THOMAS DEAN DESIGN
TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES BUSINESS SECTOR – SIGNS
Company: Thomas Dean Design:
Company Material: any documents, plans, drawings, designs, illustrations, plans, discs, computer print outs, prototypes, models, tools, moulds, dies, patterns, any Specifications and all data, materialsor other information provided by the Company to the Customer relating to the Goods and/or Services, or otherwise used by the Company in supplying the Goods and/or Services to the Customer;
Conditions: the terms and conditions set out in this document;
Confidential Information: any information disclosed by one (the disclosing party) to another (the receiving party) if the disclosing party has notified the receiving party that the information is confidential or the information could reasonably be supposed to be confidential;Contract: any agreement between the Company and the Customer for the sale and purchase of the Goods and Services incorporating these Conditions;
Contract: any agreement between the Company and the Customer for the sale and purchase of the Goods and Services incorporating these Conditions;
Customer: the person who agrees to purchase the Goods and/or Services from the Company subject to these Conditions;
Deposit: the amount of the deposit against the Price to be paid by the Customer in advance;
Goods: the goods which the Company is to supply to the Customer;
Deposit: the amount of the deposit against the Price to be paid by the Customer in advance;
Intellectual Property Rights: any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports,drawings, specifications, know how, trade secrets, rights in software, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent or similar rights to any ofthe foregoing in any jurisdiction, whether registered or unregistered;
Lead Time: the time within which the Company estimates that the Goods will be delivered and/or the Services will be performed.
Order: the Customer’s order for the supply of the Goods and/or Services.
Price: the price to be paid by the Customer under the Contract.
Quotation: the Company’s quotation for the supply of the Goods and/or Services.
Services:the services which the Company is to supply to the Customer including in particular installation of the Goods at the Supply Address;
Specification: the specification for the Goods and / or the Services agreed to be provided by the Company to the Customer.
Supply Address: the address for delivery of the Goods and/or performance of the Services which shall be the Customer’s principal place of business unless specified otherwise.
Working Day: any day which is not a Saturday or a Sunday, nor a bank or public holiday in England.
1.2 A reference to a clause is to a clause of these Conditions.
1.3 Clause headings shall not affect the interpretation of these Conditions.
1.4 Any reference to “parties” means the parties to the Contract and “party” shall be construed accordingly.
1.5 Words in the singular include the plural and in the plural include the singular. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
BASIS OF CONTRACT
2.1 These Conditions apply to all contracts for the supply of Goods and Services entered into by the Company to the exclusion of all others including, without limitation, any terms and conditions appearing on or referred to in the Customer’s purchase order.
2.2 No variation to these Conditions shall be binding unless made in writing specifying both which clause is to be varied and full details of such variation and signed on behalf of each of the Customer and the Company.
2.3 The Company’s employees or agents are not authorised to make any representations concerning the Goods or Services unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed. The Customer irrevocably and unconditionally waives any right it may have to claim damages for and/or to rescind the Contract as a result of any misrepresentation whether or not contained in the
Contract unless such misrepresentation was made fraudulently.
2.4 Any advice or recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods and/or Services which is not confirmed in writing by the Company is followed or acted upon entirely at the Customer’s own risk and accordingly the Company 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 Company shall be subject to correction without any liability on the part of the Company.
SALE AND PURCHASE
3.1 The Company agrees to supply the Goods and Services to the Customer subject to these Conditions. Any Quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.2 Each Order or acceptance of a Quotation shall be deemed to be an offer by the Customer to purchase the Goods and/or Services subject to these Conditions, but no Contract shall arise unless and until the Company has accepted that Order or acceptance of Quotation in writing. Once a Contract has arisen, no Order or acceptance of a Quotation may be cancelled or rescinded by the Customer without the Company’s written consent and subject to the Customer’s payment of all costs,
charges and expenses incurred by the Company.
3.3 The Customer shall ensure that the terms of its Order and any applicable specification are complete and accurate.
3.4 Notwithstanding the provisions of clause 3.2, the Company shall be under no obligation to proceed with its obligations under the Contract until:
3.4.1 the Company shall have received the Deposit; and
3.4.2 the Customer shall have provided all designs and artwork necessary for the Specification; and
3.4.3 the Customer shall have given its final approval of the Specification.
4.1 The quantity and description of the Goods and/or Services shall be as set out in the Quotation or the Company’s acceptance of Order.
4.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described
in them. They shall not form part of the Contract.
4.3 If the Goods are to be manufactured or any process is to be applied to them by the Company in accordance with any specification or other material or instructions submitted by the Customer, or if the Goods are to be marked with any trade mark or any words, images or designs at the request of the Customer, the Customer shall indemnify and hold the Company harmless against all damages, costs and expenses awarded against or incurred by the Company or agreed to be paid by the Company in
settlement or in connection with any claim for infringement of any Intellectual Property Rights, misuse of Confidential Information, defamation or otherwise as a result of the use of such specification or other material or instructions, or marking.
4.4 The Company reserves the right to make any changes in the Specifications of the Goods and/or Services which are required to conform with any applicable safety standard or other requirements or which do not materially affect their quality or performance.
PERFORMANCE OF THE CONTRACT
5.1 The Company shall use its reasonable efforts to supply the Goods and/or Services to the Customer at the Supply Address within the Lead Time, but time of performance shall not be of the essence. The Lead Time shall not in any event be deemed to commence until each of the conditions in clause 3.4 have been satisfied. The Customer shall provide safe and clear unobstructed access to the Supply Address.
5.2 The Company shall be entitled to supply the Goods and/or Services in instalments in which case each instalment shall be treated as an entirely separate contract and any default or breach by the Company in respect of any such instalment shall not entitle the Customer to cancel any other instalment or treat the Contract as a whole as repudiated. Signature of the Company’s delivery note by a person reasonably appearing to be the Customer’s representative shall be conclusive proof of
5.3 The Customer shall inspect the Goods on delivery and if the Goods are damaged on delivery or less than the correct amount of the Goods is delivered then, unless the Customer puts a note to such effect on the delivery note and notifies the Company within two (2) Working Days of delivery,confirming the notification in writing by letter to the Company within 5 Working Days of delivery, no claim against the Company may be made in respect of damage to or short delivery of such Goods.
Except where such notification is given, the Customer shall be deemed to accept the Goods on delivery notwithstanding any late delivery by the Company.
5.4 The Customer will have no claim in respect of any alleged non-delivery of the Goods unless it gives written notice to the Company which is received by the Company within seven (7) Working Days of the date of the invoice in respect of those Goods.
5.5 If the Customer fails to take or accept delivery of the Goods or fails to give the Company adequate delivery instructions before any estimated delivery date, then, without prejudice to any other right or remedy available to the Company, the Company may:
5.5.1 store the Goods until actual delivery is made and charge the Customer for the costs (including
insurance) of storage; and/or
5.5.2 dispose of the Goods (whether or not such Goods were manufactured or marked by the Company pursuant to the provisions of clause 4.3 above) to a third party at the best price readily obtainable and (after deducting all storage and selling expenses) charge the Customer for any shortfall below the price that the Company would have achieved under the Contract and in either case shall be entitled to charge interest (both before and after any judgment) on the price payable for the Goods under the Contract at the statutory interest rate (as provided for in the Late Payment of Commercial Debts (Interest) Act 2016 from the estimated delivery date to the
date of actual delivery or disposal.
5.6 Where the Services include installation of the Goods, the Customer shall provide safe and clear unobstructed access to the place of installation and such other supplies and facilities as the Company requires in order to perform the Services and shall in advance of performance obtain all required consents, approvals and permissions at its own cost. If the Services include electrical installation the Customer shall provide a suitable electrical feed within 2 metres of the place where the Goods are to be installed. The Customer shall undertake such tests of the Goods as may reasonably be required by the Company. The Customer is responsible for ensuring that the building or structure to which the Goods are to be attached is suitable and where the Goods are to be fixed to an existing subfascia that the subfascia is suitable and of sound construction and condition. When installing the Goods onto an existing subfascia the Company will not intrude into or dismantle the subfascia but will install the Goods onto the subfascia on the basis that the subfascia is sound and suitable. Where the Customer fails in any such obligations the Company shall be entitled at its option to:
5.6.1 terminate the Contract in relation to the relevant Goods; or
5.6.2 continue with the supply of the Goods and charge for such costs (if any) as it has incurred at its standard rates in relation to such installation (up to a maximum of the amount it would have charged for the installation) in which case the Contract shall be deemed to be amended so as to
limit the relevant Services to those actually provided.
5.7 Where the Services include installation of the Goods:
5.7.1 signature of the Company’s installation note by a person reasonably appearing to be the Customer’s representative shall be conclusive proof of their satisfactory installation; and
5.7.2 the Customer acknowledges that without adequate maintenance, there is a risk over time that the Goods may become detached from the building, structure or subfascia to which they have been fixed and the Customer accordingly undertakes to have the Goods properly maintained at least once every 12 months in order to mitigate this risk.
PRICE AND PAYMENT
6.1 The Price shall be exclusive of any applicable VAT and the cost of carriage, packaging and insurance if not expressly included in the Price, which the Customer shall be additionally liable to pay to the Company.
6.2 The Company shall be entitled to invoice the Customer for all amounts due under the Contract on or at any time after the issuance of the Company’s written acknowledgement of Order or acceptance of Quotation.
6.3 The Customer shall make payment in sterling to the Company in respect of all invoices in full within 30 days nett. Time of payment shall be of the essence.
6.4 The Company reserves the right, by giving notice to the Customer at any time before supply, to increase the Price to reflect any increase in the cost to the Company which is due to any factor beyond its control, such as, without limitation, any foreign exchange fluctuation, alteration of import or export duties or tariffs or any relevant tax, increase in the cost of labour, materials of 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 Company adequate access, information or instructions.
6.5 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.
6.6 If at any time the credit standing of the Customer has in the reasonable opinion of the Company been impaired, the Company may suspend the further provision of goods and/or services to the Customer without incurring any liability until arrangements as to payment or credit have been established which are reasonably satisfactory to the Company.
6.7 If full payment is not received by the Company by the due date then without prejudice to its rights the Company shall be entitled:
6.7.1 to sue for the entire Price; and/or
6.7.2 to suspend the further provision of goods and/or services to the Customer without incurring any liability; and/or
6.7.3 to terminate the Contract without incurring any liability; and/or
6.7.4 to charge statutory interest (both before and after any judgment) as provided for in the Late Payment of Commercial Debts (Interest) Act 1998 on the outstanding balance; and/or
6.7.5 to require the immediate return to the Company of all Goods agreed to be sold by the Company tothe Customer in which the property has not passed to the Customer;
6.7.6 to recover its reasonable costs incurred in recovering payment from the Customer together with its costs and expenses in recovering the Goods.
WARRANTY AND LIABILITY
7.1 The Company warrants that the Goods will correspond in all material respects with the Specification and will be free of defects in material and workmanship for a period of twelve (12) months from the date of delivery or, where applicable, installation, provided that:
7.1.1 the warranty shall not apply to illumination and associated control gear and devices;
7.1.2 the Company shall have no liability in respect of any defects in the Goods arising from any specification or other material or instructions submitted by the Customer;
7.1.3 the Company shall have no liability in respect of any defect arising from fair wear and tear, willful damage or negligence by the Customer or persons using the Goods, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), or misuse or alteration or repair of the Goods without the Company’s approval;
7.1.4 the Company shall have no liability if the total Price has not been paid by the due date for
7.1.5 any failure to meet the Specification or the existence of a defect in the Goods shall be notified to the Company in writing within 3 days from the time that the Customer discovered or ought to have discovered the non-conformity or defect, as applicable.
7.2 The Company warrants that the Services will be performed in accordance with the Specification by appropriately qualified and experienced personnel with reasonable care and skill provided that:
7.2.2 the Company shall have no liability in respect of any deficiency in the Services arising from any specification or other material or instructions submitted by the Customer;
7.2.3 the Company shall have no liability in respect of failures or problems resulting from faults with the building, structure or subfascia to which the Company fixed the Goods where such faults were not apparent at the time of installation and had not been notified to the Company in
writing by the Customer;
7.2.4 the Company shall have no liability in respect of any loss or damage (howsoever and to whomsoever arising) which results from any breach of the Customer’s undertaking in clause 5.7.2
7.2.5 the Company shall have no liability if the total Price has not been paid by the due date for payment.
7.2.6 any failure to meet the Specification or to undertake the Services with reasonable care and skill shall be notified to the Company in writing within 3 days from the time that the Customer discovered or ought to have discovered the non-conformity or deficiency, as applicable.
7.3 In the event of any valid claim under clauses 7.1 or 7.2 above being made by the Customer, the Customer shall afford the Company a reasonable opportunity to inspect the Goods or the results of the Services at a time convenient to the Company and the Company shall be entitled to replace or
repair the Goods (or the part in question) or re-perform the Services free of charge or, at the Company’s sole discretion, refund to the Customer the Price (or a proportionate part of the Price as appropriate). The Company shall have no further liability to the Customer.
7.4 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979 and section 2 of the Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the Contract.
7.5 The Company does not seek to exclude or limit its liability for fraud or fraudulent misrepresentation or death or personal injury resulting from negligence, or for any other matter in respect of which it would be unlawful for the Company to exclude or limit its liability.
7.6 Except pursuant to clause 7.5 above, the Company shall not in any event be liable for:
7.6.2 any loss of profits;
7.6.3 loss or depletion of goodwill;
7.6.4 loss of anticipated savings, business opportunity or data; or
7.6.5 any indirect, special or consequential loss or damages; howsoever arising in connection with or arising out of the provision, performance, functioning or use of the Goods and/or Services, whether in contract, strict liability, tort (including without limitation, negligence) and whether the Company knew or had reason to know of the same, and shall not be liable for any other damages except as provided in the Contract.
7.7 Except pursuant to clause 7.5 above in no event shall the Company’s liability in respect of any of the Goods and/or Services where such a claim is for breach of contract, strict liability or tort (including without limitation, negligence) or otherwise exceed the price paid for those Goods and/or
CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY RIGHTS
8.1 The Customer and the Company agree that in the course of the Company providing Goods and/or Services to the Customer, the parties may disclose to each other certain Confidential Information. The Customer and the Company agree that each party will maintain the Confidential Information’s confidentiality and not disseminate it to any third party without the disclosing party’s prior written consent, save that this obligation shall not apply to any Confidential Information that either party has a duty (whether legal or otherwise) to communicate or that is in the public domain or is already in the receiving party’s possession through no fault of the receiving party. The Customer and the Company further agree not to use any Confidential Information for any purpose other than the discharge of their respective obligations under the Contract.
8.2 The Customer acknowledges the Company’s sole and exclusive ownership of any Intellectual Property Rights in any Company Material and in any Goods and/or Services supplied to the Customer pursuant to the Contract and agrees not to contest the Company’s ownership or use of any such Intellectual Property Rights. Without limitation, the Customer shall not acquire any such Intellectual Property Rights or any licence or grant of rights therein, nor shall the Customer register
or attempt or permit to be registered, any such Intellectual Property Rights or any licence or grant ofrights therein. The Customer further acknowledges that, without limitation, any and all Intellectual Property Rights developed by the Company in supplying any Goods and/or Services to the Customer shall become vested and shall vest in the Company absolutely and shall also be subject to the other provisions of this clause 8.2. The Customer shall not copy or reproduce any Company Material
without the Company’s prior written consent and the Customer shall immediately return any and all Company Material to the Company upon request.
RISK AND TITLE
9.1 The Goods are at the risk of the Customer from the time of delivery.
9.2 Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) the Price for the Goods. The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
9.3 Until ownership of the Goods has passed to the Customer, the Customer shall:
9.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
9.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property;
9.3.3 grant the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them;
9.3.4 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
9.3.5 maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company.
9.4 The Customer may resell the Goods before ownership has passed to it solely on the following conditions:
9.4.1 any sale shall be affected in the ordinary course of the Customer’s business at full market value; and
9.4.2 any such sale shall be a sale of the Company’s property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale.
9.5 The Customer’s right to possession of the Goods shall terminate immediately and the Company may recover the Goods if:
9.5.1 full payment of the Price is not received by the due date for payment; or
9.5.2 the Company is entitled to terminate the Contract under clauses 10.1.3 or 10.1.4 below; or
9.5.3 the Customer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other contract between the Company and the Customer; or
9.5.4 the Customer encumbers or in any way charges any of the Goods.
9.6 The Company shall be entitled to re-sell or otherwise dispose of recovered Goods in any way that
the Company in its absolute discretion, thinks fit.
10.1 The Company shall be entitled to terminate the Contract immediately by notice in writing to the Customer if:
10.1.2 the Customer fails to pay the Deposit or provide all designs and artwork necessary for the Specification within five (5) Working Days after the date of the Contract or fails to agree the final Specification within ten (10) Working Days after the date of the Contract (or in each case within
such longer period as the parties may agree);
10.1.3 the Customer perpetrates an irremediable breach of the Contract, or perpetrates any remediable breach and fails to remedy it within 30 (thirty) days of receipt of notice of the breach requiring remedy of the same; or
10.1.4 the Customer makes an arrangement with or enters into a compromise with its creditors, becomes the subject of a voluntary arrangement, receivership, administration, liquidation or winding up, is unable to pay its debts or otherwise becomes insolvent or suffers or is the subject of any distraint, execution, event of insolvency or event of bankruptcy or any other similar process or event, whether in the United Kingdom or elsewhere; or
10.1.5 the Customer ceases or threatens to cease to carry on business; or
10.1.6 there is at any time a material change in the management, ownership or control of the Customer; or
10.1.7 the Company reasonably apprehends that any of the events specified in clauses 10.1.4 to
10.1.6 are about to occur and notifies the Customer accordingly.
10.2 In the event of termination by the Company pursuant to clause 10.1 above then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to suspend any further supply under the Contract and under any other contract between the parties without any liability to the Customer and, if the Goods and/or Services (or any part thereof) have already been supplied but not paid for, the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
The Company reserves the right to defer the date of supply of the Goods and/or Services or to cancel the Contract without incurring any liability or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, Acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, sabotage, storm, earthquake, subsidence, adverse weather conditions, pestilence, epidemic, lock-outs, strikes or other labour disputes (whether or notrelating to either party’s workforce), legal restrictions, non-availability of transport, cessation or interruption of operation of any plant or process, failure of supply of raw materials or components or breakdown of machinery, provided that, if the event in question continues for a continuous period in excess of ninety (90) days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
12.1 The remedies available to the Company under the Contract shall be without prejudice to any other rights, either at common law or under statute, which it may have against the Customer.
12.2 The failure or delay of the Company to enforce or to exercise, at any time, or for any period of time, any term of or any right, power or privilege arising pursuant to the Contract does not constitute and shall not be construed as a waiver of such term or right and shall in no way affect its right later to
enforce or exercise it, nor shall any single or partial exercise of any remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.12.3 The invalidity or unenforceability of any term of, or any right arising pursuant to the Contract shall not in any way affect the remaining terms or rights which shall be construed as if such invalid or unenforceable term or right did not exist.
12.4 Any notice or written communication required or permitted to be served on or given to either party under the Contract shall be delivered by hand or sent by recorded delivery mail to the other party to such address as has previously been notified to the sending party and shall be deemed to have been given on the day of delivery.
12.5 The Contract is personal to the Customer and the Customer may not assign, transfer, subcontract or otherwise part with the Contract or any right or obligation under it without the prior written consent of the Company. The Company shall be entitled to assign, transfer, sub-contract or otherwise part with the whole or any part of the Contract or any right or obligation under it to any third party.
12.6 The Contract contains all the terms agreed by the parties relating to the subject matter of the Contract and supersedes any prior agreements, understandings or arrangements between them, whether oral or in writing, and no representation, undertaking or promise shall be taken to have been given or been implied from anything said or written in negotiations between the parties prior to the Contract except as set out in the Contract.
12.7 No variation or amendment to the Contract shall be effective unless it is in writing and signed by authorised representatives of the parties. The Customer shall be liable to pay the Company any costs, charges or expenses which arise from any such variation or amendment and which are notified
to the Customer by the Company.
12.8 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
12.9 The formation, existence, construction, validity and performance and all aspects of the Contract (including any associated non-contractual disputes or claims) are governed by the laws of England and the parties accept the non-exclusive jurisdiction of the English Courts.
12.10 Thomas Dean Design reserve the right to remove signs not paid for in full 28 days after fitting.
12.11 In the event of 12.10 being exercised, Thomas Dean Design reserve the right to charge for any costs incurred, including manpower and travel, in dismantling and removing the subject goods from the client’s premises.
12.12 Any alterations to the design specification or any such variations outside of the quoted costs of the client’s order will be subject to an ‘Additions Note’ process. Thomas Dean Design will not commence any work detailed on an Additions Note until signed by the client as acceptance of the descriptive contents and cost quoted.