Terms of Business
Please find below our terms of business. If you have any queries please do not hesitate to get in contact with us.
1.1 “Buyer” means the person who buys or agrees to buy the goods from the Seller
1.2 “Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller.
1.3 “Delivery Date” means the date specified by the Seller when the goods are to be delivered.
1.4 “‘Goods” means the articles which the Buyer agrees to buy from the Seller.
1.5 “Price” means the price of goods excluding carriage and packing (when under £250.00), insurance and value added tax.
1.6 “Seller” means Metro Soft Toys Limited of Thirsk Industrial Park, York Road, Thirsk YO7 3BX, and any of its trading divisions.
2. Conditions Applicable
2.1 These conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document.
2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase goods pursuant to these Conditions.
2.3 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
2.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.
3. Price and Payment
3.1 The price shall be the Seller’s quoted price. The price is exclusive of vat which shall be due at the rate ruling on the date of the Seller’s invoice.
3.2 Payment of the Price and vat shall be due within thirty days of the date of the invoice. Time for payment shall be of the essence.
3.3 If payment is not made by ‘the due date’ specified, the Seller shall have the right to charge interest at the rate of 2% above HSBC Bank plc base rate from time to time in force. Interest will accrue from the due date for payments to the date of final settlement as well as before any judgement.
3.4 The price of the goods shall be the Seller’s quoted price which shall be binding on the Seller. The Seller may by giving notice to the Buyer at any time up to seven days before delivery increase the price of the goods to reflect any increase in the cost to the Seller which is due to factors occurring after the making of the contract for sale which are beyond the reasonable control of the Seller (including, without limitation, Foreign Exchange fluctuations, taxes and duties and the cost of labour, materials and other manufacturing costs). Provided that the Buyer may cancel this contract within seven days of any such notice from the Seller. The price is exclusive of vat which shall be due at the date ruling on the date of that invoice.
4. The Goods
4.1 The Goods shall be supplied in accordance with the description contained in the Seller’s specification, quotation and manufactured in accordance with all applicable British Standards which relate specifically to the Goods.
4.2 The Seller may from time to time make changes in the specifications of the Goods which are required to comply with any applicable safety or statutory requirements which do not mentally affect the quality or fitness for the purpose of the Goods.
4.3 Allowable Discrepancies in Quantity
The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that:-
4.3.1 Such discrepancy in quantity shall not exceed 5%
4.3.2 The price shall be adjusted pro rata to the discrepancy.
5. Warranties & Liability
The Seller warrants that the Goods will at the time of delivery correspond to the description given by the Seller. Except where the Buyer is dealing as a consumer (as defined in the Unfair Contract Terms Act 1977 Section 12) all other warranties, conditions or terms relating to fitness for purpose, merchantability or condition of the goods and whether implied by Statute or Common Law or otherwise are excluded.
6. Delivery of the Goods
6.1 Delivery of the Goods (unless by instalment) shall be made to the Buyer’s address on the delivery date. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
6.2 When Delivery of the Goods is by instalments:
6.2.1 The Seller may deliver the Goods by separate instalments in accordance with the agreed delivery schedule. Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
6.2.2 The failure of the Buyer to pay for any one or more of the said instalments of the Goods on the due date shall entitle the Seller (at the sole option of the Seller):
(a) Without notice to suspend further deliveries of the Goods pending payment by the Buyer; and/or
(b) To treat this contract as repudiated by the Buyer.
6.3 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
6.4 Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within six months of the delivery date.
7. Acceptance of the Goods
7.1 The Buyer shall have deemed to have accepted the Goods seventy-two hours after the delivery to the Buyer.
7.2 After acceptance the Buyer shall not be entitled to reject Goods which are not in accordance with the contract.
7.3 No Goods delivered to the Buyer which are in accordance with the contract will be accepted for return without the prior written approval of the Seller on terms to be determined at the absolute discretion of the Seller.
7.3.1 If the Seller agrees to accept any such Goods for return the Buyer shall be liable to pay a handling charge of 10% of the invoice price. Such Goods must be returned by the Buyer, carriage paid to the Seller in their original shipping carton.
7.3.2 Goods returned without prior written approval of the Seller may at the Seller’s absolute discretion be returned to the Buyer or stored at the Buyer’s cost without prejudice to any rights or remedies the Seller may have.
8. Title & Risk
8.1 The Goods shall be at the Buyer’s risk as from Delivery.
8.2 In spite of delivery having been made, property in the Goods shall not pass from the Seller until:
8.2.1 The Buyer shall have paid the Price plus vat in full; and
8.2.2 No other sums whatsoever shall be due from the Buyer to the Seller.
8.3 Until property in the Goods passes to the Buyer in accordance with clause 8.2 the Buyer shall hold the Goods and each of them in a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all other Goods in its possession and marked in such a way that they are clearly identified as the Seller’s property.
8.4 Notwithstanding that the Goods (or any of them) remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer’s business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as Principal when making such sale or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn Bank Account and shall be at all material times identified as the Seller’s property.
8.5 The Seller shall be entitled to recover the Price (plus vat) notwithstanding that property in any of the Goods has not passed from the Seller.
8.6 Until such time as property in the Goods passes from the Seller the Buyer shall upon request deliver up such of the Goods as have not ceased to be in existence or resold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned, occupied or controlled by the Buyer where the Goods are situated and repossess the Goods. On the making of such request the rights of the Buyer under clause 8.4 shall cease.
8.7 The Buyer shall not pledge or in any way change by way of security for any indebtedness any of the Goods which are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
8.8 The Buyer shall insure and keep insured the Goods to the full Price against “all risks” to the reasonable satisfaction of the Seller until the date the property in the Goods passes from the Seller. The Buyer shall whenever requested by the Seller produce a copy of the Policy of Insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
8.9 The Buyer shall promptly deliver the prescribed particulars of this contract to the Registrar in accordance with the Companies Act 1985 Part 12 as amended. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
9. Remedies of Buyer
9.1 Where the Buyer rejects any Goods then the Buyer shall have no further rights whatever in respect of the supply to the Buyer of such Goods which conform to the contract of sale.
9.2 Where the Buyer accepts or has been deemed to have accepted any Goods the Seller shall have no liability whatever to the Buyer in respect of those Goods.
9.3 The Seller shall not be liable to the Buyer for late delivery or short delivery of the Goods.
9.4 The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of this contract.
9.5 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
10. Set off and Counter claim
The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set off or counterclaim which the Buyer may have or alleged to have for any reason whatever.
11. Proper Law of Contract
This contract is subject to the Law of England and Wales.
Any provision in this contract which may be void or unenforceable shall be to the extent of such invalidity or unforceability be deemed severable and shall not affect any other provision of this contract.
No waiver or forbearance by the Seller (whether express or implied) in enforcing any of its rights under this contract shall prejudice its rights to do so in the future.
The Seller may licence or sub-contract all or any part of it’s rights and obligations under this contract without the Buyer’s consent.
15. Seller’s Cancellation Clause
The Seller may cancel this contract at any time before the Goods are delivered by giving written Notice. On giving such Notice the Seller shall promptly repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
All headings are for ease of reference only and shall not affect the construction of this contract.