Terms and Conditions For the Supply of Goods and Services

1

Interpretation

2

Basis of contract

3

Goods

4

Delivery of Goods

If the Customer fails to accept the Goods within 5 Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:

4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the sixth Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and

4.6.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

5

Quality of Goods

Subject to clause 5.4, if:5.3.1  the Customer gives notice in writing during the warranty period that some or all of the Goods do not comply with the warranty set out in clause 5.1; and

5.3.2  the Supplier is given a reasonable opportunity of examining such Goods; and

5.3.3  the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost;

the Goods have been paid for in full by the Customer,

5.3.5  the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:

5.4.1  the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.3;

5.4.2  the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;

5.4.3  the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer;

5.4.4  the Customer alters or repairs such Goods without the written consent of the Supplier;

5.4.5  the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;

5.4.6  the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 3.

6

Title and risk

Title to the Goods shall not pass to the Customer until the earlier of:

6.2.1  the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and

6.2.2  the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 4.

Until title to the Goods has passed to the Customer, the Customer shall:

6.3.1  store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;

6.3.2  not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

6.3.3  maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;

6.3.4  notify the Supplier immediately if it becomes subject to any of the events listed in clause 1.2 to clause 13.1.4; and

6.3.5  give the Supplier such information relating to the Goods as the Supplier may require from time to time.

Subject to clause 5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:

6.4.1  it does so as principal and not as the Supplier’s agent; and

6.4.2  title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.

If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 1.2 to clause 13.1.4, then, without limiting any other right or remedy the Supplier may have:

6.5.1  the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and

6.5.2  the Supplier may at any time:

(a) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and

(B) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7

Supply of Services

8

Customer’s obligations

The Customer shall:

8.1.1  ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate and that the Order and any such Goods Specification has been prepared by an authorised representative of the Customer;

8.1.2  co-operate with the Supplier in all matters relating to the Services;

8.1.3  provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;

8.1.4  provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;

8.1.5  prepare the Customer’s premises for the supply of the Services;

8.1.6  obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

8.1.7  keep and maintain all materials, equipment, artwork, tools, software, stencils, positives, documents and other property of the Supplier (“Supplier Materials“) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and

8.1.8  comply with the provisions of Schedule A attached.

If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default“):

8.2.1  the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;

8.2.2  the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 2; and

8.2.3  the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

9

Charges and payment

The charges for Services shall be on a time and materials basis:

9.2.1  the charges shall be calculated in accordance with the Supplier’s standard daily fee rates, as set out in the Supplier’s proposal;

9.2.2  the Supplier’s standard daily fee rates for each individual person are calculated on the basis of an eight hour day from 9.00 am to 5.00 pm worked on Business Days;

9.2.3  the Supplier shall be entitled to charge an overtime rate of 50% of the standard daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 9.2.2; and

9.2.4  the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.

The Supplier reserves the right to:

9.3.1  increase its standard daily fee rates for the charges for the Services, provided that such charges cannot be increased more than once in any 12 month period. The Supplier will give the Customer written notice of any such increase 3 months before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify the Supplier in writing within 6 weeks of the date of the Supplier’s notice and the Supplier shall have the right without limiting its other rights or remedies to terminate the Contract by giving 3 weeks’ written notice to the Customer; and

9.3.2  increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:

(a)  any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b)  any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or

(c)  any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.

The Customer shall pay each invoice submitted by the Supplier:

9.5.1  within 30 days of the date of the invoice unless otherwise agreed in writing; and

9.5.2  in full and in cleared funds to a bank account nominated in writing by the Supplier; and

9.6.3  time for payment shall be of the essence of the Contract.

If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment:

9.7.1  the Customer shall pay interest on the overdue amount at the rate of 4% per annum above HSBC Bank’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 Customer shall pay the interest together with the overdue amount; and

9.7.2  the Supplier may suspend all or part of its obligations under the Contract until payment has been made in full.

10

Intellectual property rights

11

Confidentiality

12

Limitation of liability

Nothing in these Conditions shall limit or exclude the Supplier’s liability for:

12.1.1  death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

12.1.2  fraud or fraudulent misrepresentation; or

12.1.3  any other liability which cannot be limited or excluded by applicable law.

Subject to clause 12.1:

12.2.1  the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

12.2.2  the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total amount of the payments paid under the Contract.

13

Termination

Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

13.1.1   the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;

13.1.2  the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

13.1.3  the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or

13.1.4  the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

On termination of the Contract for any reason:

13.4.1  the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

13.4.2  the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

13.4.3  the accrued rights and remedies of the parties as at termination shall not be affected, 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; and

13.4.4  clauses which expressly or by implication have effect after termination shall continue in full force and effect.

14

Force majeure

15

General

15.1.1  The Supplier may at any time assign, transfer, mortgage, charge, 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.

15.1.2  The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

15.2.1  Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.

15.2.2  A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.

15.2.3  The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

Severance

15.3.1  If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

15.3.2  If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

Waiver

A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. 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 prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

No partnership or agency

Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

Variation

Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.

Governing law

This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

Jurisdiction

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).

Schedule A

1

Work access

2

Work environment

3

Work equipment and facilities

4

Vehicle substrate cleaning and preparation

5

Repairs to substrate

6

Damage to substrate

7

Build tolerance

8

Artwork