Any work undertaken by the Company is subject to the enclosed terms and conditions. In these terms and conditions: ‘Company’ means By The Sea Limited, trading as UK Flyers, (company registered number 3184261), whose registered office is at Europa House, Goldstone Villas, Hove, East Sussex BN3 3RQ. Acceptance of any order by the Company shall be subject to the conditions set out below, to the exclusion of any terms, conditions or stipulations, including any terms or conditions which the customer may purport to apply under any order, confirmation of order or similar document unless otherwise agreed by the Company in writing.
1. PRICE VARIATION
1.1 Estimates are based on the Company’s current costs of production and shall be binding on the customer provided the customer shall accept the estimate within 30 days. The Company may by giving notice to the customer at any time up to 7 days before delivery increase the price to reflect any increase in the cost to the Company which is due to factors occurring after acceptance of the order by the Company which are beyond the reasonable control of the Company, provided that the customer may cancel the order within 7 days of any such notice from the Company, or unless otherwise agreed.
2.1 The price shall be the Company’s quoted price. The price is exclusive of Value Added Tax (VAT) which shall be due from the customer at the rate prevailing on the date of the Company’s invoice.
3. PRELIMINARY WORK
3.1 All work carried out at the customer’s request, whether experimentally or otherwise, shall be charged.
4.1 The Company reserves the right to make a charge to cover the costs of any work involved where any copy supplied by the customer is not clear and legible.
5.1 Proofs of all work may be submitted for customer’s approval and the Company shall incur no liability for any errors not corrected by the customer in proofs so submitted. Where alterations and/or additional proofs are necessitated due to any error or oversight of the customer an extra charge shall be made. When style, type or layout is left to the Company’s judgement, changes therefrom made by the customer shall be charged extra.
6. DELIVERY & PAYMENT
6.1 Delivery of work shall be accepted when tendered and thereupon or, if earlier, on notification that the work has been completed payment shall become due.
6.2 Should expedited delivery be agreed an extra fee may be charged by the Company to cover any overtime or any other additional costs involved.
6.3 Should work be suspended at the request of or delayed through any default of the customer for a period of 30 days the Company shall then be entitled to payment for work already carried out, materials specially ordered and other additional costs including storage.
6.4 The goods shall be at risk of the customer immediately on delivery to the customer or to a third party authorised to receive the goods on the customer’s behalf (whichever is the sooner) and the customer should therefore be insured accordingly.
6.5 If the customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company:
6.5.1 The Company shall be entitled to: (a) cancel the order and/or any other contract with the customer or suspend any further deliveries to the customer; and/or (b) charge the Customer interest (both before and after any judgement) on the amount unpaid, at the rate of 4 per cent per annum above the Base Rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest). For these purposes ‘Base Rate’ means the base rate (or such rate as in the reasonable opinion of the Company replaces it of Lloyds TSB Bank plc (or such other London Clearing bank as the Company reasonably specifies);
6.5.2 the customer shall indemnify the Company on demand against all costs, losses, expenses or liabilities suffered by the Supplier as a result of such failure.
7. RETENTION OF TITLE
7.1 Subject to clause 16, title to the goods shall not pass to the customer until payment in full of the price therefor. Until such payment the customer shall hold the goods as fiduciary bailee for the Company. The customer shall store the goods in such a way as to enable them to be identified as the property of the Company.
7.2 Notwithstanding that the title to the goods remains with the Company if the customer is purchasing the goods for resale, the customer may as agent for the Company sell and deliver the goods to a third party in the ordinary course of the customer’s business on condition that until title to the goods passes from the Company the customer shall hold all proceeds of such sales in trust for the Company and in a separate account.
7.3 The customer hereby assigns to the Company all rights and claims which the customer may have against its own customers arising from such sales until payment is made in full as aforesaid.
7.4 The Company reserves the right to re-possess any goods in respect of which payment is overdue and thereafter to re-sell the same and for this purpose the customer hereby grants an irrevocable right and licence to the Company’s servants and agents to enter upon all or any of its premises with or without vehicles during normal business hours. This right shall continue to subsist notwithstanding the termination of the contract for any reason and is without prejudiced to any accrued rights to the Company thereunder or otherwise.
8. VARIATIONS IN QUANTITY
8.1 Every endeavour will be made to deliver the correct quantity ordered, but estimates are conditional upon margins of 5 per cent for work in one colour only and 10 per cent for other work being allowed for overs or shortage (4 per cent and 8 per cent respectively for quantities exceeding 50,000) the price shall be adjusted pro rata to the discrepancy.
9.1 The customer shall inspect the goods on delivery and shall advise the Company and the carrier in writing within three clear days of delivery of and alleged defect, damage, delay or partial loss of goods in transit, failure to comply with description or sample or of non-delivery (or, in the case of non-delivery, within 28 days of despatch of the goods) and any claim in respect thereof must be made in writing to the Company and the carrier within seven clear days of delivery (or, in the case of non-delivery, within 42 days of despatch). The customer shall afford the Company an opportunity to inspect the goods within a reasonable time following delivery and before any use is made of them. If the customer shall fail to comply with these provisions the goods shall be conclusively presumed to be in accordance with the contract and free from defect or damage which would be apparent on a reasonable examination of the goods and the customer shall be deemed to have accepted the goods.
9.2 All other claims must be made in writing to the Company within 28 days of delivery. The Company shall not be liable in respect of any claim unless the aforementioned requirements have been complied with. Under no circumstances shall the Company’s liabilities in respect of any work exceed the order value.
10.1 The Company shall be under no liability whatsoever to the customer for any consequential or indirect loss and/or expense (including loss of profit, loss of contracts or loss of anticipated benefits) suffered by the customer arising from work carried out by the Company, or any breach by the Company of this contract.
11. STANDING MATERIAL
11.1 Metal, film, glass and other materials owned by the Company and used by it in the production of type, plates, film setting, negatives, positives and the like shall remain his exclusive property. Such items when supplied by the customer shall remain the customer’s property.
11.2 Type may be erased and lithographic, photogravure or other work effaced immediately after the order is executed unless written arrangements are made to the contrary. In the latter event, rent may be charged.
12. CUSTOMERS PROPERTY
12.1 Except in the case of a customer who is not contracting in the course of a business nor holding himself out as doing so, customer’s property and all property supplied to the Company by or on behalf of the customer shall while it is in the possession of the Company or in transit to or from the customer be deemed to be at customer’s risk unless otherwise agreed and the customer should insure accordingly.
12.2 The Company shall be entitled to make a reasonable charge for storage of any customer’s property left with the Company or his agent before receipt of the order or after notification to the customer of completion of the work.
13. MATERIALS SUPPLIED BY THE CUSTOMER
13.1 The Company may reject any paper, plates or other materials supplied or specified by the customer (‘Customer Materials’) which reasonably appear to it or its servants, employees or agents to be unsuitable. Additional costs incurred if materials supplied or specified by the customer are found to be unsuitable during production may be charged except that if the whole or any part of such additional cost could have been avoided but for unreasonable delay by the Company in ascertaining the unsuitability of the materials then that amount shall not be charged to the customer.
13.2 Where Customer Materials are supplied or specified, the Company will take every care to secure the best results, but responsibility will not be accepted for imperfect work caused by defects in or unsuitability of the Customer Materials.
13.3 Quantities of Customer Materials supplied shall be adequate to cover normal spoilage.
14.1.1 the customer fails to make payment for the goods in accordance with this contract or commits any other breach of this contract; or
14.1.2 if any distress or execution shall be levied upon any of the customers goods or if the customer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the customer ; or
14.1.3 the customer cannot pay his debts as they become due; or
14.1.4 being a limited company, any resolution or petition to wind up the customer shall be passed or presented or if a receiver administrator administrative receiver or manager shall be appointed over the whole or any other part of the customers business or assets; then the Company in its absolute discretion and without prejudice to other remedies shall: (a) have the right to declare that all sums outstanding in respect of the goods shall become payable immediately; (b) have the right not to proceed further with the contract or any other work for the customer and be entitled to charge for work already carried out (whether completed or not) and materials purchased for the customer, and (c) in respect of all unpaid debts due from the customer have a general lien on all goods and property in his possession (whether worked on or not) and shall be entitled on the expiration of 14 days’ notice to dispose of such goods or property in such manner and at such price as he thinks fit and to apply the proceeds towards such debts.
15. ILLEGAL MATTER
15.1 The Company shall not be required to produce any matter, which in its opinion is or may be of an illegal or libellous nature or an infringement of the proprietary or other rights of any third party.
15.2 The customer indemnifies the Company against all actions, claims, proceedings, liabilities, damages, costs, losses and expenses suffered, sustained or incurred by the Company as a result of any claim that any Customer Materials used by the Company:
15.2.1 infringe the copyright, patent, design, trade mark or other intellectual property, proprietary or personal right of any person;
15.2.2 are defamatory, obscene or illegal.
16.1 The copyright and all other intellectual property rights in any materials produced by the Company shall be the property of the Company. The customer is hereby granted a non-exclusive licence to use such copyright and other intellectual property rights, provided that it pays all amounts due to the Company. If the customer fails to do so the Company shall be entitled to terminate such licence.
16.2 The customer hereby grants to the Company a non-exclusive licence to use the copyright and other intellectual property rights in any Customer Materials to enable the Company to meet the customer’s order and to use any materials produced for the customer which incorporate Customer Materials for the purposes of the Company’s own marketing and promotion.
17. FORCE MAJEURE
17.1 The Company shall be under no liability if it shall be unable to carry out any provision of the contract for any reason beyond its control including (without limiting to the foregoing) Act of God, legislation, war, fire, flood, drought, tempest, failure of power supply, lock-out, strike or other action taken by employees in contemplation or furtherance of a dispute or owing to any inability to procure materials required for the performance of the contract. During the continuance of such a contingency the customer may by written notice to the Company elect to terminate the contract and pay for work done and materials used, but subject thereto shall otherwise accept delivery when available.
18. PROPER LAW OF CONTRACT
18.1 These terms of business and all other express terms of the contract shall be governed and construed in accordance with the laws of England and Wales. These terms supersede all others.