CRASTER LTD DBA CRASTER HOME -
TERMS AND CONDITIONS OF BUSINESS
1. Interpretation
The definitions in this clause apply in these terms and
conditions:
Bespoke Goods: Goods designed and/or manufactured
by Craster to the Customer’s specific requirements.
Business Day: a day (other than a Saturday, Sunday
or public holiday) when banks in London are open for
business.
Conditions: the terms and conditions set out in this
document.
Confidential Information: all information in whatever
form (including without limitation, whether written,
oral, visual, electronic, on tape or disk or in any other
form) relating to the business carried on by either party,
that is directly or indirectly disclosed to by one party
to the other or which comes to the attention of either
party in connection with the Contract, whether before
or after the date of this Contract and including, without
limitation, customer and supplier details, product
designs and business plans.
Contract: the contract between Craster and the
Customer for the sale and purchase of the Goods in
accordance with these Conditions.
Craster: Craster Limited (registered in England and
Wales with company no. 4503732).
Customer: the person or firm who purchases the Goods
from Craster.
Delivery Location: the location set out in the Order or
such other location as the parties may agree In Writing.
Force Majeure Event: has the meaning given in clause
9.2.
Goods: the goods (or any part of them) set out in the
Order.
In Writing: in writing in a letter, in a fax or in an email
but excludes telephone conversations, SMS messages
and communications made through social networking
platforms.
Order: the Customer’s order for the Goods, as set out in
Craster’s purchase order form.
Order Confirmation: Craster’s confirmation of the Order.
Specification: any specification for the Goods, including
any related plan and drawings, that is agreed In Writing
by the parties.
Stock Goods: Goods that are not Bespoke Goods.
2. Basis of Contract
2.1. These Conditions apply to the Contract to the
exclusion of any other terms that the Customer seeks
to impose or incorporate, or which are implied by trade,
custom, practice or course of dealing.
2.2. The Order constitutes an offer by the Customer
to purchase the Goods in accordance with these
Conditions. The Customer shall ensure that the terms of
the Order and any relevant Specification are complete,
accurate and consistent with the Conditions. If there
is any discrepancy or conflict between the Order,
the Specification (if any) and/or the Conditions, the
Conditions shall prevail.
2.3. The Order shall only be deemed to be accepted
when Craster issues the Order Confirmation to the
Customer, at which point the Contract shall come into
existence.
2.4. The Contract constitutes the entire agreement
between the parties. The Customer acknowledges
that it has not relied on any statement, promise or
representation made or given by or on behalf of Craster
which is not set out in the Contract. Any samples,
drawings, descriptive matter, or advertising issued by
Craster and any descriptions or illustrations contained
in Craster’s catalogues or brochures are issued or
published for the sole purpose of giving an approximate
idea of the Goods described in them. They shall not
form part of the Contract or any other contract between
Craster and the Customer for the sale of the Goods.
3. Delivery
3.1. Craster shall deliver the Goods to the Delivery
Location after Craster notifies the Customer that
the Goods are ready and at a date/time stipulated by
Craster. Any dates quoted for delivery are approximate
only, and the time of delivery is not of the essence.
3.2. Subject to clause 5 below, delivery of the Goods
shall be completed on the Goods’ arrival at the Delivery
Location and the Customer shall make all arrangements
necessary to take delivery of the Goods.
3.3. Craster shall not be liable for any failure to deliver
the Goods or for any delay in delivery of the Goods that
is caused by a Force Majeure Event or the Customer’s
failure to provide Craster with adequate delivery
instructions or any other instructions that are relevant
to the supply and/or delivery of the Goods.
3.4. If the Customer fails to take delivery of the
Goods within 5 Business Days of Craster notifying the
Customer that the Goods are ready then, except where
such failure or delay is caused by a Force Majeure
Event:
(a) delivery of the Goods at the Customer’s risk shall be
deemed to have been completed at 9.00 am on the
fifth Business Day following the day on which Craster
notified the Customer that the Goods were ready; and
(b) Craster shall store the Goods until delivery takes
place, and charge the Customer for all related costs
and expenses (including insurance).
3.5. If 10 Business Days after Craster notified the
Customer that the Goods were ready for delivery the
Customer has not taken delivery of them, Craster may
resell or otherwise dispose of part or all of the Goods at
its discretion, in which case no refund of any sums paid
to Craster shall be recoverable by the Customer and any
sums due from the Customer under sub-clause 3.4(b)
remain due from the Customer.
3.6. Craster may deliver the Goods by instalments.
3.7. All Craster sales are final notwithstanding a damage in transit,
whereby replacement or repair may be offered under clause 4.2 c.
4. Quality
4.1. Craster warrants that on delivery (or deemed
delivery) the Goods shall:
(a) conform in all material respects with their
description and any applicable Specification;
(b) be free from material defects in design, material and
workmanship.
4.2. Subject to clause 4.3, if:
(a) the Customer gives notice In Writing to Craster within
5 Business Days of delivery (or deemed delivery)
that some or all of the Goods do not comply with the
warranty set out in clause 4.1; and
(b) Craster is given a reasonable opportunity of
examining such Goods; and
(c) the Customer (if requested by Craster) returns
such Goods to Craster’s place of business at the
Customer’s cost,
Craster shall, at its option, repair or replace the
defective Goods. These Conditions shall apply to any
repaired or replacement Goods supplied by Craster.
4.3. Craster shall not be liable for Goods’ failure to
comply with the warranty set out in clause
4.1 if:
(a) the Customer makes any further use of such Goods
after giving notice in accordance with clause 4.2; or
(b) the defect arises because the Customer failed to
follow Craster’s oral or written instructions as to
the storage, commissioning, installation, use and
maintenance of the Goods or (if there are none) good
trade practice; or
(c) the defect arises as a result of Craster following
any drawing, design or specification supplied by the
Customer; or
(d) the Customer alters or repairs such Goods without
the written consent of Craster; or
(e) the defect arises as a result of fair wear and tear,
wilful damage, negligence, or abnormal storage or
working conditions.
4.4. Except as provided in this clause 4, Craster shall
have no liability to the Customer in respect of the Goods’
failure to comply with the warranty set out in clause 4.1.
4.5. Except as set out in these Conditions, all warranties,
conditions and other terms implied by statute or
common law are, to the fullest extent permitted by law,
excluded from the Contract.
5. Title & Risk
5.1. The risk in the Goods shall pass to the Customer
on the earlier of completion of delivery under clause 3.2
above and deemed delivery under clause 3.4 above.
5.2. Title to the Goods shall not pass to the Customer
until Craster has received payment in full (in cash or
cleared funds) for:
(a) the Goods; and
(b) all other sums which are or which become due to
Craster for or in connection with the sale, supply,
storage and/or delivery of the Goods to the Customer.
5.3. Where the Goods have been delivered to the Delivery
Location then, until title to the Goods has passed to the
Customer, the Customer shall:
(a) store the Goods separately from all other goods
held by the Customer so that they remain readily
identifiable as Craster’s property;
(b) not remove, deface or obscure any identifying mark
or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep
them insured against all risks for their full price from
the date of delivery;
(d) notify Craster immediately if it becomes subject to
any of the events listed in clause 7.2; and
(e) give Craster such information relating to the Goods
as Craster may require from time to time.
5.4. If before title to the Goods passes to the Customer
the Customer becomes subject to any of the events
listed in clause 7.2, or Craster reasonably believes
that any such event is about to happen and notifies
the Customer accordingly then, without limiting any
other right or remedy Craster may have, Craster may
require the Customer to deliver up the Goods and, if the
Customer fails to do so promptly, enter any premises of
the Customer or of any third party where the Goods are
stored in order to recover them.
6. Price & Payment
6.1. The price of the Goods shall be the price set out in
the Order.
6.3. The price of the Goods is inclusive of the costs and
charges of packaging, insurance and transport of the
Goods.
6.4. The price of the Goods is inclusive of amounts in
respect of value added tax (VAT), any similar sales tax
or any excise or customs duties or other taxes, fees
or surcharges (including withholding taxes) relating
to the sale and supply of the Goods to the Customer
(taxes).
6.5. If the Customer fails to make any payment due to
Craster under the Contract by the due date for payment
(due date), then the Customer shall pay interest on the
overdue amount in accordance with the Late Payment
of Commercial Debts (Interest) Act 1998. Such interest
shall accrue on a daily basis from the due date until the
date of actual payment of the overdue amount, whether
before or after judgment. The Customer shall pay the
interest together with the overdue amount.
6.6. The Customer shall pay all amounts due under the
Contract in full without any deduction or withholding
except as required by law and the Customer shall not
be entitled to assert any credit, set-off or counterclaim
against Craster in order to justify withholding payment
of any such amount in whole or in part. Craster may at
any time, without limiting any other rights or remedies
it may have, set off any amount owing to it by the
Customer against any amount payable by Craster to the
Customer.
8. Limitation of Liability
8.1. Nothing in these Conditions shall limit or exclude
Craster’s liability for:
(a) death or personal injury caused by its negligence,
or the negligence of its employees, agents or
subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation; or
(c) any matter in respect of which it would be unlawful
for Craster to exclude or restrict liability.
8.2. Subject to clause 8.1:
(a) Craster shall not be liable to the Customer, whether
in contract, tort (including negligence), breach of
statutory duty, or otherwise, for any loss of profit or
any indirect or consequential loss arising under or in
connection with the Contract; and
(b) Craster’s total liability to the Customer in respect of
all other losses arising under or in connection with
the Contract, whether in contract, tort (including
negligence), breach of statutory duty, or otherwise,
shall not exceed the price of the Goods.
9. Force Majeure
9.1. Neither party shall be liable for any failure or delay
in performing its obligations under the Contract to the
extent that such failure or delay is caused by a Force
Majeure Event (whether, in the case of Craster, affecting
Craster or its sub-contractors).
9.2. A Force Majeure Event means any event beyond a
party’s reasonable control including strikes, lock-outs
or other industrial disputes, failure of energy sources or
transport network, acts of God, war, terrorism, riot, civil
commotion, interference by civil or military authorities,
national or international calamity, armed conflict,
malicious damage, breakdown of plant or machinery,
nuclear, chemical or biological contamination, sonic
boom, explosions, collapse of building structures, fires,
floods, storms, earthquakes, loss at sea, epidemics
or similar events, natural disasters or extreme
adverse weather conditions, or default of suppliers or
subcontractors.
10. Confidentiality
10.1. Each party shall procure that they, their
employees, contractors and agents shall:
(a) keep all Confidential Information belonging to the
other party secret;
(b) use the Confidential Information of the other party
solely for the purposes of the Contract and not in any
way which is or may be detrimental to the interests
of the other;
(c) not directly or indirectly disclose any Confidential
Information belonging to the other party in whole or
in part to any person (or allow it to be disclosed) or
make copies of it unless permitted by the Contract;
(d) use all reasonable endeavours to ensure that no one
discovers the Confidential Information belonging to
the other party unless authorised; and
(e) inform the other party immediately upon becoming
aware or suspecting that an unauthorised person has
become aware of Confidential Information.
10.2. The obligation to maintain the confidentiality of the
Confidential Information does not extend to nor apply to
Confidential Information which:
(a) at the time of disclosure is or subsequently becomes
public knowledge, other than as a direct or indirect
result of an unauthorised disclosure or other act or
omission by either party;
(b) either party can establish to the reasonable
satisfaction of the other that it found out the
information from a source not connected with the
other and that the source is not under any obligation
of confidence in respect of the information;
(c) either party is compelled to disclose by law or the
requirements of any regulatory or other authority
with which either party is required to comply; or
(d) both parties agree In Writing that it is not
confidential.
10.3. Both parties may disclose Confidential Information
only to:
(a) its respective directors, officers or employees as are
strictly necessary for the purposes of the Contract;
(b) its directors, partners or employees respective
professional advisers or consultants who are
engaged to advise in connection with the Contract; or
(c) people whom the other agrees in writing may receive
the information.
11. General
11.1. Intellectual Property. All intellectual property
rights of whatever nature and wherever arising
(including copyright and design right, whether
registrable or unregistrable, and all related rights of
action) in the Goods (and the Specification) shall (as
between the Customer and Craster) belong to Craster.
The Customer hereby assigns to Craster all such
intellectual property rights that may become vested in
it and undertakes at its own cost to do such further acts
(including the execution of any documents) to complete
and/or confirm Craster’s title to such rights. Nothing
in this Contract shall be construed as conferring any
licence or granting any rights in favour of the Customer
in relation to such intellectual property rights.
11.2. Assignment and subcontracting. Craster may
at any time assign, transfer, charge, subcontract or
deal in any other manner with all or any of its rights
or obligations under the Contract. The Customer may
not assign, transfer, charge, subcontract or deal in any
other manner with all or any of its rights or obligations
under the Contract without the prior written consent of
Craster.
11.3. Notices. Any notice or other communication given
to a party under or in connection with the Contract shall
be In Writing, addressed to that party at its registered
office or such other address as that party may have
specified In Writing in accordance with this clause, and
shall be delivered personally, sent by pre-paid firstclass post,
recorded delivery or fax. A notice or other
communication shall be deemed to have been received:
if delivered personally, when left at the address
referred to herein; if sent by pre-paid first-class post or
recorded delivery, at 9.00 am on the second Business
Day after posting; or, if sent by fax, 1 Business Day after
transmission.
11.4. Severance. If any court or competent authority
finds that any provision of the Contract (or part of
any provision) is invalid, illegal or unenforceable,
that provision or part-provision shall, to the extent
required, be deemed to be deleted, and the validity and
enforceability of the other provisions of the Contract
shall not be affected. If any invalid, unenforceable
or illegal provision of the Contract would be valid,
enforceable and legal if some part of it were deleted,
the provision shall apply with the minimum modification
necessary to make it legal, valid and enforceable.
11.5. Waiver. A waiver of any right or remedy under the
Contract is only effective if given In Writing and shall
not be deemed a waiver of any subsequent breach or
default. No failure or delay by a party to exercise any
right or remedy provided under the Contract or by law
shall constitute a waiver of that or any other right or
remedy, nor shall it preclude or restrict the further
exercise of that or any other right or remedy. No
single or partial exercise of such right or remedy shall
preclude or restrict the further exercise of that or any
other right or remedy.
11.6. Third Party Rights. A person who is not a party
to the Contract shall not have any rights under or in
connection with it.
11.7. Variations. Any variation to the Contract, including
the introduction of any additional terms and conditions,
shall only be binding when agreed In Writing and signed
by the parties.
11.8. Governing Law and Jurisdiction. The Contract,
and any dispute or claim arising out of or in connection
with it or its subject matter or formation (including
non-contractual disputes or claims), shall be governed
by, and construed in accordance with, English law. Any
such dispute or claim shall be referred to and finally
resolved by arbitration under the Rules of the London
Court of International Arbitration (LCIA), and such
Rules are deemed to be incorporated by reference into
this clause. Unless otherwise agreed by Craster, the
number of arbitrators shall be one and the seat, or legal
place, of arbitration shall be London. The language to
be used in the arbitral proceedings shall be English.