TERMS AND CONDITIONS

1. Interpretation

In these terms and conditions "the Products" means any materials supplied by the party named overleaf (“the Seller”) to the Buyer, "the Buyer" means any person, firm or company to whom the Seller may from time to time sell the Products, "Invoice" and "Delivery Note" means respectively the invoice and delivery note used by the Seller. Any terms stated on the Invoice, the Delivery Note or any other applicable document or correspondence, shall be deemed incorporated into these terms of business (together referred to as the "Terms").

2. Terms

The Terms shall apply in place of and prevail over any terms or conditions contained or referred to in the Buyer's order or in correspondence or elsewhere or implied by trade practice or course of dealing unless specifically agreed to in writing by the Seller and any purported provisions to the contrary are hereby excluded or extinguished. By placing an order with the Seller, the Buyer agrees to deal with the Seller on the Terms. No amendment or addition to the Terms shall be binding on the Seller unless agreed in writing (by an authorised representative of the Seller). The Buyer represents that it does not rely on and waives any claim for any representation or warranty not in the Terms.

3. Offer

Any price lists, quotations, availability information or other sales information which the Seller provides to the Buyer do not constitute offers made by the Seller to the Buyer and the Seller reserves the right to withdraw or revise the same without notice at any time prior to receipt by the Buyer of the Invoice.

4. Contract Formation

No contract shall subsist between the Seller and the Buyer unless and until the Seller accepts the Buyer’s order for the Products by e-mail or letter confirming that it has dispatched the Products. That acceptance will be deemed complete and will be for all purposes to have been effectively communicated to the Buyer at the time the Seller sends the e-mail to the Buyer (whether or not such e-mail is received).

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5. Customs, Duties and Taxes

All Customs and Excise duties, import or export duties and all other taxes, tariffs and surcharges of any nature whatsoever now or hereafter levied in any country in respect of the sale, delivery or use of the Products or payments for them or upon freight or any other charges shall be borne by the Buyer and, except as stated in the Invoice, are additional to the prices therein stated.

6. Delivery and Return of Products

(a) No order for the Products shall be binding on the Seller unless and until accepted by the Seller. The Seller in its absolute discretion may accept or reject any order.
(b) The Buyer is entitled to withdraw from an order for the Products within 14 days of the day after the delivery. If the Buyer withdraws from an order such Products must be returned to the Seller in their original condition at the cost of the Buyer.
(c) The Seller reserves the right to suspend delivery if in the Seller’s opinion delivery would represent a credit risk to the Seller.
(d) The cost of delivery of the Products to the Buyer is in addition to any price stated in the Terms or on www.tomboytools.co.uk or where delivery is outside the United Kingdom and Ireland and shall be borne by the Buyer.
(e) Any period or date for delivery stated in the Terms is intended as an estimate only and is not a contractual commitment and the Seller shall not be liable for any damages or losses arising out of the delay. Time shall not be of the essence to this regard.
(d) The Seller shall not be liable for shortages in quantity delivered unless the Buyer notified the Seller of any claims for short delivery within 7 days of receipt of the Products.
(e) The Buyer shall not return any Products without the Seller’s written consent and the Seller shall not be under any liability whatsoever in respect of Products returned without such consent being obtained.
(f) If the Products are returned by the Buyer under a valid claim, the Seller shall be entitled to replace the Products free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Products.
(g) The Buyer shall be deemed to have accepted the Products on the earlier of 7 working days after receipt of the Products or the first time the Products are used.
(h) The Seller may deliver the Products in one or more instalments. Where delivery is effected by instalment, each instalment shall be treated as a separate contract. Failure by the Seller to make any delivery or part delivery in accordance with the Terms or any claim by the Buyer in respect of such delivery or part delivery shall not entitle the Buyer to reject the balance of the Products agreed to be purchased by the Buyer.

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7. Passing of Property

The Products shall remain the property of the Seller as legal and equitable owner and no property in or title to the Products shall pass to the Buyer until their full price has been duly paid to the Seller together with the full price of any Products the subject of any other contract with the Seller. Until payment in full has been made, the Buyer shall store the Products in such a way as to enable them to be identified as the property of the Seller and shall not sell or encumber the Products in any way. Failure to pay the price for the Products when due shall, without prejudice to any other remedies the Seller may have, entitle the Seller to repossess the Products from any premises where they may be. For the purpose of repossessing the Products the Buyer hereby grants an irrevocable licence to the Seller, its employees or agents to enter upon such premises and the Buyer shall pay to the Seller the cost of removal and transport of the Products. For the avoidance of doubt, the Products shall be presumed to belong to the Seller unless the Buyer can prove otherwise.

8. Cancellation

The Seller may cancel an order at any time prior to delivery of the Products by giving written notice. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.

9. Warranties and Liability

(a) The Seller warrants that the Products will at the time of delivery correspond to their description. All other warranties conditions or terms relating to fitness for purpose, satisfactory quality or any other matters whether implied by statute or otherwise are expressly excluded to the fullest extent permitted by law.
(b) The Seller does not warrant third party products. The Seller will pass on to the Buyer the benefit of any third party warranty which will usually be supplied by a third party manufacturer as specified in any documentation provided with the third party products.
(c) The Seller shall have no liability for any indirect or consequential losses or expenses suffered by the Buyer, however caused, including but not limited to loss of anticipated profits, goodwill or contracts resulting from third party claims.
(d) The Seller’s aggregate liability to the Buyer whether for negligence, breach of contract, misrepresentation, or otherwise shall in no circumstances exceed the cost of Products or Services which give rise to such liability in respect of any occurrence.
(e) No term of this Agreement shall exclude or limit the liability of the Seller for death or personal injury caused by its negligence nor are your statutory rights as a consumer (if any) affected by these provisions.
(f) The Buyer acknowledges that the limitations of liability in the Terms are fair and reasonable having regard to the value of the Products and the anticipated damages or losses or liability arising therefrom and hereunder, even if we had been advised of the possibility of such damages or losses.

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10. Intellectual Property Warranty

(a) The Buyer acknowledges and agrees that all intellectual property rights in the Products and in any process or know-how involved in their development and/or creation vests in the Seller. The Buyer’s right to use the Products is subject to a non-transferable licence.
(b) The Products, the brochure and all materials on www.tomboytools.co.uk may not be copied, reproduced, republished, uploaded, posted or distributed in any way including by e-mail or other electronic means. Any modification of the Products is a violation of the Seller’s proprietary rights and is prohibited.

11. Force Majeure

(a) The Seller shall have no liability in respect of any failure or delay in fulfilling any of the Seller's obligations to the extent that fulfilment thereof is prevented, frustrated and/or delayed or rendered uneconomic as a consequence of any circumstances or event beyond the Seller's control including, without limitation, strikes, stoppages, accidents, actions of third parties, power failures, fire, compliance with any law or regulation or Act of God.
(b) The Seller undertakes however to make every reasonable endeavour within its power to overcome difficulties arising in connection therewith but in the event of shortages of the Products the Seller reserves the right to allocate as it may think fit the Products available and resources between customers with whom it has contractual obligations in respect thereof and shall not be obliged to purchase the Products from third parties to make good such shortages, and in these circumstances the Seller is entitled to terminate the contract without liability for any loss or damage thereby incurred by the Buyer.

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12. Data Protection

In agreeing these Terms, the Buyer gives consent that all personal data it submits may be processed, retained, and transferred by the Seller in accordance with the Data Protection Act 1998 and any privacy policy of the Seller available on http://www.tomboytools.co.uk

13. Third Parties

The Terms shall not be enforceable solely by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to the Terms.

14. Severability

If any clause is found to be invalid then it should be deemed struck from the Terms and the rest of the Terms shall remain binding.

15. Waiver

Failure or neglect by the Seller to enforce any prior breach shall not be deemed to be a waiver of the Seller’s subsequent rights.

16. Notices

Any notices to be given under the Terms shall be in writing and shall be deemed to be effectively delivered if by hand when delivered or if by post within 48 hours of posting or if by fax or e-mail when dispatched to the correct address of the addressee.

17. Governing Law

English Law shall apply to the Terms and the parties submit to the non-exclusive jurisdiction of the English Courts.