TERMS AND CONDITIONS OF SALE
1. DEFINITIONS, INTERPRETATION AND GENERAL
1.1 In these Conditions:
(a) ‘Company’ means Bob Crosby Agencies Limited (registered in England no. 4185475);
(b) ‘Customer’ means the individual, firm, company or other party with whom the Company contracts;
(c) ‘Business Day’ means a day (excluding Saturday or Sunday) on which banks generally are open in London for the transaction of normal banking business;
(d) ‘Normal Business Hours’ means the hours of 9am to 5pm Monday to Friday (excluding English public and bank holidays); and
(e) ‘supply’ includes (but is not limited to) any supply under a contract of sale.
1.2 The headings in these Conditions are for convenience only and are not for the purpose of interpretation.
1.3 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.
1.4 If any provision of these Conditions (or of any other conditions or other terms that may be agreed in writing between the Company and the Customer) is or becomes illegal, void or unenforceable for any reason, the validity of the remaining provisions shall not be affected.
1.5 Failure by the Company to enforce strict compliance with these Conditions by the Customer will not constitute a waiver of any of the provisions of these Conditions.
1.6 References to clauses are to clauses of these Conditions, unless stated otherwise.
2. CONTRACT TERMS, VARIATIONS AND REPRESENTATIONS
2.1 No order (whether in pursuance of any quotation or otherwise) shall be binding on the Company unless and until such order is accepted by the Company.
2.2 Any contract made between the Company and the Customer shall be subject to these Conditions and save as set out in these Conditions. No representative or agent of the Company has authority to agree any terms or make any representations inconsistent with them or to enter into any contract except on the basis of them. Any such term or representation will bind the Company only if in writing and signed by a director of the Company.
2.3 Unless otherwise agreed in writing by the Company, these conditions shall apply to the exclusion of any terms and conditions stipulated or referred to by the Customer in its order or pre-contract negotiations or any inconsistent terms implied by law or trade custom, practice or course of dealing.
2.4 No statement, description or other information contained in any catalogue, price list or other advertising material published by or on behalf of the Company nor any other written or oral representation shall form part of any Contract or be construed as a warranty or representation on the part of the Company.
2.5 Where the Company has not given a written acknowledgment of the Customer’s order these Conditions will nonetheless apply to the contract provided that the Customer has had prior notice of them.
2.6 The Company reserve the right to correct any clerical or typographical error made by its employees at any time.
3. SPECIFICATION, INSTRUCTION OR DESIGN
If goods are made to a specification, instruction or design supplied by the Customer or any third party on behalf of the Customer then:
3.1 the suitability and accuracy of that specification, instruction or design will be the Customer’s responsibility;
3.2 the Customer undertakes to ensure that all necessary permissions or consents (including those of third parties) are obtained in order to permit the Company to supply or manufacture goods or supply services in accordance with the relevant specification, instruction or design;
3.3 the Customer will indemnify the Company against all infringement or alleged infringement of any third party’s intellectual property rights and any loss, damage or expense which the Company may incur (directly or indirectly) by reason of any such infringement or alleged infringement in any country; and
3.4 the Customer will indemnify the Company against any loss, damage or expense in respect of any liability arising in any country by reason of the goods being made to such specification, instruction or design.
4. CUSTOMER’S REPRESENTATIONS
4.1 If the Customer modifies the goods the provisions of clause 10.3 shall not apply and the Company shall have no liability in respect of any loss or damage arising from or in connection with any defect of failure in the goods or any error regarding weight, dimensions, capacity.
4.2 The Customer shall store the goods in clean, dry, well ventilated conditions.
5. QUOTATIONS AND PRICES
5.1 The price payable by the Customer in respect of the Goods or Services shall be that last quoted to the Customer prior to or at the time of the acceptance by the Company of an order from the Customer.
5.2 The prices of goods and services contained in catalogues price lists and other advertising material published by or on behalf of the Company shall not be binding upon the Company.
5.3 Unless otherwise agreed in writing, the Company shall be entitled to increase its prices at any time to take account of any increase in the cost to the Company of purchasing any goods or materials or manufacturing, working on or supplying any goods (including, but not limited to, any such increase arising from any error or inadequacy or change to any specification, instructions or design provided by the Customer, any modification carried out by the Company at the Customer’s requestor any change in taxes, customs duties, freight charges, insurance premiums or exchange rates) and such increased prices ruling at the date of dispatch by the Company shall be substituted for the previous contract price.
5.4 All prices are quoted exclusive of Value Added Tax and the Customer shall pay any and all taxes, duties and other governmental charges payable in respect of the goods.
6.1 Unless otherwise agreed in writing by the Company, the Company shall deliver the goods, by the means most convenient to the Company, to the address or addresses specified by the Customer at the time of placing its order or (in the event that the Customer fails so to specify an address) to any address at which the Customer resides or carries on business.
6.2 The prices quoted by the Company shall include delivery by the Company using its own vehicles and other facilities. Delivery by any other means (including by third party carriers) and/or any special aspects of delivery (including inspection, packaging or insurance) shall be charged separately and over and above the price for the goods.
6.3 If the contract requires the Customer to take delivery of the goods at the Company’s premises then:
(a) for the purposes of this sub-clause ‘the goods’ shall mean the whole or any instalment of the goods and ‘the collection date’ shall mean the date on which the goods are or will be ready for delivery; and
(b) the Company shall notify the Customer of the collection date and the Customer shall take delivery of the goods within 3 Business Days of the collection date.
6.4 Should the Company be delayed in or prevented from delivering the goods due any cause beyond the reasonable control of the Company, the Company shall be at liberty to terminate the order placed by the Customer without incurring any liability for any loss or damage arising therefrom (but without prejudice in any such case to rights accrued to the Company in respect of deliveries already made).
6.5 While the Company will endeavour to deliver the goods by any date or within any period agreed upon, such dates and periods are estimates only, given in good faith, and the Company will not be liable for any failure to deliver to deliver by or within such a period. Time for delivery shall not be of the essence of the contract. The Company shall be entitled to defer delivery until any monies due from the Customer have been received.
6.6 If the Customer shall for any reason fail to take delivery of the goods on the agreed date or dates or delay in doing so then without prejudice to any other rights of the Company whether under these terms and conditions or otherwise the Company shall be entitled to make an additional charge in respect of any delay caused by such failure and for any costs incurred as a result of repeated delivery necessitated by such failure.
6.7 Quantities dispatched may vary by plus or minus 5% from those ordered. Such variations will be due execution of the order and may be charged pro rata.
7. RISK IN THE GOODS
7.1 Subject to any agreement in writing by the Company, the risk in goods which the Company agrees to supply shall pass to the Customer on:
(a) delivery; or
(b) the date on which the Customer defaults (which expression shall have the meaning set out in clause 8.1(c); or
(c) the date on which the goods being ready for delivery, delivery is postponed at the Customer’s request;
(whichever shall first occur).
7.2 Delivery shall be deemed to be completed before off-loading or (in the case of delivery at the Company’s premises) loading of the goods.
8.1 For the purposes of this clause:
(a) ‘the goods’ shall mean the whole or any instalment of the goods which the Company has agreed to supply;
(b) the ‘relevant date’ shall mean the date on which
(i) the invoice is dated; or
(ii) the Company despatches the goods; or
(iii) the Customer takes delivery of the Goods; or
(iv) the Customer defaults
(which ever shall first occur); and
(c) the Customer defaults if he fails to provide an address for delivery as required by the contract or (if it is agreed that the Customer will take delivery at the Company’s premises) he fails to take delivery in accordance with such agreement.
8.2 Unless otherwise specified in writing by the Company payment shall be made by the Customer net cash in Pounds Sterling not later than the 28th day of the calendar month next following the calendar month during which the relevant date shall have occurred (notwithstanding that property in the goods has not passed to the Customer).
8.3 Time for payment shall be of the essence of the contract.
8.4 Without prejudice to any other rights it may have, the Company reserves the right to charge interest at HSBC Bank plc base rate plus 4% or at the rate specified from time to time under the provisions of Late Payment of Commercial Debts (Interest) Act 1988 (whichever is the higher) on all overdue accounts and for the purposes of clauses 9 and 12 the full purchase price of the goods shall include all interest payable hereunder.
8.5 Overdue accounts will be referred to the Company’s debt recovery agents and will be subject to a surcharge of 15% plus Value Added Tax in respect of the costs of recovery. This surcharge, together with all other charges and legal fees incurred, will be the responsibility of the Customer.
9. CANCELLATION OR DEFERMENT
9.1 If there shall be an Intervening Event, the Company may within a reasonable time thereafter, defer or cancel any further deliveries or services, stop any goods in transit and treat any contract of which these Conditions form part as determined but without prejudice to its rights to the full purchase price for goods delivered and damages for any loss suffered in consequence of such determination.
9.2 For the purposes of this clause 9 “an Intervening Event” shall be any of the following:
(a) failure by the Customer to make any payment when it becomes due;
(b) breach by the Customer of any of the terms or conditions of the contract;
(c) the Customer’s proposal for or entry into any composition or arrangement with creditors;
(d) the presentation against the Customer of any petition for a bankruptcy order, administration order, winding-up order or similar process;
(e) the appointment of an administrative receiver or receiver in respect of the business of any part of the assets of the Customer; and
(f) the Company forming the reasonable opinion that the Customer has become or is likely in the immediate future to become unable to pay his, her or its debts (adopting, in the case of a company, the definition of that term set out in section 123 of the Insolvency Act 1988).
9.3 Cancellations or returns by the Customer will only be accepted at the discretion of the Company and in any event on condition that any costs or expenses incurred by the Company up to the date of cancellation and all loss or damage resulting in the Company by reason of such cancellation or return will be paid by the Customer to the Company forthwith. Acceptance of such cancellation or return will only be binding on the Company if in writing and signed by a director of the Company.
9.4 Any costs incurred by the Company due to suspension or deferment of any order by the Customer or in the event that the Customer defaults in collecting, or giving instructions for the delivery of, any goods of the performance of any services will be payable by the Customer forthwith on demand.
10. LIMITATION OF LIABILITY
10.1 The Company will have no liability for
(a) damage in transit unless the Customer shall have given to the Company notice of such damage (together with reasonable particulars thereof) within 3 Business Days of receipt of the goods; or
(b) shortage of delivery or loss of goods unless the Customer shall have given to the Company notice of such shortage or loss (together with reasonable particulars thereof):
(i) prior to the Customer or its employee, agent or representative indicating its acceptance in writing of receipt of the goods (or in the event that no such written acceptance is given) within 3 Business Days of receipt of the goods;
(j) (in the case of total loss) within the 3 Business Days of the receipt of the invoice or other notification of despatch.
The Company’s liability, if any, shall be limited to re-supplying or (in its discretion) repairing such goods and it shall be a condition precedent to any such liability that the Customer shall, if so requested, provide authority for the company’s employees or agents to inspect any damaged goods within 10 Business Days of such request.
10.2 Save as provided in cause 10.1, the Company will have no liability for any direct or consequential loss arising out of any damage in transit shortage of delivery or loss of goods.
10.3 (a) The Company’s liability in respect any defect in or any failure of goods supplied or work done is limited to re-supplying (with new goods) or (at the Company’s discretion) repairing or paying for the repair or re-supply of goods, in the case of defects apparent upon inspection, within 10 Business Days of delivery and, in the case of defects not so apparent, within 12 months of delivery to the customer, by reason of fault or incorrect design, workmanship, parts or materials are found to be defective or fail or are unable to perform in accordance with the contract.
(b) Without prejudice to clause 3, the goods shall not be deemed to be defective by reason that they are not fit for their purpose unless the Company has undertaken as part of the contract to be solely responsible for providing the goods for the exact purpose.
(c) In the event of any error in any weight, dimension, capacity, performance or other description which has formed a representation or is part of a contract, the Company’s liability in respect of any direct loss or damage sustained by the Customer as a result of such error shall not exceed the price of the goods in respect of which the description is incorrect.
(d) Conditions precedent to the Company’s liability hereunder shall be that the Customer shall have given to the Company reasonable notice of the defect, failure or error and shall have provided authority for the Company’s servants or agents to inspect the goods.
(e) The Company shall have no other or further liability in respect of any direct or consequential loss (including but not limited to loss of profits, loss of business or other economic loss) or damage sustained by the Customer arising from or in connection with any such breach, defect, failure or error as aforesaid.
10.4 Where the Company repairs or re-supplies goods in accordance with the foregoing provisions of this clause 10 or otherwise, any time specified for delivery shall be extended for such period as the Company may reasonably require.
10.5 All goods supplied by the Company are supplied with the benefit of the terms implied by section 12 of the Sale of Goods Act 1979. Subject thereto, and whether or not the contract is a contract of sale, all other conditions, warranties and other terms, express or implied, statutory or otherwise, are expressly excluded, save insofar as contained herein or as otherwise expressly agreed by the Company in writing provided that if and insofar as any legislation or any order made thereunder shall make or have made it unlawful to exclude or purport to exclude from the contract any term or shall have made unenforceable any attempt to exclude any such term, the foregoing provisions of this clause will not apply to any such term.
10.6 (a) In the event of any negligence or wilful default on the part of the Company, its employees, agents of sub-contractors in or in connection with the supply of any goods or the design or manufacture thereof, the Company shall have no liability to the Customer save as otherwise provided in these conditions.
(b) For the purposes of sub-clause 10.6(a), the expression “the carrying out of any work” shall, without prejudice to its generality include the carrying out of all work done in or in connection with the design, manufacture, treatment, testing, delivery, erection, installation, repair or servicing of any goods or in the preparation or provisions of any information of advice.
(c) This clause and these conditions shall have effect subject to the provisions of section 2(1) of the Unfair Contract Terms Act 1977.
(d) The Customer shall not in any circumstances be entitled to withhold payment for monies due whether as a means of setting off monies owed to it by the Company or otherwise.
11. RETENTION OF TITLE
The following provisions shall apply to all goods which the Company agrees to supply to the Customer. No failure by the Company to enforce strict compliance by the Customer with such provisions shall constitute a waiver thereof and no termination of the contract shall prejudice limit or extinguish the Company’s rights under this clause.
11.1 Upon delivery of the goods the Customer shall hold the goods solely as bailee for the Company and the goods shall remain the property of the Company until such time as the Customer shall have paid to the Company and the Company shall have cleared funds for the full purchase price of all goods and supplies, whether under the contract or otherwise. Until such time the Company shall be entitled to recover the goods or any part thereof and, for the purpose of exercising such rights, the Customer hereby grants a licence to the Company its employees and agents (together with appropriate transport) to enter upon the Customer’s premises and any other location where the goods are situated and remove the goods.
11.2 The Customer is hereby granted a licence by the Company to incorporate the goods in any other products.
12.3 The licence granted under sub-clause 11.1 shall extend to detaching the goods from any property to which they are attached or into which they have been incorporated or from any other products or goods to which they have been incorporated or from any other products or goods to which they have been attached pursuant to the licence granted under sub-clause 11.2 hereof.
11.3 The Customer is hereby licensed to agree to sell on the goods and any products incorporating any of them on condition that the Customer shall inform its customer of the provisions of sub-clauses 11.1 to 11.3. The Customer acts as the Company’s bailee in respect of any such sale and shall immediately upon receipt of the proceeds of sale, and whether or not payment has become due under clause 8 hereof remit to the Company the full purchase price of the goods sold on less any part thereof which has already been paid and until such amount has been so remitted shall hold such amount as trustee and agent for the Company.
11.4 The Customer shall maintain in appropriate insurance in respect of the goods from the date or dates on which the risk therein passes to him. In the event of any loss or damage occurring while the goods remain the property of the Company the Customer shall immediately on receipt of the insurance monies, remit to the Company the full purchase price of the goods lost or damaged less any part thereof which has already been paid and until such amount has been so remitted shall hold such amount as trustee and agent for the Company. For the avoidance of doubt the provisions of this sub-clause do not affect the Customer’s obligations under clause 9.
11.5 The licences granted under such sub-clause 11.2, 11.3 and 11.4 shall be terminable forthwith at any time upon notice by the Company to the Customer.
Crosbys will accept returns up to 3 days after reciept of goods. Please notify us as soon as possible. Crosbys will not accept returns after this period.
13. LAW AND JURISDICTION
The proper law of all contracts with the Company shall be English law which shall govern in all respects the construction and effect of such contracts and of these conditions. The Customer agrees that in the event of any dispute arising out of the contract or the performance thereof he will submit to the jurisdiction of the English Courts.