1. “The Company” means Thames Loose Leaf Ltd incorporated and registered in England and Wales with company number 02670813 whose registered office is at 289 Kiln Road, Benfleet, Essex SS7 1QS or any relevant associated company with whom the contract is made as specified in the formal written acceptance of a Client’s Order.
“Client” means the person, firm, company, organisation, corporation or public authority whose order for goods and services is accepted by the Company. “Contract” means the contract between the Company and the Client incorporating these conditions.
“Force Majeure Event” an event more particularly described at clause 40. “Goods” means goods prepared for the Client under the contract of which these conditions form part.
“Order” means the Client’s order for Goods including any applicable Specification.
“Specification” means any specification for the Goods including but not limited to any related plans, designs, drawings, colours, text, and logos.
Terms of acceptance of orders
2. Contracts are made and orders accepted only upon and subject to these Terms and Conditions to the exclusion of all other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing unless expressly accepted in writing by the Company.
3. Each of these terms and conditions constitutes an entirely separate and independent provision so that if any of them are held to be invalid for any reason this shall not affect the remaining provisions which shall continue in full force and effect.
4. The Client acknowledges that it has not relied on or been induced into entering into a Contract by any representations, statements, assurances or warranties made either orally or in writing by the Company, its servants, agents, or on its behalf not set out in the Contract.
5. No quotation estimate or tender given or made by the Company shall form an offer capable of acceptance by the Client.
6. A binding contract shall only be created upon the Company’s written acceptance of the Client’s Order. The Company may, in its absolute discretion, accept or reject any Order.
7. Any typographical clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
8. Contracts may only be cancelled by the Client with the written consent of the Company, which, if given will be subject to the Client indemnifying the Company on demand for all costs and losses incurred as a result of such cancellation.
9. When supplying its own material the Client shall supply a surplus of 10% (or such other agreed quantity) to cover normal spoilage.
10. Where the Client supplies prints bearing serial numbers, page numbers or addresses or other identifying features the Company will endeavour to keep the prints in order, but cannot accept any liability for failure to do so.
11. The Client’s property will be held at the Client’s risk and no liability is accepted for loss, damage or destruction unless caused by the Company. The Company does not accept responsibility for imperfect work caused by defects in or the unsuitability of the Client’s materials or origination, but the Company will use all reasonable endeavours to achieve the best results consistent with the materials and information provided.
12. Under normal circumstances Client’s artwork and repro will be retained on file for 4 years after which time the Company reserves the right to dispose of it.
13. The Company shall not be required to copy or reproduce any matter whatsoever which in its opinion is or may be illegal or of a libellous nature and the Client shall fully and effectively indemnify the Company and its agents in respect of any claim arising from such copying or reproduction.
14. The Client must check the completeness and accuracy of all proofs. Once a proof has been approved by the Client it forms part of the Order and the Company cannot accept responsibility for errors. The Client shall be responsible for the cost of alterations made by the Client on or after the first proof.
15. To the extent that the Goods are to be manufactured in accordance with the Client’s Specification or other instructions, the Client shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual
property rights arising out of or in connection with the Company’s use of the Client’s Specification or other instructions. This clause shall survive termination of the Contract.
Prices and payment
16. Quotations are based on the current cost of production and are subject to adjustment to reflect fluctuations in the Company’s costs such as the price of materials, labour or transport. The Company’s quotation may increase if the Client changes the Specification or fails to or delays in providing complete and accurate information. A quotation will lapse unless the Company receives written acceptance within 30 days. An unaccepted quotation may be withdrawn at any time.
17. Unless expressly stated otherwise all prices quoted are ex works and include the cost of packaging but exclude the cost of both transport and insurance (if required). Any applicable value added tax (VAT) or any other sales tax or excise duties paid or incurred or payable by the Company shall be added to the price and shall be payable by the Client. While the Company will endeavour to ensure that VAT is taken into account in any quotation or invoice, where for any reason VAT in not charged and is subsequently found to be payable, the amount of VAT will be paid by the Client on receipt of a VAT invoice.
18. Unless credit facilities have been granted, the Client shall pay all amounts due under the Contract in full and in cleared funds no later than delivery without any set-off, counterclaim, deduction or withholding (except as required by law). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Client against any amount payable by the Company to the Client.
Bill and Hold
19. If the Company has provided the Client with written confirmation that it is prepared to enter into a specific bill and hold arrangement, then the provisions of clauses 19 to 24 shall apply to the Contract. Otherwise clauses 19 to 24 shall be excluded from the Contract.
20. The Company shall hold all Goods to which this section applies at its premises once they have been paid for in full on behalf of the Client until i) the Client notifies the Company that it requires the Goods to be personalised and or fulfilled (both at the additional cost of the Client), or ii) the Company notifies the Client that such Goods are at risk of becoming obsolete and that the Goods will be destroyed unless they are personalised and or fulfilled within a reasonable period following such notification.
21. Notwithstanding that the Company is holding the Goods on behalf of the Client, the Client must pay the Company for such Goods in accordance with the Contract as if delivery has already taken place provided that a certificate is placed on the invoice for such Goods substantially in the following form:
22. For the avoidance of doubt, ownership of and title to Goods to which this section applies shall transfer to the Customer once they have been paid for in full. Even though the Company is holding the Goods on behalf of the Client, the Goods are held at the Client’s risk and it is the Client’s responsibility to arrange and take out and pay for appropriate insurance.
23. Goods cannot be returned the Company even if they have not been used and or personalised unless the Goods fail to meet the Company’s quality obligations.
24. The Company may charge the Client reasonable fees for storage, personalisation, fulfilment, and destruction of Goods, such charges to be notified to the Client in writing beforehand and payable by the Client to the Company in accordance with these conditions.
25. If the Client fails to make any payment due to the Company by the due date for payment, then the Client shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank Plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount. Until the Client pays all amounts owing to the Company, the Company may suspend its performance of the contracts to which the invoice relates and/or of any other contract then subsisting between the Client and the Company.
26. The Client shall indemnify the Company against all liabilities, costs, expenses, damages and losses (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
professional costs and expenses) suffered or incurred by the Company arising out of or in connection with the enforcement of this agreement.
27. Delivery of Goods shall take place at the Company’s premises. Prices specified are for Goods ex-premises of the Company and carriage from the Company’s premises will be charged in addition. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
28. The Client shall not be entitled to reject the Goods if the Company delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice and evidence from the Client that the wrong quantity of Goods was delivered.
29. The Company may deliver the Goods by installments. Any delay in delivery or defect in an installment shall not entitle the Client to cancel any other installment.
30. If the Company fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Company shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Client’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
31. The risk of loss and/or damage (but not title) to Goods supplied by the Company shall pass to the Client when they are delivered to the Client or other person to whom the Company is authorised by the Client to deliver the Goods whether expressly or by implication and the Company shall not be liable for the safety of the Goods thereafter (and accordingly the Client shall insure the Goods thereafter against such risks as may be commercially prudent). If the Client has requested that the Company arranges for delivery of the Goods otherwise than at the Company’s premises, then risk in those Goods shall transfer to the Client immediately before they are loaded for onward transportation at the Company’s premises.
32. If the Client fails to take or accept delivery of the Goods within three business days of the Company’s notification that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Company’s failure to comply with its obligations under the Contract (a) delivery of the Goods shall be deemed to have been completed at 9am on the third business day after the day on which the Company notified the Client that the Goods were ready; and (b) the Company shall store the Goods until delivery takes place and charge the Client for all related costs and expenses (including insurance) on an indemnity basis. If delivery has not taken place after 20 business days the Company may at its option resell or destroy the Goods without prejudice to the Client’s obligation to pay all fees and expenses incurred prior to the date of sale or destruction.
33. The Supplier warrants that on delivery the Goods shall conform with the requirements of the appropriate standards stated in the Company’s quotation. The Supplier further warrants that on delivery and for a period of three years afterwards the Goods shall (a) conform in all material respects with their description and any applicable Specification; (b) be free from material defects in design, material and workmanship; and (c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
34. Subject to clause 35, if (a) the Client gives notice in writing to the Company within 5 business days of discovery or, in the case of a latent defect, within a reasonable time of discovery, that some or all of the Goods do not comply with the warranty set out in clause 33 and the Company is given a reasonable opportunity of examining such Goods, the Company shall at its option, repair or replace the defective Goods. The Client’s failure to deliver such a notice shall be conclusive proof that the Client has accepted such Goods.
35. Except as provided in clause 34, the Company shall have no liability to the Client in respect of the Goods’ failure to comply with the warranty set out in clause 33.
36. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
37. The ownership of and title to Goods shall remain vested in the Company (which reserves the right to dispose of them) until payment is received in full.
38. In the event that payment is overdue in whole or in part or upon the commencement of any act or proceeding in which the Client`s solvency is involved the Company may without prejudice to any of its other rights recover and/or resell the Goods or any of them and may enter upon the Client`s premises by its servants or agents for that purpose. If the Goods have been incorporated in or used as material for other Goods before payment in full has been made to the Company the ownership in the whole of such Goods shall be and remain with the Company until such payment has been made or the other Goods have been sold as aforesaid and all the Company`s rights hereunder in the matter shall extend to those other Goods. The Client agrees to pay the Company all costs of repossession.
39. Where the Client resells the Goods all money received from such resale and all rights arising against the subpurchaser shall be held by the Client as bailee for the Company until all sums due to the Company from the Client have been duly paid.
40. The Company shall not be liable for non-performance in whole or in part of its obligations if such non-performance is due to acts of God, war, insurrection, government regulations, embargoes, strikes, labour disputes, illness, fire, flood, tempest, power or internet failure, or any other cause beyond the Company’s control (each a “Force Majeure Event”). During the continuance of such contingency the Client may, by written notice to the Company, elect to terminate the contract and pay for work done and materials used, but subject thereto will otherwise accept performance when possible.
Liability and Claims
41. Except for death or personal injury due to negligence of the Company or its employees the Company shall under no circumstances be liable in respect of defects in Goods delivered or for any damage or loss resulting from such defects. In no event shall any breach of contract or tort (including negligence) or failure of any kind on the part of the Company or its employees give rise to any liability for loss of revenue or any consequential loss or damage arising from any cause whatsoever even if the Company has been advised of the possibility of such losses.
42. All claims must be made in writing within 28 days of the occurrence of the event giving rise to a claim. The Company shall always be afforded a reasonable opportunity to correct a default before being in breach of its obligations. The Company shall not be liable in respect of any claim unless these requirements have been complied with except in any particular case where the Client proves that it was not possible to comply and the claim made as soon as reasonably possible thereafter.
43. Subject to the above the Company’s entire liability howsoever arising shall be limited to damages which shall not in the case of public liability exceed
£2 million and in respect of all other matters shall not exceed the price of the Contract out of which the claim has arisen in respect of any one claim. A number of defaults which together result in or contribute to the same loss or damage shall be treated as one claim.
44. Except as expressly stated herein, all conditions warranties representations and undertakings, express or implied, statutory or otherwise are excluded.
Waiver of Remedies
45. No forbearance, delay or indulgence by either party in enforcing the provisions of these terms and conditions shall prejudice or restrict the rights of that party nor shall any waiver of rights operate as a waiver of any subsequent breach.
46. All notices which are required to be given by the Company or the Client shall be in writing and shall be sent in the case of a company to its registered office and in all other cases to the last known address of the recipient, or such other address as the recipient may designate by notice given in accordance with the provisions of this clause. Notices may be delivered by hand, by first-class pre-paid letter or facsimile transmission and shall be deemed to have been served if by hand when delivered, if by first-class post 48 hours after posting and if by facsimile when despatched.
47. No variation of this agreement shall be effective unless it is in writing and signed by the Company (or its authorised representative).
48. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
49. These terms conditions and the contract to which they relate shall in all respects be construed in accordance with English Law and the Client hereby submits to the exclusive jurisdiction of the English courts.