TERMS & CONDITIONS OF SALE
1. Formation of Contracts
a) All contracts of sale made by
Fine Cut Graphic Imaging Ltd ("the company") and any person to whom
the company agrees to supply goods and/or services ("the
purchaser") shall be
deemed to incorporate these terms and
conditions. No variation of or addition to these terms and conditions shall
form part of any contract unless specifically accepted by the company in
writing and signed by a
director. These terms and conditions supersede all prior discussions,
representations, understandings and agreements whether oral or in writing
between the parties
with respect to the subject
matter.
b) These terms and conditions
shall override and take the place of any other terms and conditions in any document
or other communication used by the Purchaser in concluding the contact
with the company.
c) No quotation shall
constitute an offer and all quotations must be regarded as withdrawn after 30
days (unless agreed in writing otherwise).
d) All contracts shall be
governed by and construed in accordance with the law of England and the
purchaser shall submit to the jurisdiction of the English Courts. In the event
that the
Purchaser is situated outside the United Kingdom it will
appoint and maintain agents for service within the jurisdiction and notify the
company in writing of such agents.
2. Prices
Unless
otherwise expressly stated in writing by the company orders are accepted on the
basis that:
a) Prices will be ex-works
unpacked unless otherwise stated.
b) The company is entitled
without prior notice to adjust the price to correct errors and omissions in the
contract and to take account of any alteration before the date of delivery in
the cost to
the company of labour,
materials sub-contracted services or transport which directly affects the cost
to the company of manufacturing or supplying the goods.
c) The prices
charged are those ruling at date of despatch.
d) The company is entitled to
increase the contract price where extra expense is incurred by reason of the
delay of the purchaser in giving necessary instructions to the company, or the
provisions
of inaccurate or insufficient information or as a result of any additional work required which becomes
apparent to the -company after the commencement of the contract, or where
work
on the goods is suspended in accordance with the purch;3ser's instructions.
e) The company reserves the
right to vary any price at any time to take into account any fluctuation in
foreign exchange rates, or any change in government or supranational regulation or
legislation, either
in the United Kingdom or elsewhere, which directly affects the cost
to the company of supplying the goods.
3. Payment
a) In circumstances where the
company has expressly agreed to grant credit facilities to a purchaser (unless otherwise
expressly stated) prices are due and payable thirty days after the date
of
invoice.
b) In circumstances
where the company has not expressly agreed to grant credit faCilities to a
purchaser prices are due and payable either prior to delivery
or prior to commencement of work.
c) If the purchaser
shall fail to make payment in full in accordance with sub-paragraphs a) or b)
of this clause then (without prejudice to any other rights of the company):
i) the company shall be
entitles to suspend all or any other deliveries to be made under that or any
other contract with the purchaser. In such event the purchaser shall not in any
respect be
released from its obligation
to the company under that or any such other contract; or
ii)
instead of suspension in accordance with paragraph i) above the company shall
be entitled to terminate the relevant contract or any other contract with the
purchaser in accordance with
Clause 12 below and to claim
damages from the Purchaser for breach.
d) unless otherwise expressly
stated, amounts due are payable in United Kingdom pounds Sterling in
immediately available funds without set-off or counter-claim. Payment by
cheque or
other negotiable instrument is
ineffective until it is honoured and the company's bank account is credited
with the amount due.
e) in addition to any rights
of set-off and any similar express or implied rights, the company may at any
time,
as
a continuous right without notice:
i) set-off against the
purchaser's obligations hereunder any monies which may be or become due and
payable by the company to the purchaser; and/or
ii) retain or appropriate for itself in or towards
satisfaction of the purchaser's obligations any money held by the company on
behalf of the purchaser.
4. Despatch & Delivery
a) Whilst the
company will use all reasonable endeavours to keep any estimated despatch or
delivery date it accepts no liability whatsoever for any loss or damage resulting from delay
howsoever the same shall have
been caused. If no time for delivery is specified in the contract, the purchaser
shall be bound to accept the goods when they are ready for delivery by
the
company.
b) The risk in the goods sold
shall pass to the Purchaser upon delivery to the Purchaser or to such person as
it may direct and the Purchaser shall insure such goods from such time.
c) If the goods are not
delivered or upon delivery are found to be damaged the Company shall not in any event
be liable unless:
i) In the case of non-delivery
both the Company and the carriers receive written notice within 7 days of the
date of the invoice;
ii) In the case of short or
damaged delivery both the Company and the carriers are sent a written complaint
within 48 hours of the receipt of the goods. Provided the Purchaser proves that
it
was not reasonably possible
for the Purchaser to advise the Company and the Carrier, or make a claim in writing
within the time limit applicable and such advice or claim is made or given
within a reasonable time, the Company
shall not have the benefit of the exclusion of liability afforded by this
clause.
d) Where the
contract involves more than one delivery, if default is made in payment on the
due date in respect of any one delivery, the Company shall at its option and
without prejudice to
any rights the Company may
have hereunder or otherwise, be entitled to treat the contract as repudiated and to claim damages
accordingly. Each delivery will constitute a separate contract
and any failure or defect in any
one delivery will not vitiate the contract as to the remaining deliveries.
5. Specifications
a) Where the
Company has agreed to work to the Purchaser's drawings or specifications the
Company will not guarantee performance of the goods or any defect arising from
any such
drawing, design or specification.
b) The Company will accept no
liability for the loss or damage to patterns or other articles or documents
being the property of the Purchaser caused by or arising from file or
other cause
beyond the Company's
control.
6. Intellectual Property
a) The Purchaser warrants that
any instructions
given
or designs furnished shall not be such as will cause the Company to infringe
or allegedly infringe any patent, trademark, service mark,
registered design, copyright or other
intellectual property right, or become liable to any action or claim for passing off.
b) The Purchaser shall indemnify the
Company against all losses, liabilities, costs, claims, actions, or demands, which the Company may incur or which may be
made against it as a result of
or in connection with the
infringement of any such rights arising in any way from the manufacture or sale
by the Company of goods made to the Purchaser's own specification drawings or
instructions.
c) All drawings prepared, and any jigs
or tools made for the purposes of any contract by the company shall remain the
property of the Company and shall be returned to it by the Purchaser on
demand. All such drawings, jigs and
tools shall be treated as confidential and shall not be copied or reproduced or
disclosed to any third party without prior written consent of the Company;
neither will the Purchaser use
or divulge any of the Company's trade secrets, techniques, processes
and methods of carrying on business.
7. Cancellation
No cancellation will be
accepted where goods are to be supplied to meet the special requirements of the Purchaser. The Purchaser
shall indemnify the Company in full against loss (including
loss of profit},
costs, charges and
expenses incurred by the Company as a result of cancellation by the Purchaser.
8. Export
Where the goods supplied are
supplied for export from the United Kingdom it is the duty of the Purchaser to inspect
the goods at the Company's works before shipment. No liability is
accepted by the Company for damage in
transit, and the
Purchaser shall insure the goods from point of delivery to the carrier.
9. Exhibition
Save within the prior consent of the Company
in writing the Purchaser shall not exhibit the goods or allow them to
be exhibited either directly or indirectly at any exhibition ih the United
Kingdom of Great Britain and
Northern Ireland or in Eire.
10. General Liabilities
a) Any machinery goods or material included
in any contract which are not manufactured by the Company are sold with the
benefit of such warranties if any as the manufacturer gives to the
company and which the company can enforce
without incurring legal expenses; the company does not in any way guarantee any
such machinery goods or materials.
b) The company hereby. warrants that all
goods supplied which are manufactured by the company are free from defects in
material and workmanship for a period of nine months, but unless
otherwise expressly stated in writing the
company's liabiliTy under this warranty shall be limited to making good without
charge by repair or (at the discretion of the company) replacement any
defects which in the opinion of the company
are defects of material or workmanship, provided always that where a claim is
made under this warranty in respect of goods supplied for export the
purchaser shall make arrangements and pay
all costs and expenses associated with delivering the goods to the company for
repair or replacement and subsequent return delivery to the
purchaser.
c) The warranty contained in paragraph (b)
of this condition is given in lieu of and shall be deemed to exclude all other
warranties and conditions whether expressed or implied and whether
arising by common Jaw statute or otherwise
save for those implied by Section 12 of the Sale of Goods Act 1979, by the
Consumer Protection Act 1987, and any liability for death or personal
injury resulting from negligence (as defined
in the Unfair Contract Terms Act 1977). The purchaser acknowledges that this is
reasonable and reflected in the price and shall accept risk and/or
insure accordingly.
d) The company shall not be liable for any
Joss injury or damage of any nature whatsoever whether direct or consequential
arising out of or in connection with any goods and/or service
supplied.
e) The purchaser shall not rely upon any
representation concerning any goods supplied unless the same shall have been
made by the company in writing
f) In any case where any trade description
or other indication or representation is applied to any goods at the purchaser's
request the purchaser warrants that the same is true and accurate in
all respects and that the supply or offer of
supply of any such goods or material by any person will not give rise to an
offence by the company under the Trade Descriptions Act 1968.
g) Notwithstanding Clause 10 (b), or
anything stated in any estimate, order or acceptance, the company's maximum
aggregate liability in respect of the supply and/or the installation and lor
provision of the goods and/or services shall
be limited to the original VAT exclusive price of such goods and/or services.
h) The company shall be under no liability
for any defect arising from fair wear and tear, wilful damage, negligence,
abnormal working conditions, failure to follow the company's instructions
(whether oral or in writing), misuse, or
alteration or repair of the goods without the company's approval.
i) The company shall be under no liability
under the warranty in Clause 10 (b) unless it has received written particulars
of the nature of claim from the purchaser within 90 days of the date of
delivery of the goods which are the subject
of the claim.
j) The company shall exercise all reasonable
care when carrying out work to materials supplied by the purchaser but the
company shall not be liable to the purchaser for materials supplied by
the purchaser and all work carried out to such
materials by the company shall be at the purchaser's own risk.
11. Force Majeure
The company shall without prejudice to its
right in respect of any breach of contract by the purchaser be entitled to
cancel or rescind any contract without liability for loss or damage resulting
therefrom if the performance of its
obligations under the contract is in any way adversely affected by any ware,
strike, lock-out, trade dispute, flood, accident to plant or machinery,
governmental control, shortage of any material
or labour, failure of sub-contractors or any cause whatsoever beyond the
company's control.
12. Default
a) The company may -without prejudice to any
other rights it may have - by notice in writing to the purchaser terminate any
contract forthwith if:
i) The purchaser shall commit any breach of
any of the terms (including without limitations terms concerning the time for
payment of the purchase price) of that or any other contract with the
company and on its part to be observed or
performed PROVIDED if such breach is remediable that the company has previously
given to the purchaser notice thereto and the same has not
been remedied within seven days thereafter;
ii) the purchaser compounds with or
negotiates for any composition with its creditors
generally or permits any judgement against
it to remain unsatisfied for seven days;
iii) being an individual the purchaser shall
die or having a receiving order made against him, or commit any act of
bankruptcy; or
iv) being a
company the purchaser shall call any meeting of its creditors, have a receiver
of all or any of its assets appointed, or enter into liquidation.
b) In the event that the company terminates
any contract under Clause 12 (a):
i) The whole of the balance of the price
then outstanding on the goods (and under any related contract between the
company and the purchaser) shall become due and payable forthwith;
ii) The company reserves the right to
repossess any goods in respect of which payment is overdue and thereafter
resell the same, and for this purpose the purchaser hereby grants an
irrevocable right
and licence to the company or its servants and agents to enter upon its premises
with or without vehicles during normal business hours; such right to continue
notwithstanding
the termination of
the contract for any reason;
iii) The purchaser shall indemnify the
company on demand against any reasonable loss, expense, cost (including legal
costs) incurred by the company in the recovery of the goods or
payment for the company's goods and/or
services supplied hereunder.
c) The company reserves the right to charge
interest on overdue amounts at the rate of 2 per cent per month (linked to bank
rate) or part of a month until payment in full (including amount
recoverable under Clause 12 (b) has been received and may, inter alia,
on any termination m accordance with this Clause 12 repossess any goods to
which Clause 13 may apply.
13. Title of Goods
The purchaser expressly agrees that until
the company has been paid in full for all goods supplied by the company to the
purchaser (whether under a single contract or invoice or a series of
contracts or
invoices):
a) The goods remain the property of the
company although the risk therein passes to the purchaser at the time when
delivery is made;
b) The company may at any time recover from
the purchaser those goods in its possession and for that purpose the company's
servants and agents may enter upon any land or building upon
which the goods
are situated;
c) If the purchaser incorporates the goods
into other products, with the addition of h1s products or those of others, or
uses such goods as materials for other products, with or without such
addition, and the goods can nevertheless be
readily identified and separated, the property in the goods shall remain with
the company and for that purpose the company's servants and agents
may enter upon any
land or building upon which the goods are situated and recover possession of
the goods;
d) The purchaser has the right to dispose of
the goods in the course of its business unless or until:
i) otherwise notified in writing by the
company at any time;
ii) an encumbrance
takes possession or a receiver is appointed over any of the property or assets
of the purchaser;
iii) the purchaser
makes any voluntary arrangement with its creditors or becomes subject to an
administration order;
iv) the purchaser
goes into liquidation (except for the purposes of amalgamation, reconstruction
or other reorganisation);
v) the purchaser
ceases or threatens to cease business.
e) In the event of any disposal of the goods
under sub-clause 13 (d) the purchaser has the fiduciary duty to the company to
account to the company for the proceeds but may retain therefrom
any excess of such proceeds over the amount
outstanding and due to the company and the company has the additional right to
recover the price payable by the purchaser's customer to the
extent unpaid and
the company will account to the purchaser for any excess over the amount
outstanding and due to the company less any expenses incurred by effecting
recovery.
f) The company shall be entitled to trace
the proceeds of the sale and any insurance proceeds received in respect of the
goods owned by the company. Such proceeds shall be paid into a
separate bank account and shall be held by
the purchaser on trust for the company.
g) The purchaser shall not be entitled to
pledge or in any way charge by way of security for indebtedness any goods which
may be the property of the company, but if the purchaser does so,
all the money owed by the purchaser to the
company shall (without prejudice to any right or remedy of the company)
forthwith become due and payable.
h) Each of the sub-clauses contained in this
Clause 13 shall be construed as independent of every other sub-clause to the
effect that if any sub-clause of this Clause 13 or the application of
any sub-clause to
any person, firm or company or to any circumstances shall be determined to be
invalid and unenforceable such determination shall not affect any other
sub-clause of this
Clause 13 or the application of such
sub-clauses to any person, firm, company or circumstances all of which
provisions shall remain in full force and effect.
14. Value Added Tax
Where chargeable, Value Added Tax will be charged at the rate applicable
at the date of despatch.
15. General
a) If any
provision in these conditions of sale (or part thereof) should be found to be
invalid, ineffective or unenforceable, the invalidity, ineffectiveness or
unenforceabi!ity shall remain in full
force and effect.
b) It is the purchaser's responsibility to
assure and satisfy himself that the goods and the use to which the goods are
applied comply with all relevant legislation, regulations or other
formalities. The purchaser shall procure at
his own expense any import licence required for the import of goods into the
country to which the goods are to be despatched from the UK. Where
an order is placed from an address in the
UK, the purchaser shall be responsible for procurement at his own expense of
any export licence required on the export of the goods from the UK.
c) No relaxation, forbearance or delay by
the company in enforcing any of the terms or conditions herein shall prejudice,
affect or restrict the right of the company hereunder, nor shall any
waiver by the
company of any breach operate as a waiver of any subsequent or continuing
breach.
d) For so long as any account remains unpaid
the company shall have an absolute right of lien upon any goods of the
purchaser that may be in the company's possession or under its control
and the company
may enforce such lien at any time. If the lien is not satisfied within a
reasonable time the company may at its absolute discretion sell such goods or
part thereof as agent for
the purchaser and
apply the proceeds towards the monies due and the expenses of the retention,
insurance and sale of such goods and shall upon accounting to the purchaser for
any
balance remaining be discharged from all
liability whatever in respect of such goods.
e) The company shall be entitled to
sub-contract the whole or part of the performance of any contract without prior
notice to the purchaser. All contracts are personal to the purchaser and
may not be assigned without prior written consent of the company.
