TERMS OF SALE
1 Interpretation
1.1 In these Terms:
'CLIENT' means the person who accepts the Formation's Written quotation for the sale of the Services or whose Written order for the Services is accepted by Formation;
'SERVICES' means the services as set out in the Order Form which Formation is to supply in accordance with these Terms;
'FORMATION' means Formation Print and Design Ltd of 8 Smokehouse Yard 44/46 St John Street London EC1M 4DF
'CONTRACT' means the contract for the sale and purchase of the Services;
'Order Form' means the order form setting out the services to be provided by Formation to the client attached or annexed to the Terms
'TERMS' means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Client and Formation;
'WRITING', and any similar expression, includes facsimile transmission and comparable means of communication, but not electronic mail.
1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Terms are for convenience only and shall not affect their interpretation.
2 Basis of the sale
2.1 Formation shall sell and the Client shall purchase the Services in accordance with the Order Form, subject in either case to these Terms, which shall govern the Contract to the exclusion of any other terms subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Client.
2.2 No variation to these Terms shall be binding unless agreed in Writing between the authorised representatives of the Client and Formation.
2.3 The Formation's employees or agents are not authorised to make any representations concerning the Services unless confirmed by Formation in Writing. In entering into the Contract the Client acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
2.4 Any advice or recommendation given by Formation or its employees or agents to the Client or its employees or agents as to application or use of the Services which is not confirmed in Writing by Formation is followed or acted upon entirely at the Client's own risk, and accordingly Formation shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 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 Formation shall be subject to correction without any liability on the part of Formation.
3 Orders and specifications
3.1 No order submitted by the Client shall be deemed to be accepted by Formation unless and until confirmed in Writing by the Formation's authorised representative. The Client shall upon placing the order pay to Formation the deposit set out on the Order Form. This deposit is non refundable by Formation unless Formation in its absolute discretion agrees to the contrary.
3.2 The Client shall be responsible to Formation for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Client, and for giving Formation any necessary information relating to the Services within a sufficient time to enable Formation to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of the Services and any specification for them shall be as set out in the Order Form accepted by Formation).
3.4 If any process or service is to be applied to the Services by Formation in accordance with a specification submitted by the Client, the Client shall indemnify Formation against all loss, damages, costs and expenses awarded against or incurred by Formation in connection with, or paid or agreed to be paid by Formation in settlement of, any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Formation's use of the Client's specification.
3.5 Formation reserves the right to make any changes in the specification of the Services which are required to conform with any applicable statutory or E.U. requirements or, where the Services are to be supplied to the Formation's specification, which do not materially affect their quality or performance.
3.6 No order which has been accepted by Formation may be cancelled by the Client except with the agreement in Writing of Formation and on terms that the Client shall indemnify Formation in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Formation as a result of cancellation.
4 Price of the services
4.1 The price of the Services shall be the Formation's quoted price set out in the Order Form. All prices quoted are valid for 30 days only or until earlier acceptance by the Client, after which time they may be altered by Formation without giving notice to the Client.
4.2 Formation reserves the right, by giving Written notice to the Client at any time before delivery, to increase the price of the Services to reflect any increase in the cost to Formation which is due to any factor beyond the control of Formation (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in specifications for the Services which is requested by the Client, or any delay caused by any instructions of the Client or failure of the Client to give Formation adequate information or instructions.
4.3 Except as otherwise stated in the Order Form and unless otherwise agreed in Writing between the Client and Formation, all prices are given by Formation on an ex works basis, and where Formation agrees to deliver any goods involved as part of the Services otherwise than at Formation's premises, the Client shall (where relevant) be liable to pay Formation's charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax, which the Client shall be additionally liable to pay to Formation.
5 Terms of payment
5.1 Subject to any special terms agreed in Writing between the Client and Formation, Formation may invoice the Client for the price of the Services on or at any time after delivery of the Services.
5.3 The Client shall pay the price of the Services (less any discount to which the Client is entitled, but without any other deduction) within 30 days of the date of the Formation's invoice, and Formation shall be entitled to recover the price. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request. Where services are provided in instalments and the Order Form so specifies invoices may be submitted at such instalments for payment in one or more instalments (as the case may be).
5.4 If the Client fails to make any payment on the due date then, without limiting any other right or remedy available to Formation, Formation may:
5.4.1 cancel the contract or suspend any further services to the Client;
5.4.2 appropriate any payment made by the Client to such of the Services (or the goods supplied under any other contract between the Client and Formation) as Formation may think fit (notwithstanding any purported appropriation by the Client); and
5.4.3 charge the Client interest (both before and after any judgment) on the amount unpaid, at the rate of four per cent per annum above Barclays Bank plc 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) or, if interest is greater, under the Late Payment of Commercial Interest Act 1998 (as amended)
6 Delivery
6.1 Any dates quoted for completion by Formation of the Services are approximate only and Formation shall not be liable for any delay in delivery of the Services however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by Formation in Writing. The Services may be delivered by Formation in advance of the quoted delivery date on giving reasonable notice to the Client.
6.2 Where delivery of the Services is to be made by Formation in a number of parts Formation reserves the right to deliver those parts separately or in instalments unless agreed with the Client to the contrary.
6.3 Where the Services are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Formation to deliver any one or more of the instalments in accordance with these Terms or any claim by the Client in respect of any one or more instalments shall not entitle the Client to treat the Contract as a whole as repudiated.
6.5 If Formation fails to deliver the Services (or any instalment) for any reason other than any cause beyond the Formation's reasonable control or the Client's fault, and Formation is accordingly liable to the Client, the Formation's liability shall be limited to the excess (if any) of the cost to the Client (in the cheapest available market) of similar services to replace those not delivered over the price of the Services.
7 Warranties and liability
7.1 Subject to the following provisions Formation warrants that the Services will correspond with their specification at the time of delivery and will be free from defects [for a period of ].
7.2 The above warranty is given by Formation subject to the following conditions:
7.2.1 Formation shall be under no liability in respect of any defect in the Services arising from any design or specification supplied by the Client;
7.2.2 Formation shall be under no liability in respect of any defect arising from wilful damage, negligence, abnormal working conditions, failure to follow Formation's instructions (whether oral or in Writing), misuse or alteration without Formation's approval;
7.2.3 Formation shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Services has not been paid by the due date for payment;
7.2.4 the above warranty does not extend to parts, materials or equipment not manufactured by Formation, in respect of which the Client shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Formation.
7.3 Subject as expressly provided in these Terms, and except where the Services are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
7.4 Where the Services are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Client are not affected by these Terms.
7.5 A claim by the Client which is based on any defect in the quality or condition of the Services or their failure to correspond with specification shall (whether or not delivery is refused by the Client) be notified to Formation within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Client does not notify Formation accordingly, the Client shall not be entitled to reject the Services and Formation shall have no liability for such defect or failure, and the Client shall be bound to pay the price as if the Services had been delivered in accordance with the Contract.
7.6 Where a valid claim in respect of any of the Services which is based on a defect in the quality or condition of the Services or their failure to meet specification is notified to Formation in accordance with these Terms, Formation may replace the Services (or the part in question) free of charge or, at the Formation's sole discretion, refund to the Client the price of the Services (or a proportionate part of the price), in which case Formation shall have no further liability to the Client.
7.7 [Except in respect of death or personal injury caused by the Formation's negligence, or liability for defective products under the Consumer Protection Act 1987], Formation shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of Formation, its employees or agents or otherwise) which arise out of or in connection with the supply of the Services (including any delay in supplying or any failure to supply the Services in accordance with the Contract or at all) or their use or resale by the Client, and the entire liability of Formation under or in connection with the Contract shall not exceed the price of the Services, except as expressly provided in these Terms.
7.8 Formation shall not be liable to the Client 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 Formation's obligations in relation to the Services, if the delay or failure was due to any cause beyond the Formation's reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Formation's reasonable control:
7.8.1 Act of God, explosion, flood, tempest, fire or accident;
7.8.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
7.8.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
7.8.4 import or export regulations or embargoes;
7.8.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of Formation or of a third party);
7.8.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
7.8.7 power failure or breakdown of computers or any other machinery (or software).
[8. Indemnity
8.1 If a claim is made against the Client that the Services infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of a drawing, design or specification supplied by the Client, Formation shall indemnify the Client against all loss, damages, costs and expenses awarded against or incurred by the Client in connection with the claim, or paid or agreed to be paid by the Client in settlement of the claim, provided that:
8.1.1 Formation is given full control of any proceedings or negotiations in connection with the claim;
8.1.2 the Client shall give Formation all reasonable assistance for the purposes of any such proceedings or negotiations;
8.1.3 except pursuant to a final award, the Client shall not pay or accept the claim, or compromise any such proceedings without the consent of Formation (which shall not be unreasonably withheld);
8.1.4 the Client shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Client may have in relation to such infringement, and this indemnity shall not apply to the extent that the Client recovers any sums under any such policy or cover (which the Client shall use its best endeavours to do);
8.1.5 Formation shall be entitled to the benefit of, and the Client shall accordingly account to Formation for, all damages and costs (if any) awarded in favour of the Client which are payable by, or agreed with the consent of the Client (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
8.1.6 without limiting any duty of the Client at common law, Formation may require the Client to take such steps as Formation may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which Formation is liable to indemnify the Client under this clause.]
9 Insolvency of Client
9.1 This clause 10 applies if:
9.1.1 the Client makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
9.1.2an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Client; or
9.1.3 the Client ceases, or threatens to cease, to carry on business; or
9.1.4 Formation reasonably apprehends that any of the events mentioned above is about to occur in relation to the Client and notifies the Client accordingly.
9.2 If this clause applies then, without limiting any other right or remedy available to Formation, Formation may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Client, and if the Services have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10 General
10.1 A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to that other party at the place of business set out on the Order Form or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
10.2 No waiver by Formation of any breach of the Contract by the Client shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.3 If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
10.4 The Contract shall be governed by the laws of England, and the Client agrees to submit to the non-exclusive jurisdiction of the English courts.
