TERMS AND CONDITIONS
|"Customer"||The person, firm or company purchasing or agreeing to purchase goods or services from Thumbs Up.||"Goods"||The products supplied by Thumbs Up and purchased by the Customer pursuant to these Conditions.||"Order"||An order submitted by the Customer to Thumbs Up to order Goods.||"These Conditions"||The terms and conditions of sale set out herein.||"Thumbs Up"||Thumbs Up (UK) Ltd registered in England and Wales with company number 4540647 and having its trading office at Santok House, Unit L, Braintree Industrial Estate, Braintree Road, South Ruislip, Middlesex HA4 0EJ.||"Working Day"||A day other than a Saturday, Sunday or a Public Holiday in the United Kingdom.|
1. These Conditions
a) These Conditions shall apply in respect of the supply of all Goods by Thumbs Up to the Customer and shall supersede all other agreements and verbal agreements and exclude any standard terms of the Customer (whenever issued).
b) The making of an order by the Customer for the Goods shall constitute an offer by the Customer to purchase Goods on these Conditions which Thumbs Up in its discretion may accept in writing (including by fax or E-mail). No cancellation of an order by the Customer shall be valid unless made in writing and accepted in writing by Thumbs Up.
c) No variation of these Conditions is permitted unless expressly accepted in writing by a Member of the Board of Thumbs Up..
d) Each of the Customer and Thumbs Up acknowledges that in entering into these Conditions, it has not relied upon any representations, warranties or other assurances (other than those repeated in these Conditions) and waives all rights and remedies which, but for this Clause 1d would be available to it provided that nothing in these Conditions excludes liability for fraud.
2. The Goods
Subject to Clause 6a, all descriptions, drawings and particulars relating to the Goods in any catalogues, leaflets, brochures or other documents are for illustrative purposes only and do not form part of the agreement between Thumbs Up and its Customer. All representations as to performance of the Goods are based on information supplied by the manufacturer of the Goods and relate to the performance in normal conditions and when used correctly.
3. Delivery and Risk
a) Unless otherwise expressly agreed, the cost price shown in the current price list of Thumbs Up is exclusive of value added tax and the cost of packing and carriage will be charged at Thumbs Upís normal rates.
b) The time for delivery of the Goods is not of the essence. The agreed dates for delivery are estimates only and a failure by Thumbs Up to comply with them shall not be a breach of these Conditions.
c) Risk in the Goods shall pass to the Customer when the vehicle carrying the Goods arrives at the Customer's premises and before unloading, or, if the Customer has requested that it arranges the collection of the Goods, on the date that Thumbs Up has notified the Customer that the Goods are ready for collection.
d) The Customer is required to inspect the Goods on receipt and to notify Thumbs Up of any defects within 3 days of receipt otherwise it shall be deemed to have accepted the Goods and be liable for the price.
e) If any payments due to Thumbs Up remain unpaid for more than 30 days from the due date (unless previously agreed) or if the Customer ceases to trade or enters into any arrangement with its creditors or shall become insolvent or has a receiver or administrative receiver appointed or a petition is presented or a resolution passed for the winding up of the Customer (if the Customer is a company) other than for the purpose of a solvent reconstruction or amalgamation previously notified to Thumbs Up, the Customer shall then be deemed to have repudiated any agreements it may then have with Thumbs Up who shall be entitled (without prejudice to any other rights or remedies available to it) to stop any Goods in transit and to cancel any further deliveries.
4. Property in the Goods
a) Notwithstanding risk in the Goods passing to the Customer in accordance with Clause 3c of these Conditions, the Goods shall remain the sole and absolute property of Thumbs Up and title to and legal and equitable ownership of the Goods shall not pass to the Customer until payment in full is received by Thumbs Up of all monies due from the Customer to Thumbs Up in respect of all Goods supplied by Thumbs Up to the Customer and the Customer acknowledges that until such payment is made in full it is in possession of the Goods solely as a fiduciary for Thumbs Up.
b) Until title of the Goods passes to the Customer in accordance with Clause 4a, the Goods shall be kept separate and distinct from all other property of the Customer and of third parties and in good condition and stored in such a way as to be clearly identifiable as belonging to Thumbs Up and the Customer will not cause or permit or suffer any labels, badges, serial numbers, or any other means of identification of the Goods to be removed or obscured.
c) Thumbs Up may for the purpose of recovering its Goods enter upon any premises where they are stored or where they are reasonably thought to be stored and may repossess the same.
5. Prices and Payments
a) Unless otherwise expressly agreed, the price is payable on delivery of the Goods with invoice.
b) Time for payment is of the essence and if payment is not made within 30 days (or other previously agreed period) from the date of the invoice, Thumbs Up may require the Customer to pay 2.5 % interest per month from the date of invoice compounded monthly until payment is received in full.
c) If payment is not made within 30 days of the date of the invoice (or a previously agreed period) Thumbs Up will be entitled to charge (in addition to interest and any legal costs ordered by the Court and without prejudice to any other rights or remedies available to Thumbs Up) the sum of £100 plus VAT by way of liquidated damages and as a contribution to the administrative costs incurred by Thumbs Up in taking steps to secure payment. Such sum does not constitute a penalty but represents a reasonable pre-estimate of the loss to Thumbs Up in seeking to secure payment.
d) Unless otherwise stated, all payments are to be made to Thumbs Upís address as stated on the Invoice.
e) The price shall be payable without any deduction or set-off.
f) Cheques not honoured (returned) will incur £10 minimum charge.
6. Warranty and Liability
a) Thumbs Up undertakes to credit the account (if any) of the Customer or to remedy free of charge by repair or replacement any defects in the Goods which are covered under the manufacturer's guarantee or warranty provided that the Customer arranges for the prompt return to Thumbs Up of the defective Goods at the Customer's risk and expense. Thumbs Up reserves the choice of repair/replacement or credit.
b) Save as herein specifically provided and save to the extent that the same cannot by law be excluded all conditions and warranties or representations express or implied statutory or otherwise in relation to the Goods are hereby excluded.
c) Subject to Clause 6(e), Thumbs Up shall not be liable to the Customer for any loss of profit (whether direct or indirect) or any consequential or indirect loss, loss of business, economic loss, loss of goodwill, loss of contracts, damage to the property of the Customer or any third party, in each case whether such loss arises from a breach of a duty in contract or tort in any other way.
d) To be valid any claim against Thumbs Up whether in contract or in tort must be brought within 6 months of the date of invoice relating to the Goods to which the claim relates. Subject to Clause 6e, Thumbs Up's maximum aggregate liability for any one or series of related claims shall be limited to an amount equal to the invoice value of the Goods in respect of which the claim or claims are made.
e) Nothing in these Conditions excludes or limits either party's liability for (a) death or personal injury caused by the negligence of that party or its employees or contractors; (b) fraud; or (c) any other liability that cannot be excluded or limited under applicable law.
7. Returns Policy
a) Thumbs Up admits no liability or responsibility for returned Goods which are returned without a valid Returns Authorisation Number, issued by Thumbs Upís returns department.
b) Goods are not sold on a Ďsale or returní basis.
c) Credit Notes issued by Thumbs Up are not redeemable for cash.
d) Thumbs Upís policy is to replace Goods, not to offer credit in exchange for returns. Returned Goods will only be credited if they cannot be repaired or replaced by a similar product.
e) Remote Control Toys Returns - Thumbs Up reserves the right to inspect any items that are returned before any repair or exchange is made. If they appear to be broken due to impact or do not appear to have any manufacturing or electrical faults they will not be exchanged or repaired. Thumbs Upís decision in this matter is final.
8. Force Majeure
a) Thumbs Up shall not be liable to the Customer for any failure to perform its obligations due to any circumstances beyond its control (including without limitation, strikes, lock¨outs, industrial disputes, or any other person, firm or company, delays caused by any manufacturer of the Goods, riots, civil disturbances, war or warlike activity, embargoes, fire, explosion, flood or natural causes) and in such event Thumbs Up may elect by written notice to cancel any agreement with the Customer or elect that the time for performance shall be extended until such time as Thumbs Up can reasonably effect performance.
a) If the Customer shall be in breach of any of these Conditions then failure by Thumbs Up to require the Customer to rectify the same shall not create any assumption that such a breach has been waived by Thumbs Up.
a) All demands, notices and other communications shall be in writing and addressed to Thumbs Up at its address shown in invoices delivered by it and to the Customer at the address given by it for the delivery of invoices (or as subsequently notified by one or the other in writing) and shall be deemed to be duly given or made by letter 48 hours after being posted by first class postage pre-paid or if delivered by hand at the time of delivery or if given or made by fax or E-mail on confirmation of receipt (electronic or otherwise).
11. Law and Jurisdiction
a) These Conditions are governed by and shall be construed in accordance with English law and the Customer and Thumbs Up irrevocably submit to the exclusive jurisdiction of the English courts.