Terms & Conditions of Sale.
1. Definitions and Interpretation
(a) These Conditions of Sale ("the Conditions") supplied by Thomas Crapper & Company Limited ("the Company") to a purchaser ("the Buyer") shall be incorporated into each contract ("the Contract") made by the Company for the sale of the Company's goods ("the Goods").
(b) The Company contracts as aforesaid upon such terms as are agreed between the Company and the Buyer and upon the terms of the Conditions alone. No conditions or terms of the Buyer shall apply to the Contract. No variation of any of the Conditions shall be effective unless in writing and signed by a Director or other authorised person of the Company.
(c) Unless the context otherwise requires:-
(i) references to statutory provisions shall be construed as references to those provisions respectively amended or re-enacted from time to time and shall include any provisions of which they are re-enactments (whether with or without modification). References to statutes include references to orders regulations or other subordinate legislation made under them or vice versa; and
(ii) words importing one gender shall be treated as importing any gender. Words importing individuals shall be treated as importing corporations, unincorporated associations and firms and vice versa. Words importing the singular shall be treated as importing the plural and vice versa and words importing the whole shall be treated as including a reference to a part thereof and vice versa.
2. Quotations and Acceptance of Orders
(a) The Contract shall become binding only upon the confirmation of acceptance of any order in writing by the Company at its head office and all quotations provided and catalogues, price or product lists supplied by the Company shall be treated as invitations to treat only.
(b) Subject to Condition 4 (c) any quotation by the Company remains open for acceptance for 30 days from the date on which the Company sends the quotation to the Buyer unless the quotation specifically refers to an alternative period during which the quotation shall remain valid. If no quotation is rendered the price set out in the Company's catalogue, price or product list which is in force on the date the Goods are delivered shall apply, with any discounts granted by the Company.
(c) The Company does not ordinarily supply Goods on sale or return. In limited circumstances Goods may be returned by the Buyer but then only in accordance with Condition 12.
Representations (including negligent representations) relating to the Goods or any part of the Goods or the Contract made prior to the Contract by servants or agents of the Company which are not in writing signed by a Director or other authorised person of the Company are hereby agreed not to be material and it is hereby agreed that the Buyer shall be deemed not to have relied upon nor to have been induced by, the said representations in entering into the Contract. No servant or agent of the Company has any authority to make representations in relation to the Goods or the Contract except as set out in this Condition 3.
(a) All prices shall be as stated by the Company.
(b) All prices shall be exclusive of any applicable value added or other sales tax which the Buyer shall be additionally liable to pay to the Company.
(c) The Company shall be entitled to increase the price if the cost of production of the Goods is increased as a result of increases in wages or materials, fluctuations in exchange rates or any other cause beyond the Company's reasonable control and the Company shall notify the Buyer of any variation before delivery of the Goods.
(a) All sums owed by the Buyer in respect of Goods shall be paid in full prior to despatch by the Company.
(b) Sums unpaid after the due date shall bear interest until the day payment is received at the rate of 1% per calendar month accruing from day to day from the date of delivery until the date of payment in full.
(c) If the recovery of sums outstanding from the Buyer is passed to a Debt Collection Agency the Buyer shall pay the Company's costs in instructing the said Debt Collection Agency and all ancillary legal costs and expenses.
(d) Without prejudice to any other rights or remedies of the Company any default of the Buyer in making payment on the due date shall entitle the Company to:-
(i) suspend deliveries under the Contract or any other contract for as long as the default continues; and/or
(ii) appropriate any payment made by the Buyer to such of the Goods (or any other goods supplied under any other contract between the Company and the Buyer) as the Company may think fit (notwithstanding any purported appropriation by the Buyer); and/or
(iii) treat all outstanding payments (including payments by instalments) as immediately due and payable.
(a) Delivery shall take place when the Goods are unloaded at or delivered to the Buyer's premises or other delivery location agreed between the Company and the Buyer except that if the Buyer collects or arranges collection of the Goods from the Company's premises, or nominates a carrier for the Goods delivery shall take place when the Goods are loaded at the Company's premises.
(b) Time for delivery shall not be of the essence unless previously agreed by a Director or other authorised person of the Company in writing. The Company will use its reasonable endeavours to complete delivery on or before any delivery dates requested by the Buyer or estimated by the Company but will not be liable for any delay in delivery.
(c) The Buyer shall accept immediate delivery or arrange to collect the Goods or arrange suitable storage, failing which the Company may either:-
(i) effect delivery by whatever means it thinks most appropriate; or
(ii) arrange storage at the Buyer's risk and expense pending delivery; or
(iii) re-sell or otherwise dispose of the Goods without prejudice to any other rights the Company may have against the Buyer for breach of contract or otherwise.
(d) Where the Contract provides for delivery by instalments, each instalment shall constitute a separate contract and any failure or defect in any one or more instalments delivered shall not entitle the Buyer to repudiate the agreement nor to cancel any subsequent instalments.
(e) The Buyer shall not be entitled to reject the Goods by reason only of short delivery.
(f) The quantity of the Goods delivered under the Contract shall be recorded by the Company upon despatch from the Company's factory or warehouse and the Company's record shall be accepted by the Buyer as conclusive evidence of the quantity delivered.
(g) It is the Buyer's responsibility to notify the Company if the Goods have not been received by the Buyer within 14 days of the date of receipt of the Company's invoice. If no notification is made the Buyer shall be deemed to have received the Goods.
7. Examination and Claims
(a) The Buyer shall upon delivery examine the Goods and shall promptly (but in any event within 3 days of delivery) notify the Company in writing and the carrier, where relevant, of any apparent damage defect or shortage.
(b) The Buyer shall comply with the carrier's rules, regulations and requirements so as, when appropriate, to enable the Company to make a claim against the carrier in respect of any damage or loss in transit.
(c) Claims in respect of damage defects or shortage not apparent on examination under Condition 7 (a) must be notified in writing to the Company within 21 days of the date of delivery.
(d) Notification under Condition 7 (a) and (c) above shall be first made by telephone then by notice in writing delivered by facsimile or by first class recorded delivery mail and addressed to the Company's head office. In default of such notification the Company shall, subject to any claim which the Buyer may have under the Warranty referred to in Condition 8, be deemed conclusively to have properly performed its obligations under the Contract.
(a) The Company warrants ("the Warranty") only that the Goods are reasonably free from defects in design, material or workmanship for the period of 12 months or other such period as stated by the Company in writing from the date of sale by the Buyer to the final consumer or, where the Buyer is a consumer, from the date of sale to the Buyer ("the Warranty Period") provided always that in respect of goods, materials, parts or components supplied but not manufactured by the Company the Warranty shall be equivalent to the warranty (if any) which the Company may have received from the manufacturer or supplier of such goods, materials, parts or components but not so as to impose a liability greater than that imposed on the Company by the aforesaid Warranty and provided that the Buyer has given the Company written notice enclosing the original sales receipt issued by the Buyer to the final consumer and satisfactory proof of any defect promptly upon discovery of such defect but in no case later than 30 days after expiry of the Warranty Period.
(b) The Company's obligations to the Buyer under the Warranty shall not apply:-
(i) to damage caused by the Buyer's or any third party's act (including but not limited to the final consumer), default or misuse of the Goods or by failure to follow any instructions supplied with the Goods;
(ii) if the Goods have been stored, handled or applied in such a way that in the opinion of the Company damage is likely to occur;
(iii) if the Goods are altered, modified or repaired in any place other than the Company's factory or premises or by persons not expressly nominated or approved in writing by the Company.
(c) 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 Unfair Contract Terms Act 1977 or the Unfair Terms in Consumer Contracts Regulations 1994), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
(d) Subject to Condition 8 (c) above the Company shall at its sole option repair or replace the Goods or refund the purchase price for the Goods found to be defective in design, materials or workmanship.
(e) Save for liability for death or personal injury arising from the Company's negligence (which if proved is not excluded) the Company's obligation to refund or replace as aforesaid shall constitute the full extent of the Company's liability in respect of any loss or damage sustained by the Buyer whether caused by any breach of the Contract or by misrepresentation (unless fraudulent) or by the negligence of the Company its employees or agents or arising from any other cause whatsoever and the Company shall not be liable for any loss of profit or any consequential, economic, special or indirect loss suffered by the Buyer arising therefrom.
(f) The cost to the Company of and incidental to the return by the Buyer to the Company of any of the Goods delivered hereunder, including those Goods returned pursuant to Condition 12 shall be the responsibility of the Buyer who shall fully indemnify the Company against any such costs including, but without limitation to the generality of the foregoing, costs of transport and testing or any other cost or loss to the Company arising therefrom.
(g) Notwithstanding Condition 8 (e) above the Buyer shall, except where he is a person who suffers personal injury or death or loss or damage to property such as to give rise to a claim under the Consumer Protection Act 1987, fully indemnify the Company against all loss, damage, liability, legal fees, costs and expenses arising from any such claim made against the Company under the Consumer Protection Act 1987.
9. Property and Risk
(a) Risk of damage to or loss of the Goods shall pass to the Buyer on delivery (or, where the Buyer is to collect the Goods at the Company's premises, at the time the Company notifies the Buyer that the Goods are ready for collection) and the Goods should be insured by the Buyer accordingly.
(b) Property (both legal and beneficial) in the Goods shall remain in the Company until all sums owing to the Company whether under the Contract or any other contract at any time between the Company and the Buyer made prior to the date of the Contract shall have been paid in full.
(c) Until such time as property in the Goods passes to the Buyer the Buyer shall hold the Goods as fiduciary agent and bailee for the Company and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Company's property.
(d) Until such time as the property in the Goods passes to the Buyer the Company may at any time require the Buyer to deliver up the Goods to the Company and, if the Buyer fails to do so forthwith, enter on any premises or land in the ownership or possession of the Buyer and remove the Goods notwithstanding that they are affixed to such premises or land and the Buyer shall indemnify the Company on a full indemnity basis against all loss, damage, costs or expenses so arising including loss, damage, costs or expenses in respect of third party claims. Such retaking of possession or re-delivery shall be without prejudice to the obligation of the Buyer to purchase the Goods;
(e) 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 Company, but if the Buyer does so all moneys owing by the Buyer to the Company shall (without limiting any other right or remedy of the Company) forthwith become due any payable.
10. Cancellation, Suspension and Termination
(a) If the Buyer shall purport to cancel the whole or any part of the Contract the Company may by notice in writing to the Buyer elect to treat the Contract as repudiated and the Buyer shall thereupon be liable to pay to the Company by way of liquidated damages a sum equal to all the expenses incurred by the Company in connection with the Contract including an appropriate amount in respect of administrative overheads, costs and losses of profit. The Company's reasonable estimate of the expenses incurred shall be final and binding on the parties.
(b) If the Buyer shall not comply with any of its obligations to the Company under Conditions or upon the occurrence of any of the following events:
(i) the giving of any notice to the Buyer that a receiver, manager, administrative receiver, supervisor, nominee or administrator is to be or has been appointed over any of the property or assets of the Buyer or that a petition to wind up the Buyer is to be or has been presented or that an application for an administration order is to be or has been made or of any notice of a resolution to wind up the Buyer (save for the purposes of a bona fide reconstruction or amalgamation); or
(ii) a decision by the Buyer that the Buyer intends to make any arrangement or composition with its creditors generally; or
(iii) where the Buyer pursuant to Section 123 or 268 of the Insolvency Act 1986 appears to be unable to pay a debt or appears to have no reasonable prospect of being able to pay a debt; or
(iv) any distress or execution levied or threatened to be levied on any property or assets of the Buyer; or
(v) the inability of the Buyer to pay its debts as they fall due
the Company shall have the right forthwith to terminate the Contract but without affecting any other claim, right or remedy of the Company against the Buyer.
(c) If for any cause whatsoever beyond its control the Company is unable to make any delivery on the applicable delivery date or perform any of its obligations under the Contract the Company may by notice in writing to the Buyer terminate the Contract or suspend the Contract without liability for any loss or damage thereby incurred by the Buyer including but not limited to any loss of profits or consequential loss suffered by the Buyer.
11. Force Majeure
(a) Insofar as the performance of the Contract by the Company may be affected by any strike, any lack of available shipping or transport or materials, any restriction regulation or decree by any local or municipal authority or government department or by any cause beyond the Company's reasonable control (which shall be construed without reference to the preceding causes) the Company may elect at its absolute discretion either:-
(i) to terminate the Contract; or
(ii) to proceed to perform or continue performance under the Contract within a reasonable time after the termination of such events or circumstances.
(b) In the event that the Company makes an election under Condition 11 (a) the Buyer shall accept the Goods or such part of them as are delivered to it notwithstanding any delay.
The Company shall only accept the return of any of the Goods by the Buyer if their return has been previously authorised in writing by a Director or other authorised person of the Company. Any of the Goods returned to the Company must be in unbroken packs in good condition. The cost of carriage for the return of the Goods shall be borne solely by the Buyer. The Company may on receipt of any returned goods charge the Buyer a sum equal to 20% of the price, exclusive of value added tax, of the Goods in respect of handling and administration costs. The Buyer shall ensure that any goods returned to the Company hereunder must be accompanied by a returns note stating all the Goods returned and the Company's invoice number in respect thereof. No deduction may be made by the Buyer in respect of payment for any of the Goods unless the Company has first issued a credit note in respect thereof.
(a) Should any one or more of these Conditions be found to be or become invalid illegal or unenforceable in any respect under any law the enforceability and validity of the remaining Conditions shall not in any way be affected or impaired thereby.
(b) No waiver by the Company of any breach of the Contract by the Buyer shall be considered as a waiver of any past or subsequent breaches of the same or any other provision.
(c) It is expressly agreed that the contractual and legal relationship between the Company and the Buyer is that of Seller and Buyer and no relationship of Principal and Agent is expressed implied or to be inferred.
(d) The Company may assign, transfer or sub-contract the Contract or any part of the Contract to any person, body or company. The Buyer may assign the Contract provided that the Buyer has first obtained the Company's prior written consent to the assignment.
(e) The Contract can only be varied or rescinded by the agreement in writing of a Director or other authorised person of the Company. No other employee or agent of the Company shall have any authority whatsoever to vary or rescind the Contract.
(f) Unless the right of enforcement is expressly granted it is not intended that a third party has the right to enforce a provision of these Conditions under the Contracts (Rights of Third Parties) Act 1999.
(g) Any notice required to be given under these Conditions shall be in writing and shall be served by sending the same by pre-paid first class post or fax to the current relevant address of the receiving party. Any notice sent by post, shall be deemed to have been served 48 hours after despatch and in proving service of the same it will be sufficient to prove, in the case of a letter, that such letter was properly pre-paid, addressed and placed in the post and, in the case of a fax that such fax was despatched to a current fax number of the addressee.
(g) The Contract shall be governed by and construed in accordance with English Law and the Company and the Buyer hereby submit to the non-exclusive jurisdiction of the English Courts.