Creative X Ltd Terms and Conditions of Business.
1. Interpretation
1.1 - In these conditions:
“Buyer” means the person, firm or company who accepts a quotation from the seller for the sale of goods or whose
order is accepted by the seller for the sale of said goods.
“Seller” means Creative X Ltd (registered in England under number 5162800).
“Goods” means the goods and or materials and or services (or any instalment thereof) which the Seller is to supply
and which are the subject of the Contract between the Buyer and the Seller.
“Conditions” means the terms and conditions of sale as set out in this document and (unless the context otherwise
requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
“Contract” means the contract for the purchase and the sale of the goods.
“Writing” means telex, cable, facsimile transmission, electronic mail, text and comparable means of communication.
1.2 – Any reference in these conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 – The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the Sale
2.1 – It is agreed that the Buyer is purchasing the Goods in the course of its business and not as a consumer (as is defined in the Consumer Rights Act 2015).
2.2 – The Seller shall sell and the Buyer shall purchase the Goods in accordance with any current written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any order is made or purported to be made, by the Buyer.
2.3 – No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
2.4 – The Seller’s employees or agents are not authorised to make any representation concerning the Goods unless confirmed by 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.
2.5 – Any advice or recommendation given by the Seller or its employees or agents to the Buyer, its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.6 – Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document of information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. Quotations
3.1 – Any specific testing required by the Buyer in relation to specific Health and Safety issues shall be the responsibility of the Buyer unless agreed in writing by the Seller. Any such requirements should be requested at the point of quotation, and, if agreed by the Seller, will be charged at the appropriate rate.
3.2 – All quotations, unless otherwise agreed in writing by an authorised representative of the Seller, remain valid and available for acceptance for a period of thirty days.
3.3 – All quotations, unless otherwise agreed in writing by an authorised representative of the Seller, are subject to cancellation or variation by the Seller without prior notice after the thirty day period.
3.4 – All prices quoted are on an ex-works basis. Any agreement made in writing between the Seller and the Buyer to deliver the Goods other than at the Seller’s premises shall make the Buyer liable to pay the Seller’s charges for transport, packaging and insurance. These charges will be invoiced by the Seller at the appropriate rate.
3.5 – All prices quoted or accepted are done so exclusive of VAT. All orders placed shall be at the quoted price plus VAT at the appropriate rate.
4. Orders
4.1 – The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with the terms.
4.2 – No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller.
4.3 – The Seller reserves the right, by giving written notification 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 (such as, without limitation, any foreign exchange rate fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
5. Cancellation
5.1 – No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on the terms that the Buyer shall indemnify the Seller in full against loss (including the loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation and in any event shall incur an administration charge of £25.00.
6. Terms of Payment
6.1 – Subject to any special terms agreed in writing between the Buyer and the Seller, the Buyer accepts that the first three orders placed with the Seller will be invoiced as follows:
6.1.1 fifty percent (50%) on placement of order
6.1.2 fifty percent (50%) upon notification from the Seller that the goods are ready for collection or (as may be the case) the Seller has tendered delivery of the goods.
6.2 – Subject to any special terms agreed in writing between the Buyer and the Seller, and subject to the Buyer having completed three orders as per clause 6.1, the Seller shall invoice the price of the Goods upon notification from the Seller that the goods are ready for collection or (as may be the case) the Seller has tendered delivery of the goods.
6.3 – The Buyer shall pay the price of the goods no later than the end of the month following the date of the Seller’s invoice, and the Seller shall be entitled to recover the price, notwithstanding that collection or delivery may not have taken place (and the property in the Goods has not passed to the Buyer) or that payment may not be stated to be payable on a day certain. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will only be issued on request.
6.4 – Subject to any special terms agreed in writing between the Buyer and the Seller, the Buyer shall pay the price of the goods without set-off or counterclaim, and without deduction of any kind.
6.5 – If the Buyer fails to make any payment on the due date then, without prejudice to any right or remedy available to the Seller, the Seller shall be entitled to:
6.5.1 cancel the Contract or suspend any further deliveries to the Buyer;
6.5.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may deem fit (notwithstanding any purported appropriation by the Buyer); and
6.5.3 charge the Buyer interest (both before and after any judgment in a court of law) on the amount unpaid, at the statutory rate until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
7. Delivery
7.1 – Delivery of the goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if another place for delivery has been agreed by the Seller, by the Seller delivering the Goods to that place.
7.2 – While every effort will be made by the Seller to effect delivery in accordance with any pre-arranged dates, any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be the essence of the Contract unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date.
7.3 – Where the delivery of the goods is to be made by the Seller in bulk, the Seller reserves the right to deliver and charge up to five percent (5%) more or five percent (5%) less than the quantity ordered. The quantity so delivered shall be deemed to be the quantity ordered.
7.4 – Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions 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.
7.5 – If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the goods.
7.6 – If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
7.6.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
7.6.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
8. Risk and Property
8.1 – Risk of damage to or loss of the Goods shall pass to the Buyer:
8.1.1 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
8.1.2 in the case of Goods to be delivered other than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
8.2 – Notwithstanding delivery and the passing of the risk in the goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the goods.
8.3 – Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods in a location separate from that of the Buyer’s goods, properly stored, protected and insured and identified as the Seller’s property, allowing the Seller reasonable access to check the storage condition of the Goods as required.
9. Warranties and Liability
9.1 – Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery.
9.2 – The above warranty is given by the Seller subject to the following conditions:
9.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any design, drawing or specification supplied by the Buyer.
9.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, misuse or alteration or repair of the Goods without the Seller’s approval.
9.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
9.2.4 the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
9.2.5 the Seller accepts no responsibility for lack of specific testing in relation to Health and Safety as set out in clause 3.1.
9.3 – Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Consumer Rights Act 2015), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by the law.
9.4 – Where the Goods are sold to a person dealing as a consumer (as defined in sub-clause 9.3), the statutory rights of the Buyer are not affected by these conditions.
9.5 – Any claim by the Buyer relating to a defect in the quality or condition of the Goods, their failure to correspond with specification or short-shipment (of quantity not less than 5% of the total order quantity as per sub-clause 7.3) shall be notified to the Seller in writing within 7 days of the date of delivery. The goods shall then be returned to the Seller at the Buyer’s cost, for examination. If the Buyer fails to notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods were delivered in accordance with the Contract.
9.6 – Where any claim in relating to a defect in the quality or condition of the Goods or their failure to correspond with specification is agreed and confirmed by the Seller, the Seller shall be entitled to repair the Goods (or the part in question) or replace the Goods (or the part in question) as deemed appropriate, free of charge.
9.7 – Where any claim in relating to a short-shipment is agreed and confirmed by the Seller (in accordance with sub-clause 5.3), the Seller shall be entitled to replace, free of charge.
9.8 – Where any such claim detailed in sub-clauses 9.5 is not agreed and confirmed by the Seller, the Goods shall be returned to the Buyer at the Buyer’s cost, or made available for collection by the Buyer, and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price for the Goods.
9.9 – Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, it’s employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
9.10 – The Seller shall not be liable to the Buyer or be deemed in breach of the Contract for any delay in performing, or any failure to perform in part or in whole any of the Sellers obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s control. Such causes shall include without limitation:
9.10.1 Act of God, explosion, flood, tempest, fire or accident;
9.10.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
9.10.3 acts, restrictions, regulations, bye-laws, prohibitions;
9.10.4 import or export regulations or embargoes;
9.10.5 strikes, lock-outs or other industrial actions or trade disputes;
9.10.6 failure of sub-contractor or supplier to honour their obligation to the Seller
10. Insolvency of Buyer
10.1 - This cause applies if:
10.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 a receiver is appointed of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 the Seller has reason to believe the Buyer is about to enter into any such situation as set out in clauses 10.1.1, 10.1.12 or 10.1.13.
10.2 – If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
10.2.1 suspend the contract or any unfulfilled part thereof; and
10.2.2 suspend any further deliveries without any liability to the Buyer; and
10.2.3 recover any goods from the Seller to whom the property has not yet passed and enter any premises for the purpose of recovering such goods or demand payment for such goods with payment becoming immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11. Export Terms
11.1 – Where the Goods are supplied for export from the United Kingdom, the provisions of all clauses contained within the Contract shall apply and prevail at the expense of all else.
11.2 – The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and the payment of any duties thereon.
11.3 – The Buyer shall be responsible for arranging for inspection and testing of the goods (whether in conjunction with sub clause 3.1 or otherwise) at the Seller’s premises. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and that is made after shipment, or in respect of any damage during transit.
12. Ownership of Copyright
12.1 – In accordance with the provisions of The Copyright, Designs and Patents Act 1988, the ownership of the copyright in the designs shall remain the property of the Seller. No product, product sample or product visual demonstrated or supplied to the Buyer by or on behalf of the Seller shall be used for any purpose or be reproduced or copied in any shape or form (including without limitation, photographed) by the Buyer without the prior and express written consent of the Seller. The Seller gives no warranty or representation in relation to such samples or visuals. The Buyer shall indemnify the Seller against all loss, costs, damages, charges and expenses incurred by the Seller in relation to any breach of this clause by the Buyer and in particular (without limitation) any claim against the Seller for infringement of any patent copyright design trademark or other industrial or intellectual property rights arising out of the uses or copying of any such product samples by the Buyer.
13. General
13.1 – If any provision of these Conditions is held by a competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
13.2 – The Contract shall be governed by the laws of England and Wales. Any disputes in connection with the Contract shall be tried in the courts of England and Wales.
13.3 – No agreement for the sale of goods by the Seller shall be enforceable by a third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.