Custom Projects Design, Manufacture And Supply Terms & Conditions
- IMAGEHOLDERS LIMITED incorporated and registered in the United Kingdom with company number 04387715 whose registered office is at Priestly House, Priestly Gardens, Chadwell Heath, Essex, RM6 4SN (the Supplier); and
- The client as defined in any Order for a custom design, manufacture and/or supply agreement (the Client).
Basis of Contract
A. The Supplier has experience in the design and manufacture of Enclosures and associated products and services and the Client wishes to contract for the supply of these.
b. The Client has placed an order for services and products on the terms and conditions set out in these Conditions.
- Definitions: In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
Client Specification: any specification for any Enclosures, Installation and Support, Third Party Software and/or Third Party Hardware as set out in the Order.
Conditions: these terms and conditions as amended from time to time in accordance with clause 12.8.
Contract: the contract between the Supplier and the Client for the supply of Services in accordance with the Order and these Conditions.
Deliverables: any physical products provided as part of the Services as set out in the Order.
Delivery Location: has the meaning set out in clause 4.8.
Force Majeure Event: has the meaning given to it in clause 12.1.
Enclosure: the products manufactured by the Supplier and described on the Order.
Installation and Support: any additional services specified in the Order whereby the Supplier will assist the Client with the installation and/or support of the Enclosures.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the official order form, including any schedules and appendices, signed by both parties which forms part of the Contract
Services: the services, including the Enclosures, Installation and Support, Third Party Software and/or Third Party Hardware to be supplied by the Supplier to the Client.
Subcontractor: any person or organisation that the Supplier has contracted with in order to provide the Client with the Services supplied by the Supplier.
Supplier Materials: has the meaning set out in clause 5.1(f).
Third Party Software: any software for use on the Third Party Hardware within an Enclosure specified on the Order and supplied by third parties.
Third Party Hardware: any PCs, tablets, printers, scanners or other computer hardware within an Enclosure specified on the Order and supplied by third parties.
- Construction: In these Conditions, the following rules apply:
- a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- a reference to a party includes its representatives, successors or permitted assigns;
- a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
- any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
- a reference to writing or written includes faxes [and e-mails].
- Application of Conditions
- These Conditions shall:
- apply to and be incorporated into the Contract; and
- prevail over any inconsistent terms or conditions contained, or referred to, in the Client’s purchase order, confirmation order, acceptance of a quotation, or specification of other document supplied by the Client, or implied by law, trade custom, practice or course of dealing.
- Basis of contract
- The Contract constitutes an offer by the Client to purchase Services in accordance with these Conditions.
- The Contract constitutes the entire agreement between the parties. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
- Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of any Enclosures or illustrations or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Enclosures described in them. They shall not form part of the Contract or have any contractual force.
- These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue or as specified.
- All of these Conditions shall apply to the supply of Enclosures, Installation and Support, Third Party Software and Third Party Hardware except where application to one or the other is specified.
- Supply of Services
- The Supplier shall provide the Services to the Client in accordance with the Client Specification in all material respects.
- Any change to the Client Specification must be agreed in writing by both parties and may be subject to additional costs.
- The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
- The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Client in any such event.
- The Supplier warrants to the Client that the Services will be provided using reasonable care and skill.
- The Supplier shall comply with all applicable laws, enactments, orders, regulations and other instruments relating to the manufacture, packing, packaging, marking, storage, handling, and delivery of the Services.
- The Supplier shall ensure that the Enclosures and/or Third Party Hardware are properly packed and secured in such manner as to enable them to reach their destination in good condition.
- The Supplier shall deliver the Enclosure to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Client that any Deliverables are ready.
- The Supplier may deliver the Services by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Client to cancel any other instalment.
- The risk in any of the Deliverables shall pass to the Client on completion of delivery.
- Title to any of the Deliverables shall not pass to the Client until the Supplier has received payment in full in cleared funds.
- Until title to the Deliverables has passed to the Client, the Client shall:
- hold the Deliverables on a fiduciary basis as the Supplier’s bailee;
- store the Deliverables separately from all other goods held by the Client so that they remain readily identifiable as the Supplier’s property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the Deliverable;
- maintain all Deliverables in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
- notify the Supplier immediately if it becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(j); and
- give the Supplier such information relating to the Deliverables as the Supplier may require from time to time.
- If before title to any Deliverable passes to the Client the Client becomes subject to any of the events listed in clauses10.1(b) to 10.1(j), or the Supplier reasonably believes that any such event is about to happen and notifies the Client accordingly, then, without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Client to deliver up the Deliverables and, if the Client fails to do so promptly, enter any premises of the Client or of any third party where the Deliverables are stored in order to recover them.
- Client’s obligations
- The Client shall:
- ensure that the Client Specifications are accurate and complete, it being recognised by the parties that the Client has responsibility for the proper selection and specification of the Third Party Hardware and Third Party Software to be housed in any Enclosure;
- co-operate with the Supplier in all matters relating to the Services;
- provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Client’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
- 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;
- obtain and maintain in good time all necessary licences (including import licences), permissions and consents which may be required for the Services; and
- keep and maintain all materials documents and other property of the Supplier (Supplier Materials) at the Client’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 authorisatio.
- 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 Client or failure by the Client to perform any relevant obligation, including prompt payment of Supplier invoices, (Client Default):
- the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations to the extent the Client Default prevents or delays the Supplier’s performance of any of its obligations;
- the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
- the Client shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Client Default.
- Charges and payment
- The price and payment for the product and services are those set out in the Order or, if no price is quoted, the price set out in the Supplier’s published price list as at the date of delivery. The price, unless explicitly agreed on the Order, is exclusive of all costs and charges of packaging, insurance and transport which shall be paid by the Client.
- Unless explicitly agreed in the Order the charges for Installation and Support services shall be on a time and materials basis:
- the charges shall be calculated in accordance with the Supplier’s standard daily fee rates, which are available upon request from the Supplier;
- the Supplier’s standard daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
- the Supplier shall be entitled to charge the Client for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Installation and Support services including, but not limited to, 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:
- increase the price of the Services, by giving notice to the Client at any time before delivery, to reflect any increase in the cost of the Services to the Supplier that is due to:
- any increases in taxes and duties;
- any request by the Client to change the delivery date(s), quantities or types of Services ordered, or the Client Specification; or
- any delay caused by any instructions of the Client in respect of the Services or failure of the Client to give the Supplier adequate or accurate information or instructions in respect of the Services.
- increase the price of the Services, by giving notice to the Client at any time before delivery, to reflect any increase in the cost of the Services to the Supplier that is due to:
- All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Client, the Client shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
- If the Client orders Services for delivery outside the UK, they may be subject to import duties and taxes which are levied when the delivery reaches the specified destination. The Client will be responsible for payment of any such import duties and taxes.
- Without limiting any other right or remedy of the Supplier, if the Client fails to make any payment due to the Supplier under the Contract by the due date for payment specified on the Order or, if no date is specified, within 30 days of the date of invoice (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate of 8% per cent per annum above the then current Bank of England’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
- The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Supplier to the Client.
- Intellectual property rights
- All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier or its suppliers.
- The Client acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Client’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Client.
- All Supplier Materials are the exclusive property of the Supplier.
A party (Receiving Party) 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 Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 8 shall survive termination of the Contract.
- Warranty & Limitation of liability: THE CLIENT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
- The Enclosure supplied to the Client by the Supplier under the Contract shall conform in all material respects to the Client Specification and the Supplier warrants that on delivery, and for a period of  months from the date of delivery (Warranty Period), any Enclosure shall be free from material defects in design, material and workmanship.
- Subject to clause 9.3, if:
- the Client gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Enclosures do not comply with the warranty set out in clause 9.1; and
- the Supplier is given a reasonable opportunity of examining any such Enclosure; and
- the Client (if asked to do so by the Supplier) returns such Enclosure to the Supplier’s place of business at the Client’s cost,
- the Supplier shall, at its option, repair or replace the defective Enclosure, or refund the price of the defective Enclosure in full.
9.3 The Supplier shall not be liable for the failure of any Enclosure to comply with the warranty in clause 9.1 if:
- the Client makes any further use of such Enclosure after giving a notice in accordance with clause 9.2;
- the defect arises because the Client failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Enclosure or (if there are none) good trade practice;
- the defect arises as a result of the Supplier following any drawing, design or Enclosure Specification supplied by the Client;
- the Client alters or repairs such Enclosure without the written consent of the Supplier;
- the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
- the Enclosure differ from the Client Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
- Except as provided in this clause 9, the Supplier shall have no liability to the Client in respect of any Enclosure’s failure to comply with the warranty set out in clause 9.1.
- The Supplier provides no warranty and shall have no liability with regard to Third Party Hardware and Third Party Software.
- Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
- death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
- fraud or fraudulent misrepresentation;
- breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
- breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
- defective goods under the Consumer Protection Act 1987.
- Subject to clause 9.1:
- the Supplier shall under no circumstances whatever be liable to the Client, 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
- the Supplier’s total liability to the Client 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 price shown in the Order.
- The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
- This clause 9 shall survive termination of the Contract.
- 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:
- the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing of the breach;
- 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 partnership) has any partner to whom any of the foregoing apply;
- 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 (where a company) 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;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
- 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;
- 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 (being a company);
- a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
- 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;
- 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 clause 10.1(b) to clause 10.1(i) (inclusive); or
- the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business.
- Without limiting its other rights or remedies, the Supplier may terminate the Contract:
- by giving the Client one month’s written notice;
- with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract by the Due Date.
- Without limiting its other rights or remedies, the Supplier shall have the right to suspend the supply of Services or all further deliveries under the Contract or any other contract between the Client and the Supplier if:
- the Client fails to make pay any amount due under the Contract by the Due Date; or
- the Client becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(j), or the Supplier reasonably believes that the Client is about to become subject to any of them.
- Consequences of termination
On termination of the Contract for any reason:
- the Client 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 Client immediately on receipt;
- the Client shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Client fails to do so, then the Supplier may enter the Client’s premises and take possession of them. Until they have been returned, the Client shall be solely responsible for their safe keeping and will not use them for any purpose;
- 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
- clauses which expressly or by implication have effect after termination shall continue in full force and effect.
- Force majeure:
- For the purposes of the Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party 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 suppliers or subcontractors.
- The Supplier shall not be liable to the Client as a result of any delay or failure to perform its obligations under the Contract as a result of a Force Majeure Event.
- If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 12 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate the Contract immediately by giving written notice to the Client.
- Assignment and subcontracting:
- The Supplier may at any time assign, transfer, 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.
- The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
- Any notice or other communication required to be given to a party under or in connection with the Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office.
- Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
- For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt the service of any proceedings or other documents in any legal action or notice given under the Contract shall not be validly served if sent by e-mail.
- Waiver and cumulative remedies:
- A waiver of any right under the Contract 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 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.
- Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
- If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
- If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
- No partnership: 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.
- Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
- Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Supplier.
- Governing law and jurisdiction: The Contract, 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.