THE CUSTOMER SHOULD PAY ATTENTION TO CONDITIONS 3.7, 4, 5, 6, 8, 9, 10, 11, 13, 14.1 & 14.4
INTERPRETATION
The following definitions, unless the context requires otherwise, and rules of interpretation in Condition 1 shall apply to these Conditions:
Account: the credit account (if any) provided to the Customer by the Supplier;
Agreed Artwork: any drawing, text, photograph, design or any other visuals or materials agreed between the Customer and Supplier to be printed on or to form part of the Goods;
Additional Terms: any terms varying or adding to the Conditions that are included within the Order Acknowledgement or otherwise agreed in Writing by the Supplier, including (without limitation) any agreed variations to the Order;
Conditions: these terms and conditions (as amended from time to time);
Contract: any contract between the Supplier and the Customer for the purchase of goods and/or services by the Customer from the Supplier in accordance with and subject to the Conditions and any Additional Terms;
Customer: the person, company or other type of organisation that enters into a Contract, in accordance with and subject to the Conditions, to purchase Goods from the Supplier;
Goods: any goods and/or services the Supplier agrees to supply to the Customer under a Contract;
Intellectual Property Rights: all copyright and related rights, trade marks, trade names, domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, computer software or databases, rights to preserve confidentiality (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for and be granted renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world;
Order: completion and submission of an Order Form by the Customer, a request (written or oral) to purchase goods from the Customer to the Supplier or acceptance by the Customer of a proposal provided by the Supplier;
Order Acknowledgement: acknowledgement of acceptance of an Order by the Supplier, which will usually be provided in Writing but may be provided orally or by commencing performance of the Order;
Order Form: the Supplier’s standard order form for the purchase of certain goods and/or services;
Price: is defined in Condition 7.1;
Request for Payment: a non-tax invoice for the Price, plus VAT, issued by the Company prior to, on, or at any time after, actual or deemed delivery;
Special Orders: any Goods not usually stocked by the Supplier and ordered specifically for the Customer or Goods that the Supplier has manufactured in accordance with the Customer’s specifications and incorporating Agreed Artwork under the Contract;
Supplier: Anderson & Partners, a limited company registered in England and Wales with Registration Number LP010830, with its registered office at Adwalton House, Bruntcliffe Avenue, Leeds, LS27 0LL, which owns and trades under the brands of Penstripe, SaniStation, Anton Visual and Oakway Storage;
Writing: means any form of written communication including, without limitation, letter, email, telex, facsimile transmission and other comparable means of communication.
1.1 References to the masculine include the feminine and the neuter, the singular include the plural and, in each case, vice versa. Reference to a statute or statutory instrument is a reference to it as it is in force for the time being and includes reference to any amendment, extension, application or re-enactment and includes any subordinate legislation made under it.
1.2 Headings shall not affect the interpretation of the Conditions.
2. APPLICATION OF TERMS
2.1 Subject to Condition 2.2, the Conditions and any Additional Terms apply to all Contracts to the exclusion of all other terms and conditions. No terms or conditions of the Customer (whether endorsed on, delivered with, or contained in the Customer’s purchase order or other documents) shall form part of any Contract and any attempt by the Customer to exclude, vary or limit any Conditions or Additional Terms shall be void.
2.2 Any variation to the Conditions shall have no effect and shall not form part of the Contract unless agreed in Writing by an authorised representative of the Supplier.
2.3 The Supplier’s employees or agents are not authorised to make any representation concerning the Goods unless confirmed by the Supplier in Writing. In entering the Contract, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations that are not so confirmed.
2.4 The Supplier may provide the Customer with an oral or written proposal. A proposal so provided is an invitation to treat by the Supplier to supply the goods and/or services set out in the proposal, subject to the Conditions, to the Customer. Unless stated otherwise in the proposal, a proposal is valid for 60 days from its date provided the Supplier has not previously withdrawn or varied it.
2.5 The placing of an Order by the Customer shall be deemed to be an offer, subject to the Conditions, to purchase the goods and/or services stated therein from the Supplier. No Order placed by the Customer shall be deemed to be accepted by the Supplier until the Supplier provides an Order Acknowledgement.
2.6 No binding Contract will come into existence until an Order Acknowledgement is given by the Supplier, in accordance with Condition 2.5, or, if earlier, by the Supplier delivering the Goods (whichever is the earlier).
3. DESCRIPTION
3.1 The quantity, quality and description of, and any specification for, the Goods are set out in the Supplier’s proposal and/or Order Acknowledgement and the Contract.
3.2 All descriptions, drawings, specifications, price lists and illustrations and any advertising or other materials issued by the Supplier, or contained in the Supplier’s brochures or website, are approximations and for information purposes only, should not be relied on by the Customer as precise or construed literally and shall not form part of the Contract.
3.3 The Supplier reserves the right to change any descriptions, drawings, specifications, price lists, illustrations, brochures, advertising materials, its website and any other materials provided at any time without notice.
3.4 By reason of differences in equipment, materials, paper, inks and other conditions between colour proofing and production runs, a reasonable variation in colour between proofs and the Goods supplied will be deemed to be accepted by the Customer and any such variations shall not be a defect for the purposes of Condition 10.1.
3.5 Any advice or recommendation given by the Supplier, or its employees or agents, to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Supplier is followed or acted upon entirely at the Customer’s own risk and, accordingly, the Supplier shall not be liable for any such advice or recommendation which is not so confirmed.
3.6 Unless agreed otherwise in Writing, no Contract shall be a sale by sample.
3.7 The Supplier reserves the right to make any amendments to the artwork submitted by the Customer (if any) it reasonably considers necessary or appropriate to effectively carry out its obligations under the Contract. If the Supplier makes any amendments to the artwork then it shall communicate such amendments to the Customer in Writing and send a final proof. The Customer shall promptly confirm whether it accepts the final proof and within 5 working days from the date of the Supplier’s communication at the latest.
4. DELIVERY
4.1 Unless otherwise agreed in Writing by the Supplier, delivery of the Goods shall take place at the Supplier’s premises or the delivery address set out in the Account application form and/or in the Contract, the latter of which shall prevail (“Delivery Point”).
4.2 The Supplier will endeavour to deliver the Goods to the Delivery Point by the date specified in the Contract or, if none is specified, within a reasonable period of time. However, any such specified date is an estimate only and it is expressly agreed that time for delivery shall not be, and shall not be made by notice, of the essence. The Supplier may deliver the Goods in advance of the specified delivery date (if any) by giving reasonable notice to the Customer.
4.3 The Supplier will endeavour to deliver the Goods as near as possible to the Delivery Point as a safe hard road permits but reserves the right to refuse to deliver the Goods at or to the Delivery Point if the Supplier’s carrier reasonably considers the Delivery Point is unsuitable for delivery, in which case the Supplier shall contact the Customer to make suitable alternative arrangements for delivery of the Goods.
4.4 Unless agreed otherwise by the Supplier in Writing or by the Supplier’s carrier at the time of delivery, the Customer is responsible for promptly unloading the Goods from the carrier’s delivery vehicle when it reaches the Delivery Point. The Supplier’s record of the delivery date and description of the Goods delivered to the Customer shall be conclusive evidence of such, unless the Customer can provide conclusive contrary evidence.
4.5 The Supplier may deliver the Goods by separate instalments, which shall be invoiced and paid for separately and in accordance with the provisions of the Contract. Each separate instalment shall be a separate Contract. No cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment (i.e. the Contract as a whole).
4.6 If the quantity of Goods delivered to the Customer is up to 10% more or less than the quantity ordered the Customer must promptly notify the Supplier, is not entitled to reject all or any of the Goods for this reason and shall, unless agreed otherwise by the Supplier in Writing, pay for any surplus or shall be issued with a credit note for any shortfall at the pro rata Contract rate.
4.7 If for any reason the Customer fails to accept delivery of any of the Goods when the Goods are delivered to the Customer, or within 24 hours of notification that the Goods are ready for collection from the Supplier’s premises, wishes to delay delivery, or the Supplier is unable to deliver the Goods because the Customer has not provided appropriate instructions, access, documents or authorisations:
(a) the Goods will be deemed to have been delivered; and
(b) the Supplier may store the Goods until actual delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance costs).
4.8 Except in relation to Special Orders, if the Customer has not taken/accepted delivery of the Goods within 10 days of attempted delivery or notification that the Goods are ready for delivery/collection, the Supplier may resell or otherwise dispose of part or all of the Goods at the best price readily obtainable and, after deducting reasonable storage and/or re-stocking, insurance and selling costs, account to the Customer for any excess over or charge the Customer for any shortfall in the Price. If the Customer has not taken/accepted delivery of a Special Order within 14 days of notification that the Goods are ready for delivery, the Supplier shall be entitled to dispose of the Goods but the Customer shall be liable to pay for any reasonable disposal costs (as well as the Price).
4.9 Subject to the other Conditions and unless agreed otherwise by the Supplier in Writing, the Supplier will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and any similar loss) costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods, nor shall any such delay entitle the Customer to repudiate or terminate the Contract unless it exceeds 30 days and the delay is wholly and completely the fault of the Supplier.
4.10 The Supplier shall not be liable for delivering the wrong Goods or damage to the Goods (even if caused by the Supplier’s negligence) unless the Customer notifies the Supplier in Writing within 7 days of the actual delivery date.
4.11 The Supplier’s liability under Condition 4.10, as a result of the Customer complying with the notice requirements, is limited to (at the Supplier’s option) replacing or issuing a credit note for the Goods within a reasonable time.
4.12 If delivery of the Goods is accepted by the Customer and the Customer fails to notify the Supplier in accordance with Condition 4.10, the Customer shall not be entitled to reject the Goods and the Supplier shall have no liability for delivering the wrong Goods or for damage to the Goods and the Customer shall be bound to pay the Price as if the Goods had been delivered in accordance with the Contract.
4.13 Any receipt or signed delivery note (or equivalent documentation) obtained by the Supplier or its carrier from the Customer, or its employees or agents, accepting or taking delivery of the Goods shall be conclusive evidence of delivery of the Goods, or such part thereof as is indicated by the receipt/delivery note, in accordance with the Contract by the Supplier.
5. CUSTOMER’S OBLIGATIONS AND WARRANTIES
5.1 The Customer warrants that it has the necessary authority to enter into the Contract and that it is entitled to, and authorises the Supplier, to use any materials provided to the Supplier to perform the Contract.
5.2 The Customer acknowledges that it is responsible for ascertaining the type, quantity and specification of the goods required for its purposes and that the Supplier provides no warranty (and none shall be implied) that the Goods are fit for any particular purpose.
5.3 The Customer warrants that all the information provided to the Supplier, in particular (without limitation) that the terms of any Order (including any applicable specification), is true and accurate and acknowledges that the Supplier is relying upon such information to perform its obligations under the Contract. The Customer agrees to co-operate fully with the Supplier and provide any assistance required to supply the Goods, in particular, but without limitation, the Customer agrees to do the following at its own expense:
(a) provide the Supplier with any reasonably necessary information relating to the Goods within a sufficient time to enable the Supplier to fulfil the Contract and provide any and all other information, co-operation and assistance reasonably required to enable the Supplier to perform the Contract;
(b) maintain a copy of any original electronic file provided by the Customer or the Supplier and be responsible for checking the accuracy of any such electronic file;
(c) arrange for and obtain all necessary permissions, licences, consents, authorisations, import/export clearances and any other documents to enable the Goods to be delivered to the Delivery Point and ensure prompt payment of any and all applicable import or export, duties, taxes, transport charges or any other amounts required to be paid to ensure the Goods are delivered to the Delivery Point in accordance with the Contract;
(d) confirm approval of any amendments to the designs/artwork submitted by the customer or any final proof of the Goods provided by the Supplier on or before the date notified by the Supplier to the Customer in Writing or in accordance with Condition 3.7;
(e) provide adequate and appropriate equipment and suitably trained and competent personnel at the Delivery Point to promptly collect or unload/load the Goods at a reasonable speed;
(f) inspect and check the Goods on delivery to ensure that they conform to the Contract and the Customer’s requirements;
(g) ensure an authorised representative of the Customer signs the delivery note (or the equivalent documentation) on delivery to confirm that the Goods are as ordered and undamaged;
(h) take such steps as reasonably required to enable delivery of the Goods and ensure that all relevant laws and regulations, in particular (without limitation) in relation to health & safety are complied with to ensure safe delivery of the Goods and to ensure that the Supplier and its employees, agents and sub-contractors are always subject to a safe working environment; and
(i) comply with its notification obligations and all other obligations under the Contract.
5.5 The Customer shall promptly notify the Supplier if any of the events in Condition 6.5 occur.
5.6 The Customer acknowledges that, unless otherwise indicated by the Supplier in accordance with Condition 3.7, artwork submitted by the Customer through the Supplier’s website, via email or in Writing shall be deemed to be Agreed Artwork and the Supplier shall be entitled, subject to the remainder of these Conditions, to produce the Goods accordingly.
5.7 Unless the Supplier agrees otherwise in Writing, the Customer acknowledges and accepts that, if it fails to notify the Supplier of its acceptance or rejection of any final proof in accordance with Condition 3.7, it shall be deemed to have accepted the amendments, the final proof shall be deemed to be Agreed Artwork and the Supplier shall be entitled, subject to the remainder of these Conditions, to produce the Goods accordingly.
6. RISK/TITLE
6.1 The risk in the Goods shall pass to the Customer when the Goods are delivered (but not unloaded), or are deemed to be delivered by virtue of Condition 4, to the Delivery Point.
6.2 Title in the Goods shall not pass to the Customer until the Supplier has received (in cash or cleared funds) from the Customer:
(a) the full Price for the Goods plus VAT; and
(b) all other sums that are due to the Supplier from the Customer.
6.3 Until title in the Goods passes (as set out in Condition 6.2), the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier’s bailee;
(b) store the Goods (at no cost to the Supplier) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Supplier’s property;
(c) not remove, destroy, deface or obscure any identifying mark or packaging relating to the Goods;
(d) maintain the Goods in satisfactory condition, keep them insured on the Supplier’s behalf for their full Price against all risks from the date of delivery and provide the Supplier with a copy of the insurance policy on request;
(e) notify the Supplier immediately if any of the events listed in Condition 6.5 occur; and
(f) deliver up the Goods to the Supplier on demand.
6.4 The Customer may only resell the Goods before title has passed if such sale is a sale of the Supplier’s property on the Customer’s own behalf as principal, made in the Customer’s ordinary course of business and at the full market value.
6.5 The Customer’s right to possess the Goods shall end immediately if it:
(a) has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory), except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager or administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer, or the Customer is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(b) the Customer suspends, ceases or threatens to cease to carry on all or substantially the whole of its business or the Customer suffers or allows any execution, sequestration or such other process to be levied on its property or obtained against it or encumbers or in any way charges any of the Goods; or
(c) the Customer fails to observe or perform any of its obligations under the Contract; or
(d) any event occurs or proceeding is taken, with respect to the Customer, in any jurisdiction to which it is subject that has a similar or equivalent effect to any of the events listed in Condition 6.5(a) and (b).
6.6 The Supplier shall be entitled to recover payment for the Goods notwithstanding the fact that title in any of the Goods has not passed from the Supplier to the Customer.
6.7 The Customer grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises owned, occupied or controlled by the Customer where the Goods are or may be stored to inspect the Goods or (where the Customer’s right to possession has ended in accordance with Condition 6) recover them.
6.8 If before title to the Goods passes to the Customer any of the events listed in Condition 6.5 occur or the Supplier reasonably believes any such event is about to occur and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy of the Supplier, the Price (plus VAT) shall become immediately due and payable (notwithstanding any previous agreement or arrangement to the contrary) to the Supplier or the Supplier may at any time require the Customer to deliver up the Goods or use its rights in Condition 6.7.
6.9 If the Supplier repossesses any Goods or the Customer delivers up any Goods, in accordance with Condition 6, the Contract for those Goods shall be rescinded.
7. PRICE
7.1 Unless otherwise agreed by the Supplier in Writing and subject to Conditions 7.2 and 7.3, the price for the Goods shall be the price stated in the proposal or Order Acknowledgement provided by the Supplier to the Customer in accordance with Conditions 2.4 and 2.5 (“Price”), together with VAT.
7.2 The Price is based on the cost of materials, labour, sub-contracts, transport, taxes, exchange rates, currency regulations, duties and all other relevant costs at the date of the proposal and/or Order Acknowledgement.
7.3 The Supplier reserves the right to vary the Price, by giving notice to the Customer prior to delivery, to take account of any variation (howsoever arising) in these costs, the imposition of any new taxes or duties or any changes to the Agreed Artwork between the proposal or Order Acknowledgement date and the delivery date.
7.4 In addition to the Price, the Customer shall pay for:
(a) any increase in costs due to changes to the delivery date or address or to the quantity or specification of Goods (including (without limitation) the artwork to be incorporated in the Goods) required by the Customer; and
(b) any additional work or costs as a result of the Customer providing inadequate or inaccurate instructions or information to the Supplier or as a result of the Customer failing to comply with any of the Conditions or any Additional Terms.
7.5 Any additional costs payable by the Customer under Condition 7.4 will (at the Supplier’s option) be invoiced by the Supplier at the time the work is carried out or as part of the Price in accordance with Condition 8.1.
8. PAYMENT
8.1 Unless otherwise agreed in Writing by the Supplier, the Supplier shall be entitled to issue a Request for Payment or an invoice prior to, on, or at any time after, actual or deemed delivery. Where the Supplier issues a Request for Payment to the Customer, the Supplier shall issue a VAT invoice to the Customer once the Request for Payment has been paid in full, in accordance with this Condition 8.
8.2 Unless otherwise agreed in Writing, for Account Customers each invoice submitted by the Supplier shall be paid within 30 days. For Customers without an Account invoices shall be paid at the time of the Order or on receipt of the Supplier’s Request for Payment or invoice, as directed by the Supplier. Time for payment shall be of the essence.
8.3 The Supplier reserves the right, in its absolute discretion, to cancel the Account.
8.4 The Supplier reserves the right to suspend the Account if it decides, for whatever reason, that it requires security from the Customer, other than that already provided (if any), for the performance and discharge of the Customer’s obligations under any Contract or for any other reason it considers reasonable. The Customer agrees to use its best endeavours to ensure that any security required by the Supplier (including, but not limited to, a third party providing a guarantee) is provided. The Supplier may decide to reinstate the Account if the Customer provides the security required or meets any other conditions required to be satisfied by the Supplier.
8.5 If the Supplier exercises its right to cancel or suspend the Account, in accordance with Conditions 8.3 and 8.4 respectively, all sums owed to the Supplier by the Customer at the date of cancellation or suspension shall be payable on demand and the Supplier may continue trading with the Customer on the basis set out in Condition 8.2 for Customers without an Account.
8.6 No payment shall be deemed to have been received until the Supplier has received cash or cleared funds and all sums payable to the Supplier under a Contract shall become due on demand on its termination, howsoever arising.
8.7 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Supplier to the Customer.
8.8 Without prejudice to any of its other remedies, if any amount due from the Customer is not paid in accordance with the Contract the Supplier may do all or any of the following:
(a) treat any or all Contracts as repudiated by the Customer;
(b) without notice suspend or cancel delivery of the Goods under the Contract, and any other Contract, until the Customer pays the outstanding amount(s) in full;
(c) appropriate any payment made by the Customer under any other Contract with the Supplier to pay for any outstanding amounts as the Supplier may, in its sole discretion, think fit;
(d) charge interest at the annual rate of 8% above the base rate of Bank of England (a part of a month being treated as a full month for the purpose of calculating interest);
(e) claim interest under Late Payment of Commercial Debts (Interest) Act 1998;
(f) invoice the Customer for any and all costs incurred by the Supplier recovering monies owed.
8.9 On termination of the Contract, howsoever caused, the rights of the Supplier in this Condition 8 shall remain in effect.
9. CANCELLATION
9.1 Unless agreed otherwise in Writing, the Customer is not entitled to cancel the Contract for Special Orders. Except in relation to Special Orders, if the Supplier agrees with a Customer that they may cancel the Contract such agreement shall be subject to the Customer’s liability to pay the Supplier an amount the Supplier considers reasonable in the circumstances to reflect the work undertaken by the Supplier up to the date of cancellation and the Supplier’s ability to resell the Goods. Unless agreed otherwise by the Supplier in Writing, if the Customer cancels a Contract (with or without the Supplier’s consent) for a Special Order, the Customer shall be liable to pay the Price in full (less any applicable delivery costs/charges) to the Supplier in accordance with its invoice.
9.2 Any amounts payable by the Customer under Condition 9.1 shall be invoiced by the Supplier within 14 days of the cancellation date and shall be payable by the Customer in accordance with Condition 8.
10. THE COMPANY’S WARRANTIES
10.1 Subject to Conditions 10.2 to 10.6, the Supplier warrants that the Goods shall conform in all materials respects with their description and applicable specification and are free from any defects in workmanship, construction or materials at the time of delivery and that the services which form part of the Goods shall be provided with reasonable care and diligence and, unless otherwise agreed by the Supplier in Writing, the Supplier provides no other warranty in respect of the Goods.
10.2 Subject to Conditions 10.3 to 10.6, if the relevant Goods do not conform with the warranty provided by the Supplier in accordance with Condition 10.1, or any other warranty provided by the Supplier in Writing in respect of the Goods, the Supplier shall, at its option, replace such Goods (or the defective part) or issue a credit note at the pro rata Contract rate to the Customer provided that the Customer:
(a) gives written notice of any breach of the warranty to the Supplier within 7 days of the time when the Customer discovers or, in the case of latent defects, when the Customer ought to have discovered such; and
(b) gives the Supplier a reasonable opportunity, after receiving the notice, to examine the relevant Goods and the Customer (unless agreed otherwise and subject to a reasonable handling charge in the circumstances for collection by the Supplier) returns the relevant Goods (or the relevant part) to the Supplier’s premises at the Customer’s expense.
10.3 Condition 10.2 shall not apply if the defect arises as a result of normal wear and tear, the Customer’s negligence or failure to comply with the Conditions or failure to follow the Supplier’s or the manufacturers’ oral or written instructions as to the storage, specification, use or maintenance of the Goods or (if there are none) good trade practice or the Customer makes any further use of the Goods or alters, modifies, mishandles or repairs the Goods after giving notice to the Supplier in accordance with Condition 10.2.
10.4 If the Supplier complies with Condition 10.2, it shall have no further liability for a breach of the warranty in Condition 10.1 in respect of such Goods. If delivery of the Goods is not refused by the Customer and the Customer fails to notify the Supplier in accordance with Condition 10.2 (a) the Customer shall not be entitled to reject the Goods and the Supplier shall have no liability for such defect or breach of warranty and the Customer shall be bound to pay the Price as if the Goods had been delivered in accordance with the Contract.
10.5 Any Goods returned by the Customer pursuant to Condition 10.2 shall belong to the Supplier and these Conditions shall apply to any replacement Goods supplied.
10.6 The Supplier’s reasonable opinion as to the cause of the defect shall be final and binding unless the Customer can provide conclusive evidence to the contrary.
11. LIMITATION OF LIABILITY
11.1 Subject to Conditions 3.5, 4, 10 and 11.5, Condition 11 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, and sub-contractors) to the Customer in respect of any breach of the Contract and any representation, statement, tortious act or omission, including negligence, arising under or in connection with the Contract.
11.2 Subject to Conditions 11.3 and 11.4:
(a) the Supplier shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise (in each case whether direct, indirect or consequential) or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract;
(b) the Supplier’s total liability in contract, tort (including breach of statutory duty or negligence), misrepresentation, restitution or otherwise arising out of or in connection with the performance or contemplated performance of the Contract shall be limited to the Price or £20,000 (whichever is the greater).
11.3 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.4 Nothing in the Conditions excludes or limits the Supplier’s liability for death or personal injury caused by the Supplier’s negligence or for fraud or fraudulent misrepresentation.
11.5 These Conditions are intended to govern business-to-business contracts. Nothing in these Conditions is intended to, nor shall they, affect any consumer’s statutory rights.
12. FORCE MAJEURE
12.1 The Supplier reserves the right to defer the date of delivery of the Goods or cancel the Contract (in each case without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond its reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, labour disputes (other than in relation to the Supplier’s own workforce), or restraints or delays affecting suppliers or carriers, or inability or delay in obtaining supplies of adequate quality, provided that, if the event in question continues for a continuous period in excess of 30 days, the Customer shall be entitled to give notice in Writing to the Supplier to terminate the Contract.
13. INDEMNITY
13.1 The Customer shall be liable to pay the Supplier (on written demand) for, and indemnify the Supplier against, all reasonable costs, expenses and losses sustained or incurred by the Supplier (including, but not limited to, any direct, indirect or consequential losses, loss of profit, loss of reputation, damage to property, loss of opportunity to deploy resources elsewhere and legal costs on an indemnity basis) arising directly or indirectly from the Customer’s fraud, negligence or failure to comply, or unreasonable delay in complying, with any of the Conditions or for breach of any of the Conditions.
14. GENERAL
14.1 The Supplier may, in its absolute discretion, reject any artwork or design submitted by the Customer and/or cancel the Contract altogether if it reasonably considers the artwork to be unsuitable or inappropriate, likely to damage its reputation and/or goodwill, or requires the consent from a third party to be used. If the Supplier considers that appropriate amendments can be made to the artwork to proceed with the Contract then it shall propose such amendments in accordance with Condition 3.7 and the remainder of that Condition shall apply. If the Supplier considers that proof of a third party’s consent or other authority is required to proceed with the Contract then the Customer shall, in accordance with Condition 5.4(c), promptly obtain such and send it to the Supplier. If the Customer fails to provide such proof or authority within 14 days, or such other timeframe set out in Writing by the Supplier, the Supplier shall be entitled to terminate the Contract by notice and to issue an invoice to the Customer for an amount it considers reasonable in the circumstances to reflect the work undertaken up to the date of termination.
14.2 If there are any differences between the information within the proposal and the Order Acknowledgement in respect of any Contract the latter shall prevail.
14.3 Each right or remedy of the Supplier under the Contract is without prejudice to any other right or remedy of the Supplier whether under the Contract or not.
14.4 All Intellectual Property Rights in any documents or materials provided by one party to the other party under the Contract shall belong to the originating party. Design, drawings, calculations, electronic files and images and other materials owned by the Supplier and used by the Supplier to produce the Goods shall remain the exclusive property of the Supplier and the Intellectual Property Rights in the final version of the Goods shall become the exclusive property of the Supplier. The Supplier grants the Customer a non-exclusive royalty free licence of its Intellectual Property Rights in the Goods for the sole purpose of the use of the Goods by the Customer for the normal use for this type of product. If the Customer wants to use the Goods for any other purpose then it should contact the Supplier for its consent in Writing to do so.
14.5 The Customer warrants that it owns or otherwise has the right to use and/or licence the use of the Intellectual Property Rights in any materials provided by the Customer to the Supplier to provide the Goods.
14.6 The Customer’s property and all property supplied to the Supplier by or on behalf of the Customer shall, whilst in the possession of the Supplier or in transit to or from the Customer, be deemed to be at the Customer’s risk unless otherwise agreed in Writing and the Customer must insure accordingly.
14.7 The Supplier may assign all or any of its obligations under the Contract to any person, firm, company or organisation. The Customer shall not be entitled to assign any of its obligations under the Agreement without obtaining the Supplier’s consent in Writing.
14.8 Except as permitted by law, the Customer (including its employees and agents) shall not disclose, and shall use its best endeavours to prevent disclosure of, any confidential information about the Supplier, its employees or agents, its business or the Goods that has come into its possession or knowledge as a result of the Contract.
14.9 If any Condition is found by any court to be wholly or partly illegal, invalid, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, unenforceability or unreasonableness be deemed severable and the remaining Conditions, and the remainder of such Condition, shall continue in full force and effect. In the event that such court decides that such Condition is not severable, the parties agree to substitute such Condition with a legal, valid, enforceable and reasonable Condition that achieves, to the greatest extent possible, the same commercial effect as the original Condition.
14.10 Failure or delay by the Supplier to enforce, or partially enforce, any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract. Any waiver by the Supplier of any breach of, or any default under, any provision of the Contract by the Customer shall be in Writing, shall not be deemed to be a waiver of any subsequent breach or default, and shall in no way affect the other provisions of the Contract.
14.11 The Contract at the date of manufacture (if applicable, and if not then the date of despatch from the Supplier’s premises) contains the entire agreement between the parties and supersedes any previous agreements, arrangements, undertakings or proposals (whether made orally or in Writing).
14.12 All notices sent by the Customer to the Supplier must be sent to the Supplier at its registered office address or by email or facsimile or as otherwise agreed by the Supplier. The Supplier may send notices to the Customer at the email or postal address, or by facsimile to the number, provided by the Customer to the Supplier.
14.13 All communications between the parties about the Contract, including any notices to be sent or received under the Contract, must be in Writing. Notices shall be deemed served on delivery if delivered by hand, 48 hours after posting if sent by post, and on completion of transmission if sent by email or facsimile.
14.14 The formation, construction, performance, validity and all aspects of the Contract shall be governed by the law of England and Wales and the parties submit to the exclusive jurisdiction of the English courts.
14.15 The parties agree that the Contract and any dispute or claim arising out of or in connection with it or its subject matter or its formation, existence, construction, performance, validity and all other aspects of the Contract (including non-contractual disputes or claims) shall be as far as legally possible governed by and construed in accordance with the laws of England and Wales.
14.16 The parties agree that Conditions 14.14 and 14.15 shall be applied without regard to the principles of conflict of laws and without regard to the CISG UN Convention.
14.17 Where the Customer is based within the EU, the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute, claim or difference arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims) and shall be subject to English law (in line with Condition 14.14).
14.18 Where the Customer is not based within the EU the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or difference that relates to non-payment of any sum due to the Supplier from the Customer and the parties irrevocably agree that any other dispute or difference arising out of or in connection with the Contract, including any question regarding its existence, validity or termination or the legal relationships established by the Contract, the ability to enforce any judgment obtained and any non-contractual disputes or claims, shall be referred to and finally resolved by arbitration under the Rules of the London Court of International Arbitration, which Rules are deemed to be incorporated by reference into this Condition 14.17. It is agreed that:
(a) the arbitration tribunal shall consist of 1 arbitrator;
(b) the seat of the arbitration shall be London;
(c) the language of the arbitration shall be English; and
(d) the governing law shall be English law in accordance with Condition 14.14.
