CONDITIONS OF SUPPLY
In these Conditions:
“Customer” means the party with whom the Company contracts;
“Contract” means the contract made between the Company and the Customer for supply of the Goods and/or Services which is subject to these Conditions;
“Goods” means all or any of the goods works and materials to be supplied by the Company;
“Services” means any services to be performed by the Company or any facilities and/or resources made available by the Company to the Customer;
“Hosting Services “ means allowing the independent use by the customer of available storage space on the Company’s comput- ers, for the purposes of (but not limited to) storing his information or creating and/or maintaining an on-line presence (includ- ing but not limited to a world wide website).
“Act of Insolvency” means any one or more of the following namely the passing of a resolution or the presentation of a petition for winding-up, bankruptcy or for the appointment of an administrator, the appointment of a receiver and/or manager or admin- istrative receiver over the whole or any part of the Customer’s undertaking and assets, the making of a proposal for a voluntary arrangement within the Insolvency Act 1986 or of a proposal for any other composition scheme or arrangement with or the call- ing by the Customer of any meeting of its creditors generally, the levying of execution or distress or diligence on any of its assets, the failure to pay its proper debts as and when due and anything analogous to any of the foregoing under the law of the juris- diction where the Customer is established.
2. Basis of contract
2.1 Any quotation shall remain open for a maximum period of 30 days from its date. Where Goods are quoted for supply from stock they are quoted subject to being unsold when the Customer’s order is accepted.
2.2 These Conditions shall form the terms and conditions of the Contract and shall apply to the exclusion of any terms or con- ditions whether put forward by or on behalf of the Customer in or on its order or otherwise or whether implied by law (insofar as the exclusion of the same is lawful).
2.3 The placing by the Customer of any order shall constitute an offer by the Customer. No contract shall come into existence unless the Company accepts the Customer’s order in writing. Any order placed by the Customer with any of the Company’s salesmen or other employees or representatives shall be subject to written acceptance by the Company.
2.4 No alteration to these Conditions shall be effective unless expressly agreed to in writing by a director of the Company.
3. Information, samples and materials supplied
3.1 The Customer shall be responsible to the Company for ensuring the accuracy, clarity, legibility and sufficiency of its order (including of any applicable specification and/or sample). The Company shall be entitled to charge the Customer for all costs (and a reasonable element of profit) incurred by it where;
3.1.1 variations to goods and/or services are requested by the Customer and accepted by the Company (including but not limited to when style, type or layout is left to the Company’s judgment and the Customer wishes to make changes there from);
3.1.2 Additional work is caused by or in connection with an unclear or illegible copy supplied by the Customer or when such copy differs from that supplied at time of quotation.
3.2 Where samples are to be supplied or proofs submitted by the Company, the Customer shall as soon as reasonably practi- cable after receipt of the same notify the Company that the samples or proofs are in all respects satisfactory or of any respect in which the samples or proofs are not satisfactory. In default of such notification the Company shall be entitled but not bound to proceed in the manufacture of the remainder of the Contract.
3.3 The Company may reject any materials of whatever nature supplied or specified by the Customer for use in the contract which appear to the Company to be unsuitable. The Customer shall indemnify the Company for any costs and/or expens- es incurred by the Company as a result of or in connection with the use of such materials.
3.4 Where Customer supplies any materials, the quantities supplied shall be adequate to cover normal spoilage.
3.5 Any materials owned and/or used by the Company in the production shall remain the Company’s exclusive property unless specifically agreed and/or otherwise indicated.
3.6 Except in the case of a Customer who is not contracting in the course of a business nor holding himself out as doing so, Customer’s property and all property supplied to the Company by or on behalf of the Customer shall while it is in the pos- session of the Company or in transit to or from the Customer be deemed to be at the Customer’s risk unless otherwise agreed and the Customer should insure accordingly.
3.7 Type may be distributed and lithographic, copper engraving, photogravure or any other work effected immediately after the Customer’s order is executed unless otherwise agreed in writing. In the latter event the Company may charge the Customer its reasonable costs for storing the same.
3.8 The Company shall be entitled to make a reasonable charge for the storage of any Customer’s property left with the Company before receipt of the order.
4.1 Whilst the Company will endeavour to deliver the Goods and/or perform the Services by the time quoted, any time quot- ed by the Company for delivery of all or any of the Goods and/or performance of all or any of the Services is an estimate only and time shall not be of the essence. The Company shall not be liable for any failure to meet any such estimate, nor for any loss, of whatsoever nature resulting directly or indirectly there from.
4.2 The Company reserves the right to deliver all or any of the Goods and/or the Services in advance of the estimated date.
4.3 In the absence of agreement to the contrary delivery of the Goods shall be made by the Customer collecting the Goods at the Company’s premises as soon as practicable following notification from the Company that the Goods are ready for collection or, if some other place for delivery is agreed by the Company, by the Company delivering the Goods to that place.
4.4 The Company reserves the right to deliver by installments and each delivery shall constitute a separate contract to which these Conditions shall apply. Failure by the Company to deliver any one or more of the installments or any claim by the Customer in respect of any one or more installments shall not entitle the Customer to treat the Contract as a whole as repudiated.
4.5 The Company reserves the right to deliver up to 5 per cent more or less than the quantity ordered and the Company shall charge for the Goods in accordance with the quantity actually delivered.
4.6 If the Customer fails to take delivery of or collect the Goods or fails to give the Company adequate delivery instructions after notification by the Company that the Goods are ready the Company may (without prejudice to its other rights and remedies)
4.6.1 store the Goods (on its own or any third party’s premises) and charge the Customer for its reasonable costs (includ- ing without limitation VAT costs of storage, carriage and insurance); and/or
4.6.2 sell the Goods at any time and after deducting all costs and expenses account to the Customer for any excess over the price already paid under the Contract or charge the Customer for any shortfall between the Contract price and such costs and expenses.
4.7 4.7.1 Notification of short delivery (measured by weight or number) or damage in transit must be made in writing to t h e
Company within 5 working days of the receipt of the Goods.
4.7.2 Notification of non-delivery must be made in writing to the Company within 14 days after the date of the Company’s invoice.
4.7.3 Any claim in respect of the circumstances covered in conditions 4.7.1 and 4.7.2 must be made in writing to the Company.
18.104.22.168 Within 14 days of receipt of the goods for claims under Condition 4.7.1
22.214.171.124 Within 28 days after the date of the Company’s invoice for claims under Condition 4.7.2.
4.7.4 The Company shall at its option either make good the whole or part of the price (and where relevant, as a deduc- tion from any part of the price remaining unpaid) or by repair or replacement any such non-delivery short deliv- ery delay or damage notified as aforesaid and save as provided in this Condition 4.7.4 shall not be liable for any such non-delivery short delivery or damage in transit nor for any loss, financial or otherwise resulting directly or indirectly there from. In no event shall the Company be liable to the Customer in connection with any damage or loss in transit where delivery takes place at the Company’s premises.
4.8 All returnable containers and packing materials will be charged for, but credit will be given if these are returned in con- dition satisfactory to the Company to the Company’s works carriage paid within thirty days following delivery of the rel- evant Goods.
All descriptive and technical specifications, drawings, catalogues, illustrations and particulars of weight and dimensions supplied by the Company are approximate only and the Company reserves the right without notice to the Customer to make alterations thereto and to supply the Goods so altered in performance of the Contract provided that such alterations do not materially affect the characteristics of the Goods.
6. Cancellation and Suspension
6.1 Following acceptance by the Company of the Customer’s order, no cancellation and/or suspension, either in whole or in part, may be made by the Customer other than with the prior written consent of a director of the Company and upon terms that the Customer shall indemnify the Company in full against all loss (including without limitation loss of profit), increased production costs, damages, costs expenses and other liabilities awarded against or incurred by the Company as a result of or in connection with the cancellation and/or suspension.
6.2 Should work be suspended at the request of or delayed through any default of the Customer for a period of 30 days or more the Company shall then be entitled to payment for work already carried out, and to payment of all items covered by the indemnity under the condition 6.1, as incurred up to the date of the payment demand.
7.1 Subject to prior written agreement to the contrary, the Company shall be entitled to invoice the Customer for the price of the Goods or Services on or at any time after the Company has notified the Customer that the Goods are ready for col- lection or that the Services are ready to be supplied, or the Company has tendered delivery of the Goods or supplied the Services.
7.2 Any price quoted by the Company is based upon costs current as at the date of quotation. The price charged to the Customer under the Contract may be changed to take account of costs current at the date of invoice.
7.3 Unless otherwise expressly stated in writing, all prices are exclusive of VAT which shall be charged where appropriate at the rate prevailing at the relevant tax point.
7.4 The Customer shall make payment in full within 14days of the date of the relevant invoice unless otherwise agreed
notwithstanding that the delivery may not have taken place and the property in the Goods may not have passed to the Customer. Interest at the annual rate of 8% over the base rate of the Bank of England will be charged at the rate pre- vailing on the due date on all monies outstanding after the due date until the actual date of payment (both before and after judgment), and any cash discount will not be allowed to the Customer.
7.5 Where payment is agreed to be made by installments, any delay or default by the Customer in making payment in respect of any one instalment shall render all the remaining installments due forthwith, and interest will be charged in accor- dance with condition 7.4 with immediate effect until the date of actual payment.
7.6 The Company may appropriate any payment made by the Customer to such of the Goods or Services (or the goods or serv- ices supplied under any other contract between the Company and the Customer) as the Company may think fit (notwith- standing any purported appropriation by the Customer).
8. Risk and title
8.1 Risk in the Goods shall pass to the Customer immediately on delivery to the Customer or into custody on the Customer’s behalf whichever is the sooner.
8.2 Notwithstanding delivery and the passing of risk, property in and title to the Goods shall remain in the Company until the Company has received payment of the full price of (a) all Goods and/or Services the subject of the Contract and (b) all other goods and/or services supplied by the Company to the Customer under any other contract whatsoever.
8.3 Until property in and title to the Goods passes to the Customer
8.3.1 the Customer shall keep the Goods properly stored, protected and insured and separate from all or any other goods whether belonging to the Company the Customer or any third party;
8.3.2 the Company shall be entitled at any time forthwith to revoke the Customer’s power to deal with the Goods; and it shall automatically cease if the Customer shall commit or be subject to any Act of Insolvency; and
8.3.3 the Customer shall not make any modification to the Goods or their packaging or alter remove or tamper with any marks, numbers or other means of identification used on or in relation to the Goods.
8.4 Upon termination of the Customer’s power to deal with the Goods, the Customer shall place the Goods at the disposal of the Company and the Company and its servants and agents are hereby irrevocably authorised without the need for con- sent of any third party but using only such force as may be necessary, to enter upon any premises of the Customer or any third party for the purpose of removing the Goods.
9. Termination and suspension
Without prejudice to any rights and remedies available to it, the Company shall be entitled, forthwith on written notice to the Customer either to terminate the Contract wholly or in part and/or any other contract with the Customer or to withhold per- formance of all or any of its obligations under the Contract and/or any other contract with the Customer (and on the giving of such notice all monies outstanding from the Customer to the Company shall become immediately due and payable) if
9.1 any sum owing to the Company from the Customer on any account whatsoever shall be unpaid after the due date for payment (in which event the Company shall have a general lien for any such sum on all and any property of the Customer in its possession);
9.2 the Customer shall commit or be subject to any Act of Insolvency;
9.3 the Customer shall commit any breach of any contract (including without limitation the Contract) with the Company.
In the event of a suspension of performance the Company shall be entitled, as a condition of resuming performance, to require pre-payment, or such security as it may require.
10.1 The Company shall:
10.1.1 make good at its option by reimbursement of the whole or part of the price (and, where relevant, as a deduction from any part of the price remaining unpaid) or by repair or by replacement:
10.1.1.1 subject to Condition 5 any failure by the Goods to correspond with their specification at the time of deliv- ery;
10.1.1.2 any defect developing under normal use in the Goods and due solely to faulty design (except where the design is supplied by or on behalf of the Customer) materials and/or workmanship (except where mate- rials are supplied by the Customer);
10.1.2 make good by reimbursement of the price or by reperformance of the Services any defective workmanship in the performance of Services;
10.1.3 any failure to meet specification is notified in writing to the Company within fourteen days from the date of deliv- ery or (where the failure was not apparent on reasonable inspection) within a reasonable time after discovery of the failure and in any event such failure must be notified within one month after delivery;
10.1.4 any such defect in design materials workmanship shall have appeared within three months after delivery and shall have been thereupon notified to the Company in writing forthwith;
10.1.5 the Company shall be under no liability in respect of any defect in the Goods arising from any materials, drawings, design or specification supplied by the Customer;
10.1.6 the Company shall be under no liability in respect of any defect arising from fair wear and tear, or other acts of the Customer including without limitation wilful damage, negligence, lack of proper maintenance or servicing, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Company’s approval;
10.1.7 any Goods alleged to be defective are promptly made available to the Company for inspection and, if so required by the Company, are promptly returned at the Customer’s risk and expense to the Company’s works for inspec- tion.
10.1.8 the above warranty does not extend to parts, materials or equipment not manufactured by the Company in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company and can be transferred.
10.2 Provided that nothing in this Condition shall operate so as:-
10.2.1 to exclude the Company’s non-excludable liability in respect of death or personal injury caused by the negligence of the Company its servants or agents;
10.2.2 to affect the statutory rights of the Customer where Goods are sold or Services are supplied to a Customer deal- ing as a consumer within the meaning of Unfair Contract Terms Act; or
10.2.3 to exclude the application of Section 12 of the Sale of Goods Act 1979;
10.2.4 to exclude liability for fraudulent misrepresentation.
10.3 The Company shall not be liable to the Customer in contract tort (including without limitation negligence) and/or breach of statutory duty for any loss or damage which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by the Company its servants or agents, in a sum which is greater than the Contract price.
10.4 The Company shall not be liable to the Customer in contract tort (including without limitation negligence) and/or breach of statutory duty for any loss of profits and/or increased production costs and/or any indirect or consequential (including economic) loss of any kind which the Customer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by the Company, its servants or agents.
11. Health and safety
For the purposes of Section 6(8) of the Health and Safety at Work Etc Act 1974 the Customer undertakes to comply with all instructions relating to the Goods received from the Company from time to time and to take such other steps sufficient to ensure, so far as is reasonably practicable, that the Goods will at all times be safe and without risk to health when being properly used, set, cleaned and maintained by a person at work.
12. Intellectual property rights
12.1 The Company shall not be required to print any matter which in its opinion is or may be an infringement of any propri- etary or other right of any third party or is of an illegal or defamatory nature.
12.2 If any claim is made against the Customer that the Goods infringe or that their use or resale infringes the patent, copy- right, design right, registered design, trade mark or other industrial or intellectual property rights of any other person or any claim is made in respect of passing off or unauthorised use of confidential information in relation to the Goods and/or their use or resale the Customer shall forthwith notify the Company in writing and the Company shall be given full con- trol of any proceedings or negotiations in connection with any such claim. The Customer shall give the Company all rea- sonable assistance for the purposes of any such proceedings or negotiations and except pursuant to a final award, the Customer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Company (which shall not be unreasonably withheld). The Customer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Company may have in relation to such infringement.
13. Customer Liability
13.1 The Customer shall (without prejudice to the other rights and remedies of the Company) indemnify the Company in full against all loss, costs, damages, charges, expenses and other liabilities awarded against or incurred by the Company as a result of or in connection with any one or more of the following:
13.1.1 any claim that the Goods or Services constitute an infringement of any patent, copyright, design right, registered design, trade mark or other industrial or intellectual property rights of any other person and/or for passing off and/or unauthorised use of confidential information which results from the Company’s use of the Customer’s spec- ifications;
13.1.2 any liability of any kind to any third party including without limitation for defective Goods where and to the extent that the defect arises from use of Customer materials.
13.1.3 any allegation that the use made by the Customer of the Hosting Services is defamatory or otherwise infringes any rights of any third party of whatsoever nature.
14.1 The Company shall only be obliged to carry out Services during normal working hours and shall be entitled to charge for any overtime worked upon request by the Customer.
14.2 Where Services are performed at the premises of the Customer, the Customer shall provide free of charge:-
14.2.1 Proper and safe storage and protection of all Goods, tools, plant, equipment and materials on site.
14.2.2 Free and safe access to the site and place where the Services are to be performed.
14.2.3 All facilities and services necessary to enable such Services to be performed safely and expeditiously.
14.2.4 If such Services include the installation of Goods, all builders work, foundations and cutting away and making good where necessary.
14.2.5 The availability of all plant and equipment to permit the Goods to be tested upon completion of Services.
14.3 The Customer shall pay the Company any expenses incurred by the Company by reason of a breach by the Customer of any of its obligations in this Condition without prejudice to the Company’s right to recover any loss thereby occasioned.
14.4 Goods and Services supplied on the site of the Customer are at all times at the sole risk of the Customer and if any part is lost or destroyed for any reason whatsoever the Company shall be entitled to charge as a variation to the Contract for the restoration of such Goods and/or Services. The Customer shall for the benefit of itself and the Company insure and keep insured with reputable insurers the full value of Goods and Services against every kind of loss, damage or destruc- tion. The Customer shall produce the policy to the Company upon request together with the latest premium receipts and in default of effecting the same the Company shall be entitled to do so and add the cost of such insurance to the Contract price.
14.5 Where the Services to be performed or supplied by the Company including Hosting Services in addition to any other appli- cable provisions of these Conditions the Company may take at its sole discretion, any measure necessary to protect itself from civil and or criminal liability to third parties including but not limited to requiring the Customer to remove any mate- rial or information brought to the Company’s attention from the Company’s computers and ensure the Customer’s com- pliance with such request.
15.1 It shall be the responsibility of the Customer to ensure that all requirements applicable to the Contract, whether statuto- ry, regulatory, municipal and/or otherwise howsoever, (including without limitation any relating to the use of Hosting Services importation or use of the Goods in the country of destination and for the payment of duties thereon) are duly complied with. It shall be a condition precedent to the performance by the Company of its obligations under the Contract that all necessary licences, permits and consents shall have been obtained by the Customer.
15.2 Neither party shall have any liability for any failure to perform or for any delay in the performance (other than as to pay- ment) of, any of its obligations under the Contract caused by any factor beyond its reasonable control.
15.3 No failure or delay on the part of the Company to exercise any of its rights under the Contract shall operate as a waiver of nor shall any waiver by the Company of any breach by the Customer of any of its obligations under the Contract affect the rights of the Company in the event of any further or continuing breach.
15.4 The Contract is personal to the Customer, who shall not assign or in any way part with the benefit without the Company’s prior written consent.
15.5 Each and every obligation contained in these Conditions shall be treated as a separate obligation and shall be severally enforceable as such notwithstanding the non-enforceability of any other such obligation.
15.6 The clause headings in these Conditions are for convenience only and shall not in any way affect the interpretation of the Contract.
15.7 The Conditions and the Contract shall not create or evidence, or be deemed to create or evidence, any agency or part- nership between the Company on the one hand and the Customer or any third party on the other.
15.8 Any notice required to be given in writing under the Contract shall be given, where possible, by e-mail or facsimile trans- mission and otherwise by first class post addressed to the registered office of the party for which it is intended, or to such other address as may be notified in writing in accordance herewith for the purpose, and shall be deemed to have been received, in the case of an e-mail, when the Company receives confirmation that the Customer has received the e-mail and in the case of a facsimile transmission, upon transmission and, in the case of a letter, forty-eight hours after posting. In proving service by letter, it shall be sufficient to show that the envelope containing the notice was properly addressed and stamped and duly posted.
15.9 The Contract shall be governed by English Law.
15.10 The parties irrevocably submit to the exclusive jurisdiction of the English Courts.