TERMS AND CONDITIONS
Standard Conditions of Supply
1. INTERPRETATION
The following words have the following meanings;-
“Background IPR”: all Intellectual Property owned by and/or licensed to a party prior to the date of each Order and/or which are developed and/or acquired by a party other than for or pursuant to an Order;
“Confidential Information”: all information acquired by either party about the other party’s business and/or given by one party to the other and/or generated by either party from the other party’s confidential information. Seller’s Confidential Information includes but is not limited to all Works;
“Customer”: the party who places an Order with the Seller;
“Foreground IPR”: all Intellectual Property created by a party for or pursuant to any Order
“Intellectual Property”: all patents, copyright, database rights, design rights (registered or unregistered) trade marks (registered or unregistered) know how, Confidential Information and any other intellectual property right subsisting anywhere in the world whether in existence at the date of the Order or afterwards and all priority rights derived from such rights and all rights from which such rights derive priority, all rights of action with regards to infringement of any of the foregoing rights, all rights to apply for such rights and all applications for the same;
“Know How”: Seller’s methodologies and expertise relevant to the Works and/or the Products and/or Services and/or their design, creation, manufacture, production and/or assembly developed or devised or acquired by the Seller;
“Liability”: all actions, awards, costs, legal costs, claims, damages, losses (including without limitation any direct or indirect consequential losses) demands, expenses, loss of profits, loss of reputation, judgments, penalties and proceedings and any other losses and/or liabilities
“Order”: an order placed by the Customer with the Seller for the supply of Products and/or Services;
“Product”: the goods set out in the Order to be supplied by the Seller;
“Purpose”: the use of any Work by the Customer for the evaluation of the design displayed by that Work in anticipation of placing an Order with the Seller for Products made to that design;
“Services: the work set out in the Order to be performed by the Seller;
“Specification”: the quality, quantity and/or description of the Products and/or Services attached to the Order;
“Work” each and every copyright work and/or design and/or any material that incorporates the Seller’s Intellectual Property and which the Seller jointly or alone, originates, conceives, designs, draws, makes, develops and/or improves at any time, any Product and/or any Service including but not limited to all proposals, presentations, design work, sketches, artwork, visuals, 3D models, 4D models, prototype/samples, animations and fly throughs;
2. BASIS OF CONTRACT
(a) These conditions govern the arrangement between the Seller and the Customer to the exclusion of any other terms and conditions, supersede all previous terms and replace all terms previously notified to the Customer;
(b) Any quotation will be capable of acceptance for 30 working days from its date and will not constitute an offer.
(c) Orders placed by the Customer leading to a contract which is not expressed to be subject to these conditions shall still be subject to them. The contract between the Seller and the Customer shall become legally binding only when Seller has notified Customer in writing of its acceptance of the Order or by its actions has commenced performance of the Order;
(d) Each Order shall constitute a separate contract. Any default by the Seller in relation to any such separate contract shall not entitle the Customer to terminate and/or rescind the whole agreement;
(e) Seller’s employees, sub-contractors and/or agents are not authorised to make any representations or warranties concerning the Products or Services or any Works unless confirmed by a director of the Seller in writing. No oral warranties or representations shall bind the Seller. The Customer acknowledges that it does not rely on any representation or warranty that is not contained in these conditions.
(f) Details and/or specifications in brochures and price lists produced by the Seller are for general guidance only and the Customer acknowledges that it does not rely upon them unless it has obtained specific written confirmation of them from the Seller.
(g) To the extent that any provision in these conditions conflicts with any provision in an Order, the terms of these conditions shall prevail.
3. SAMPLES
(a) The production of any samples or test work shall, unless otherwise agreed in writing, be carried out at the Customer’s cost.
(b) If Customer approves any samples produced or test work performed by the Seller then the Customer shall have no claim in respect of, nor any right to reject, any Products and/or Services if the Products and/or the Services are of the same description, specification, quality and fitness for purpose as the sample and/or test work.
4. PRICE AND PAYMENT
(a) In consideration of payment of the price set out in the Order, the Seller shall supply the Products, design the Works and/ or perform the Services set out in the relevant Order.
(b) All prices quoted and accepted are exclusive of Value Added Tax which shall be paid by the Customer along with other applicable duties or levies.
(c) Except as otherwise stated, prices are ex-works, and the Customer shall be liable to pay all charges for transport, packaging and insurance.
(d) Seller may increase the prices in relation to the Products and/or the Services where the increase is to take account of increases in costs, expenses and/or materials suffered by the Seller and/or currency fluctuations.
(e) Customer shall be informed in writing of any increases in prices for the Products and/or the Services not less than one calendar month before such increase takes effect.
(f) Subject to sub-clause 4(k), Customer may cancel without Liability any Contract in relation to which the price is to be increased provided that written notice of cancellation is received by the Seller 30 days before the scheduled date for delivery of the Products or performance of the Services.
(g) If the Customer does not cancel the Contract for the provision of the Products and/or Services within the specified time period then the price increase shall take effect for the Products and/or Services Ordered by the Customer.
(h) Seller may invoice each delivery of Products and/or each stage of the Services separately and the terms of payment are net cash within 30 days of invoice. Time for payment shall be of the essence.
(i) If the Customer fails to make any payment in full on the due date then without prejudice to any other right or remedy the Seller is entitled to suspend any further deliveries and/or all Services and/or charge the Customer interest on amounts unpaid at the rate of 3% per annum above Barclays Bank Plc’s base rate from the time both before and after judgment (such interest to be compounded with quarterly rests) until the payment is made.
(j) All sums due to the Seller shall be paid without any set off, deduction, counterclaim and/or withholding of monies.
(k) If any Services are cancelled or any contract is terminated or the delivery and/or performance is suspended before completion of the Services the Seller is entitled to be paid on a quantum meruit basis for that part of the Services performed.
5. DELIVERY
(a) Where contracts provide for a single delivery without specifying a date, Products shall be delivered and accepted within 7 days of their being ready.
(b) Where contracts provide for deferred deliveries all deliveries shall be accepted within two months of the specified first delivery or available date. In the event of failure to accept any delivery, that delivery shall be deemed to have occurred at the time the delivery is tendered and the Customer shall pay the Seller’s costs and expenses incurred as a result including charges for storage, transportation and insurance. All Products stored will be stored at the Customer’s risk and destroyed if not collected within 30 days.
(c) Each delivery shall constitute a separate contract and any failure by the Seller to deliver any one delivery or any defect in any one delivery shall not entitle the Customer to repudiate and/or terminate the contract as a whole.
(d) Delivery date(s) are approximate only and time shall not be of the essence The Seller shall have the option of revising delivery dates prior to manufacture if circumstances beyond the Seller’s control prevent the Seller keeping to the originally agreed date or dates. The Customer shall acknowledge delivery of the Products by signing a delivery note supplied by the Seller.
(e) Customer shall have no right to reject Products and/or Services and shall have no right to rescind for late delivery and/or performance unless the due date for delivery and/or performance has passed and the Customer has served on the Seller a written notice requiring the Contract to be performed and giving the Seller not less than 21 days in which to do so and the notice has not been complied with.
(f) Seller shall not be required to fulfil orders for Products and/or Services in the sequence in which they are placed.
(g) Customer shall be responsible at its own cost for all arrangements to load or unload the Products when delivered.
(h) If Customer refuses to take delivery of any Products and/or to allow performance of the Services the Seller shall be entitled to withhold delivery and/or performance of any other Products and/or Services and to treat the contract as repudiated by the Customer and the Seller shall have the right to rescind the contract.
6. PROOFS AND WORKS
(a) All Works remain the property of the Seller.
(b) Seller shall provide Customer with reasonable opportunity to check, amend and /or approve all Works created pursuant to any Order and Customer’s amendment/approval or in default the expiry of the opportunity shall be the Seller’s authority to purchase production materials and manufacture the Products and/or utilise the Works as part of the Services.
(c) Seller shall not incur any Liability for any error or amendment to any Work or for any additional charge claimed or for any delay encountered due to the Customer’s failure to check (properly or at all) anything when requested by the Seller.
(d) Any changes to any Work required after Customer has had the opportunity but has failed to check, amend and/or approve the same (except errors for which the Seller is responsible) will be charged at Seller’s normal rates in force from time to time.
7. INTELLECTUAL PROPERTY
(a) Customer shall obtain all authorisations necessary for the use of any of its Background IPR by the Seller as required in the manufacture of the Products and/or performance of the Services and shall indemnify the Seller and keep it indemnified against all Liability for infringement of any Intellectual Property of a third party.
(b) All Intellectual Property in the Works and/or the Products arising from performance of the Services shall vest in and remain with the Seller exclusively. No licence of any of the Seller’s Intellectual Property is granted to the Customer and all copying or use of any Works by the Customer or any third party is prohibited (whether the Customer places an Order with the Seller or not) other than for the Purpose if the Order states that use of the Works may be made for the Purpose in which case the Customer may use the Works for the Purpose but for no other purpose. All copying and reproduction of the Products by the Customer or any third party is strictly prohibited.
(c) Customer grants to Seller a non-exclusive royalty free irrevocable licence to use the Seller’s Background IPR for all purposes required to design, manufacture and supply the Products and perform the Services.
8. CLAIMS AND CANCELLATION
(a) Customer may cancel delivery of the Products and/or performance of the Services at any time up to 60 days before the due date for despatch and/or performance on condition that the Seller shall have no Liability to the Customer in relation to any contract cancelled in accordance with this clause.
(b) If the Customer purports to cancel any Contract later than the above time limit and/or refuses to accept delivery of ordered Products and/or performance of ordered Services the Customer will indemnify and keep the Seller indemnified against any and all Liability suffered by the Seller.
(c) The return of Products will not be accepted unless the Seller or its representative shall first have had the opportunity of examining the same.
(d) Seller guarantees that the Products and/or Services will be free from defects in materials and/or workmanship for a period of 12 months from:-
8.d.1 in the case of Services the date of completion of the performance of the Services; and/or
8.d.2 in the case of Products the date of delivery of the Products.
(e) The guarantee in clause 8(d) is given subject to the following conditions:-
8.e.1 Seller is under no Liability in respect of any defect in the Products and/or Services arising from any drawing, design, materials or specification supplied by the Customer;
8.e.2 Seller is under no Liability in respect of any faults arising after risk in the Products has passed which is caused by any subsequent mechanical, chemical, electrolytic or other damage not due to a defect in the Products and/or Services as appropriate; and/or
8.e.3 Seller is under no Liability in respect of any faults or defects caused by wilful damage, abnormal working conditions, failure to follow the Seller’s instructions, misuse, alteration or repair of Products and/or Services without the Seller’s approval, improper maintenance or negligence by the Customer or a third party.
(f) If any Products and/or Services prove to be defective and are covered by the guarantee in clause 8.(d) Seller shall at its sole option either repair or replace or re-perform such Products and/or Services or refund the price for such Products and/or Services. Provided the Seller complies with this clause the repair, replacement and/or re-performance shall be the sole remedy in respect of claims under the guarantee under clause 8(d).
(g) Any work carried out by the Seller which is not covered by the guarantee in clause 8(d) will be charged for.
(h) Seller shall have no Liability unless any defect is notified to it within 14 working days of the defect becoming apparent or suspected or when it should reasonably have become apparent or suspected or if there is any complaint about loss of Products or any matter arising from their transportation the Seller shall have no Liability for the same unless it is notified to the Seller in time for the Seller to comply with the relevant carrier’s complaints procedure.
(i) The guarantee in clause 8(d) will not apply if the Customer has not paid in full for the relevant Products and/or Services on the due date for payment.
(j) The Seller will at its sole option either refund the price, repair, replace free of charge or re-perform any defective Products and/or Services where the defect is apparent on inspection provided that the defect is notified to Seller within 14 working days of delivery of such Products or performance of the Services.
9. LIMITATIONS ON LIABILITY
(a) Seller shall have no Liability for any defect in the Products caused or contributed to as a result of the Products being used for display or demonstration purposes or being handled by the Customer’s customers.
(b) Seller shall have no Liability for defective Products and/or Services where the defect has been caused or contributed to by the Customer to the extent so contributed.
(c) Seller shall have no Liability if the price for the Products and/or the Services has not been paid in full by the due date for payment.
(d) Seller shall have no Liability for defective Products and/or Services, Products not despatched or Products damaged or lost in transit unless the event is notified to the Seller within the appropriate time limit set out in these conditions.
(e) Seller shall have no Liability for damage, loss, liability, claims, costs or expenses caused or contributed to by the Customer’s or its customer’s continued use of defective Products and/or Services after a defect has become apparent or suspected or should reasonably have become apparent.
(f) Customer shall give the Seller a reasonable opportunity to inspect and remedy any matter for which the Seller is liable before the Customer incurs any costs and/or expenses in remedying the matter itself.
(g) Seller shall have no Liability for any matters which are outside its reasonable control.
(h) Seller shall have no Liability for any:-
9.h.1 consequential losses;
9.h.2 loss of profits and/or damage to goodwill;
9.h.3 economic and/or other similar losses;
9.h.4 special damages and indirect losses; and/or
9.h.5 business interruption, loss of business, contracts, opportunity and/or production.
(i) Seller’s total Liability shall not exceed the price of the relevant Products or Services.
(j) Each of the limitations and/or exclusions in these terms shall be deemed to be repeated and apply as a separate provision for each of:
9.j.1 Liability for breach of contract;
9.j.2 Liability in tort (including negligence);
9.j.3 Liability for breach of statutory duty; and
9.j.4 Liability for breach of Common Law.
except clause 9(i) above which shall apply once only in respect of all the said types of Liability.
(k) Nothing in these conditions shall exclude or limit Seller’s Liability for death or personal injury due to its negligence or any Liability which is due to its fraud or any other liability which it is not permitted to exclude or limit as a matter of law.
(l) All warranties, terms, conditions and duties implied by law relating to fitness, quality or adequacy are excluded to the fullest extent permitted by law.
(m) Nothing in these conditions shall exclude or limit any statutory rights which may not be excluded or limited if the Customer is acting as a consumer. Any provision which would be void under any consumer protection legislation or other legislation shall to that extent, have no force or effect.
(n) The limitations in this Contract are necessary in order to allow Seller to provide the Products and/or the Services at its current prices.
(o) If greater protection is required these terms may be modified with Seller’s agreement in return for the payment of a higher price for the Products and/or Services.
10. CUSTOMER’S PROPERTY AND SPECIFICATION
(a) Customer’s property when supplied to the Seller will be held at Customer’s risk. Every care will be taken to secure the best results where the Customer supplies materials, but responsibility will not be accepted for imperfect work caused by defects in or unsuitability of material so supplied.
(b) Any specification supplied by Seller shall only be approximate unless stated in the Order.
(c) The quantity, quality, description and/or specification for the Products and/or the Services shall be that set out in the Order.
(d) Customer is responsible for checking the quotation and satisfying itself that any specification given is accurate and adequate for the Products and/or Services.
(e) If there is an error in the specification made by the Seller, where that error is material and it has been relied upon by the Customer, the Customer may cancel that part of the contract which is affected by the error without Liability due to the cancellation.
(f) Seller shall have no Liability for errors in any specification or details supplied by the Customer. The Customer is solely responsible for their accuracy.
(g) Details and/or specifications in brochures and price lists produced by the Seller are intended as a guide only and only give a general approximation of the Products and/or Services.
(h) Customer shall indemnify Seller and keep it indemnified against any and all Liability arising from Seller’s use of specifications, details, materials and/or drawings supplied by the Customer.
(i) Seller is entitled to make changes to the specification of the Products and/or Services as required from time to time by law, applicable safety requirements or manufacturing requirements provided that they do not have a material adverse effect on the quality and/or performance of the Products and/or the Services.
11. FORCE MAJEURE
(a) The performance of the contract is subject to variation or cancellation by Seller owing to an act of God, war, strikes, lock-outs, fire, flood, drought, tempest, utilities interruption, import/export bans or any other cause beyond the control of the Seller or owing to any inability by the Seller to procure materials or articles required for the performance of the contract and the Seller shall not be held responsible for any Liability to deliver caused by any such contingency.
12. DEFAULT
(a) If Customer:-
12.a.1 fails to make any payment when due;
12.a.2 breaches these terms and, if the breach is capable of remedy, has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied;
12.a.3 persistently breaches any one or more of these terms;
12.a.4 or ceases or threatens to cease to carry on business, or proposes to compound with its creditors, applies for an interim order under Section 252 Insolvency Act 1986 or has a Bankruptcy Petition presented against it, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver appointed over all or any of its assets, or takes or suffers any similar action in any jurisdiction;
12.a.5 appears due to its credit rating to be financially inadequate to meet its obligations under any contract; and/or
12.a.6 appears reasonably to be about to suffer any of the above events;
Seller has the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 12(b).
(b) If any of the events set out in clause 12(a) occurs in relation to the Customer Seller may:-
12.b.1 withhold delivery of any undelivered Products and stop any Products in transit;
12.b.2 withhold the performance of any Services and cease any Services in progress;
12.b.3 cancel, terminate and/or suspend without Liability any agreement with the Customer; and/or
all monies owed by Customer to Seller shall immediately become due and payable.
13. TITLE AND RISK
(a) Risk in and Title to the Products shall pass to the Customer upon delivery.
14. MISCELLANEOUS
(a) No variation or amendment to these conditions shall be binding unless agreed in writing and signed by the parties
(b) All contracts between the parties and all claims including non-contractual claims arising out of them shall be governed and construed in accordance with English Law and each of the parties irrevocably submits to the exclusive jurisdiction of the English Courts.