Terms & Conditions
Supply of Service
DESIGN REALITY - TERMS & CONDITIONS - SUPPLY OF SERVICE
TERMS & CONDITIONS - FOR THE PURCHASE OF GOODS FROM SUBCONTRACTORS
The definitions and rules of interpretation in this Condition apply in these Conditions.
Artwork: Any image or design provided in any form to the Company by the Customer for use by the Company in the performance of any Services.
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.
control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly
Customer: the person, firm or company who purchases the Services from the Company.
Company: Design Reality Limited.
Contract: any contract between the Company and the Customer for the Supply of Services, incorporating these Conditions.
Conditions: these Terms and Conditions of Supply.
Data Controller: has the meaning set out in the Data Protection Act 1998 and the General Data Protection Regulation 2018. Further clarification on what a Data Controller is and the role of the Data Controller can be found on the Information Commissioner’s Office website: www.ico.org.uk
Data Processor: has the meaning set out in the Data Protection Act 1998 and the General Data Protection Regulation 2018. Further clarification on what a Data Processor is and the role of the Data Processor can be found on the Information Commissioner’s Office website: www.ico.org.uk
Data Protection Legislation: Data Protection Act 1998 and General Data Protection Regulation 2018
Document: any document in writing, and any map, plan, graph, drawing or photograph and any film, negative tape or other device or document embodying visual images and any disc, tape or other device or document embodying any other data.
Free Issue Materials: any goods provided to the Company by the Customer without charge, which are for use by the Company in the performance of any Services.
Input Material: any Documents or other materials, and any data or other information provided to the Company by the Customer relating to the Services, including, without limitation, any Artwork and/or Free Issue Materials.
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 of the foregoing in any jurisdiction, whether registered or unregistered.
Output Material: any Documents or other materials including, without limitation, any goods produced, developed, used and/or provided in connection with the Services and any data or other information provided by the Company to the Customer relating to the Services.
Personal Data: Any data which relates to a living individual who may be identified from such data. Further clarification on what constitutes Personal Data can be found in the General Data Protection Regulation 2018 and on the Information Commissioner’s Office website: www.ico.org.uk
Retail Prices Index: a measure of inflation which measures the change in the cost of a representative sample of retails goods and services.
Services: any services agreed in the Contract to be performed by the Company for the Customer (including any part or parts of them) including, without limitation, any goods produced, developed, used and/or provided in connection with such services.
Supply: the provision of any Services by the Company to the Customer. For the avoidance of doubt, any Services so provided, (or to be so provided, as applicable), are Supplied.
1.1 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.
1.2 Words in the singular include the plural and in the plural include the singular.
1.3 A reference to one gender includes a reference to the other gender.
1.4 Condition headings do not affect the interpretation of these Conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under Condition 2.3 the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Customer's purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to the Supply of any and all Services by the Company and any variation to these Conditions and any representations about any Services shall have no effect unless expressly agreed in writing and signed by an authorised signatory of the Company. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this Condition shall exclude or limit the Company's liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Services by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Services subject to these 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.
2.6 Without prejudice to the provisions of Condition 2.5, if the Customer wishes to change any order, (which, for the avoidance of doubt shall include, but shall not be limited to, any amendment, addition or substitution with respect to any Input Material and/or any specification), any such change is subject to acceptance by the Company and the Customer must pay any additional charges associated with fulfilling the changed order.
2.7 The Customer shall ensure that the terms of its order and any Input Material and/or any applicable specification are complete, accurate and fully comprehensible and are submitted to the Company within a sufficient time period such as will enable the Company to fulfil the Company’s obligations under the Contract.
2.8 Any quotation is given on the basis that no Contract shall come into existence until the Company dispatches a written acknowledgment of order to the Company. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.1 The description of any Services shall be as set out in the Company's quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's website, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract and this is not a sale by sample.
3.3 Any and all Artwork shall be submitted in such format or formats and shall meet such standards as may be prescribed by the Company from time to time, at the Company’s absolute discretion. Details of any formats and standards prescribed by the Company for the submission of Artwork may be obtained by contacting Ms. Caroline Baker of the Company.
3.4 The Customer shall be responsible for delivering any and all Free Issue Materials to the Company’s premises, unless otherwise agreed in advance with the Company and the Customer shall, unless otherwise so agreed, also pay any and all costs associated therewith.
3.5 All Free Issue Materials shall be handled by the Company at the Customer’s own risk and may be disposed of by the Company at the Customer’s cost, (if any) unless otherwise agreed with the Company in advance.
3.6 If any Services are to be performed by the Company in accordance with any Input Material and/or any specification submitted by the Customer, the Customer shall hold the Company harmless and shall fully indemnify the Company against any and all liabilities, loss, damage, costs and expenses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional 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 any other intellectual property right of any other person resulting from the Company’s use of any Input Material and/or any specification so submitted.
4. COMMENCEMENT AND DURATION
4.1 The Services supplied under the Contract shall be provided by the Company to the Customer from the date of acceptance by the Company of the Customer's offer in accordance with Condition 2.5, unless otherwise specified by the Company.
4.2 Subject to Condition 12, and unless the Company specifies that the Services shall not be provided on a repetitive basis, the Services shall be provided for such fixed period as the Company shall determine in advance and shall continue to be supplied unless the Contract is terminated by one of the parties giving to the other such period of notice as the Company shall determine in advance.
5. COMPANY'S OBLIGATIONS
5.1 The Company shall use its reasonable endeavours to provide the Services to the Customer.
5.2 The Company shall use its reasonable endeavours to meet any performance dates specified by the Customer, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services. For the avoidance of doubt, the Company’s performance under this Condition 5.2 is subject always to the Customer not being in breach of this Contract.
6. CUSTOMER'S OBLIGATIONS
6.1 The Customer shall:
co-operate with the Company in all matters relating to the Services;
promptly provide the Company with such Input Material and other information as the Company may require;
obtain and maintain all necessary licences and consents and comply with all relevant legislation in relation to the Services and the use of any Input Material, in all cases before the date on which the Services are to start;
keep and maintain any Output Material in good condition, and shall not dispose of or use the Output Material other than in accordance with the Company's written instructions or authorisation; and
in all cases where the Customer’s use of any rights in any Output Material is subject to the provisions of Condition 8.2, strictly adhere to the terms of any licence or sub-licence granted to the Customer by the Company.
6.2 If the Company's performance of its obligations under the Contract is prevented, delayed or suspended by any act or omission of the Customer, its agents, subcontractors, consultants or employees, the Company shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
6.3 The Customer shall be liable to pay to the Company, on demand, all reasonable costs, charges or losses sustained or incurred by the Company (including, without limitation, any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.
6.4 The Customer shall hold the Company harmless and keep the Company indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by any third party to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.
6.5 The Customer shall obtain and maintain a suitable policy of insurance in an amount adequate to provide coverage for any and all of the risks contemplated by Conditions 6.3, 6.4 and 3.6. and shall produce such policy of insurance for inspection by the Company upon request.
6.6 The Customer shall not, without the prior written consent of the Company, at any time from the date of the Contract to the expiry of 12 months after the last date of supply of the Services or termination of the Contract, as applicable, solicit or entice away from the Company or employ (or attempt to employ) or otherwise engage or attempt to engage the services of any person who is, or has been, engaged as an employee, consultant or subcontractor of the Company in the provision of the Services.
6.7 Any consent given by the Company in accordance with Condition 6.6 shall be subject to the Customer paying to the Company a sum equivalent to 15 % of the then current annual remuneration of the Company's employee, consultant or subcontractor.
7. PRICE AND PAYMENT
7.1 Unless otherwise agreed by the Company in writing, the price for the Services shall be the price set out in the Company’s written acknowledgment of order pursuant to Condition 2.5.
7.2 The price for the Services shall be exclusive of any value added tax.
7.3 The Customer shall pay to the Company any additional sums which, in the Company’s sole discretion, are required as a result of the Customer’s instructions or lack of instructions, the inaccuracy of any Input Material or any other cause attributable to the Customer. The Company reserves the right to increase the price of the Services due to any change in the Services requested by the Customer, or any delay caused by any instructions of the Customer or any failure of the Customer to give the Company adequate information or instructions.
7.4 The price for the Services shall be paid by the Customer to the Company, as follows:
If the Company has agreed monthly credit terms with the Customer, the Company’s invoices must be paid by the last day of the month following the date of the invoice; or
If no credit terms have been agreed, then full payment must be made when the Customer’s order is placed.
7.5 Time for payment shall be of the essence.
7.6 No payment shall be deemed to have been received until the Company has received cleared funds. In the event that the Customer tenders payment by cheque and said cheque is returned unpaid to the Company, the Customer shall reimburse the Company for any bank charges incurred by the Company.
7.7 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
7.8 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 unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
7.9 If the Customer fails to pay the Company any sum due pursuant to the Contract, the Customer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4 % above the base lending rate from time to time of the Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. The Customer shall reimburse the Company for any and all costs incurred by the Company in recovering payment pursuant to this Condition 7.
7.10 Without prejudice to Condition 7.9, any failure by the Customer to pay the Company any sum by the due date for payment and/or the occurrence of any one or more of the events set forth in Condition 12.1 (d)-(j) shall entitle the Company, at any time and without notice to the Customer and without limitation to any other remedy available to the Company under these Conditions, the Contract, or otherwise:
To suspend or cancel the performance of any Services;
To withdraw or reduce any agreed monthly credit limit; and
To treat the Contract as having been repudiated by the Customer.
7.11 The Customer may not cancel any order for Services for which a written acknowledgment of order has been issued by the Company pursuant to Condition 2.5 and if the Customer cancels, or purports to cancel any such order (or the Contract or any part thereof), then the Company may, by notice in writing to the Customer, elect to treat the Contract as repudiated.
7.12 For the avoidance of doubt, and notwithstanding the exercise of any remedy by the Company in accordance with Condition 7.10 or 7.11, or under any other of these Conditions, the Contract, or otherwise, the Customer shall remain liable to pay and shall pay the Company at the Contract rate, any and all payments subsisting at the relevant time.
7.13 The Company may increase the price of the Services on an annual basis with effect from each anniversary of the date of this Contract in line with the percentage increase in the Retail Prices Index in the preceding 12-month period, and the first such increase shall take effect on the first anniversary of the date of this Contract and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 As between the Customer and the Company but subject to Condition 8.2, all Intellectual Property Rights and all other rights in the Output Material, Document and the Services shall be owned by the Company. Subject to Condition 8.2, the Company licenses all such rights to the Customer on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Services. If the Company terminates the Contract under Condition 12.1 or the Contract terminates, as applicable, this licence shall automatically terminate. For the avoidance of doubt, the grant of any such licence shall be subject to payment of the Services in accordance with Condition 7.
8.2 The Customer acknowledges that, where the Company does not own the relevant Output Material, the Customer's use of rights in such Output Material pursuant to this Condition 8.2 is conditional on the Company obtaining a written licence (or sub-licence) from, or otherwise obtaining the consent of, the relevant licensor or licensors (at the Customer’s cost, if any) on such terms as will entitle the Company to license such rights to the Customer.
8.3 The Customer agrees not to sub-license, assign or otherwise transfer the rights granted under Condition 8.1 without the prior written consent of the Company.
9. CONFIDENTIALITY AND THE COMPANY'S PROPERTY
9.1 The Customer undertakes that it shall not at any time during this Contract, and for a period of five years after termination of this Contract, disclose to any person any Confidential Information concerning the business, affairs, customers, clients, suppliers, technical or commercial know-how, specifications, inventions, processes or initiatives of the Company, except as permitted by Condition 9.2.
9.2 The Customer may disclose such information:
(a) to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information for the purposes of carrying out the Customer's obligations under the Contract; and
(b) as may be required by law, court order or any governmental or regulatory authority.
9.3 The Customer shall ensure that its employees, officers, representatives, advisers, agents or subcontractors to whom it discloses such information comply with this Condition 9.
9.4 The Customer shall not use any such information for any purpose other than to perform its obligations under the Contract.
9.5 Any and all Output Material, including but not limited to any materials, goods, drawings, templates, specifications and data supplied by the Company to the Customer, shall be held by the Customer in safe custody at the Customer’s premises and at its own risk and maintained and kept in good condition by the Customer until returned to the Company, and shall not be disposed of or used other than in accordance with the Company's written instructions or authorisation.
10. LIMITATION OF LIABILITY - THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
10.1 This Condition 10 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
(a) any breach of the Contract;
(b) any use made by the Customer of the Services, the Output Material, or any part of them or it; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in this Contract limits or excludes the liability of the parties:
(a) for death or personal injury resulting from negligence; or
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
10.4 Subject to Condition 10.2 and Condition 10.3
(a) the Company shall not be liable for:
(i) loss of profits;
(ii) loss of business;
(iii) depletion of goodwill and/or similar losses;
(iv) loss of anticipated savings;
(v) loss of goods;
(vi) loss of contract;
(vii) loss of use;
(viii) loss of corruption of data or information;
(viiii) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the lesser of (a) 1.5 (one and a half) times the monies paid by the Customer (in relation to the Services) in the 12 months immediately preceding the date of the event giving rise to the claim or (b) the sum of £50,000.
10.5 The Customer’s liability shall be unlimited.
11. DATA PROTECTION AND DATA PROCESSING
11.1 The Company and the Customer acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Data Controller and the Company is the Data Processor in respect of any Personal Data.
11.2 The Customer acknowledges that any Personal Data contained in any of the Input Material may be processed by and on behalf of the Company in connection with the Services, whether or not the Personal Data relates to the Customer (which, for the purposes of this Condition 11, includes any employee, servant or agent of the Customer) or to another third party data subject. The Customer hereby expressly consents to any processing of the Customer’s Personal Data by the Company and undertakes to procure the consent of any other relevant third party data subject to any processing of their Personal Data, and shall provide such proof of said third party data subject’s consent to such processing as may be requested by the Company.
11.3 The Customer acknowledges that the Company is reliant on the Customer for direction as to the extent to which the Customer is entitled to use and process the Personal Data.
11.4 The Company may process Personal Data in the following circumstances:
(a) the Company may, on occasions, obtain the personal email addresses of Customer staff or agents of the Customer, and email those staff or agents in relation to various business matters (mainly in relation to the Customer bidding), thereby bypassing the corporate network. For the avoidance of doubt, this is likely to occur outside of normal business hours; and
(b) if the Customer is an individual rather than an organisation, the Company will process all Personal Data belonging to the Customer in accordance with Data Protection Legislation.
12.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(c) the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; or
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; or
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
(h) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Condition 12.1(d) to Condition 12.1(j)Condition 12.1(h) (inclusive); or
(l) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
(m) there is a change of control of the other party.
12.2 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt;
(b) the Customer shall, within a reasonable time, return all of the Company's Output Material to the Customer. If the Customer fails to do so, then the Company may enter the Customer's premises and take possession of it. Until the Output Material has been returned or repossessed, the Customer shall be solely responsible for its safe keeping; and
(c) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
12.3 On termination of the Contract (however arising), the following Conditions shall survive and continue in full force and effect:
(a) Condition 8;
(b) Condition 9;
(c) Condition 10;
(d) Condition 12;
(e) Condition 22.
12.4 Termination or expiry of this Contract shall not affect any rights or remedies of the Company that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
13. FORCE MAJEURE
The Company shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport network, 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 any suppliers or subcontractors.
14.1 The Company may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services. If the Company requests a change to the scope of the Services for any other reason, the Customer shall not unreasonably withhold or delay consent to it.
14.2 Subject to Condition 14.1, no variation of the Contract or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.
15.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
15.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
16.1 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
16.2 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
17. ENTIRE AGREEMENT
17.1 The Contract constitutes the whole agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral, relating to its subject matter.
17.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract).
17.3 Nothing in this Condition shall limit or exclude any liability for fraud.
18.1 The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, mortgage, subcontract or deal in any manner with all or any of its rights or obligations under the Contract.
18.2 The Company may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
18.3 Each party that has rights under the Contract is acting on its own behalf and not for the benefit of another person.
19. NO PARTNERSHIP OR AGENCY
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
20. RIGHTS OF THIRD PARTIES
A person who is not a party to the Contract shall not have any rights under or in connection with it.
21.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or sent electronically via email.
(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Customer by the Company; or
(b) (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Customer.
21.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day; or
(d) if sent by email, within twenty four hours of sending.
Communications addressed to the Company shall be marked for the attention of Ms. Caroline Baker.
This Contract may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one Contract.
23. GOVERNING LAW AND JURISDICTION
23.1 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of England and Wales.
23.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) that arises out of, or in connection with, the Contract, its subject matter or formation.
TERMS AND CONDITIONS FOR THE PURCHASE OF GOODS FROM SUBCONTRACTORS
1.1 The definitions and rules of interpretation in this condition apply in these conditions. Company: DESIGN REALITY LIMITED.
Company Materials: Any and all materials, documents, data and equipment provided by the Company to the Subcontractor in order to enable the Subcontractor to fulfill its obligations under the Contract.
Conditions: these Terms and Conditions of Purchase. Contract: the Order and the Subcontractor's acceptance of the Order.
Goods: any goods and/or services agreed in the Contract to be purchased by the Company from the Subcontractor (including any part or parts of them).
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 of the foregoing in any jurisdiction, whether registered or unregistered.
Order: the Company's written instruction to supply the Goods, incorporating these conditions. For the avoidance of doubt, an Order for Goods shall include an Order for services and these Conditions shall apply, mutatis mutandis, to services.
Subcontractor: the person, firm or company who accepts the Company's Order.
1.2 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.
1.3 A reference to one gender includes a reference to the other gender.
1.4 Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.4, these conditions are the only conditions upon which the Company is prepared to deal with the Subcontractor and they shall govern the Contract to the entire exclusion of all other terms or conditions.
2.2 Each Order for Goods by the Company from the Subcontractor shall be deemed to be an offer by the Company to buy Goods subject to these conditions and no Order shall be accepted until the Subcontractor either expressly by giving notice of acceptance, or impliedly by fulfilling the Order, in whole or in part accepts the offer.
2.3 No terms or conditions endorsed upon, delivered with or contained in the Subcontractor's Terms and Conditions of Sale or Supply, quotation, acknowledgement or acceptance of order, specification or similar document shall form part of the Contract and the Subcontractor waives any right which it otherwise might have to rely on such terms and conditions.
2.4 These conditions apply to all the Company's purchases and any variation to these conditions shall have no effect unless expressly agreed in writing and signed by Ms. Caroline Baker of the Company.
2.5 The Subcontractor shall not be considered to be an employee of the Company and shall have no power or authority to bind or pledge the Company and shall not hold itself out, or permit itself to be held out, as having any such power or authority.
3. QUALITY AND DEFECTS
3.1 The Goods shall be of the best available design, of the best quality, material and workmanship, be without fault, be capable of any and all standards of performance requested by the Company, be fit for any purpose made known to the Subcontractor expressly or by implication, comply with any relevant current legislation and conform in all respects with the Order and specification and/or patterns, drawings and plans specified or advised by the Company to the Subcontractor.
3.2 The Company's rights under these conditions are in addition to the statutory conditions implied in favour of the Company by the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982.
3.3 At any time prior to delivery of the Goods to the Company the Company shall have the right to inspect and test the Goods at all times.
3.4 If the results of such inspection or testing cause the Company to be of the opinion that the Goods do not conform or are unlikely to conform with the Order or to any specifications and/or patterns supplied or advised by the Company to the Subcontractor, the Company shall inform the Subcontractor and the Subcontractor shall immediately take such action as is necessary to ensure conformity and in addition the Company shall have the right to require and witness further testing and inspection.
3.5 Notwithstanding any such inspection or testing, the Subcontractor shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect the Subcontractor's obligations under the Contract.
3.6 If any of the Goods fail to comply with the provisions set out in condition 3 the Company shall be entitled to avail itself of any one or more remedies listed in condition 14.
4. SERVICE STANDARDS
4.1 If the Contract requires the Subcontractor to provide services to the Company, then the Subcontractor shall, throughout the duration of the Contract and without limitation:
4.1.1 perform the services in a good and workmanlike manner;
4.1.2 employ competent staff, and ensure that such staff are subject to adequate supervision and that they discharge their duties diligently, and supply to such staff full and proper instructions as to anything required to perform the Subcontractor’s obligations under the Contract; and
4.1.3 observe any reasonable instructions given to it by the Company in connection with the performance of its obligations under the Contract.
4.2 The Company shall have the right at any time during business hours to inspect any services performed by the Subcontractor pursuant to the Contract and the Subcontractor shall allow all reasonable
access and assistance to the representatives of the Company to enable such representatives to carry out the inspection promptly, including providing the Company with any information that may be reasonably required.
4.3 The Subcontractor may not subcontract anything required to fulfill the Subcontractor’s obligations under these Conditions and/or the Contract (which, for the avoidance of doubt, includes any such obligation with respect to any goods, as well as services), without the prior written consent of the Company.
5.1 The Subcontractor shall keep the Company indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with:
(a) defective workmanship, quality or materials;
(b) any fault in the Goods and/or any inability or failure of the Goods to be capable of any and all standards of performance requested by the Company, to be fit for any purpose made known to the Subcontractor expressly or by implication, to comply with any relevant current legislation, or to conform in any respect with the Order and specification and/or any and all patterns, drawings and plans specified or advised by the Company to the Subcontractor;
(c) an infringement or alleged infringement of any Intellectual Property Rights caused by the use, production or supply of the Goods; and
(d) any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by the Company's employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of any term of the Contract by the Subcontractor.
5.2 The Subcontractor shall, throughout the Contract, maintain a policy of insurance which shall contain terms appropriate to provide adequate coverage for any and all risks contemplated in clause 5.1 above and which shall also be of an amount sufficient to provide adequate coverage for any and all such risks. The Subcontractor shall, upon request by the Company, produce such policy of insurance to the Company for inspection.
6.1 The Goods shall be delivered, carriage paid, to the Company's place of business or to such other place of delivery as is agreed by the Company in writing prior to delivery of the Goods. The Subcontractor shall off-load the Goods at its own risk as directed by the Company.
6.2 The date for delivery shall be specified in the Order, or if no such date is specified then delivery shall take place within 28 days of the Order.
6.3 The Subcontractor shall invoice the Company upon, but separately from, despatch of the Goods to the Company.
6.4 The Subcontractor shall ensure that each delivery is accompanied by a delivery note which shows, among other things, the Order number, date of Order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
- 6.5 Time for delivery shall be of the essence.
- 6.6 Unless otherwise stipulated by the Company in the Order, deliveries shall only be accepted by the
Company in normal business hours.
6.7 If the Goods are not delivered on the due date then, without prejudice to any other rights which it may have, the Company reserves the right to:
(a) cancel the Contract in whole or in part; (b) refuse to accept any subsequent delivery of the Goods which the Subcontractor attempts to make;
(c) recover from the Subcontractor any expenditure reasonably incurred by the Company in obtaining the Goods in substitution from another supplier; and
(d) claim damages for any additional costs, loss or expenses incurred by the Company which are in any way attributable to the Subcontractor's failure to deliver the Goods on the due date.
6.8 If the Subcontractor requires the Company to return any packaging material to the Subcontractor that fact must be clearly stated on any delivery note delivered to the Company and any such packaging material shall only be returned to the Subcontractor at the cost of the Subcontractor.
6.9 Where the Company agrees in writing to accept delivery by instalments the Contract shall be construed as a single contract in respect of each instalment. Nevertheless failure by the Subcontractor to deliver any one instalment shall entitle the Company at its option to treat the whole Contract as repudiated.
6.10 If the Goods are delivered to the Company in excess of the quantities ordered the Company shall not be bound to pay for the excess and any excess shall be and shall remain at the Subcontractor's risk and shall be returnable at the Subcontractor's expense.
6.11 The Company shall not be deemed to have accepted the Goods until it has had 30 days to inspect them following delivery. The Company shall also have the right to reject the Goods as though they had not been accepted for 30 days after any latent defect in the Goods has become apparent. Any Goods rejected by the Company shall remain at the Subcontractor's risk and shall be returnable at the Subcontractor's expense.
7.1 The Goods shall remain at the risk of the Subcontractor until delivery to the Company is complete (including off-loading and stacking) when ownership of the Goods shall pass to the Company.
7.2 The Subcontractor shall, throughout the Contract, maintain a policy of insurance which shall contain terms appropriate to provide adequate coverage for any and all risks, damage and loss contemplated in clause 7.1 above and which shall also be of an amount sufficient to provide adequate
coverage for any and all such risks damage and/or loss. The Subcontractor shall, upon request by the Company, produce such policy of insurance to the Company for inspection.
8.1 The price of the Goods shall be stated in the Order and unless otherwise agreed in writing by the Company shall be exclusive of value added tax but inclusive of all other charges.
8.2 No variation in the price nor extra charges shall be accepted by the Company.
9.1 The Company will pay the price of the Goods within 30 days of delivery of the Goods to the Company, (and/or, if the Contract requires the Subcontractor to provide services to the Company, payment for said services will be made pursuant to this Condition 9.1 within 30 days of commencement of the performance of said services, as applicable) but time for payment shall not be of the essence of the Contract.
9.2 Without prejudice to any other right or remedy, the Company reserves the right to set off any amount owing at any time from the Subcontractor to the Company against any amount payable by the Company to the Subcontractor under the Contract.
9.3 If any sum under the Contract is not paid when due then, without prejudice to the parties' other rights under the Contract, that sum shall bear interest from the due date until payment is made in full, both before and after any judgment, at 2% per annum over the base lending rate of Barclay’s Bank plc from time to time. The Subcontractor is not entitled to suspend deliveries of the Goods as a result of any sums being outstanding.
The Subcontractor shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the
Subcontractor by the Company or its agents and any other confidential information concerning the Company's business or its products and/or services which the Subcontractor may obtain and the Subcontractor shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Subcontractor's obligations to the Company and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Subcontractor. Without limitation, the Subcontractor shall not without the prior consent of the Company in writing mention the Company’s name in connection with the Contract in any publicity material or other similar communications to third parties.
The Subcontractor covenants with the Company that it shall not, in competition with the Company, on its own account, or as a director, employee, employer or agent of any other person, directly or indirectly throughout the duration of the Contract and for a period of three years from the date of termination of the Contract, transact business with or solicit for business any customers of the Company who are customers at the date of termination or within one year immediately preceding that date, or solicit or entice or endeavour to entice away from the Company throughout the duration of the Contract or for a period of three years from the date of termination, any employees or suppliers of the Company (which, for the avoidance of doubt includes any other subcontractors).
12. USE OF COMPANY MATERIALS AND INTELLECTUAL PROPERTY RIGHTS
12.1 All Company Materials shall at all times be and remain the exclusive property of the Company and shall be surrendered to the Company upon demand and in the condition in which they were originally provided to the Subcontractor and are to be used by the Subcontractor solely in order to fulfill the Subcontractor’s obligations under the Contract. The Subcontractor agrees that no copy of any Company Materials shall be made without the consent in writing of the Company. Until the Subcontractor returns the Company Materials to the Company, they shall be held by the Subcontractor at the Subcontractor's risk and shall be insured by the Subcontractor at the Subcontractor's own expense against any risk of loss, theft or damage. Any loss of, or damage to, any Company Materials shall be made promptly and fully good by the Subcontractor, at the Subcontractor's expense.
12.2 Any form of Intellectual Property Rights in any Company Materials and/or in any specifications, patterns, drawings and plans supplied by the Company to the Subcontractor, shall at all times be and remain the exclusive property of the Company.
12.3 Without limiting the generality of Condition 12.2, all rights, including but not limited to any Intellectual Property Rights, derived or arising directly or indirectly from any work undertaken pursuant to the Contract, shall vest in and remain vested in the Company, to the extent that any such rights derive or arise directly or indirectly from any Company Materials and/or any specifications, patterns, drawings and plans supplied by the Company to the Subcontractor.
12.4 The Subcontractor shall do all acts and things necessary to assist the Company with respect to the protection, enforcement and transfer to the Company of any rights mentioned in Condition 12. 2 and Condition 12.3 and in this connection the Subcontractor agrees, without limitation, to assist the Company in obtaining registration of any relevant Intellectual Property Rights in any jurisdiction in the world, to promptly notify the Company of any actual or apparent infringement of any such Intellectual Property Rights (and to join in any proceedings initiated against any alleged infringer), and to effect any assignment of any such Intellectual Property Rights to the Company.
12.5 To the extent that any Intellectual Property Rights are, or could or might be, owned by the Subcontractor or licensed to the Subcontractor by any third party and any such Intellectual Property Rights are to be, or might be, utilised by the Company, the Subcontractor grants a perpetual, royalty-free licence or sub-licence in any such Intellectual Property Rights to the Company and warrants that the use of any such Intellectual Property Rights by the Company will not infringe the rights of any third party and without limiting the generality of Condition 5.1, the Subcontractor furthermore agrees to promptly and fully indemnify the Company against any liability, loss, damage, cost, charge or expense arising from any infringement or alleged infringement of any such Intellectual Property Rights whatsoever, howsoever and to whomsoever occurring.
13.1 The Company shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Subcontractor written notice whereupon all work on the Contract shall be discontinued and the Company shall pay to the Subcontractor fair and reasonable compensation for work-
in-progress at the time of termination but such compensation shall not include loss of anticipated profits or any consequential loss.
13.2 The Company shall have the right at any time by giving notice in writing to the Subcontractor to terminate the Contract forthwith if:
(a) the Subcontractor commits a material breach of any of the terms and conditions of the Contract; or
(b) any distress, execution or other process is levied upon any of the assets of the Subcontractor; or
(c) the Subcontractor has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision 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 or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Subcontractor or notice of intention to appoint an administrator is given by the Subcontractor or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Subcontractor or for the granting of an administration order in respect of the Subcontractor, or any proceedings are commenced relating to the insolvency or possible insolvency of the Subcontractor; or
(d) the Subcontractor ceases or threatens to cease to carry on its business; or
(e) the financial position of the Subcontractor deteriorates to such an extent that in the opinion of the Company the capability of the Subcontractor adequately to fulfil its obligations under the Contract has been placed in jeopardy.
13.3 The termination of the Contract, however arising, shall be without prejudice to the rights of the Company accrued prior to termination. Any conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
Without prejudice to any other right or remedy which the Company may have, if any Goods are not supplied in accordance with, or the Subcontractor fails to comply with, any of the terms of the Contract the Company shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by the Company:
(a) to rescind the Order;
(b) to reject the Goods (in whole or in part) and return them to the Subcontractor at the risk and cost of the Subcontractor on the basis that a full refund for the Goods so returned shall be paid forthwith by the Subcontractor;
(c) at the Company's option to give the Subcontractor the opportunity at the Subcontractor's expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
(d) to refuse to accept any further deliveries of the Goods but without any liability to the Subcontractor;
(e) to carry out at the Subcontractor's expense any work necessary to make the Goods comply with the Contract; and
(f) to claim such damages as may have been sustained in consequence of the Subcontractor's breach or breaches of the Contract.
15.1 The Subcontractor shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
15.2 The Company may assign the Contract or any part of it to any person, firm or company. Without limitation, the Company may direct any customer of the Company to place an Order directly with the Subcontractor and in any such case, each of these Conditions shall apply to any Contract made pursuant to these Conditions, as and between the Subcontractor and the particular customer of the Company. For the avoidance of doubt, in any such case, the Subcontractor shall request and receive payment of the price for the Goods solely from the particular customer of the Company and the Company shall have no liability therefor, under any circumstances.
16. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or payment or to cancel the Contract or reduce the volume of the Goods ordered 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, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
17.1 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.
17.2 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.
17.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
17.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Subcontractor shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
17.5 Save in the circumstances set out in Condition 15.2, 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.
17.6 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.