Donner, Blitzen and Rudolf LLP
The Santa Claus Building
St Nicholas Street
The North Pole
9th December 2011
Re: Agreement for the Delivery of Presents
We refer to your letter of 2nd December, and its enclosed draft greement between the Santa Claus Group and our client Mr Timothy Taylor (referred to in the Agreement as “Little Timmy”).
Having taken instructions from our client, we have the following observations and comments on your draft:
1. In the definition of “the Presents” at clause 1.1, please add the following items: one Lego Ninjago Fire Temple set; one Nerf Vortex Nitron Blaster; one Tech Lightsaber set; two ponies (any breed); one signed photograph of Karen Gillan. A schedule providing further details of these items, and outlets from where they might be purchased, is enclosed.
2. In the same definition, please delete the following items: one Marks and Spencers pyjama set in baby blue; one Beano annual; one orange.
3. At clause 2.1 your requirement that our client “warrants represents and undertakes that he has been good during the course of the year” lacks certainty and arguably imposes an unreasonable standard of behaviour on our client. We suggest that this be replaced by a warranty that our client has “at all material times achieved a reasonable level of behaviour with reference to the standards generally held to be acceptable for children of a similar age, nationality, and socio-economic and ethnic background.”
4. We note that at clause 3.2 you have stated the Price to be “two packets of Duchy Originals mince pies and one bottle of Pol Roger with four glasses.” We assume that this is an error, and request that you reinsert the Price specified in the earlier Heads of Agreement of “two mince pies (Tesco own-brand) and one small glass of Bristol Cream sherry.”
5. Your clause 4.2, which states that “Time shall not be of the essence in relation to this Agreement”, is clearly inappropriate in view of the substantial loss and distress that our client would suffer in the event of late delivery of the Presents. We therefore propose that a schedule of compensatory service credits be appended to the Agreement to apply in the event of your client’s breach.
6. We would draw your attention to the provisions of The Consumer Protection (Distance Selling) Regulations 2000 (as amended), and propose that a new clause 6.5 be inserted to provide for the return of the Presents within the statutory cooling off period. A rider to this effect is attached hereto for your consideration.
7. Your proposed clause 8, which provides for the subcontracting of the Santa Claus Group’s obligations under the Agreement to our client’s parents or guardian, is clearly unacceptable. Our client is entering into the Agreement in reliance on the Santa Claus Group’s representations as to the existence of its founder and chief executive, Mr Claus, and it is of the essence that their obligations are performed by Mr Claus personally.
8. We also find your proposed force majeure provisions (at clause 9) to be inappropriate. The Santa Claus Group has for a number of years promoted and traded on its ability to deliver to customers in all conditions, and we therefore do not accept that your client should be relieved of its obligations in the event of snow or other adverse weather. We therefore propose that this provision be restricted to the following occurrences: volcanic ash clouds; governmental no fly orders; elf flu; and Acts of God.
We also note that our client has expressed some scepticism regarding the ability of the Santa Claus Group to meet its obligations under the Agreement in view of the large number other similar contracts that it enters into at this time of year, all of which must contain similar obligations that must be performed within a short period of time. We would be grateful, therefore, if you could provide a detailed specification of how your client intends to perform its obligations, together with a copy of its business continuity plan and details of any insurances that it holds that may be relevant to the services to be provided.
We look forward to receiving the same, and a revised version of the draft Agreement, at your earliest convenience.
For and on behalf of