Sales Terms and Conditions
1. INTERPRETATION
1.1 In these Terms & Conditions the following words have the following meanings: the Customer means the person(s), firm or company whose order for Products is accepted by the Company;
the Company means CREATIVE DISPLAYS (UK) LTD (registered number 02678318)including any divisions, associated companies and including any business conducted under any additional trading names the Company trades under, including (but not limited to) Fathom;
Contract means any Contract either express or implied between the Company and the Customer for the sale and purchase of Products;
Delivery Point means the place where delivery of Products is to take place;
Products means any products (whether or not manufactured by the Company) or services which the Company is to supply to the Customer (including any part or parts of them).
1.2 In these Terms & Conditions references to any statute or statutory provision shall unless the context requires otherwise include a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Terms & Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 In these Terms & Conditions headings will not affect the construction of these Terms & Conditions.
2. APPLICATION OF TERMS
2.1 Any Contract between the parties will be on these Terms & Conditions to the exclusion of all other terms and Terms & Conditions (including any terms and terms & conditions which the Customer purports to apply under any verbal confirmation, purchase order, confirmation of order, specification or other document).
2.2 No terms or terms & conditions endorsed upon, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Terms & Conditions apply to all the Company’s sales and any variance to these Terms & Conditions and any representations about the Products shall have no effect unless expressly agreed in writing and signed by a Director of the Company.
2.4 Each order for Products by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Products subject to these Terms & Conditions.
2.5 No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or the Company delivers the Products (if both, whichever is earlier) to the Customer. Acceptance of delivery of the Products shall be deemed to be conclusive evidence of the Customer’s acceptance of these terms and Terms & Conditions.
2.6 The Customer must ensure that the terms of its order and any applicable specification provided by it and any interpretation of such specification as provided by the Company are complete and accurate.
2.7 Any quotation is calculated using the specification or order details provided by the Customer and is given on the basis that no Contract will come into existence until the Company despatches an acknowledgement of order to the Customer or delivers the Products to the Customer (if both, whichever is earlier).
2.8 Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it and provided the Customer does not amend the specification agreed with the Company.
2.9 No order which has been accepted by the Company may be cancelled by the Customer except with the written consent of the Company and on terms that the Customer will if required by the Company indemnify the Company in full against all losses (including loss of profit) costs (including the costs of all labour and material used), damages, charges and expenses suffered or incurred by the Company as a result of such cancellation. Cancellation of any order will not normally be accepted where the Company has completed more than 50% of any Contract.
2.10 The Company reserves the right at its discretion to charge on a time and materials basis for any preliminary work in advance of a contractual agreement whether such agreement is eventually made or not.
3. DESCRIPTION AND SPECIFICATIONS
3.1 The description of the Products shall normally be as set out in the Company’s quotation.
3.2 All 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 Products described in them. They will not form part of any Contract.
3.3 If the Products are to be manufactured or any process is to be applied to the Products by the Company in accordance with a specification submitted by the Customer, the Customer shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with, or paid or agreed to be paid by the Company 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 Company’s use of the Customer’s specification.
3.4 The Company shall be under no obligation to ensure that the Products are an exact match or that one batch of Products exactly matches another, whether the colour or finish are defined by reference to a sample or by description. Where a colour or finish is specified in the Contract by reference to a sample or description, the Customer shall accept as complying with the Contract all parts which are a reasonable commercial match with the sample or correspond with the description, as the case may be, and a commercial match with each other in accordance with the standard generally recognised in the industry.
3.5 The Company reserves the right to make substitutions and modifications in the specification of any product provided that such substitutions and modifications do not materially affect the performance of the Products.
4. DELIVERY
4.1 If carriage is required the Products shall be delivered by such means as the Company thinks fit unless the Customer has specified a carrier which it reasonably requires, or specifies Customer collection of the Products. Risk shall pass to the Customer upon collection by the Customer or the Customers appointed carrier.
4.2 If the Company delivers the Products by way of a carrier appointed by the Company, the risk in the Products shall be with the carrier upon collection by the carrier.
4.3 Any dates specified by the Company for delivery of the Products are intended to be an estimate and time for delivery shall not be made of the essence by notice unless such notice is expressly accepted in writing by a Director of the Company.
4.4 Subject to the other provisions of these Terms & Conditions the Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Products.
4.5 Without prejudice to other provisions of this Section if for any reason the Customer does not accept delivery, or if appropriate arrange collection, of any Products when they are ready for delivery or collection, or requests delay, or the Company is unable to deliver the Products on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
4.5.1 risk in the Products will pass to the Customer;
4.5.2 the Products will be deemed to have been delivered; and
4.5.3 the Company may store the Products until delivery and the Customer will at the discretion of the Company be liable for all related costs and expenses;
4.5.4 the Company may at the discretion of the Company invoice the Customer for the Products.
4.6 If carriage is required by the Customer the Customer will provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for offloading.
4.7 The Customer will indemnify the Company against any liability and expense (whether arising under statute or common law) caused by the Customer’s failure to provide appropriate equipment and manual labour for off-loading (whether or not the off-loading is supervised by or on behalf of the Customer) for;
4.7.1 any personal injury to or death of any of the Company’s employees, agents or sub-contractors or any third party; and
4.7.2 any damage to or loss of any property of the Company, its employees, agents or sub-contractors or any third party.
4.8 Where the Products are to be delivered in instalments, each delivery shall constitute a separate Contract and failure by the Company to deliver any one or more of the instalments in accordance with these Terms & Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the whole Contract as repudiated or to refuse other deliveries.
4.9 If the Company agrees to a request from the Customer to expedite delivery of the Products the Customer shall pay for all additional costs incurred by the Company including any overtime payments.
4.10 Where the Company delivers products by way of carrier appointed by the Company notification of transit damage shall be made in writing to both the carrier and the Company within three days of delivery and claims for non-delivery should be notified to the carrier and the Company and the carrier within twenty eight days of delivery or the receipt of invoice from the Company whichever is the sooner.
4.11 The quantity of any consignment of Products as recorded by the Company in the Company’s delivery note upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide irrefutable evidence proving the contrary.
4.12 Where a carrier is appointed by the Company to deliver the Products any liability for non-delivery, delay in delivery or damages to the Products arising during delivery shall be with the carrier and the Company shall, so far as it is able, transfer to the Customer such rights as it has against the carrier.
4.13 Where a carrier is appointed by the Customer to deliver the Products or wherethe Customer collects the Products any liability for non-delivery, delay in delivery or damages to the Products arising during delivery shall be with the Customer.
4.14 Any liability of the Company for non-delivery of the Products notwithstanding the foregoing shall be limited to replacing the Products within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Products.
5. CUSTOMER PROPERTY
5.1 Any property supplied to the Company by or on behalf of the Customer will be held, worked on and carried by the Company entirely at the risk of the Customer save where the Company is negligent in so doing.
5.2 The Company may reject any materials supplied or specified by the Customer which the Company considers unsuitable and the Customer shall be liable for any additional costs caused thereby.
5.3 Quantities of materials supplied by or on behalf of the Customer shall be adequate to cover normal spoilage.
6. TITLE
6.1 Ownership of the Products shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
6.1.1 the Products; and
6.1.2 all other sums which are or which become due to the Company from the Customer in respect of the supply of the Products.
6.2 Until ownership of the Products has passed to the Customer, the Customer shall:
6.2.1 hold the Products on a fiduciary basis as the Company’s bailee;
6.2.2 ensure that the Products remain readily identifiable as the Company’s property;
6.2.3 not destroy, deface or obscure any identifying mark relating to the Products.
6.3 The Customer may resell the Products before ownership has passed to it solely on the basis that any sale shall be effected in the ordinary course of the Customer’s business and the Customer shall hold such part of the proceeds of sale as represent the amount owed by the Customer to the Company on behalf of the Company. The resale of products by the Customer shall not establish the Customer as an agent of the Company.
6.4 The right of the Customer to possession of the Products prior to the passing of title to the Customer shall terminate immediately if:
6.4.1 the Customer has a bankruptcy order made against him/it or makes an arrangement or composition with his/its creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Customer, or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
6.4.2 the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other Contract between the Company and the Customer, or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
6.4.3 the Customer encumbers any of the Products.
6.5 The Company shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from the
Company.
6.6 The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
6.7 The provisions of Section 6 shall apply where the Products that remain the property of the Company are mixed with other goods or become a constituent part of other goods. Where Products become a constituent part of other goods and where the Customer’s right to possession of the Products has terminated, the Company may still recover them and the Customer shall be entitled to fair and reasonable compensation for work done and goods contributed by the Customer.
6.8 Without prejudice to other remedies the Company shall have a general lien on all goods and property owned by the Customer in its possession (whether worked on or not) in respect of all unpaid debts due from the Customer and the Company shall be entitled on the expiration of fourteen days notice given in writing to the Customer to dispose of such goods or property as it thinks fit and apply any monies as may be received towards such debts.
7. PRICE
7.1 The price of the Products shall be the price set out in the quote, or, if no price is quoted, the price shall be the price ruling as at the date of despatch.
7.2 Unless specified otherwise the price for the Products shall be exclusive of any value added tax or any other applicable tax which the Customer will pay in addition when it is due to pay for the Products.
7.3 The Company reserves the right at its discretion to amend the price of any Products to that ruling on the date of despatch and the Customer shall be notified as soon as feasible of any such alteration.
8. PAYMENT
8.1 Payment of any invoice which is not specified as issued for immediate paymentshall fall due 30 days following the date of issue of the invoice or 30 days following delivery whichever is the sooner.
8.3 The Company reserves the right, in its absolute discretion, to require payment in cash or cleared funds by the Customer for any instalment of the Products prior to the date of delivery and any failure to pay on the due date provided by the Company pursuant to this Section, may result in a delay in delivery of the Products or termination of the Contract by the Company. Such termination shall be without any liability on the part of the Company.
8.4 No payment shall be deemed to have been received until the Company has received cleared funds.
8.5 All payments payable to the Company under the Contract shall become due immediately upon termination of this Contract despite any other provision.
8.6 The Customer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise except as required by law.
8.7 The Company may apportion any payment made by the Customer to the Company to such of the Products as the Company thinks fit despite any purported apportionment by the Customer.
8.8 Late Payments by the Customer shall at the discretion of the Company incur interest on the overdue amount payable by the Customer at the rate of 3% per annum above Lloyds Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount.
9. QUALITY
9.1 The Company warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Products shall:
9.1.1 conform in all material respects with the Specification;
9.1.2 be free from material defects in design, materials and workmanship;
9.1.3 be of merchantable quality; and
9.1.4 be fit for any purpose held out by the Company.
9.2 Subject to clause 9.3, if:
9.2.1 the Customer gives notice in writing to the Company during the warranty period within a reasonable time of discovery that some or all of the Products do not comply with clause 9.1;
9.2.2 the Company is given a reasonable opportunity after receiving the notice of examining such Products; and
9.2.3 the Customer (if asked to do so by the Company) returns such Products carriage paid by the Customer which will be refunded by the Company;
then the Company shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full.
9.3 The Company shall not be liable if:
9.3.1 the Customer makes any further use of such Products after giving notice in accordance with clause 9.2 without the consent of the Company;
9.3.2 the defect arises because the Customer failed to follow oral or written instructions of the Company as to the storage, commissioning, installation, use and maintenance of the Products or (if there are none) good trade practice regarding the same;
9.3.3 the defect arises as a result of any drawing, design or specification supplied by the Customer;
9.3.4 the Customer alters or repairs or attempts to alter or repair such Products without the written consent of the Company;
9.3.5 the Products have not been properly maintained, or have been subject to misuse, unauthorised repair, replacement modification or alteration;
9.3.6 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
9.3.7 the Products differ from the Specification as a result of necessary changes made to ensure they comply with any applicable statutory or regulatory requirements;
9.3.8 the Products were damaged during transit (see Section 4);
9.3.9 the defect arises as a result of the inappropriate application of cleaning or other chemicals.
9.4 Where the Company is not the manufacturer of the Products, the Company will endeavour to transfer to the Customer the benefit of any warranty or guarantee given to the Company.
10. INTELLECTUAL PROPERTY
10.1 The Customer agrees that no intellectual property rights either express or implied shall be assigned and/or transferred to the Customer by virtue of any Contract for sale of Products unless expressly provided for in writing in the Contract.
10.2 Use by the Customer of any trademarks, logos, emblems or proprietary images of the Company is strictly prohibited unless expressly provided for in writing.
10.3 Any documents containing any technical data, drawings, reports and any other information or documentation which may contain intellectual property must be returned on demand.
11. LIMITATION OF LIABILITY
11.1 The following provisions and the provision of Section 9, set out the entire liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
11.1.1 any breach of these Terms & Conditions; and
11.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2 All warranties, terms & conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these Terms & Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or for fraudulent misrepresentation.
11.4 The Company’s total liability in Contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price of the Contract.
11.5 The Company shall not be liable to the Customer for any loss of goodwill or reputation, loss of profit of loss of sales (whether direct or indirect) or any consequential or indirect loss, damage or expense whatsoever (howsoever caused) which arises out of or in connection with the Contract.
11.6 The Customer shall indemnify the Company against all liability, actions, proceedings, costs, claims, damages or demands in any way connected with the Contract brought or threatened to be brought against the Company by any third party except to the extent the Company is liable to the Customer in accordance with these terms and Terms & Conditions.
12. ASSIGNMENT
12.1 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
12.2 The Company may assign the Contract or any part of it to any person, firm or company.
13. FORCE MAJEURE
13.1 The Company shall not be deemed to be in breach of any Contract or otherwise liable to the Customer in any manner whatsoever for any failure or delay in performing its obligations under any Contract due to Force Majeure.
13.2 For the purpose of this Section “Force Majeure” means, any cause preventing the Company from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the Company including without limitation, strikes, lockouts or other industrial disputes (whether involving the workforce of the Company or any other party) act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of supplies or sub-Contractors.
14. TERMINATION
14.1 The Contract will terminate immediately upon the happening of any one or more of the following events; the Customer has a bankruptcy order made against him/it or makes an arrangement or composition with his/its creditors or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether voluntary or compulsory), except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver, manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer.
14.2 The Contract will terminate immediately upon service of written notice of termination by the Company on the Customer on the happening of any one or more of the following; the Customer suffers or allows any execution whether legal or equitable to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations or duties under the Contract or any other Contract between the Company and the Customer or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or the Customer ceases to trade.
14.3 The Company’s rights contained in Section 6 (but not the Customer’s rights) shall continue beyond the discharge of the Customer’s and the Company’s primary obligations under the Contract consequent upon its termination.
14.4 The termination of the Contract howsoever arising shall be without prejudice to the rights and duties of either the Customer or the Company accrued prior to termination.
15. INSTALLATION
15.1 The assembly, erection, distribution and installation of the Products is not included in the price unless specifically agreed in writing.
15.2 Where installation is agreed exclusive free access shall be given to open floor areas during normal working hours, to allow installation to take place.
15.3 The Customer shall ensure that the site is prepared and access to electricity and any other services that may be required by the Company are fully available.
15.4 The Customer shall provide suitable protection for the Products from the date of delivery at the Delivery Location both before and after installation.
15.5 Where the site has not been correctly prepared for installation the Customer shall be liable to pay the Company for any loss suffered due to this delay.
15.6 The Company shall not be liable for any inaccuracy in the information given to the Company prior to installation being agreed and any associated costs incurred due to this.
15.7 The Company shall not be liable for any loss or delay which is outside of its control whilst installing or commissioning of equipment and may charge the Customer for any costs incurred as a result of any delay.
15.8 The Customer shall inspect the installation of the Products when the installation has been completed. Should the installation not meet the written specification for installation agreed between the Company and the Customer the sole liability of the Company will be to rectify the installation so that it meets the written specification.
16. GENERAL
16.1 Time for performance of all obligations of the Customer under the Contract is of the essence.
16.2 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
16.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
16.4 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
16.5 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
16.6 The parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any
person not a party to it.
16.7 These Terms and Conditions replace any previous versions. The Company reserves the right to change these Terms and Conditions at any time. The Customer should not assume without checking the Terms and Conditions in force at the time that the same terms will apply to future orders or delivery or installation requests.
16.8 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
17. COMMUNICATIONS
17.1 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by email:
17.1.1 (in case of communications to the Company) to its registered office or such changed address or email address as shall be notified to the Customer by the Company; or
17.1.2 (in case of communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address, email of the Customer set out in any document which forms part of this Contract or such other address, email or facsimile as shall be notified to the Company by the Customer.
17.2 Communications shall be deemed to have been received:
17.2.1 if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and Bank and public holidays) after posting (exclusive of the day of posting);
17.2.2 if delivered by hand, on the day of delivery;
17.2.3 if sent by email on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.