The following Terms and Conditions together with the confirmed Order (as set out in Clause 2) constitute the entire agreement between the parties and supersede any previous agreements, warranties, representations, undertakings or understandings between the parties.
The Customer’s attention is particularly drawn to the provisions of Clause 14 (Limitation of liability).
1. DEFINITIONS AND INTERPRETATION
1.1 In these terms and conditions (the “Terms”) unless context otherwise requires:
“Artwork” means the Customer’s artwork, picture, print, photograph or drawing, as may be provided or made available by the Customer to the Company under these Terms.
“Artwork Manipulation” means amendments to the Artwork, which includes but is not limited to the amendments or removal of defects from the Artwork, as may be requested by the Customer from time to time.
“Business Day” means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Company” means Leach Colour Limited (Company number 03729135) whose registered office is at Bradley Business Park, Dyson Wood Way, Bradley, Huddersfield, HD2 1GN United Kingdom.
“Company’s Materials” means original items created by the Company for the Customer, as defined in clause 8.1 of these Terms.
“Company’s Warehouse” means the Company’s manufacturing facility at [Bradley Business Park, Dyson Wood Way Bradley, Huddersfield, West Yorkshire, HD2 1GN] or any other location designated for the purposes of manufacturing and storage by the Company.
“Contract” means the contract between the Company and the Customer for the provision of Goods and/or Services, consisting of these Terms, , as well as any other documents referred to in them, and the approved Order (as set out in Clause 2).
“Customer” means the person, firm or company to whom Goods and/or Services are to be provided under the terms of the Contract. For the purposes of the Contract, any employee, agent or contractor of the Customer or any third party acting on behalf of the Customer shall have the same rights and obligations under the Contract as the Customer and is referred as “the Customer” throughout these Terms.
“Customer’s Materials” means any computer files, Artwork, drawings, sketches, Specifications, instructions, descriptions or other information supplied by the Customer to the Company in connection with the manufacture or production of Goods and the performance of the Services. This can also include physical materials and items supplied by the Customer.
“Data Protection Legislation” means all laws (whether of the Territory or any other jurisdiction) relating to the use, protection and privacy of personal data (including, without limitation, the privacy of electronic communications) as amended from time to time.
“Delivery” means the delivery or collection of Goods or completion of Services (as applicable) and Deliver and Delivered shall be construed accordingly.
“Estimate” means the price or tender for Goods and Services and the requested Specification issued in Writing to the Customer by the Company.
“Extended Warranty” shall have the meaning set out in clause 13.2.
“Frame” means made to measure bespoke aluminium graphic frame used to display the Customer’s signage or otherwise.
“Goods” means goods, articles, materials, data and accompanying documentation which the Company is to supply, including but not limited to large scale prints, Lightboxes and any Company Material.
“Installation” means the installation of the Goods at the Premises, provided in accordance with the provisions of clause 10 of these Terms.
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and 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 subsist or will subsist now or in the future in any part of the world.
“Lightbox” means made to measure bespoke LED light box used to illuminate the Customer’s signage or otherwise.
“Order” means the Customer’s order for the Goods and/or Services, or the Customer’s written acceptance of the Company’s Estimate, as the case may be.
“Premises” means the premises to which the Goods are to be delivered and/or at which the Services are to be performed.
“Price” means the price for Goods and/or Services as defined in clause 4 of these Terms.
“Purchase” means the completion of the sale of Goods or the performance of the Services and the proof of Purchase for the purposes of the Contract shall be either a dated Company’s invoice or a Delivery receipt.
“Services” means the supply and/or Installation of the Goods and associated services to the Customer, and shall include, but not be limited to, Artwork Manipulation, graphic production, printing, design, project management, interior fit out, print management, Installation, woodworking, metalworking, signage production.
“Standard Warranty” shall have the meaning set out in clause 13.1.
“Specification” means any specifications, including descriptions, drafts, drawings, illustrations and measurements supplied by the Customer to the Company for the purposes of the production of Goods or performance of the Services in accordance with these Terms.
“Territory” means the United Kingdom of Great Britain and Northern Ireland.
“Warranty” means the Standard Warranty or the Extended Warranty as the case may be.
“Writing” includes email but not fax.
1.2 Any reference to any statute or statutory provision includes a reference to the statute or statutory provision as from time to time amended, extended or re-enacted.
1.3 The headings in these Terms are for convenience only and shall not affect their interpretation. A reference to a “person” means to any individual, firm body corporate, unincorporated association, partnership, government, state or agency of a state or joint venture. Words in the singular shall include the plural and vice versa.
1.4 Any reference to an individual Customer, shall mean such Customer acting in the course of business. The Company does not provide any services to consumers within the meaning of the Consumer Protection Act 1987 and all provisions of the Consumer Protection Act 1987 are to the fullest extent permitted by law excluded from the Contract.
2. BASIS OF THE CONTRACT
2.1 The Company shall supply Goods and Services to the Customer for the Price subject to these Terms.
2.2 The Company may place an Order either by accepting the Company’s Estimate or by submitting a written order for Goods or Services. The Order constitutes an offer by the Customer to purchase Goods or Services in accordance with these Terms.
2.3 No Contract shall be formed until the Company has accepted the Customer’s Order in writing at which point and on which date the Contract shall come into existence.
2.4 No representations, warranties or undertakings made concerning the Company’s Goods or Services shall be binding unless stated otherwise in the Contract.
2.5 These Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Terms.
2.6 The Customer is responsible for ensuring that the terms of the Order and any applicable Specification supplied by the Customer are complete and accurate. Amendments to orders will be subject to additional costs. The costs will depend on the progression of the Order.
3. SPECIFICATIONS
3.1 Where Artwork, proofs or drawings are submitted to the Customer for approval, the Company shall incur no liability for errors in those proofs which the Customer fails to identify.
3.2 All samples, illustrations or descriptive materials including specifications, drawings and particulars of weights/ dimensions and performance issued by the Company shall be treated as approximate only and the Company gives no warranty or representation that the Company’s Goods and/or Services will conform to them unless indicated otherwise in these Terms or the Order. They shall not form part of the Contract nor have any contractual force.
3.3 If Goods and Services are to be produced or performed in accordance with the Customer’s Specification, the Customer warrants that it owns or is licensed, or authorised to use the Intellectual Property Rights in that Specification and, shall indemnify the Company against all losses, damages, costs and expenses awarded against or incurred by the Company in connection with:
(a) any claim that the Specification or the use of it infringes a third party’s Intellectual Property Rights; and/or
(b) any impracticality, inefficiency or lack of safety or other defect in the Goods and Services due (whether in whole or in part) to faults or omissions in information, drawings, designs, instructions, or Specifications of the Customer.
3.4 The Contract may not be terminated or cancelled except in accordance with the termination of Contract provisions in clause 16 of these Terms.
3.5 Due to differences in equipment, substrates, inks and the limitations of print processes generally, a reasonable variation in colour between colour proofs and/or samples supplied for colour matching and the completed Goods shall be deemed acceptable.
3.6 If the Company is instructed by the Customer to manufacture and/or perform the Installation of the Goods (such as the Lightboxes) based on any Specification provided by the Customer and that Specification proves to be inaccurate, any cost incurred by the Company for remanufacturing of the Goods and/or re-Installation of them shall be borne by the Customer in addition to the Price quoted in the Estimate.
4. PRICE FOR GOODS AND SERVICES
4.1 The Price shall be the price stated in the Estimate or Order (if different), where no price has been stated, the Company’s current listed price.
4.2 All Prices in the Company’s Estimate(s) are valid for 30 days unless withdrawn by the Company earlier, prior to the Customer’s acceptance.
4.3 Prices are based on the cost of production at the date of the Estimate and the Company reserves the right at any time before Delivery, to increase the Price to reflect:
(a) any increase in those costs (such as, foreign exchange fluctuations, significant increases in labour, or materials costs); or
(b) any change in Delivery dates, quantities or specifications for the Goods and Services requested by the Customer; or
(c) any delay caused by the Customer’s instructions or failure to give adequate instructions or information.
4.4 Unless otherwise stated by the Company in Writing, all Prices are given on an ex works basis, and where the Company agrees to deliver the Goods, the Customer shall be liable to pay Company’s charges for transport, packaging and insurance.
4.5 Prices are exclusive of value added tax or any equivalent taxes in the Territory or abroad, which the Customer shall be additionally liable to pay at the applicable rate.
5. TERMS OF PAYMENT
5.1 The Company reserves the right to require payment of the Price (or part) in advance, which may be applied by the Company, at its discretion, against any invoice rendered by the Company under the Contract.
5.2 Credit facilities may be granted to Customers who complete the Company’s Credit Account Application Form and who satisfy the Company’s criteria as set out from time to time. Where facilities are granted the Company reserves the right to withdraw them at any time, without having to give their reasons and, in such a case, all outstanding invoices become due and payable immediately.
5.3 Where credit facilities are granted, and unless agreed otherwise in Writing, the Customer shall pay the Price (or the balance of the Price) due without any set-off, deduction, counterclaim, abatement or otherwise within 30 days from date of the invoice.
5.4 For Contracts with a duration of more than one calendar month,
(a) The Company reserves the right to submit interim invoices at monthly or other intervals, at the Company’s sole discretion;
(b) The Company reserves the right to require a mobilisation payment prior to work commencing
(c) The Company may require payment to be made at an earlier date than that set out in 5.3 above;
(d) The Company reserves the right to require its Goods or Services to be paid for in full prior to the commencement of the Services;
(e) The Company may require the Customer to provide a duly authorised payment certificate to the Company in respect of each of the Company’s interim and final invoices.
5.5 The time of payment shall be of the essence of the Contract, and payment shall not be deemed received until the Company is in receipt of cleared funds. If the Customer fails to make payment in full by the relevant due date, the Company shall, without prejudice to any other right or remedy available to it, be entitled to:
(a) terminate the Contract or suspend any further deliveries of the Goods or performance of the Services in accordance with clause 16 of these Terms;
(b) immediate payment of all outstanding invoices in respect of the Goods and/or Services under any Contract notwithstanding the fact that the date for payment may not yet be due;
(c) charge interest on the amount unpaid, at the rate of 4% above the base rate of Lloyds TSB Bank plc from time to time in force, from the date the monies fell due until payment is made in full; and
(d) charge the Customer for any costs incurred in recovering any unpaid amount(s) (including legal costs, disbursements and bank charges).
5.6 The Company reserves the right to set off any monies owed by it to the Customer against those owed to it by the Customer.
6. DELIVERY AND STORAGE
6.1 Goods shall be deemed Delivered when the Customer collects the Goods from the Company’s premises after being notified that the Goods are ready for collection or, if being delivered, when the Company delivers the Goods to the Premise.
6.2 Any dates quoted for Delivery of Goods are approximate only and the Company shall not be liable for any delays in Delivery howsoever caused. Goods may be delivered and Services performed in advance of the quoted Delivery date provided the Customer is given reasonable notice.
6.3 Where Goods are to be Delivered in instalments including to multiple addresses, each Delivery shall constitute a separate Contract and failure by the Company to Deliver any one or more of the instalments in accordance with the Terms or any claim made by the Customer in respect of any one or more instalment shall not entitle the Customer to cancel any remaining instalment(s).
6.4 If the Company fails to Deliver the Goods, other than due to a Force Majeure Event (as defined in clause 19 hereof) or the Customer’s fault, its liability to the Customer shall be limited in accordance with clause 14 of these Terms.
6.5 If the Customer fails to take Delivery of Goods or fails to give the Company adequate delivery instructions (otherwise than due to a cause beyond the Customer’s reasonable control or the Company’s fault) then, without prejudice to any other right or remedy available to the Company, the Company may:
(a) elect that Goods be deemed Delivered; or
(b) store the Goods at the Customer’s expense until actual Delivery; or
(c) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess above, or charge the Customer for any shortfall below, the Price under the Contract.
6.6 Any defects in Goods and/or Services must be notified in Writing (affording the Company a reasonable opportunity to inspect the defects, failing which the notice shall be deemed to be invalid) to the Company within 7 days of Delivery of Goods and/or Services. Otherwise Goods and/or Services will be deemed to have been accepted by the Customer free of defects or faults. In any event the Customer shall be deemed to have accepted the Goods and/or Services if the Customer uses the Goods and/or Services after Delivery. The Customer’s attention is however drawn to clause 13.7 in relation to the inspection of Lightboxes and the Company’s obligations in relation to the same.
6.7 For the Goods manufactured by screen printing (silk screening) where 50 copies or fewer are required, the exact quantity ordered will be Delivered and charged for. For the Goods where more than 50 copies are required, every endeavour will be made to Deliver the correct quantity of the Goods ordered but margins of five per cent (5%) shall be allowed for overs or shortages, the same to be charged or deducted.
6.8 The Company shall not be obliged to provide storage accommodation for the Goods, Customer’s Materials, or other items.
6.9 If within one month of the Company instructing the Customer in writing to collect or arrange collection of the Customer’s Materials or Goods they have not been so collected, the Company may levy reasonable storage charge until collection takes place and, if the Customer’s Materials or Goods have not been collected with three calendar months of such collection request, the Customer shall be deemed to have instructed the Company to remove and destroy them at the Customer’s expense.
7. CUSTOMER’S MATERIALS
7.1 The Customer shall ensure that the use of the Customer’s Materials by the Company does not infringe the rights of any third party and the Customer hereby grants to the Company a worldwide, non-exclusive licence to use the Customer’s Materials (i) to provide the Goods and Services and (ii) in case studies, on the Company’s website or in promotional materials as examples of the Company’s work.
7.2 If any identifiable individuals are portrayed on any images provided by the Customer, the Customer must ensure that consent of such individuals has been properly obtained or that it otherwise has the right to grant the license set out in clause 7.1.
7.3 The Customer shall be responsible for ensuring that any Customer’s Materials are accurate, unambiguous and clearly legible and meet the Customer’s requirements; and that substrates or other materials supplied or specified by the Customer or the resulting product of any direct input provided by or on behalf of the Customer are suitable. The Company may reject any Customer’s Materials which are found to be unsuitable at any stage during or after production and may request an additional charge on the time spent basis.
7.4 Where the Customer’s Materials are supplied or specified by or on behalf of the Customer responsibility for defective work will not be accepted by the Company unless this is due to failure to use reasonable skill and care by the Company.
7.5 Quantities of the Customer’s Materials supplied by the Customer shall be adequate to cover normal trialling, spoilage and wastage and shall be supplied within a reasonable time prior to manufacture or production of the Goods and/or the performance of the Services.
7.6 The Customer’s Materials shall not be counted, weighed or checked when received.
7.7 The Customer must identify in Writing and in advance to the Company any especially valuable artwork(s), artefacts or objects (and their value) the temporary possession of which by the Company is required to produce the Goods or provide the Services whether that possession is at the Company’s Warehouse, the Premises or in third party premises. It is hereby acknowledged that such artwork(s), artefacts and objects shall at all times remain at the risk of the Customer and be insured by the Customer.
7.8 All Customer’s Materials must be labelled and identified.
7.9 Where the Customer’s Materials are supplied or specified by the Customer there could be costs to pass to the customer to process the Customers Materials. This could include but not be limited to: handling equipment, measuring equipment, specific disposal of materials, impacts of time and resources.
8. COMPANY’S MATERIALS
8.1 Where the Company has created any items (the “Company’s Materials”) for the Customer including, but not limited to, graphic displays and units, interior fit out schemes, exterior graphic or signage schemes, exhibition stands, printed matter and corporate interior design, the Company shall retain its copyright and all other Intellectual Property Rights in such Company’s Materials, unless the Company has assigned its Intellectual Property Rights to the Customer in Writing.
8.2 The Company grants a non-exclusive licence to the Customer on the terms set out in this clause to use such Company’s Materials in connection with the Contract only, such licence to take effect conditional on receipt by the Company of payment in full for the relevant Goods and/or Services and all other sums owed to the Company. If any such payment is overdue at any time the Company may, by notice in Writing, withdraw its licence to use the Company’s Materials.
8.3 The Customer shall not have the right, without the prior consent in Writing of the Company:
(a) to reproduce or authorise others to reproduce the Company’s Materials;
(b) to make, let or permit the making of copies of any Company’s Materials;
(c) to sell, lease or hire the Company’s Materials; nor
(d) to modify the Company’s Materials.
9. SERVICES
9.1 The Company shall use its reasonable endeavours to supply the Services to the Customer in accordance with the Contract in all material respects.
9.2 The Company shall use all reasonable endeavours to meet any performance dates for the Services specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
9.3 Where the Company provides project management as part of the Services or otherwise subcontracts any part of the Services then the Company’s liability to the Customer, for the Services provided by a third party, shall in no event exceed the liability of that third party to the Company.
9.4 Where the Company provides Artwork Manipulation as part of the Services, notwithstanding the Company’s obligation to perform those Services with reasonable skill and care the parties acknowledge and accept that the nature of Artwork Manipulation is that the results can be subjective and therefore if there is any dispute between the parties about whether Artwork Manipulation has been performed in accordance with the Contract the Company’s decision shall be final.
10. INSTALLATION SERVICES
10.1 Where the Company is obliged to provide Installation under the Contract, the Company shall install the Goods in accordance with these Terms.
10.2 The Company shall not be responsible for any delay in Installation directly or indirectly arising from the acts or omissions of the Customer.
10.3 The Company may charge a higher Price than provided in the Estimate where the Installation is delayed or complicated by the Premises not being ready, by access being significantly more difficult than advised at the time of Estimate, or any other matters which affect the Installation costs originally estimated.
10.4 The Customer shall:
(a) obtain all necessary licences, consents, or approvals required form any governmental, local authority or other relevant third party and to continue to meet those requirements and maintain their approval in respect of the Installation and, if such approval or consent is amended or ends, notify the Company immediately;
(b) provide any information the Company may reasonably require in connection with the Customer, the Premises, the Installation to enable the Company to perform the Installation and inform the Company without delay if such information changes;
(c) provide the Company access to the Premises so that it may perform the Installation and provide such assistance as may be reasonably requested promptly and without cost to the Company. The Customer shall move any materials, and other objects obstructing or preventing Installation;
(d) ensure the Premises and any equipment provided are safe and without risk for the Company’s employees, contractor or agents and alert the Company to the location of any concealed pipes, wires and any other known risks and hazardous materials on the Premises which may affect the Installation;
(e) operate the Goods according to the requirements of the Specification, operating instructions, user handbooks (if any) issued from time to time;
(f) be responsible for and indemnify the Company for all liabilities, claims, losses or expenses due to the Goods not being used in accordance with the Company’s specification, operating instructions, or user handbooks, or as a result of the Goods being connected to equipment or devices not supplied by the Company;
(g) inform the Company at once of any defect or fault in the Goods; or if they have been tampered with, damaged or stolen or if the Goods are or have been subjected to any unusual operating or environmental conditions; and
(h) ensure that the Company’s employees, agents or contractors have adequate welfare facilities (such as functioning toilets and washing facilities).
(i) ensure that all surfaces and area’s are prepared to the standards required. Preparation expectations and tolerances shall be stipulated by the Company. Sub-standard preparations could lead to a cancellation/re-arrangement of the installation. Any impact on the installation caused by sub-standard preparation will incur an additional cost to the Customer.
10.5 Instances where the Customer cancels or postpones an install within 48 hours of the planned start time will incur stand down charge. This is applicable to all committed facilities and resources, including but not limited to: installation staff members, lifting equipment, scaffolding, permits, accommodation, transportation and travel, hire equipment and any specific tools, consumables or equipment specific to the Customer planned installation.
11. RISK AND PROPERTY
11.1 Risk of damage or loss of Goods shall pass to the Customer at the time of Delivery or, if the Customer fails to take Delivery, at the time the Customer was notified Goods were ready for, or were tendered for, the Delivery.
11.2 Property in the Goods shall not pass to the Customer until the Company has received in cleared funds full payment of the Price for the Goods and/or Services and any other monies for work carried out for the Customer for which payment is then due to the Company.
11.3 Until the Goods in the property passes to the Customer, the Customer shall hold the Goods as the Company fiduciary agent and bailee, and shall keep the Goods securely stored and separate from those of the Customer and third parties and identified as the Company’s property, and the Company shall (provided the Goods are still in existence and have not been resold) be entitled at any time to require the Goods to be returned or be permitted to enter the Customer’s or any third party’s premises to repossess the Goods. Notwithstanding the foregoing provisions, the Customer is permitted by the Company to resell or use the Goods in the ordinary course of its business prior to title passing to the Customer, provided that such sale or use could not be reasonably avoided by the Customer and that the proceeds of such resale or the benefit to the Customer of such use of the Goods is accounted for by the Customer to the Company. In such circumstances the Company shall apply the proceeds so received against any sums due to it by the Customer in respect of the Goods.
12. WARRANTIES
12.1 The Company warrants that:
(a) the Goods manufactured by the Company will be free from defects in material and workmanship for a period of 12 calendar months from the date of Purchase; and/or
(b) the Services will be provided using reasonable skill and care.
12.2 The above warranty is given subject to the Company having no liability:
(a) for any defect in the Goods and/or Services arising from any information, drawing, design, instruction, Customer’s Materials or Specification supplied by the Customer, or
(b) for any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in Writing), improper installation (other than the Installation by the Company) misuse or alteration or repair of the Goods and/or Services without the Company’s approval; and
(c) if the total Price for the Goods and/or Services has not been paid by the due date for payment or if the Customer is otherwise in breach of the Contract or any other contract with the Company.
13. LIGHTBOX WARRANTY
13.1 The Company warrants that any Lightbox shall be free from defects in hardware, components and/or workmanship during the warranty period. The standard Lightbox warranty period (the “Standard Warranty”) is three (3) years and commences on the original date of purchase. Under the Standard Warranty the Company shall replace or repair free of charge any defects with the Lightbox, except for defects originating from the incorrect installation of the Lightbox by the Customer. Costs of return of a defective Lightbox to the Company’s Warehouse shall be borne by the Customer.
13.2 In addition to the Standard Warranty, the Company may offer an extended Lightbox warranty (the “Extended Warranty”) which is applicable to Lightboxes installed by the Company in a single, fixed location at a site on the Territory (excluding Northern Ireland, Scottish Highlands and Islands) for one (1) year from the Order. In this case the Company shall, at its own choice, either (1) repair the Lightbox at the Premises, or (2) de-Install and return the Lightbox to the Company’s Warehouse. All repair, re-delivery and re-Installation costs will be borne by Company.
13.3 When the Customer does not qualify for the Extended Warranty, but are within the terms of the Standard Warranty, and where the Lightbox is installed in a fixed location in the Territory (excluding Northern Ireland, Scottish Highlands and Islands), then the Company shall offer a discounted fixed price repair conducted at the Premises for £200 per Lightbox plus travelling expenses (from Company’s Warehouse) at £1.75 per mile both ways.
13.4 The Customer may be required to provide the proof of Purchase as a condition of receiving a Warranty Service. If the total price for the Lightbox and/or its Installation has not been paid by the due date for payment or if the Customer is otherwise in breach of the Contract or any other contract with the Company then the Warranty shall be invalidated.
13.5 The Warranty applies to Lightboxes and their components only and is not extended to any other Goods as they are subject to separate warranty conditions, specified in clause 9 above. Any repaired or replaced Lightbox shall be warranted on the above terms for the unexpired portion of the Standard or Extended warranty.
13.6 The following conditions have to be strictly satisfied in order to elicit the benefits of the Warranty:
(a) For the Extended Warranty, the Lightbox must be Installed by the Company or a third party installer appointed by the Company. If this condition is not met then the Extended Warranty shall be limited to the Standard Warranty.
(b) The Warranty shall not cover defects arising from wilful damage, fair wear and tear or if the product has been altered or modified in any way. The Lightbox must also be maintained in a fixed location within the Territory.
(c) Both the Standard and Extended warranties shall not cover damage or other failure caused by Force Majeure Event, as defined in clause 18.
(d) The Customer undertakes to promptly notify the Company of any defects and endeavours to supply all information requested by the Company in order to diagnose defects.
(e) The Installation and subsequent operation of the Lightbox must be within the Territory.
(f) The defect is deemed to be material in nature and the materiality of the defect shall be assessed by the Company, at its sole discretion.
(g) Due to the high in-rush current on cold start of the powers supply units, Type D circuit breakers must be operated within the circuit. Use of other types of circuit breaker (or none) will invalidate the Warranty.
13.7 Save as expressly set out above in no event shall the Company be obliged to carry out repairs on Lightboxes which have been installed by third parties or to carry out repairs on Lightboxes other than at the Company’s Warehouse. It is therefore the responsibility of the Customer to inspect the Lightbox on Delivery or collection (as the case may be) and to ensure that the Lightbox(es) ordered meet the requirements of the Customer
13.8 The Company shall not be held liable for any consequential damages resulting from defective Lightbox with liability limited to the terms of the Warranty in this clause 13. The Company shall not be liable for any defects or damage arising from any Specification supplied by the Customer or Customer’s Materials.
14. LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS DRAWN TO THIS CLAUSE
14.1 Subject as expressly provided in the Contract, all warranties, conditions or other terms implied by statute or common law, including Sale of Goods Act 1979 are excluded to the fullest extent permitted by law.
14.2 The Company shall not be liable to the Customer under the Contract or otherwise, for any indirect, special or consequential loss or damage (including, but not limited to, loss of business, reputation, goodwill, or for loss of profit, anticipation of savings or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply, use or resale of the Goods by the Customer, or the provision of the Services, and the entire liability of the Company under or in connection with any Contract shall not exceed 100% of the Price payable under that Contract.
14.3 The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay or failure to perform any of the Company’s obligations in relation to the Contract, if the delay or failure is due to a Force Majeure Event (as defined in clause 18 hereof).
14.4 Notwithstanding the other provisions of clause 14, the Company may, if a defect or fault in Goods has been accepted by the Company, at its discretion elect to repair and/or replace Goods and if so, the repair, replacement of Goods shall be the full extent of the Company’s liability to the Customer under the Contract.
14.5 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979.
15. INDEMNITY
15.1 The Customer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Company arising out of or in connection with the Specification or the Customer’s Materials breaching any third party’s rights (including but without limitation Intellectual Property Rights).
15.2 At the request of the Company and at the Customer’s own expense, the Customer shall provide all reasonable assistance to enable the Company to resist any claim, action or proceedings brought against the Company as a consequence of any breach referred to in clause 15.1.
15.3 This indemnity shall apply whether or not the Customer has been negligent or at fault.
16. TERMINATION OF CONTRACT
16.1 Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
16.2 Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Customer and the Company if the Customer becomes subject to any of the events listed in clause 16.1(b) to clause 16.1(d), or the Company reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
16.3 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
16.4 On termination of the Contract for any reason the Customer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Company shall submit an invoice, which shall be payable by the Customer immediately on receipt.
16.5 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
16.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
17. LIEN
Without prejudice to other remedies whether under the Contract or otherwise, the Company shall, in respect of all debts due from the Customer whether under the Contract or otherwise and whether or not due for payment have a lien on all goods and property in its possession belonging to the Customer (whether worked on or not) and whether or not in the possession of the Company under the Contract and shall be entitled on the expiration of 10 Business Days’ notice to dispose of such goods or property as it thinks fit and to apply any proceeds towards such debts.
18. ILLEGAL MATTER
18.1 The Company shall not be required, and may cancel or reject any order received from or Contract made with the Customer, to print any matter which in its sole opinion is or may be of an illegal or defamatory nature or an infringement of any third party rights, including but not limited to any Intellectual Property Rights.
18.2 The Customer shall indemnify and hold harmless the Company from and against all actions, proceedings, loss, damages, costs (including labour and material costs), claims, demands and expenses (including all reasonable legal expenses) whatsoever suffered or incurred by the Company by reason of the Customer’s Material or Goods provided on the basis of the Customer’s Materials containing any matter of a defamatory nature or being an infringement of any third party’s Intellectual Property Rights or in connection with any cancellation or rejection of an order by the Company pursuant to clause 18.1 of these Terms.
18.3 The Customer shall be deemed a controller within the meaning of the Data Protection Legislation and shall be responsible for any personal data it provides to the Company.
18.4 The Customer shall be responsible for compliance with the British Code of Advertising Practice, the British Code of Sales Promotion Practice, the British Code of Advertising Rules on Direct Marketing or the ICSTIC Code of Practice.
19. FORCE MAJEURE
The Company shall not be in breach of the Contract if there is any total or partial failure of performance by it of its duties and obligations under the Contract occasioned by an act of God, fire, flood, drought, power failure, reduction in power supplied, mechanical failure, lack or shortage of materials (not being due to the wilful default of the Company), war, epidemic or pandemic, legislation, civil commotion, insurrection, embargo, strike, lockout, industrial dispute or any other event beyond the Company’s control (the “Force Majeure Event”). If the Company is unable to perform its obligations under the Contract as a direct result of the effect of one of such reasons, the Company shall give notice in Writing to the Customer of such inability stating the reason in question. The operation of the Contract shall be suspended during the period in which the reason continues. Forthwith upon the reason ceasing to exist, the Company shall give advice in Writing to the Customer of this fact. If the reason continues for a period of more than 90 days the Customer may by notice in Writing to the Company terminate the Contract and pay for Work done and materials used, but subject thereto shall accept delivery when available.
20. GENERAL
20.1 The Company may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
20.2 The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.
20.3 The Contract and any documents referred to in it constitute the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
20.4 A person who is not a party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms. Where the Customer is a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) the statutory rights of that Customer shall not be affected by the provisions in these Terms.
20.5 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
21. GOVERNING LAW AND JURISDICTION
21.1 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
21.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
