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1.1 In these Conditions:
“Buyer” means the person(s), firm or company who purchases the Goods from the Seller; “Contract” means any contract between the Seller and the Buyer for the sale and purchase of the Goods, incorporating these Conditions; “Delivery Point” means the Buyer’s place of business or such other place as the Seller and the Buyer shall expressly agree in writing; “Goods” means any goods agreed in the Contract to be supplied to the Buyer by the Seller (including any part or parts of them); and “Seller” means Custom Toys UK a company of HOTcraze Limited, company number 8909906, and any of its websites or brochures howsoever named or branded, having its registered office at Office 2, Maple Leaf, Manston Business park, Kent, CT12 5GJ UK.
1.2.1 references to any statute or statutory provision shall, unless the context otherwise required, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced;
1.2.2 headings will not affect the construction of these Conditions.
2.1 These Conditions shall apply to and govern any Contract between the Seller and the Buyer to the exclusion of any other terms or conditions contained on or in any order form, letter, purchase order, specification, receipt, acknowledgement, or other document emanating from the Buyer. No variation of these Conditions shall be effective unless expressly agreed by the Seller in writing.
2.2 Each order for Goods by the Buyer shall be deemed to be an offer by the Buyer to purchase Goods from the Seller subject to these Conditions. The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate. No order placed by the Buyer shall be deemed to be accepted by the Seller until an acknowledgement of order is given by the Seller, either in writing or verbally, or (if earlier) the Seller delivers the Goods to the Buyer.
2.3 No quotation given by the Seller shall constitute an offer for sale nor any representation that the Goods referred to in the quotation shall be available for sale.
3.1 All price quotations are calculated from costs available at the date of such quotation and are exclusive of VAT, for which the Buyer is additionally liable. If there is an increase in such costs to the Seller between the date of quotation and the date of acknowledgement of the order, then the Seller may increase the quoted price accordingly.
3.2 For orders made from the UK or the European Union, VAT is added at the appropriate rate. For deliveries to any other territories VAT, levies, import duty or any other similar charges whatsoever, should be paid for by the Buyer at the point of entry.
3.3 The Buyer shall be entitled to charge any VAT payable whether or not shown on quotation or invoice at the applicable rate.3.4 Any required tooling or drawing for the execution of work undertaken by the Seller should be paid for by the Buyer, but remain the property of the Seller.
4.1 Unless otherwise agreed in writing the Goods shall be delivered, carriage paid, to the Delivery Point and the Buyer shall be bound to accept the Goods ordered by him.
4.2 If the Buyer fails to take delivery at the time required by the Contract, the Seller shall be entitled without prejudice to any other rights it may have to either treat the Contract as at an end and to resell the Goods, or to invoice the Buyer for the Goods whereupon payment in full shall become due forthwith and, in either case, to charge at rates giving an economic return for the handling and storage of Goods from the invoice date to the eventual date of delivery to the Buyer or disposal elsewhere, as the case may be. The Buyer shall be liable to pay any premium in respect of the insurance of such Goods from the date of delivery.
4.3 If Goods are contracted to be delivered by instalments late delivery of one instalment shall not entitle the Buyer to reject any other instalment under the same Contract.
4.4 The Seller shall use all reasonable endeavours to deliver the Goods to the Buyer in accordance with any delivery date agreed in writing with the Buyer. In the absence of any agreed delivery date, any date of delivery given by the Seller to the Buyer shall be an estimate only and while the Seller will endeavour to comply with any such date, it shall not be responsible for late delivery. Without prejudice to the generality of the foregoing the Seller shall not be liable for late delivery or failure to deliver through any cause which is beyond the control of the Seller.
4.5 The Buyer will provide at its own expense at the Delivery Point adequate and appropriate equipment and manual labour for unloading the Goods.
4.6 If the Seller delivers to the Buyer a quantity of Goods of up to 10% more or less than that ordered by the Buyer, the Buyer shall not be entitled to reject the Goods or any of them by reason of the surplus or shortfall, and shall pay for such Goods at the pro rata rate for the Contract.
4.7 The quantity of any consignment of Goods as recorded by the Seller upon despatch from the Seller’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can prove otherwise.4.8 The Seller shall not be liable for any non-delivery of Goods (even if caused by the Seller’s negligence) unless written notice is given to the Seller within five (5) days of the date when the Goods would in the ordinary course of events have been received.
4.9 Any liability of the Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
4.10 Where palletised deliveries are requested or necessary, pallets and other packaging and delivery materials may be charged as an extra expense at the Seller’s standard rates, which the Buyer shall pay in addition to the price for the Goods.
4.11 The Seller is not responsible for any import duties and taxes which are levied when the delivery of ordered goods is outside the UK, and reaches the specified destination. The Buyer will be responsible for payment of any such import duties and taxes unless otherwise stated. Please note that the Seller has no control over these charges and cannot predict their amount. Please contact your local customs office for further information before placing your order.
4.12 Please also note that you, the buyer must comply with all applicable laws and regulations of the country for which the products are destined. The Seller will not be liable for any breach by the buyer of any such laws.
All Goods shall be at the Buyer’s risk from when delivery takes place at the Delivery Point in accordance with Condition 4.1 above or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
6.1 Goods shall remain the property of the Seller as legal and equitable owner until payment of all sums due to the Seller from the Buyer in respect of the Contract have been received in full by the Seller in cleared funds.
6.2 Until the property in the Goods is vested in the Buyer, in accordance with Condition 6.1 above, the Buyer shall not pledge and shall store separately and mark the Goods so that they are readily identifiable as the property of the Seller and hold the Goods on a fiduciary basis as agent for the Seller.
6.3 Until otherwise notified by the Seller pursuant to Condition 6.4 below, or until the happening of any of the events set out in Condition 6.5 below:
6.3.1 the Buyer may use the Goods in the normal course of its business;
6.3.2 the Buyer may sell the Goods in the ordinary course of its business, in which event the Buyer shall hold the proceeds of the sale upon trust for the Seller and shall cause such proceeds to be paid into a separate bank account and if within thirty days of such sale the Buyer has not received the proceeds of such sale the Buyer will, if requested to do so, assign to the Seller all rights it may have against the purchaser of such Goods; and
6.3.3 the Buyer shall maintain the Goods in a satisfactory and saleable condition, and at the Buyer’s own expense insure the Goods for their full market price against all risks to the reasonable satisfaction of the Seller, to whom the Buyer shall on request exhibit evidence of such insurance.
6.4 The Seller shall be entitled to serve notice on the Buyer indicating its intention to retake possession of its Goods and/or terminating the Buyer’s authority to use or sell the Goods under Condition 6.4 above if the Buyer is in breach of the payment terms under this Contract. On receipt of such notice from the Seller or on the happening of any of the events set out in Condition 6.5 below:
6.4.1 the Buyer’s authority to use or sell the Goods shall forthwith cease; and
6.4.2 all Goods which are the property of the Seller shall be immediately delivered to the Seller or to its order, and the Seller by its employees or agents shall have the right to enter upon any land, building or vehicles of the Buyer to take possession of its Goods, the Buyer shall procure that the Seller by its agents or employees shall have the right to enter upon any land, buildings or vehicles of any third party to take possession of the Goods and any expenses, including legal fees, incurred by the Seller in so taking possession shall be payable by the Buyer.
6.5 The events referred to in Conditions 6.3 and 6.4 above are:
6.5.1 it comes to the Buyer’s attention that a receiver or manager is to be or has been appointed over or if any encumbrance shall take possession of all or any part of its assets;
6.5.2 it comes to the Buyer’s attention that a petition to wind up or other process to liquidate the Buyer is to be or has been presented or issued or that a resolution to wind up the Buyer (save for the purposes of a bona fide reconstruction or amalgamation) has been tabled or passed;
6.5.3 a decision by the Buyer that the Buyer intends to make an arrangement with its creditors or to stop payment or cease or threaten to cease business or a major part thereof;
6.5.4 the Buyer resolving to go into administration or any court making an administration order in respect of the Buyer;
6.5.5 any distress, execution or other process is levied and enforced upon or sued out against any chattels or property of the Buyer;
6.5.6 the inability of the Buyer to pay its debts as such expression is defined in section 123 of the Insolvency Act 1986; or 6.5.7 the bankruptcy or sequestration of the Buyer.
7.1 If the Seller is satisfied that there has been under-delivery of Goods (except as provided for in Condition 4.6) or a failure to deliver the Goods or that the Goods have been damaged (whether wholly or in part) prior to delivery the Seller will replace them or (in its discretion) accept their return and credit the Buyer with the price thereof provided that:
7.1.1 any complaint by the Buyer of under-delivery of or damage to the Goods shall have been notified in writing to the Seller within three days of receipt of the Goods;
7.1.2 any complaint by the Buyer of failure to deliver shall have been notified within five days of the receipt by the Buyer of the invoice or advice of delivery of the Goods at the Delivery Point, whichever is the earlier.
7.2 If the Seller is satisfied that when delivered Goods contained some defect in quality or did not correspond with any sample or description expressly agreed by the Seller in writing the Seller may (entirely at the Seller’s discretion) assign to the Buyer the benefit of any express guarantee or warranty received by the Seller from the manufacturer or supplier of the Goods, failing which the Seller may (at its sole option):
7.2.1 replace the Goods without further charge, or
7.2.2 accept the return of the Goods and credit the Buyer with the price thereof,
or
7.2.3 make the Buyer an allowance being in the Seller’s sole opinion the difference between the cost value of the Goods at the time of the complaint by the Buyer and the invoice price, provided (in any case) that any complaint by the Buyer shall have been notified in writing to the Seller within three days of delivery.
7.3 Except as provided for in Conditions 7.1 and 7.2, or in respect of liability for death or personal injury, the Seller will not be liable to the Buyer for any loss or damage suffered as a result of the events or for any of the reasons referred to in Conditions 7.1 or 7.2 and, without prejudice to the generality of the foregoing, any implied term, condition or warranty statutory or otherwise as to the quality of the Goods sold or their fitness for any particular purpose or as to their correspondence with any description or sample is hereby excluded to the fullest extent permitted by law.
7.4 The Seller shall not be bound by any warranty or representation given by or made on its behalf unless specifically stated in writing and expressly signed stating it is to be incorporated in the Contract.
7.5 Subject to Conditions 7.1 and 7.2, the Seller shall be under no liability if the Goods are not paid for by the due date.
7.6 In any event, the Seller’s entire liability shall be limited to the price actually paid by the Buyer under the Contract.
7.7 Goods returned unwanted and in perfect condition will be subject to a 25% restocking charge and at the sole discretion of the Seller. Returned goods damaged in transit cannot be credited. The Seller cannot accept the return of specifically branded goods.
Without prejudice to the terms of Condition 7, the Seller shall not in any event be liable to the Buyer in contract or tort or otherwise for any indirect or consequential loss or damage whenever or howsoever arising, including without limitation loss of profit, loss of revenue, economic loss, depletion of goodwill and pecuniary loss of any kind whatsoever.
9.1 Time of payment shall be of the essence of the Contract. Unless otherwise agreed in writing by the Seller, all sums due to the Seller shall be paid 100% at the time of placing the order and no work shall begin until payment has been received
9.2 If the Buyer does not pay the whole sums due, on the due date, the Seller may:
9.2.1 suspend delivery of Goods under all or any of the Contracts with the Buyer (in the Seller’s sole discretion) and/or;
9.2.2 charge interest to the Buyer, and recover from the Buyer compensation arising out of late payment, all in terms of the Late Payment of Commercial Debts (Interest) Act 1998.
9.3 No payment shall be deemed to have been received until the Seller has received cleared funds.
9.4 All payments payable to the Seller under the Contract shall become due immediately upon termination of this Contract despite any other provision.
9.5 The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.
10.1 The Seller shall have the option (without prejudice to any of its other rights against the Buyer) by notice in writing to the Buyer to rescind any Contract between the Seller and the Buyer or to suspend delivery in the following events:
10.1.1 should any sum owing by the Buyer to the Seller be overdue whether under the same or any other Contractor; or
10.1.2 should the Buyer be in breach of any term of the same or any other Contract with the Seller; or
10.1.3 should the Buyer enter into any composition or arrangement with or for the benefit of its creditors, or have a receiving order in bankruptcy made against him or (if a corporate body) should go into liquidation either voluntary or compulsory or under supervision or have a receiver appointed over all or any of its assets or if the Buyer threatens to cease trading or goes into administration.
11.1 In so far as the Seller is under a duty pursuant to Section 6 of the Health & Safety at Work Act 1974 in respect of the design, manufacture and supply of an article for use at work the Buyer shall be deemed to have been afforded by the Seller reasonable opportunity for the testing and examination of a sample of Goods or materials prior to the delivery to the Buyer in respect of their safety and any risk to health and the Buyer shall be deemed to have been afforded by the Seller adequate information about the Goods and materials in respect of the use for which they are designed and have been tested and of any conditions necessary to ensure that when put to use they will be safe and without risk to health whether or not the said information has been requested by the Buyer. The Seller shall bear no responsibility or liability for any such risk, and the Buyer agrees to indemnify the Seller and keep the Seller indemnified fully against any and all liability, losses, costs, claims and expenses arising directly or indirectly from any such articles, Goods or materials.
12.1 The quality, description and specification of the Goods shall be as set out in the Seller’s quotation.
12.2 All drawings, descriptive matter, specifications, measurements and advertising issued by the Seller and any descriptions or illustrations contained in the Seller’s catalogues, brochures or websites are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract. The Seller reserves the right to vary the specification of any item or service without prior notice.
12.3 Where the Goods are required for a purpose other than the usual purpose for which such Goods are commonly supplied, then no condition or warranty of fitness for that unusual purpose is granted or shall be implied unless the Buyer has made known to the Seller in writing prior to conclusion of the Contract the exact purpose to which such Goods are intended to be put, and the Seller has expressly acknowledged in writing prior to or on conclusion of the Contract that such Goods shall be fit for such purpose.
12.4 Unless expressly agreed otherwise in writing by the Seller all sizes referred to on the Seller’s price lists, estimates or brochures are approximate only.
12.5 Except where expressly agreed in writing by the Seller, the Seller shall be deemed to have fulfilled its obligations under the Contract by producing Goods or Personalisation (which may consist of embroidery, printing, engraving, or embossing) within reasonable tolerances.
12.6 For the purposes of personalisation, whilst the Seller will take all reasonable steps to try to match logo styles, font style, Pantone colours or swatches, this cannot be guaranteed and the Contract shall be deemed to have been performed by delivery of Goods with a general representation of any logo or design supplied by the Buyer.
12.7 No responsibility shall be accepted by the Seller for any errors in proof materials submitted to and approved by the Buyer.
12.9 Where the Goods consist of personalised items, alterations from the original copy on or after the first proof, including alterations in style will be charged as an extra expense at the Seller’s standard rates, which the Buyer shall pay in addition to the price for the Goods.
12.10 The contract is not a contract of sale by sample, although every endeavour will be made to supply materials in accordance with the quality of the sample submitted or quoted for.
12.11 Customers’ property or free issue goods when supplied will be held entirely at the customer’s risk as regards fire, theft and other unforeseen damage. Every care will be taken to obtain the best results where materials are supplied by customers, but responsibility will not be accepted for imperfect work caused by defects in or unsuitability of materials so supplied.
13.1 The Buyer shall indemnify the Seller against all claims for infringement or alleged infringement of third party patent, copyright, design right, registered designs, trademarks or other intellectual property rights and all costs and expenses incurred in connection therewith arising from the supply of Goods in accordance with the Buyer’s designs, plans or specifications.
13.2 All original drawings and designs produced by or on behalf of the Seller in origination work shall remain the exclusive property of the Seller.
No waiver by the Seller shown or granted to a Buyer whether in respect of these Conditions or otherwise, shall in any way affect or prejudice the rights of the Seller against the Buyer or be taken as a waiver of any of these Conditions or any of them.
The Seller reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Seller including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials; Provided that, if the event in question continues for a continuous period in excess of ninety days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract, the seller will retain the right to charge the seller for all project cost incurred up to the date of contract termination.
16.1 The Buyer shall not be entitled to assign any Contract or any part of any Contract without the express prior consent of the Seller.
16.2 The Seller shall be entitled to assign or sub-contact any Contract or any part of any Contract to any third party, and shall be entitled to perform any obligation under a Contract through its subsidiary, holding company or a subsidiary of such holding company.
Each right or remedy of the Seller under the contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
19.1 The parties to this Contract to not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
20.1 All notices between the Buyer and Seller concerning this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or email:
20.1.1 (in 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
20.1.2 (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 this Contract or such other address as shall be notified to the Seller by the Buyer.
20.2 Communications shall be deemed to have been received:
20.2.1 if sent by pre-paid recorded first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
20.2.2 if delivered by hand, on the day of delivery;
20.2.3 if sent by fax on a working day prior to 4 p.m., at the time of transmission and otherwise on the next working day.
20.2.4 if sent by email
21.1 For orders shipped outside the UK, the Seller cannot be held responsible should local custom authorities confiscate any shipment (or part thereof), delay shipment or charge import duty or other levies.
21.2 Prices quoted are exclusive of VAT and any other taxes, levies, duty, import duty or any other similar charges whatsoever, all of which are the total responsibility of the Buyer and liable for payment in full by the Buyer.
21.3 The Seller shall be entitled to charge any VAT payable whether or not shown on quotation or invoice at the applicable rate.
22.1 All Prototype orders are non-cancellable and non-refundable
22.2 Cancellation of mass production orders will be subject to the following clauses:
22.2.1 Requests for cancellations must be received in writing
22.2.2 Order cancellation received prior to the Pre-production sample being despatched to the buyer will be refunded in full, less the costs of the project incurred by the sellers prior to receipt of the cancellation request. (The cost of a project is inclusive of all external expenditures assigned by Custom Toys UK to the project as well as internal resource cost, charged at current market hourly rate)
22.2.3 Order cancellation received after the Pre-production sample has been despatched to the buyer will be non-refundable
23.1 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts.
24.1 The products bearing names, logos and trademarks in the site do not necessarily indicate (or imply) that the products have been supplied to the owner of the name or trademark, but are an illustration of branding techniques.
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