Terms of Sale

Creative Tops

Standard Terms and Conditions for the Sale of Goods

 

  1. Interpretation

1.1       In these terms and conditions:

"Business Day" means any day other than a Saturday, Sunday or bank holiday in England;

"Buyer" means the person who accepts an offer of the Seller for the sale of the Goods or whose order for the purchase of Goods is accepted by the Seller;

"Contract" means the contract for the sale and purchase of the Goods under these Conditions;

"Conditions" means the standard terms and conditions of sale set out in this document and any special terms and conditions agreed in writing between authorised representatives of the Buyer and the Seller;

"Delivery Date" means the date on which the Goods are intended to be delivered as stipulated in the Contract;

"Goods" means the goods which the Seller is to supply in accordance with these Conditions, including any instalment of such goods or any parts for them;

"month" means a calendar month;

"Seller" means Creative Tops, a company registered in England and Wales under company number 3411690;

"writing"   includes   any   communications   effected   by   hand, pre-paid first class post, telex, facsimile transmission, electronic mail or any comparable means.

1.2       Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.

1.3       Any reference to "and/or" means either or both of the alternatives.

1.4       The headings in these Conditions are for convenience only and shall not affect their interpretation.

  1. Incoterms

2.1       Any terms used which are defined in Incoterms (such as EXW, FOB, DDP, CIF etc.) shall be interpreted in accordance with Incoterms 2010.

2.2       If there is any conflict between any Incoterm applicable to the Contract and these Conditions then these Conditions will prevail to the extent of the conflict.

  1. Application of Conditions

3.1       The Seller shall sell and the Buyer shall purchase the Goods in accordance with the Contract.

3.2       These Conditions govern the Contract to the exclusion of any other standard terms and conditions.

  1. Basis of Sale

4.1       The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by an authorised representative of the Seller in writing.  In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed in writing.

4.2       No variation to a Contract shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.

4.3       All documents issued by the Seller in relation to the Goods, including sales literature, are subject to alteration without notice. Any such documents shall not constitute an offer to sell the Goods which is capable of acceptance.

4.4       An order placed by the Buyer may not be withdrawn, cancelled or altered prior to acceptance or rejection by the Seller.  

4.5       No Contract shall be binding on the Seller unless the Seller has issued a quotation which is expressed to be an offer to sell the Goods which is accepted by the Buyer subject to these Conditions, or the Seller has accepted an order placed by the Buyer for the purchase of Goods by whichever is the earlier of the Seller's written acceptance, delivery of the Goods, or the Seller's invoice.

4.6       No  Contract may  be terminated by the Buyer, except with the Seller's agreement in writing and on the terms that the Buyer shall indemnify the Seller in full against all loss incurred by the Seller as a result of termination, including but not limited to loss of profit, costs (including the cost of  all  labour  and  materials  used or purchased),  damages,  charges  and expenses.

  1. Quantities

5.1       The Seller may satisfy any order for Goods by delivery of a number of Goods which is within 5% of the amount ordered and the price shall be adjusted pro rata as a result.

5.2       The Goods will only be supplied in the minimum number of units or multiples of that amount stated in the Seller's price list.  Orders received for quantities other than these will be rounded up or down to the nearest multiple accordingly.

  1. Specifications

6.1       The specification for the Goods shall be as set out in the Seller's specification documentation unless varied expressly in the Contract.

6.2       Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or any other document issued by the Seller are intended as a guide only and shall not be binding on the Seller.

6.3       Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

6.4       The  Seller  reserves  the  right  to  make  any  changes  in  the specification of the Goods where required to conform with any applicable safety or other statutory or regulatory requirements, product improvements or where the Goods are to be supplied to the Seller's specification.  Any changes made will not materially adversely affect the quality or performance of the Goods.

6.5       The Buyer agrees to indemnify and keep indemnified the Seller against any and all claims, losses, expenses, proceedings, actions, awards, liabilities, costs (including legal costs on a full indemnity basis and increased administration costs) and any other losses and/or liabilities arising out of the Seller's use of specifications, details and/or drawings supplied by the Buyer.

  1. Price

7.1       The price of the Goods shall be the price listed in the price list which is current at the date of the formation of the Contract or such other price as may be agreed in writing by authorised representatives of the Seller and the Buyer.

7.2       Where the Seller has quoted a price for the Goods other than in accordance with the Seller's standard price list, the price quoted shall be valid for up to ninety days only or such other time as the Seller may specify. Each and every quote provided by the Seller is an invitation to treat only and is not an offer capable of acceptance unless the quotation is expressly stated to be an offer capable of acceptance.

7.3       The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller, including without limitation:

7.3.1           any foreign  exchange  fluctuation,  currency  regulation,  alteration  of duties, change in legal requirements, significant increase in the costs of labour, materials or other  costs  of  manufacture;

7.3.2           any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer;

7.3.3           any delay caused by any instructions of the Buyer; and/or

7.3.4           failure of the Buyer to give the Seller adequate information or instructions.

7.4       Provided that no other amounts owing by the Buyer to the Seller are overdue and unpaid, any settlement discount specified by the Seller in the Contract will be allowed in respect of Goods for which payment is received by the Seller within the settlement discount terms.

7.5       Except as otherwise stated under the terms of any quotation or in any price list of the Seller, or unless otherwise agreed in writing between the authorised representatives of the Buyer and the Seller, all prices are DDP (Incoterms 2010) where the final delivery destination is within the UK mainland.  Where the final delivery destination is anywhere outside of the UK mainland, delivery terms including charges for packaging and transport will be specified in the Contract.  If none are agreed then the Goods are sold EXW (Incoterms 2010).

7.6       The price is exclusive of any applicable value added tax excise, sales or taxes or levies of a similar nature which are imposed or charged  by  any  competent  fiscal  authority  in  respect  of  the Goods, which the Buyer shall be additionally liable to pay to the Seller unless covered by an applicable Incoterm.

  1. Payment

8.1       The Buyer shall pay the Seller's invoice within 30 days unless the Contract specifies different credit terms for the Buyer. 

8.2       The Seller reserves the right, as a condition of the Contract, to require (and the Buyer shall comply with any such requirement) a deposit to be paid by the Buyer.  Any such deposit may be required to be paid at the time of the formation of the Contract, prior to manufacture or prior to shipping.

8.3       The Seller reserves the right, as a condition of the Contract, to require (and the Buyer shall comply with any such requirement) the Buyer to make payment by way of an irrevocable letter of credit confirmed by a UK clearing bank.

8.4       The Buyer shall pay all sums due to the Seller under the Contract without any set-off, deduction, counterclaim and/or any other withholding of monies.

8.5       Payment shall be made on the due date for payment notwithstanding that delivery of the Goods may not have taken place and/or that ownership of the Goods has not passed to the Buyer. 

8.6       Time for the payment of the price shall be of the essence of the Contract.  Receipts for payment will be issued only upon request.

8.7       All payments shall be made to the Seller  by the Buyer as indicated on the order confirmation or invoice issued by the Seller.

8.8       Invoices are payable in the currency specified in the Contract.  If no currency is specified then invoices are payable in pounds sterling (GBP).  If monies are sent to the Seller in a different currency then any currency conversion costs and charges shall be added to the price payable so that the Seller is left with the net amount of the price.

8.9       If the Buyer fails to make any payment in full on the due date the Seller may charge the Buyer any reasonable additional administration costs and/or interest (both before and after judgment) on the amount unpaid at the rate of 4% above the base rate from time to time of the Seller's bank. Such interest shall be compounded with monthly rests.

8.10     Payment shall not be deemed to be made until the Seller has received either cash or cleared funds in respect of the full amount outstanding.

8.11     If payment in full is not made to the Seller when due then the Seller may withhold or suspend future or current deliveries of Goods and delivery under any other agreement with the Buyer.

  1. Credit Limit

9.1       The Seller may set a reasonable credit limit for the Buyer.  Changes in the Buyer's credit limit will be notified to the Buyer from time to time.

9.2       The Seller reserves the right to refuse to accept orders for Goods and/or to suspend or withhold delivery of Goods if such Goods would result in the Buyer exceeding its credit limit or the credit limit is already exceeded unless the Buyer pays upfront in full for the Goods.

  1. Delivery

10.1     Delivery of the Goods within mainland UK is made DDP (Incoterms 2010) unless specified otherwise in the Contract.  Goods for delivery outside mainland UK are sold EXW (Incoterms 2010) unless specified otherwise in the Contract. 

10.2     The Seller will use reasonable endeavours to deliver the Goods in accordance with the Contract.

10.3     The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed in writing by an authorised representative of the Seller. 

10.4     The Goods may be delivered by the Seller in advance of the Delivery Date upon giving reasonable notice to the Buyer.

10.5     Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract. Failure by the Seller to deliver any one or more of the instalments in accordance with the Contract or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

10.6     If the Buyer fails to:

10.6.1         take delivery of any part of or all of the Goods on the Delivery Date; and/or

10.6.2         fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on the Delivery Date or requests that delivery is delayed, meaning that delivery cannot be effected by the Seller on the Delivery Date;

then upon the Seller giving written notice to the Buyer, the Seller shall be entitled to store or arrange for the storage of the Goods at the Buyer's cost; risk in the Goods shall pass to the Buyer and delivery shall be deemed to have taken place; and the Buyer shall pay to the Seller all costs and expenses including storage and any insurance charges incurred by the Seller.

  1. Cancellation for Non-Delivery

11.1     The Buyer may cancel the Contract where:

11.1.1         the Seller has not delivered the Goods within 30 days of the Delivery Date;

11.1.2         the Buyer gives written notice of non-delivery to the Seller after the expiry of this 30 day period; and

11.1.3         the Seller fails to deliver the Goods within 30 days after receiving such notice.

  1. Inspection/Shortage

12.1     The Buyer is under a duty whenever possible to inspect the Goods on delivery.

12.2     If the Goods cannot be examined on delivery the carriers note or such other note as appropriate must be marked by the Buyer as "not examined".

12.3     The Seller has no liability for any defects, damage or shortages to the Goods that would be apparent on reasonable careful inspection unless the Buyer provides written notice to the Seller detailing the alleged damage, defects or shortage within 14 days of delivery.  

12.4     In all cases of damage, defects or shortages the Seller has no liability in respect of them unless the Seller is provided with a reasonable opportunity to inspect the Goods before any use is made of the Goods or any alteration or modification is made to the Goods.

12.5     In cases of defects, damage or shortages in Goods, the Seller shall at its option:

12.5.1         make good or repair any damage or defect in the Goods;

12.5.2         replace any damaged, defective Goods or any shortage in delivery of Goods, or

12.5.3         refund the Buyer for the price of the Goods which are damaged or defective or any shortage in delivery of Goods;

as soon as reasonably practicable, but otherwise shall be under no further liability whatsoever arising from such shortage, damage or defects.

12.6     No  Goods  may  be  returned  to  the  Seller  without  the  prior agreement in writing of the Seller. 

12.7     Any Goods returned to the Seller which the Seller is satisfied were supplied with defects of quality or condition which would not be apparent on a reasonably careful inspection shall either be replaced free of charge, or, at the Seller's sole discretion, the Seller shall refund or credit to the Buyer the price of such defective Goods, but the Seller shall have no further liability to the Buyer.

  1. Risk in the Goods

13.1     Risk of damage to or loss of the Goods shall pass to the Buyer:

13.1.1         at the time  when  the Seller  notifies the  Buyer  that  the  Goods  are available for collection in the case of Goods to be delivered at the Seller's premises; or

13.1.2         at the time of delivery in the case of Goods to be delivered otherwise than at the Seller's premises; or

13.1.3         at the time when the Seller has tendered delivery of the Goods if the Buyer fails to take delivery of the Goods;

and the Buyer should insure the Goods from that time.

13.2     If the Goods are at the risk of the Buyer and are destroyed or damaged by an insured risk before the Buyer has paid for them, the Buyer must hold any proceeds of insurance on trust for the Seller.

  1. Retention of Title

14.1     Notwithstanding delivery and the passing of risk in the Goods, or  any other provision of these Conditions, legal and beneficial title to the Goods shall not pass to the Buyer and shall remain with the Seller until the Seller has received in cash or cleared funds payment in full of the price of:

14.1.1         the Goods; and

14.1.2         any other goods supplied by the Seller to the Buyer and all other monies owed to the Seller by the Buyer, regardless of how such indebtedness arose.

14.2     Until payment has been made to the Seller in accordance with these Conditions and title in the Goods has passed to the Buyer, the Buyer shall be in possession of the Goods solely as bailee for the Seller.  The Buyer shall:

14.2.1         store such Goods separately from all other goods and in an appropriate environment;

14.2.2         ensure that they are identifiable as being supplied and owned by the Seller; and

14.2.3         insure such Goods against all reasonable risks.

14.3     If the Buyer sells or transfers the Goods to a third party before legal and beneficial title has passed to the Buyer under these Conditions, the proceeds of the sub-sale or transfer (or such proportion as is due to the Seller) shall be held by the Buyer on behalf of the Seller on a bare trust for the Seller. The Buyer shall ensure that such monies are:

14.3.1         held separately from and are in no way mixed with any other monies or funds; and

14.3.2         identified as being held on the Seller's behalf.

14.4     The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller.

14.5     The Seller reserves the right without prior notice to repossess or inspect any Goods in which the Seller retains title.  The Buyer irrevocably authorises the Seller to enter the Buyer's premises during normal business hours for the purpose of repossessing the Goods in which the Seller retains title or inspecting such Goods to ensure compliance with the storage and identification requirements of clause 14.2.

14.6     The Buyer's right to possession of and right to deal with the Goods in which the Seller maintains legal and beneficial title shall terminate if any event occurs which would entitle the Seller to terminate the Contract (whether or not the Contract is terminated).

14.7     Until title in the Goods has passed to the Buyer the Buyer shall procure that the Seller’s interest is noted on such policy of insurance.  The Buyer shall account to the Seller for any proceeds of such policy of insurance in relation to the Goods upon receipt of the same. Any monies received from the Buyer by the Seller in accordance with this clause shall not discharge the Customers liability to pay the price for the Goods and/or Services plus interest accrued in accordance with clause 8.9 but shall be set off against any such liability.

  1. Buyer's Default

15.1     If the Buyer:-

15.1.1         fails to make any payment to the Seller when due;

15.1.2         breaches the terms of the Contract (and if the breach is capable of remedy, has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied);

15.1.3         persistently breaches any one or more terms of the Contract;

15.1.4         pledges or charges any Goods which remain the property of the Seller, or ceases or threatens to cease to carry on business, or proposes to compound with its creditors, applies for an interim protective order or has a Bankruptcy Petition presented against it, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver appointed over all or any of its assets, takes any steps towards any such matters or takes or suffers any similar or equivalent action in any jurisdiction in the world;

15.1.5         exceeds the credit limit set by the Seller;

15.1.6         appears to the Seller due to the Buyer’s credit rating to be financially inadequate to meet its obligations under the Contract; and/or

15.1.7         appears reasonably to the Seller to be about to suffer any of the above events;

then without prejudice to any other remedies of the Seller the provisions of clause 15.2 below will apply.

15.2     If any of the events set out in clause 15.1 above occurs in relation to the Buyer then:-

15.2.1         the Seller may enter, without prior notice, any premises of the Buyer (or premises of third parties with their consent) where Goods owned by the Seller may be and repossess and dispose of or sell any Goods found which are owned by the Seller so as to discharge any sums due to the Seller under the Contract or any other agreement with the Buyer;

15.2.2         the Buyer may not re-sell, use or part with the possession of any Goods owned by the Seller until the Buyer has paid in full all sums due to the Seller under the Contract or any other agreement with the Seller;

15.2.3         the Seller may withhold delivery of any undelivered Goods and stop any Goods in transit;

15.2.4         the Seller may cancel, terminate and/or suspend without liability to the Buyer the Contract and any contract with the Buyer; and/or

15.2.5         all monies owed by the Buyer to the Seller shall immediately become due and payable.

  1. Limitations of Liability

16.1     The Seller shall have no liability for any defect in the Goods caused or contributed to as a result of the Goods being used for display or demonstration purposes or being handled by customers of the Buyer.

16.2     The Seller shall have no liability to the Buyer for defective Goods, Goods not despatched or Goods damaged or lost in transit unless the event is notified to the Seller within the appropriate time limit set out in the Contract.

16.3     The Seller shall have no liability for additional damage, loss, liability, claims, costs or expenses caused or contributed to by the Buyer’s continued use of defective Goods after a defect has become apparent or suspected or should reasonably have become apparent to the Buyer.

16.4     The Buyer shall where reasonable give the Seller a reasonable opportunity to remedy any matter for which the Seller is liable before the Buyer incurs any costs and/or expenses in remedying the matter itself.  If the Buyer does not do so the Seller shall have no liability to the Buyer.

16.5     The Seller shall have no liability to the Buyer for any:-

16.5.1         indirect and/or consequential losses;

16.5.2         loss of profits;

16.5.3         special damages; and/or

16.5.4         business interruption, damage to goodwill, loss of business, contracts, opportunity and/or production.

16.6     The Buyer shall be under a duty to mitigate any loss, damage, costs or expenses that it may suffer (including by maintaining an adequate stock of Goods).

16.7     The Seller’s total aggregate liability to the Buyer in relation to the Contract shall not exceed 125% of the price for the Goods.  To the extent that any liability of the Seller to the Buyer would be met by any insurance of the Seller then the liability of the Seller shall be extended to the extent that such liability is actually met by such insurance.

16.8     Each of the limitations and/or exclusions in the Contract shall be deemed to be repeated and apply as a separate provision for each of:

16.8.1         liability for breach of contract (including fundamental breach);

16.8.2         liability in tort (including negligence);

16.8.3         liability for breach of statutory duty; and

16.8.4         liability for breach of common law or any other basis of legal liability;

except clause 16.7 above which shall apply once only in respect of all the said types of liability.

16.9     Nothing in the Contract shall exclude or limit the liability of the Seller for death or personal injury due to its negligence or any liability which is due to the Seller’s fraud or any other liability which it is not permitted to exclude or limit as a matter of applicable law.

16.10  All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.

16.11  The Seller shall have no liability to the Buyer for any delay in performance of the Contract (other than in relation to payment) to the extent that such delay is due to any events outside the Seller’s reasonable control including but not limited to acts of God, war, flood, fire, labour disputes, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, governmental actions and any other similar events.  If the Seller is affected by any such event then time for performance shall be extended for a period equal to the period that such event or events delayed such performance.

  1. Confidentiality, Publications and Endorsements

17.1     The Buyer undertakes to the Seller that the Buyer will regard as confidential:

17.1.1         the Contract; and

17.1.2         all information obtained by the Buyer relating to the Seller's business; and/or

17.1.3         products of the Seller; and will not use or disclose to any third party such information without the Seller's prior written consent.

17.2     Clause 17.1 shall not apply to information which is in the public domain other than by reason of the Buyer's default.

17.3     The Buyer undertakes to the Seller that the Buyer will not use or authorise or permit any other person to use any:

17.3.1         name;

17.3.2         trademark;

17.3.3         house mark;

17.3.4         emblem; or

17.3.5         symbol;

which the Seller is licensed to use or which is owned by the Seller upon any:

17.3.6         premises;

17.3.7         note paper;

17.3.8         visiting cards;

17.3.9         advertisement or other printed matter; or

17.3.10      in any other manner whatsoever;

unless such use shall have been previously authorised in writing by an authorised representative of the Seller and (where appropriate) its licensor.

17.4     The Buyer undertakes to the Seller that the   Buyer   will   use   all   endeavours   to ensure compliance with clauses 17.1 to 17.3 by its employees, servants and agents.

17.5     This clause 17 shall survive the termination of the Contract.

17.6     The Buyer shall not make any modification to the Goods or their packaging, nor alter, remove, or tamper with any trade marks used on or in relation to the Goods.

  1. Communications

18.1     All communications between the parties shall be in writing and sent:

18.1.1         (in the case of communications to the Seller) to its registered office or such changed address as shall be notified to the Buyer by the Seller; or

18.1.2         (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Seller by the Buyer.

18.2     Communications shall be deemed to have been received:

18.2.1         if sent by pre-paid first class post, two Business Days after posting (exclusive of the day of posting); or

18.2.2         if delivered by hand, on the day of delivery; or

18.2.3         if sent by fax or electronic mail on a Business Day prior to 4.00 pm,  at  the  time  of  transmission  and  otherwise  on  the  next Business Day.

  1. Assignment

19.1     The Seller may assign its rights and obligations under the Contract or any part of it to any person.

19.2     The Buyer may not assign the Contract or any part of it without the prior written consent of the Seller.

  1. Waiver

20.1     No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

  1. Severance

21.1     If any provision of the Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of all other provisions of the Contract and the remainder of the provision in question shall not be affected thereby.

  1. Third Party Rights

22.1     A person who is not a party to the Contract shall have no rights under the Contract except that any member of the Seller's group of companies may, with the consent of the Seller, enforce the Contract as though they were the Seller.  The Seller and the Buyer may agree to vary any third party rights without the consent of the third party.

  1. Governing Law and Jurisdiction

23.1     The Contract shall be governed by the laws of England.

23.2     Where Goods are to be delivered within the European Union then the parties agree to submit to the exclusive jurisdiction of the English courts in relation to any disputes connected with the Contract.

23.3     Where Goods are to be delivered outside the European Union then any disputes in connection with the Contract shall be determined by Arbitration by a single arbitrator held in accordance with the then current rules for Arbitration of the ICC with the arbitration to be held in England.