In these Terms the following words have the following meanings:
“the Buyer” the person(s), firm or company for whom the Seller has agreed to provide Goods or Services in accordance with these Terms;
“the Seller” S McConnell & Sons Ltd, a company incorporated in Northern Ireland (Company Number NI046012) whose registered office is situate at 10 Pilots View, Heron Road, Belfast, Co Antrim, BT3 9LE;
“Contract” the contract between the Buyer and the Seller for the provision of Goods or Services incorporating these Terms;
“Goods”means the goods (including any instalment of the goods or any parts of or for them) (if any) which the Seller is to supply in accordance with these Terms;
“Document” means anything in which information of any description is recorded and includes, inter alia, a document in writing, a map, plan, design, drawing, picture or other image, source code, transparencies, negatives, positives, prints, proofs, photographic, graphic design and illustration material or any record of any information in any form including electronic forms;
“Input Material” means any Documents or other materials including disks, plates, negatives and positives, and any data or other information provided by the Buyer relating to the Goods or Services;
“Intellectual Property Rights” means any patent, copyright, registered or unregistered design right, database right ,registered or unregistered trade mark, rights in relation to confidential information or any other intellectual property rights in any part of the world;
“Output Material” means any Documents or other materials including those developed or produced by the Seller relating to the Goods or Services and provided to the Buyer and also including all disks, plates, negatives and positives, and any data or other information provided by the Seller relating to the Goods or Services (save and except the Goods themselves) and all other products of the Services;
“the Price” The price for the provision of the Goods or Services
“Services” the services (if any) which the Seller is to supply in accordance with these Terms (including any part or parts of them).
“writing” and any similar expression, includes facsimile transmission and comparable means of communication;
2. APPLICATION OF TERMS
2.1 Subject to any variation under Condition 2.3, the Contract will be on these Terms and any conditions specified in any quotation or other written communication from the Seller to the Buyer to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any request for Goods or Services or other document).
2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s, (or any other person’s) request for Goods or Services, purchase order, specification, confirmation of its request or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Terms apply to all the Seller’s Contracts and any variation to these Terms and any representations about the Goods or Services shall have no effect unless expressly agreed in writing by the Seller and signed by a director of the Seller.
2.4 Each request for Goods or Services by the Buyer or on the Buyer’s behalf from the Seller shall be deemed to be an offer by the Buyer subject to these Terms.
2.5 The Buyer must ensure that the terms of its request for Goods or Services and any applicable specification are complete and accurate and that any quotation issued by the Seller interprets the Buyer’s requirements accurately.
2.6 Any quotation is given on the basis that no Contract will come into existence until the Buyer or the Buyer’s agent on the Buyer’s behalf issues a written confirmation of its request for Goods or Services which is accepted in writing by the Seller. Any quotation is valid for a period of 28 days (or such other period specified by the Seller in writing on the quotation) only from its date, provided that the Seller has not previously withdrawn it. For the avoidance of doubt, and without prejudice to the foregoing provisions of this clause, prices and other terms quoted by the Seller are only valid if the Buyer requests all of the Goods or Services which are the subject of the quotation and do not apply to part orders in respect of which the Seller expressly reserves the right to re-price or reject the request.
2.7 If, for whatever reason, the Seller is unable to fulfil a request for Goods or Services or any part thereof it shall notify the Buyer as soon as practicable and the Buyer’s sole remedy shall be the reimbursement of any payment already made in respect of the Goods or Services which the Seller is unable to supply.
3. GOODS AND SERVICES
3.1 Any dates specified by the Seller for supply of the Goods or Services or any part thereof are intended to be an estimate and time shall not be made of the essence by notice.
3.2 The Buyer shall at its own expense supply the Seller with all necessary Documents or other materials, and all necessary data or other information relating to the Goods or Services, within sufficient time to enable the Seller to supply the Goods or Services in accordance with the Contract. The Buyer shall ensure the accuracy of all Input Material.
3.3 The Buyer shall at its own expense retain duplicate copies of all Input Material and insure against its accidental loss or damage. The Seller shall have no liability for any such loss or damage, however caused. All Output Material shall be at the sole risk of the Buyer from the time of delivery to or to the order of the Buyer.
3.4 The property and any copyright and other intellectual property rights in:
3.4.1 Any Input Material shall belong to the Buyer but the Buyer hereby grants to the Seller a non exclusive licence to use the Input Material and any copyright or other Intellectual Property Rights in respect of same as the Seller may require for the purpose of supplying the Goods or Services.
3.4.2 Any Output Material shall, unless otherwise agreed in writing between the Buyer and the Seller, belong to the Seller, but the Buyer shall be entitled to use the Output Material for the purposes of utilising the Goods or Services, in connection with the project in respect of which the Goods or Services are being provided only, by way of a non-exclusive licence, strictly subject to payment in full of all sums payable under the Contract. If the Buyer wishes to use the Output Material for any other purpose the Buyer must obtain the express prior written consent of the Seller and pay additional fees to be agreed upon. The Buyer shall not modify directly or indirectly any Output Material without the express written consent of the Seller.
The Seller shall be entitled to recover payment (including VAT) for the Goods or Services notwithstanding that ownership of the Output Materials or Goods has not passed from the Seller.
3.5 The Buyer warrants that any Input Material and its use by the Seller for the purpose of supplying the Goods or Services will not infringe the copyright or other rights of any third party, and the Buyer shall indemnify the Seller against any loss, damages, costs, expenses or other claims arising from any such infringement.
3.6 Subject to these Terms and to payment in full of all sums payable in accordance with the current Contract or any other Contract with the Buyer or any group company, delivery of the Goods or Output Material shall be made to the address as notified in writing to the Seller in the Buyer’s confirmation of its request for Goods or Services or if different the address specified by the Seller in its written acceptance of the request.
3.7 The Seller may wish to seek publicity for work undertaken on the Buyer’s behalf. It may use references to the Buyer and the Goods or Services dealt with in proposals or other similar submissions made to other prospective clients, unless the Buyer expressly prohibits such disclosure and the Seller may reproduce any artwork design or layout in promotional materials such as brochures mailers and on websites unless the Buyer expressly prohibits such disclosure.
3.8 The Seller and its successors may use the Buyer’s personal information to contact the Buyer (by email, telephone or post) and/or to provide information about itself and its services, clients, developments and issues in which the Buyer may be interested. If the Buyer does not wish to receive such communications it should opt out by providing written notification to the Seller.
3.9 Any Input Material or other information provided by the Buyer which is so designated by the Buyer and any Output Material shall be kept confidential by the Seller, and all Output Material or other information provided by the Seller which is so designated by the Seller shall be kept confidential by the Buyer; but the foregoing shall not apply to any Documents or other materials, data or other information which are public knowledge at the time when they are so provided by either party, and shall cease to apply if at any future time they become public knowledge through no fault of the other party.
3.10 The Buyer shall provide the Seller with such reasonable access to the Buyer’s premises as is necessary for the supply of the Goods or Services.
4.1 The description of the Goods or Services shall be as set out in the Seller’s quotation provided that:-
4.1.1 any dimensions given are approximate measures only and variations in size are possible;
4.1.2 any samples or description provided may not be identical to the Goods or Output Materials supplied.
4.2 Any drawings, photographs, illustrations, descriptive matter, specifications and advertising issued by the Seller and any description or illustrations contained in the Seller’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods or Services described in them. They will not form part of this Contract.
5.1 Unless otherwise agreed in writing by the parties, delivery of the Goods shall be made by the Buyer collecting same at the Seller’s premises at any time after the Seller has notified the Buyer that same are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering or arranging for delivery of the Goods to that place.
5.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of same however caused. Time for delivery by the Seller shall not be of the essence. The Goods may be delivered by the Seller in advance of any quoted delivery date on giving reasonable notice to the Buyer.
5.3 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery then, without limiting any other right or remedy available to the Seller the Seller may:
5.3.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
5.3.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the Price or charge the Buyer for any shortfall below the Price.
6. RISK AND PROPERTY
6.1 Risk of damage to or loss of any Output Material or Goods shall pass to the Buyer:
6.1.1 in the case of Output Material or Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Output Material or Goods are available for collection; or
6.1.2 in the case of Output Material or Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Output Material or Goods, the time when the Seller has tendered delivery of same.
6.2 Notwithstanding delivery and the passing of risk in the Output Material or Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Price and payment for all other goods and/or services agreed to be provided by the Seller to the Buyer or any member of any group company in accordance with the current Contract or any other Contract or account with the Buyer or any group company for which payment is then due.
6.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep them separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property, but the Buyer may resell or use the Goods in the ordinary course of its business.
6.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and has not been resold), the Seller may at any time require the Seller to deliver up the Output Material or Goods to the Seller and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Goods are stored to inspect and/or repossess same.
6.5 The Buyer shall not be entitled to pledge, create a lien over or in any way charge by way of security for any indebtedness any of the Output Material or Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable.
7.1 The Price will be the Seller’s quoted price provided that the Buyer makes a request for Goods or Services in accordance with the quotation and the request is accepted by the Seller in accordance with clause 2.6.
7.2 The Company may by giving 7 days written notice at any time increase the Price to reflect any increase in the cost to the Company in providing the Services which is due to factors occurring after the making of the Contract which are beyond the reasonable control of the Company.
7.3 The Price shall be exclusive of any value added tax for which the Client shall be additionally liable at the applicable rate from time to time and (unless otherwise stated in writing by the Company) all prices are quoted in Sterling
7.4 Any increase in the volume of Goods or Services, change in the scope of work or times and dates for provision of Services, the addition of new Goods or Services including without limitation requests for samples not included in the quotation must be agreed in writing by the Seller and may be subject to additional charges PROVIDED ALWAYS that the Seller may at any time without notifying the Buyer make any changes to the Goods or Services which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Goods or Services.
7.5 Where the Seller acts or has acted on behalf of a group of companies all companies in the group who have accepted these terms shall be jointly and severally liable for fees owing by any of the group. In addition, if during the course of any matter a Buyer involves a subsidiary or a separate legal entity the Buyer remains responsible for the Seller’s fees.
8.1 Payment of the Price (including VAT) is due within 30 days of the date of the Seller’s invoice unless otherwise specified in writing by the Seller in the quotation or on the confirmation of order.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Seller has received cleared funds.
8.4 All payments payable to the Seller under the Contract shall become due immediately upon termination of the Contract despite any other provision.
8.5 The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.
8.6 If the Buyer fails to pay the Seller any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Seller on such sum from the due date for payment at the annual rate of 2.5% 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 judgement.
8.7 The Seller may exercise a lien over any Input Materials or Documents in its possession until the Price plus VAT together with any interest outlays and expenses for the provision of all Goods or Services under the current Contract or any other contracts with the Buyer or any group company are fully paid.
8.8 If the Seller has to refer unpaid invoices to its legal representatives as well as recovering the invoiced amount and interest it will seek to recover any legal fees incurred.
8.9 If the Buyer fails to make payment for the Goods or Services in accordance with the Contract or commits any other breach of the Contract or if any distress or execution shall be levied upon any of the Buyer’s goods or if the Buyer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver administrator administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or assets or if the Buyer shall suffer any analogous proceedings under foreign law all sums outstanding in respect of the Goods or Services shall become payable immediately (whether or not then due or payable) and the Seller may in its absolute discretion and without prejudice to any other rights which it may have:-
8.9.1 suspend all future provision of Goods or Services to the Buyer; and/or
8.9.2 terminate the Contract without liability upon its part; and/or
8.9.3 appropriate any payment made by the Buyer or any group company to such of the Goods or Services (or the goods or services supplied under any other contract between the Buyer or any group company and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer).
9.1 The Seller shall have no liability to the Buyer for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Buyer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Buyer.
9.2 The Buyer authorises the Seller to communicate with it and third parties in connection with the provision of the Goods or Services by email and acknowledges that, by its nature, email may not be a confidential medium and accordingly the Seller shall have no responsibility for the confidentiality of information transmitted by email.
9.3 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods or Services, if the delay or failure was due to any cause beyond the Seller’s reasonable control.
9.4 Without prejudice to the other provisions of this clause 9 and clause 10, the Seller shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods, Output Materials or Services without the Seller’s approval;
9.5 The Seller shall be under no liability in respect of parts, materials or equipment not manufactured by the Seller and gives no warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller (if any).
9.6 Where the Goods or Services are to be delivered in installments each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the installments in accordance with these terms shall not entitle the Buyer to treat the Contract as a whole as repudiated.
10. LIMITATION OF LIABILITY
10.1 The following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
10.1.1 any breach of these Terms; and
10.1.2 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 or otherwise are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these Terms excludes or limits the liability of the Seller for death or personal injury caused by the Seller’s negligence or affects the Buyer’s statutory rights as a consumer (if the Buyer is contracting as a consumer).
10.4 The Buyer shall inspect the products of the Services, the Output Materials or Goods on receipt and shall within 6 months of receipt of same (or where the defect or failure was not apparent on reasonable inspection within a reasonable time after the defect or failure ought to have been discovered) notify the Seller of any alleged defect, shortage in quantity or damage. If the Buyer shall fail to comply with these provisions the Output Materials or Goods shall be conclusively presumed to be in accordance with the Contract and free from any defect or damage which would be apparent on a reasonable examination and accordingly the Buyer shall not be entitled to reject same, the Seller shall have no liability for such defect or failure and the Buyer shall be bound to pay the Price as if the same had been delivered in accordance with the Contract.
10.5 Where the Seller at its sole discretion considers that a valid claim in respect of any of the Goods or Output Material based on a defect in the quality or condition of the Goods or Output Material has been notified to it in accordance with these Terms, the Seller may at its sole discretion repair or replace the same (or the part of same in question) or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods or Services (or a proportionate part of the price) in which case the Seller shall have no further liability to the Buyer, provided that in each case if the Seller so requests the Buyer shall at the Buyer’s expense return the Goods or Output Material or the part of the Goods or Output Material which is defective to the Seller.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 10.6
10.6 Subject to conditions 10.2 and 10.3:
10.6.1 the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the amount of the cover under the Company’s professional indemnity insurance from time to time and subject to that overall limit to the part of any loss suffered which is proportionate to our responsibility; and
10.6.2 the Seller shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
11.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
11.2 The Seller may assign or subcontract the Contract or any part of it to any person, firm or company.
12. FORCE MAJEURE
The Seller reserves the right to defer the date of delivery of the Output Materials or Goods or to cancel the Contract (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business or performance of the Contract due to circumstances beyond the reasonable control of the Seller including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood or other weather event, epidemic, disease, infestation, restrictions on transport or movement, 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 goods Provided that, if the event in question continues for a continuous period in excess of 90 days, either party shall be entitled to give notice in writing to the other to terminate the Contract.
13. CANCELLATION AND TERMINATION
13.1 If for any reason a matter does not proceed to completion the Seller will charge the Buyer for work done and expenses incurred unless otherwise agreed.
13.2 Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if the other commits any material breach of these Terms and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so.
13.3 On the termination of this agreement subject to clause 8.8 above the Seller shall return to the Buyer any Input Material and the Buyer shall return to the Seller any Output Material or Goods.
13.4 The termination of the Contract shall not affect:-
13.4.1 any payment which is owing by either party to the other;
13.4.2 any other accrued rights of either party; or
13.4.3 any Terms which are expressed to come into force or continue in force on or after termination.
14.1 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
14.2 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.
14.3 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
14.4 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
14.5 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by Northern Irish law and the parties submit to the non-exclusive jurisdiction of the Northern Irish courts and these terms shall be governed by and interpreted and construed in accordance with the laws of Northern Ireland
14.6 No person other than a party to this agreement may enforce it by virtue of the Contracts (rights of third parties ) Act 1999.
14.7 The Buyer acknowledges that in entering into the Contract it does not rely on any representation or other term or any understanding except as expressly agreed in writing but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
15.1 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile or e-mail transmission:
15.1.1 (in case of communications to the Seller) to its registered office or published e-mail address, or such changed address as shall be notified to the Buyer by the Seller; or
15.1.2 (in the case of the communications to the Buyer) to the registered office (if it is a company) of the addressee or its e-mail address or to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to the Seller by the Buyer.
15.2 Communications shall be deemed to have been received:
15.2.1 if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
15.2.2 if delivered by hand, on the day of delivery;
15.2.3 if sent by facsimile transmission or e-mail on a working day prior to 4.00 pm, at the time of transmission or sending and otherwise on the next working day.