Our Standard Terms & Conditions for the Delivery of Goods
Contract: means the contract between the you and us for the supply of Goods governed by these Terms and the Order.
Goods: means the product(s) we will provide to the you as specified in the Order.
Quotation: means the written quotation prepared by us which contains its proposals for providing Goods to you.
Terms: means these terms and conditions as updated from time to time by us.
we or us or our: Creations Unlimited Limited.
you or your: Means the individual, company or other legal entity or association that purchases Goods from us.
Making an agreement to purchase our Goods
The market in Goods is such that the specification, description and price of individual Goods can change.
The Order constitutes an offer by you to purchase the Goods in accordance with these Terms. You shall ensure that the terms of the Order and any relevant specifications you require are complete and accurate.
The Order shall only be deemed to be accepted when we issue a written acceptance of the Order (which may be email), at which point the the Contract shall come into existence.
The Contract constitutes the entire agreement between us and you to provide the Goods to you and for you to purchase those Goods, in accordance with these Terms. The Contract supersedes any prior agreement, understanding or arrangement between you and us, whether made orally or in writing.
You further acknowledge and agree that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in the Contract. Any samples, drawings, descriptive matter, presentations or advertising issued by us and any descriptions or illustrations contained in our catalogues or brochures or ‘mock-ups’ are issued or published for the sole purpose of giving an approximate idea of the Good. They shall not form part of the Contract or any other contract between the us and you for the supply of Goods.
Except as expressly provided, all other conditions and warranties (implied, statutory or otherwise) are hereby excluded to the fullest extent permitted by law.
A Quotation for the supply of Goods given by us shall not constitute an offer. A Quotation shall only be valid for a period of 28 days from its date of issue.
Price and Payment
The price (unless otherwise expressly stated) shall be exclusive of any taxes or duties which shall be due at the rate ruling on the date of our invoice.
Where the price is expressed to be inclusive of duties and taxes we have the right to adjust the price at any time before delivery to take account of any increase in duties and/or taxes.
The currency of the price shall be as specified on the invoice.
Payment of the price, duties and any taxes shall be due on the date(s) specified on the invoice. Time for payment shall be of the essence.
Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 2% above Bank of Butterfield’s specified USD prime rate from time to time in force and shall accrue at such a rate after as well as before any judgment.
If you fail to make any payment on the applicable due date, then without prejudice to any of our other rights we may:
1 – suspend or cancel deliveries of any Goods due to you; and/or
2 – appropriate any payment made by you to such of the Goods (or goods supplied under any other contract with you) as we may in our sole discretion think fit.
No set off
You may not withhold payment of any invoice or other amount due to us by reason of any right of set off or counterclaim which you may have or allege to have or for any other reason whatsoever.
Delivery and non-delivery of Goods
The Goods shall be delivered to you at our address or such other address we may specify. The risk in the Goods shall pass to you upon such delivery taking place.
We shall arrange for carriage of the Goods to your address. The costs of carriage and any insurance which you reasonably direct us to incur shall be reimbursed by you without any set-off or other withholding whatever and shall be due on the date for payment of the price. The carrier shall be deemed to be your agent.
We shall not be liable for any loss or damage whatever due to failure by us to deliver the Goods or any of them promptly or at all.
Retention of title by us
The Goods shall be at your risk as from delivery to our address.
In spite of such delivery having been made property in the Goods shall not pass to you until:
1 – you have paid in accordance with terms of the invoice; and
2 – no other sums whatever shall be due from you to us.
Until property in the Goods passes to you the Goods and each of them shall be held by you on a fiduciary basis as bailee for us.
You shall store the Goods (at no cost to us) separately from all other goods in your possession and marked in such a way that they are clearly identified as our property.
Notwithstanding that the Goods (or any of them) remain our property you may sell or use the Goods in the ordinary course of your business at full market value for our account. Any such sale or dealing shall be a sale or use of our property by you on you own behalf and you shall deal as principal when making such sales or dealings.
Until property in the Goods passes from us the entire proceeds of sale or otherwise of the goods shall be held in trust for us and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as our money.
We shall be entitled to recover the price (plus value added tax and other taxes and duties) notwithstanding that property in any of the Goods has not passed from us.
Until such time as property in the Goods passes from us you shall upon request deliver up to us such of the Goods as have not ceased to be in existence or resold. If you fail to do so we may enter upon any premises owned occupied or controlled by you where the Goods are situated and repossess the Goods. You authorise us to repossess the Goods from any other premises where the Goods may be situated from time to time provided always that we have the consent of the person who owns, occupies or controls such premises to enter thereon. On the making of a request by us to you to deliver up such Goods your rights to sell, use or otherwise deal with the Goods shall cease.
You shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are our property. Without prejudice to our other rights, if you do so all sums whatever owing by you to us shall forthwith become due and payable.
You shall insure and keep insured the Goods to the full price against “all risks” to our reasonable satisfaction until the date that property in the Goods passes from us, and shall whenever requested by us produce a copy of the policy of insurance. Without prejudice to our other rights, if you fail to do so all sums whatever owing by you to us shall forthwith become due and payable.
Acceptance of the Goods
You will be deemed to have accepted all Goods delivered to you if, within 24 hours of receipt, you have not told us that any of the Goods are damaged and that you wish to reject one or more of the Goods delivered.
After acceptance you shall not be entitled to reject any of the Goods.
Rejection of the Goods
If you properly reject any of the Goods which are not in accordance with the Contract you shall nonetheless pay the full price for such Goods unless you return such Goods to us at your cost before the date when payment of the price is due.
Return of Goods which are in accordance with the Contract
No Goods delivered to you which are in accordance with the Contract will be accepted for return by us without our prior written approval (in accordance with our returns authorisation procedure) and on terms to be determined at our absolute discretion.
If we agree to accept any such Goods for return you shall be liable to pay a handling charge of (10%) of the invoice price. Such Goods must be returned by you to us carriage-paid and in the original packaging.
Goods which are in accordance with the Contract and are returned without our prior written approval may at our absolute discretion be returned to you or stored at your cost without prejudice to any other rights or remedies we may have.
Variations in description or specification
We may deliver Goods of a different description or specification from that agreed and as may be required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for purpose of the Goods.
Limitations upon our liability to you
Except as expressly stated in these Terms, we shall have no liability to you for any loss or damage whatsoever arising from or in connection with the provision of the Goods or for any claim made against you by any third party, including for any losses or damages which may be suffered by you whether the same are suffered directly or indirectly or are immediate or consequential which fall into the following categories:
1 – Any indirect or consequential loss arising under or in relation to the Contract even though we were aware of the circumstances in which such loss could arise; and
2 – Loss of profits; loss of anticipated savings; loss of business opportunity or goodwill.
To the extent such liability is not excluded by the above, our total liability to you, whether in contract, tort (including negligence or otherwise) under or in connection with the Contract or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise, shall be limited to the total price of the Goods.
Neither you or we shall be deemed in default or liable to the other for any matter whatsoever for any delays in performance or from failure to perform or comply with these Terms and the Contract due to any cause beyond ours or your reasonable control including, without limitation, acts of God, acts of Government or other competent regulatory authority, telecommunications network operators, war or national emergency, riots, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes and other industrial disputes.
You shall not assign or transfer the benefit of the Terms or the Contract to any third party without our prior written consent. We may assign or transfer the benefit of these Terms or the Contract to any third party and may subcontract the performance of all or part of the same.
If any of the provisions of these Terms is or becomes invalid, illegal or unenforceable, the validity or enforceability of the remaining provisions shall not in any way be affected or impaired. In any such circumstances we and you shall negotiate in good faith in order to agree the terms of a mutual satisfactory provision, achieving as nearly as possible the same commercial effect, to be substituted for the provision which is found to be invalid, illegal or unenforceable.
The failure or delay by either you or us to exercise or enforce any right, power or remedy under these Terms shall not be deemed to operate as a waiver of any such right, power or remedy; nor shall any single or partial exercise by either party operate so as to bar the exercise or enforcement thereof or of any right, power or remedy on any later occasion.
Nothing in these Terms or the Contract shall create, or be deemed to create, a partnership between you or us.
No Third Party Rights
Save as provided in these Terms, a person who is not a party to the Contract has no right to enforce any term.
Choice of law and jurisdiction
These Terms shall be governed and construed in accordance with the laws of the Cayman Islands and you and we each submit to the exclusive jurisdiction of the courts of the Cayman Islands.