Terms & Conditions
T E R M S A N D C O N D I T I O N S O F S U P P L Y
1 Interpretation
1.1 In these Conditions:
‘CUSTOMER’ means the person who accepts a quotation of the Designer for the supply of the Goods
and Services or whose order for the Goods and Services is accepted by the Designer
‘GOODS and SERVICES’ means the goods and/or services which the Designer is to supply in accordance with these Conditions
‘DESIGNER’ means COLE CREATIVE COMMUNICATIONS of
96,Jordan Road, Four Oaks, Sutton Coldfield B75 5AE
‘CONDITIONS’ means the standard terms and conditions of supply set out in this document and(unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Designer
‘CONTRACT’ means the contract for the purchase and supply of the Goods and Services
‘WRITING’ includes telex cable facsimile transmission and comparable means of communication
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended re-enacted or extended at the relevant time
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation
2 Basis of the sale
2.1 The Designer shall supply and the Customer shall purchase the Goods and Services in accordance with any written quotation of the Designer which is accepted by the Customer or any written order of the Customer which is accepted by the Designer subject in either case to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted or any such order is made or purported to be made by the Customer
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorized representatives of the Customer and the Designer
2.3 The Designer’s employees or agents are not authorised to make any representations concerning the Goods and Services unless confirmed by the Designer in Writing. In entering into the Contract the Customer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed
2.4 Any advice or recommendation given by the Designer or its employees or agents to the Customer or its employees or agents as to the storage application or use of the Goods and Services which is not
confirmed in Writing by the Designer is followed or acted upon entirely at the Customer’s own risk and accordingly the Designer shall not be liable for any such advice or recommendation which is not so confirmed
2.5 Any typographical clerical or other error or omission in any sales literature quotation price list acceptance of offer invoice or other document or information issued by the Designer shall be subject to correction without any liability on the part of the Designer
3 Orders and specifications
3.1 No order submitted by the Customer shall be deemed to be accepted by the Designer unless and until confirmed in Writing by the Designer’s authorised representative
3.2 The Customer shall be responsible to the Designer for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer and for giving the Designer any necessary information relating to the Goods and Services within a sufficient time to enable the Designer to perform the Contract in accordance with its terms
3.3 The quantity quality and description of and any specification for the Goods and Services shall be those set out in the Designer’s quotation (if accepted by the Customer) or the Customer’s order (if accepted by the Designer)
3.4 Where the Goods and Services are to be supplied by the Designer in accordance with a specification submitted by the Customer the Customer shall indemnify the Designer against all loss damages costs and expenses awarded against or incurred by the Designer in connection with or paid
or agreed to be paid by the Designer in settlement of any claim for infringement of any patent copyright design trade mark or other industrial or intellectual property rights of any other person which results from the Designer’s use of the Customer’s specification
3.5 The Designer reserves the right to make any changes in the specification of the Goods and Services which are required to conform with any applicable statutory requirements or where the Goods and Services are to be supplied to the Designer’s specification which do not materially affect their quality or
performance
3.6 No order which has been accepted by the Designer may be cancelled by the Customer except with the agreement in Writing of the Designer in full against all loss (including loss of profit) costs (including the cost of all labour and materials used) damages charges and expenses incurred by the Designer as a result of cancellation
4 Price of the Goods and Services
4.1 The price of the Goods and Services shall be the Designer’s quoted price or where no price has been quoted (or quoted price is no longer valid) the price listed in the Designer’s published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only or until earlier acceptance by the Customer after which time they may be altered by the Designer without giving notice to the Customer
4.2 The Designer reserves the right by giving notice to the Customer at any time before delivery to increase the price of the Goods and Services to reflect any increase in the cost to the Designer which is due to any factor beyond the control of the Designer (such as without limitation any foreign exchange
fluctuation currency regulation alteration of duties significant increase in the costs of labour materials or other costs of manufacture) any change in delivery dates quantities or specifications for the Goods and Services which is requested by the Customer or any delay caused by any instructions of the Customer or failure of the Customer to give the Designer adequate information or instructions
5 Terms of payment
5.1 Subject to any special terms agreed in Writing between the Customer and the Designer the Designer shall be entitled to invoice the Customer for the price of the Goods and Services on or at any time after delivery of the Goods and Services unless the Goods and Services are to be collected by the Customer or the Customer wrongfully fails to take delivery of the Goods and Services in which event the Designer shall be entitled to invoice the Customer for the price at any time after the Designer has notified the customer that the Goods and Services are ready for collection or (as the case may be) the Designer has tendered delivery of the Goods and Services
5.2 The Customer shall pay the price of the Goods and Services within 30 days of the date of the Designer’s invoice notwithstanding that delivery may not have taken place and the property in the Goods and Services has not passed to the Customer. The time of payment of the price shall be of the
essence of the Contract. Receipts for payment will be issued only upon request
5.3 If the Customer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Designer the Designer shall be entitled to:
5.3:1 cancel the contract or suspend any further deliveries to the Customer;
5.3:2 appropriate any payment made by the Customer to such of the Goods and Services (or the goods supplied under any other contract between the Customer and the Designer) as the Designer may think fit (notwithstanding any purported appropriation by the Customer); and
5.3:3 charge the Customer interest (both before and after any judgment) on the amount unpaid at the rate of Five per cent per annum above Lloyds Bank base rate from time to time until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest)
5.3:4 charge the Customer any other costs incurred in obtaining settlement of the amount unpaid
6 Delivery
6.1 Delivery of the Goods and Services (where appropriate) shall be made by the Customer collecting the Goods and Services at the Designer’s premises at any time after the Designer has notified the Customer that the Goods and Services are ready for collection or if some other place for delivery is agreed by the Designer delivering the Goods and Services to that place
6.2 Any dates quoted for delivery of the Goods and Services are approximate only and the Designer shall not be liable for any delay in delivery of the Goods and Services howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Designer in writing. The Goods and Services may be delivered by the Designer in advance of the quoted delivery date upon giving reasonable notice to the Customer
6.3 If the Designer failed to deliver the Goods and Services for any reason other than any cause beyond the Designer’s reasonable control or the Customer’s fault and the Designer is accordingly liable to the Customer the Designer’s liability shall be limited to the excess (if any) of the cost to the customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods and Services
7 Risk and property
7.1 Notwithstanding delivery and the passing of risk in the Goods and Services or any other provision of these Conditions the property in the Goods and Services (where appropriate) shall not pass to the Customer until the Designer has received in cash or cleared funds payment in full of the price of the Goods and Services and under all other completed contracts between the Designer and the Customer for which payment is then due
7.2 Until such time as the property in the Goods and Services passes to the Customer the Customer shall hold the Goods and Services (where appropriate) as the Designer’s fiduciary agent and bailee. Until that time the Customer shall be entitled to resell or use the Goods and Services in the ordinary course of its business but shall account to the Designer for the proceeds of sale or otherwise of the Goods and Services whether tangible or intangible including insurance proceeds and shall keep all such
proceeds separate from any moneys or property of the Customer and third parties and in the case of tangible proceeds properly stored protected and insured
7.3 Until such time as the property in the Goods and Services passes to the Customer (and provided the Goods and Services (where appropriate) are still in existence and have not been resold)) the Designer shall be entitled at any time to require the Customer to deliver up to the Goods and Services
to the Designer and if the Designer fails to do so forthwith to enter upon any premises of the Customer of any third party where the Goods and Services are stored and repossess the Goods and Services
7.4 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods and Services which remain the property of the Designer but if the Customer does so all moneys owing by the Customer to the Designer shall (without prejudice to any other right or remedy of the Designer) forthwith become due and payable
8 Warranties and liabilities
8.1 Subject to the condition set out below the Designer Warrants that the Goods and Services will correspond with their specification at the time of delivery
8.2 Subject as expressly provided in these Conditions and except where the Goods and Services are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties conditions or other terms implied by statute or common law are excluded to the fullest
extent permitted by law
8.3 Where the Goods and Services are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) order 1976 the statutory rights of the Customer are not affected by these Conditions
8.4 Any claim by the Customer which is based on the failure of the Goods and Services to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to the Designer within 7 days from the date of delivery or (where the failure was not apparent on reasonable inspection) within a reasonable time after discovery of the failure. If delivery is not refused and the Customer does not notify the Designer accordingly the Customer shall not be entitled to reject the Goods and Services and the Designer shall have no liability for such defect or failure and the Customer shall be bound to pay the price as if the Goods and Services had been delivered in accordance with the Contract
8.5 Where any valid claim in respect of any of the Goods and Services which is based on the failure to meet specification is notified to the Designer in accordance with these Conditions the Designer shall be entitled to replace the Goods and Services (or the part in question) free of charge or at the Designer’s sole discretion refund to the Customer the price of the Goods and Services (or a proportionate part of the price) but the Designer shall have no further liability to the Customer
8.6 The Designer shall not be liable to the Customer by reason of any representation or any implied warranty condition or other term or any duty at common law or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise) costs expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Designer its employees or agents or otherwise) which arise out of or in connection with the supply of
the Goods and Services or their use or resale by the Customer except as expressly provided in these Conditions
8.7 The Designer shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Designer’s obligations in relation to
the Goods and Services if the delay or failure was due to any cause beyond the Designer’s reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Designer’s reasonable control:
8.7:1 Act of God explosion flood tempest fire or accident;
8.7:2 war or threat of war sabotage insurrection civil disturbance or requisition;
8.7:3 acts restrictions regulations bye-laws prohibitions or measures of any kind on the part of any governmental parliamentary or local authority;
8.7:4 import or export regulations or embargoes;
8.7:5 strikes lock-outs or other industrial actions or trade disputes (whether involving employees of the Designer or of a third party);
8.7:6 difficulties in obtaining raw materials labour fuel parts or machinery;
8.7:7 power failure or breakdown in machinery
9 Indemnity
9.1 If any claim is made against the Customer that the Goods and Services infringe or that their use or resale infringes the patent copyrights of any other person the Designer shall indemnify the Customer against all loss damages costs and expenses awarded against or incurred by the Customer in
connection with the claim provided that:
9.1:1 the Designer is given full control of any proceedings or negotiations in connection with any such claim;
9.1:2 the Customer shall give the Designer all reasonable assistance for the purpose of any such proceedings or negotiations;
9.1:3 except pursuant to a final award the Customer shall not pay or accept any such claim or comprise any such proceedings without consent of the Designer (which shall not be unreasonably withheld);
9.1:4 the Customer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Customer may have in relation to such infringement and this indemnity shall not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer shall use its best endeavours to do);
9.1:5 the Designer shall be entitled to the benefit of and the Customer shall accordingly account to the Designer for all damages and costs (if any) awarded in favour of the Customer which are payable by or agreed with the consent of the Customer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and
9.1:6 without prejudice to any duty of the Customer at common law the Designer shall be entitled to require the Customer to take such steps as the Designer may reasonably require to mitigate or reduce any such loss damages costs or expenses for which the Designer is liable to indemnify the Customer under this clause
10 Insolvency of customer
10.1 This clause applies if:
10.1:1 the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1:2 an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Customer; or
10.1:3 the Customer ceases or threatens to cease to carry on business; or
10.1:4 the Designer reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly
10.2 If this clause applies then without prejudice to any other right or remedy available to the Designer the Designer shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and if the Goods and Services have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary
11 General
11.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the
party giving the notice
11.2 No waiver by the Designer of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision
11.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby
11.4 Any dispute arising under or in connection with these Conditions or the supply of the Goods and Services shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of the Law Society
11.5 The Contract shall be governed by the laws of England
