures and manuals) relating to the Products and the Customer’s compliance with this Agreement.

Sale, Handling and inspection

13.1 The Customer is appointed by Awake as an approved retailer of the Products in a non-exclusive capacity. The Customer's agreement includes reselling the Products through physical retail outlets and their website as outlined in the approved Order, specifically targeting end consumers within the Territory.

13.2 In addition, the Customer will not sell the Products via any third-party platforms and marketplaces including (without limitation) Amazon and eBay, or through any messaging apps including (without limitation) WhatsApp and Facebook Messenger. The Customer must not supply any replacement conformity certificates relating to any Brand products (or otherwise direct any end consumers to Awake in respect of the same).   

13.3 The Customer shall not sell the Products to any unauthorised wholesalers or retailers.

13.4 The Customer shall not, until it has been supplied with (and received) sufficient stocks of the relevant Product, offer any pre-sales of such Products to its customers.

13.5 The Customer must only use promotional, marketing and advertising material for the Products that were supplied by or have been approved in advance and in writing by Awake. In addition, in respect of any new Products not launched, Awake will notify the Customer of the intended launch date (which is subject to change) and until such launch date, no use of any promotional, marketing and advertising material of, or relating to, such Products, is permitted.

13.6 The Customer undertakes to observe all directions and instructions given to it by Awake in relation to the advertising, marketing, and promotion of the Products and not to place marketing and advertising material relating to the Products in a way that may damage the Brand or is otherwise aimed at consumers outside of the Territory. In addition, the Customer shall not make any disparaging comments about Awake online (including on its social media platforms) or otherwise in any other communications.   

13.7 The parties may agree from time to time on specific marketing activities or campaigns the cost of which shall be agreed upon by the parties in writing.

13.8 The Customer acknowledges that the Brand is a well-established sustainable luxury lifestyle brand for babies and young children and should be marketed as such. The Customer’s attention is drawn to Clause 3.5 of these Conditions.

13.9 The Customer shall comply with the Brand Guidelines in respect of the sale, marketing and promotion of the Products.  In particular, all such promotional, marketing and advertising material which makes use of Awakes brand assets must comply with the Brand Guidelines. The Customer shall ensure all materials (including e-commerce and website pages) making use of the Brand have been approved in advance in writing by Awake. The Customer undertakes not use any of the following words CHEAP, CHEAPEST, DISCOUNT, OUTLET, or any similar words, mark or sign in relation to any business, goods or services provided by it under or in connection with the Contract and/or sale of the Products (including, without limitation, in any corporate or trading name, in any domain name, on any website, search terms, as a metatag or Adword, or in any social media account or other website page, as part of any promotional or other business material or publication and in any telephone or other directory listing). 

Intellectual Property

14.1 The Customer is granted a non-exclusive, revocable right to use the Brand and marketing materials in the UK for promoting and selling the Products, on the condition that the Customer agrees to:

   (a) not to create products or materials that use the Brand without Awake’s written consent and not to use such           products or materials unless such use has been approved by Awake in advance in writing;

   (b) not to customise or alter the Products in any way, including (without limitation) altering the fabric or adding or         removing any features;

   (c) not to remove, obscure, alter, make any addition to or deface any Brand placed on the Products or any                     materials  provided by Awake, or to alter, make any addition to, remove or tamper with the labelling and packaging     of the Products provided by Awake;

   (d) not to apply any other trademarks to the Products and materials (save as may be expressly agreed otherwise in     writing by Awake);

   (e) not to apply to register any trademark, trade name, domain name, word, logo or symbol similar to or so                   resembling the Brand as to be likely to cause deception or confusion;

   (f) not to do anything which impairs the rights of Awake in the Brand or in any registrations or applications relating     to the Brand or which prejudices, dilutes or reduces the commercial value, reputation or goodwill of the Brand;

   (g) not to stock or sell any Products that would breach the above provisions if such acts were done by the                     Customer; and

   (h) at all times to comply with the Brand Guidelines.

14.2 All representations of the Brand which the Customer intends to use must first be submitted to Awake for approval and must not be used by the Customer until such approval is granted in writing.

14.3 Any and all goodwill arising as a result of the Contract and the advertisement and sale of the Products shall accrue solely to Awake.  

Liability

15.1 Nothing in the Contract shall exclude or limit a party’s liability (or the other party’s remedies) for: (a) death or personal injury arising from its negligence; (b) fraud or fraudulent misrepresentation; or (c) any other liability to the extent that such liability may not be excluded or limited as a matter of applicable law.

15.2 Subject to clause 15.1, Awakes maximum aggregate liability in respect of the Contract (howsoever arising and including as a result of breach of contract, tort (including negligence) or statutory duty) shall not exceed 100% of the Price paid by the Customer in respect of that Contract.

15.3 Subject to clause 15.1, Awake shall have no liability under or in relation to the Contract (howsoever arising and including as a result of breach of contract, tort (including negligence) or statutory duty) for any: (a) direct or indirect: (i) loss of profits; (ii) loss of contracts; (iii) loss of business; (iv) loss of goodwill; (v) loss or corruption of data; or (b) indirect or consequential loss or damage, even if Awake has been advised of the possibility of such damages or losses (provided that nothing in this clause 15.3 shall be deemed to limit or exclude Awakes liability for direct loss or damage).

15.4 Save to the extent expressly set out in these Conditions, all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise are hereby excluded to the fullest extent permitted by law.

15.5 Awake shall not be liable for any delay or failure in the performance of its obligations caused by a failure of or delay by the Customer to perform its obligations under the Contract, or any compliance by Awake with instructions issued by the Customer in relation to which Awake has raised a concern.

Notices

16.1 Unless expressly provided otherwise, all notices and other communications to be given under these Conditions must be in writing and shall be delivered (a) by hand (including by courier); (b) by pre-paid first class post or other next day delivery service; (c) by pre-paid airmail; or (d) by email (sent with a delivery receipt request), to the other party's address as set out in the Order (or such other address as that party may notify to the other from time to time). Such notice shall be treated as having been given and received:

(a) if delivered by hand, at the time of delivery;

(b) if sent by UK pre-paid first class post or other next day delivery service to a UK postal address, at 9.30 a.m. on the second clear day after the date of posting;

(c) if sent by pre-paid registered airmail, at 9.30 a.m. on the fifth clear day after the date of posting; and

(d) if sent by email, at the time recorded in the delivery receipt.

Termination and Consequences

17.1 Awake may terminate a Contract and/or Contracts and/or any outstanding approved Orders immediately by notice in writing if: (a) the Customer is in material or persistent breach of any term of these Conditions and (where capable of remedy) such breach is not resolved within 30 days of being notified in writing of the breach. For the avoidance of doubt, a ‘repudiatory’ breach shall be deemed to be a material breach which is incapable of remedy; (b) the Customer is affected by an Insolvency Event; (c) any event occurs which, in Awakes reasonable opinion, would have a significant adverse effect on the Customer’s ability to comply with these Conditions; (d) the Customer fails to comply with the Brand Guidelines and/or in Awakes reasonable opinion, the Customer’s acts or omissions cause damage or harm, or are likely to cause damage or harm, to the reputation of the Brand and/or Products; and/or (e) under clause 18.

17.2 Notwithstanding Awakes rights above, Awake may at any time suspend the supply of Products to the Customer if it is, or Awake reasonably anticipate that it is likely to be, in breach of its obligations under the Contract, until such point that the breach is remedied to Awakes satisfaction.

17.3 If Awake exercises its right of termination, the Customer shall: (a) immediately pay any money due to Awake (under all Contracts); (b) immediately cease to use the Brand and any marketing and advertising material relating to the Products (under all Contracts) and, at its cost, destroy or deliver up (as directed by Awake) all such materials; and (c) at Awakes discretion: (i) sell—through any remaining stocks of the Products (under all Contracts) held by the Customer within the sell-off period notified by Awake to the Customer (to not be less than 30 days); and/or (ii) promptly return to Awake all remaining stocks of the Products (under all Contracts) held by the Customer which are unsold at its expense or otherwise securely dispose of the stocks as Awake may instruct (and the Customer shall evidence its compliance to Awake). In respect of any Products returned, Awake will refund to the Customer the Price paid for those Products returned (less any VAT and expenses incurred in processing the refund), subject to each such Product being returned in a brand new and resale-able condition (as determined by Awake acting reasonably following its own inspection). 

17.4 Termination shall not affect the rights or liabilities of either party accrued prior to termination or expiry or any terms intended expressly or by implication to survive termination or expiry.

Force Majeure

18.1 Subject to clause 18.4, neither party shall be liable to the other party for its inability to perform any obligations (other than the obligation to make payments due) under this Agreement to the extent caused by a Force Majeure Event.

18.2 If a Force Majeure Event occurs, the party affected will immediately notify the other party of the nature and likely duration of the Force Majeure Event and will take all reasonable steps to reduce its effect.

18.3 If the Force Majeure Event continues for a period of 30 days or more, the party not affected by the Force Majeure Event may terminate the Contract provided that such Force Majeure Event is continuing at the date of termination.

18.4 Notwithstanding anything else in this Agreement, if Awake suffers a Force Majeure Event due to any epidemic or pandemic, including the COVID-19 pandemic, Awake will take all reasonable steps to reduce its effect and where it is not able to fulfil, within the agreed timescales, any orders for Products placed by the Customer, Awake shall not be liable for any failure or delay in fulfilling those orders or its other obligations.

General

19.1 Awake shall be entitled to assign its rights and obligations set out in these Conditions. Awake may also subcontract or delegate any of its obligations under these Conditions. The Customer shall not transfer its rights and/or obligations to third parties, whether in whole or in part, without Awakes prior written consent.

19.2 Each party shall keep secret and confidential all information disclosed to it (whether in writing, verbally or otherwise) under or in connection with the Contract which is of a confidential or proprietary nature. The receiving party shall not use, disclose, exploit, copy or modify such confidential information except for the purposes of the proper performance of the Contract or with the prior written consent of the other party.  Any such disclosure shall be made subject to obligations equivalent to those set out in these Conditions.

19.3 Notwithstanding clause 19.2, Awake may make announcements relating to the existence of the Contract or its subject matter and make press releases or other publicity and enter into advertising and marketing in relation to the same.

19.4 The failure of either party to enforce or exercise at any time any term or any right under the Contract does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect that party’s later right to enforce or to exercise it.

19.5 If any term of these Conditions is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from these Conditions and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of these Conditions is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.

19.6 Nothing in the Contract is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way.

19.7 The Contract contains all the terms agreed between the parties regarding its subject matter and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing.

19.8 Each party agrees that it has not relied upon, and will have no remedy in respect of, any representation, statement, assurance or warranty that is not expressly set out in these Conditions.

19.9 The parties do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 (or otherwise) by any person who is not a party to the Contract.

19.10 The Contract and any dispute or claim arising out of or in connection with it, shall be governed by and construed in accordance with the laws of England and Wales.

19.11 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute which may arise out of or in connection with the Contract.