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1. General
(a) In these Conditions The Lowe Aston Partnership is called “the
Company”and any individual, firm, company or other party with whom the
Company contracts is called “the Customer”. “The Goods” means the
goods, articles and all services which shall be the subject of the Contract
between the Company and the Customer. “The Price” means the price
or prices for the goods specified in the Company’s quotation
acknowledgement of order form or other communication (subject to the
provisions of clause 2(a) hereof).
(b) Any contract for the sale of Goods howsoever made between the Company
and the Customer (“the Contract”) shall incorporate and be subject to these
Conditions. The only terms of the Contract shall be those contained expressly or by
reference in the Company’s acknowledgement of order form and any
representation or warranty written or oral made or given prior to the
Contract is hereby expressly excluded. In the event of the Customer
seeking to incorporate special conditions into the Contract such special
conditions shall not apply unless they are accepted and agreed.
(c) Any quotation given by the Company is an invitation to the Customer to
make an offer only and no order of the Customer placed with the Company
in pursuance of a quotation or otherwise shall be binding unless and until
it is accepted in writing on the Company’s order acknowledgement form.
(d) Any waiver or breach of these Conditions shall not prejudice the Company’s
rights in respect of any subsequent breach.
(e) No employee, agent or contractor of the Company has power to vary any
of these Conditions. Variations (if any) must be in writing and signed for and
on behalf of the Customer and the Company by a director or authorised
officer.
2. Price
(a) The Price is subject to revision in the event of any increase in labour, raw
materials and overheads incurred by the Company over and above those
taken into account in the quotation up to the date of despatch of the Goods
to the Customer.
(b) Subject as stated in sub-clause (a) above the Price is that stated on the
Company’s acknowledgement of order form and is exclusive of VAT.
3. Payment
(a) Payment for Goods delivered whether comprising the whole or part of an
order shall be made by the Customer to the Company unless otherwise
agreed within 30 days from the invoice date. Time is of the
essence of payment.
(b) If payment has not been made in full within the said period of 30 days from
invoice date, the Company reserves the right to charge interest
(both before and after any judgment) on the amounts then outstanding
(including interest payable under this provision) at the rate of 5% per
annum above the base rate of Barclays Bank Plc, chargeable at the end of
each calendar month until payment in full is made.
(c) If the Customer fails to make any payment on the due date then, without
prejudice to any other right or remedy available to the Company, the
Company shall be entitled to:
(i) cancel the Contract or suspend any further deliveries to the Customer.
(ii) appropriate any payment made by the Customer to such of the Goods
(or the Goods supplied under any other Contract between the Customer
and the Company) as the Company may think fit (notwithstanding any
purported appropriation by the Customer).
4. Delivery
(a) The Company will use its best endeavours to comply with any date or dates
for despatch or delivery of the Goods as stated in the Contract but unless
the Contract otherwise expressly provides such date or dates shall
constitute only statements of expectation and shall not be binding. The
Customer shall accordingly accept delivery of the Goods when tendered.
Time of delivery shall not be of the essence of the Contract.
(b) If notwithstanding that the Company has used its best endeavours the
Company fails to despatch or deliver the Goods or to complete the work by
such date or dates, such failure shall not constitute a breach of the
Contract and the Purchaser shall not be entitled to treat the Contract
thereby repudiated or torescind the Contract in whole or in part or claim
compensation for such failure or for any consequential loss or damage
resulting therefrom.
(c) If the Customer fails to accept delivery of the Goods (or any instalment
thereof) the Company shall be entitled to invoice the Customer in respect
of all undelivered Goods and payment shall thereupon immediately become
due and storage costs shall be charged to the Cuctomer’s account, all
Goods being held at the Customer’s risk.
(d) A shortage or surplus of Goods delivered against any order from the
Customer of up to 5% charged pro rata shall constitute due execution of
the Contract.
(e) The obtaining of any export licence or other authority required for Delivery
shall be the responsibility of the Customer.
(f) If the Company is instructed by the Customer to send the Goods by any
means other than the Company’s usual mode of delivery, any additional
cost will be charged to the Customer’s account.
5. Risk
Risk in the Goods shall pass to the Customer when the Goods arrive at the
Customer’s premises (unless otherwise agreed).
6. Passing of Property
(a) The ownership of the Goods shall remain in the Company until payment in
full in cash or cleared funds has been made to the Company for them.
(b) The ownership of the Goods shall remain with the Company until payment
for all Goods whatsoever and whensoever supplied under this and all other
Contracts between the parties has been received by the Company in
accordance with the terms of each such Contract or until such time as the
Customer sells any such Goods to its customers by way of a bona fide sale
in the ordinary course of business at full market value.
(c) If such payment is overdue in whole or in part the Company may (without
prejudice to any of its other rights) recover or resell the whole or part of the
Goods supplied under the Contract and may enter upon the Customer’s
premises by its servants or agents for the purpose of recovering the Goods.
The Company shall however account to the Customer for any sum in
excess of that required to discharge the total liability of the Customer to the
Company under the Contract less all costs and fees incidental to and
resulting from the exercise of the powers contained in this clause.
(d) The rights and remedies conferred upon the Company by this clause are in
addition to and shall not in any way prejudice, limit or restrict any other
rights or remedies of the Company under the Contract.
(e) Until such time as the property in the Goods passes to the Customer, the
Customer shall hold the Goods as the Company’s fiduciary agent and
bailee, and shall keep the Goods separate from those of the Customer and
of third parties and properly stored, protected and insured and identified as
the Company’s property. Until that time the Customer shall be entitled to
resell or use the Goods in the ordinary course of its business, but shall
account to the Company for the proceeds of sale or otherwise of the
Goods, 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. If the Company so requires the Customer shall
assign to the Company any claim which the Customer has for payment for
Goods supplied by the Customer to any sub-purchaser.
(f) The Customer shall not be entitled to pledge or in any way charge by way
of security for any indebtedness any of the Goods which remain the
property of the Company.
7. Complaints and Claims
(a) No claim for damage in transit, non-delivery or loss of Goods will be
entertained unless written notice is given by the Customer (i) to the carrier
concerned within the time limit specified by the carrier, and (ii) to the
Company in the case of damage in transit within 3 days of receipt of Goods
and in the case of non-delivery within 14 days of the date of the invoice.
Where goods are accepted from the carrier without being checked the
delivery book of the carrier must be signed by the Customer “not
examined”.
(b) Complaints in respect of defective Goods must be lodged within 14 days of
receipt of Goods. Where Goods are shown to the Company’s satisfaction
to be defective for whatever reason (including negligence) the Company’s
liability shall be limited to rectifying the defect or at its option replacing the
Goods or repaying amounts received therefor.
(c) The return of the Goods will not be accepted by the Company unless the
Company or its representative shall first have had the opportunity of
examining the Goods and have agreed to their return.
8. Containers
Returnable containers and pallets will be charged for and credited in full on
return to the Company’s premises in good condition, carriage paid by the
Customer.
9. Intellectual Property
(a) The property and copyright in all documents, drawings, plans, sketches,
negatives, positives, moulds, plates, cylinders and the like whether
submitted to the Customer or not will remain with the Company unless
produced on the specific instructions or request of the Customer, in which
case they will be treated as an order and charged to the customer’s
account.
(b) The Customer shall keep the Company indemnified against any claims,
loss, demand or expenses suffered by the Company as a result of work
done at the Company’s request and which involves or may involve the
infringement of any third party’s intellectual property rights.
10. Proofs and Alterations
(a) Proofs of all work under the Contract may be submitted for the Customer’s
approval and in that case no responsibility will be accepted by the
Company for any errors not corrected by the Customer.
(b) Alterations requested by the Customer from the original copy after proofs
have been prepared will be the subject of additional charges to be borne
by the Customer.
11. Standing Matter
Customer’s artwork will be kept for a period of two years, from the date of use,
after which the company reserves the right to dispose of said artwork.
12. Warranties and Liability
(a) The Customer shall be solely responsible for any matter which the
Company prints on or applies to Goods on the instructions of the Customer
and the Customer shall indemnify the Company against any claims, costs
and proceedings arising therefrom.
(b) The Customer’s property and all property supplied by or on behalf of the
Customer will be held, worked on and transported by the Company at the
Customer’s risk.
(c) Without prejudice to the Company’s rights to be indemnified under
sub-clause (a) above the Company shall not be required to print any matter
which in its opinion is or may be of an illegal or libellous nature.
(d) In no circumstances shall the Company be liable for loss or damage
(including indirect and consequential loss or damage) howsoever arising
other than to rectify or replace Goods shown to its satisfaction to be
defective or at its option to repay amounts received therefor.
(e) Without prejudice to the foregoing the Company shall in no circumstances
be liable for any loss, damage, costs or expenses which exceed in the
aggregate the sale price of the Goods.
(f) Nothing in the Contract shall limit any adjudged liability of the Company for
loss arising out of death or personal injury of the Customer or any of its
employees, agents or contractors as a result of the Company’s work under
the Contract.
(g) Subject only to the provisions of these Conditions no statement,
undertaking, warranty or condition express or implied by law, trade, custom
or otherwise shall apply to the Contract.
13. Force Majeure
(a) While the Company will use its best endeavours to perform its obligations
under the Contract the Company shall not be liable for any failure to
perform any such obligations arising directly or indirectly out of
circumstances beyond the Company’s control, including but limited to
default of any subcontractor, war, strikes, trade disputes, accidents to plant
or machinery, shortage of materials of labour or Government restrictions.
(b) Should the Contract become impossible to perform or be otherwise
frustrated the Company shall be entitled to cancel the Contract without
liability for loss or damage and without prejudice to rights accrued in
respect of deliveries already made and on such cancellation the Customer
shall pay to the Company all costs which the Company and/or its
subcontractors have incurred or become liable for directly or indirectly in
connection with its Contract provided that the Company will take all
reasonable steps to mitigate any loss.
14. Lien
Without prejudice to any other remedies the Company may have, the Company
shall in respect of all debts due and payable by the Customer to the Company
have a general lien on all goods and property belonging to the Customer in its
possession and shall be entitled, upon the expiration of 14 days’ notice to the
Customer to dispose of such goods or property as it thinks fit and to apply any
proceeds of sale thereof towards the payment of such debts.
15. Insolvency and Breach of Contract
In the event that
(a) the Customer shall commit any breach of the Contract and shall fail to
remedy such (if capable of remedy) within a period of 30 days from receipt
of notice in writing from the Company requesting such remedy or
(b) any distress or execution is levied upon any of the goods or property of the
Customer or
(c) the Customer offers to make any arrangement with or for the benefit of its
creditors or commits any act of bankruptcy or being a limited company has
a Receiver administrative Receiver or Administrator appointed over the
whole or any part of its undertaking property or assets or
(d) an Order is made or a resolution is passed for the winding up of the
Customer (save for the purpose of reconstruction or amalgamation without
insolvency and previously approved in writing by the Company)
then and in any such case the Company shall be entitled without prejudice to
its other rights hereunder forthwith to terminate the contract by written notice
to the Customer.
16. Severance
If at any time anyone or more of the provisions of these Conditions becomes
invalid, illegal or unenforceable in any respect the validity and enforceability of
the remaining provisions hereof shall not in any way be affected or impaired
thereby.
17. Notices
Notices may be given by either party to the other by sending them to the
registered office or last known business address of the addressee. Any such
notice will be valid if sent by telex or post and will be deemed to have been
received in the ordinary course of transmission or despatch.
18. Governing Law
This Contract shall be governed by and construed in accordance with English
Law and the parties hereby submit to the exclusive jurisdiction of the English
Courts. |
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