MASCOPRINT DEVELOPMENTS LIMITED
TERMS AND CONDITIONS OF SALE OF GOODS AND SUPPLY OF SERVICES
1. BASIS OF CONTRACT
(a) These Conditions shall form part of every Contract of sale of goods and supply of services (“Contract”) entered into by Mascoprint Developments Limited (“the Company”) and will operate to the entire exclusion of any terms and conditions of purchase of any Customer, including terms implied by custom or course of dealing, and any purported variation or exclusion (whether contained in any document of the Customer or otherwise) shall be of no effect unless accepted in writing by the Company.
(b) Any typographical, clerical or other error or omission in any documents or information issued by the Company shall be subject to correction without any liability on the part of the Company.
(c) Trade orders only will be accepted. The Company does not supply goods or services to anyone dealing as a consumer. Any Customer order or acceptance of quotation shall be deemed a representation that the Customer deals as a business and not as a consumer.
Any representations or warranties made or given by anyone on the Company’s behalf prior to its acceptance of an order and not contained in the Company’s quotation are expressly excluded.
(a) Unless otherwise stated all prices quoted by the Company are exclusive of VAT, ex works and subject to variation prior to despatch. If the Customer wishes the Company to arrange onward delivery from the Company’s premises, then the Company may agree to do so on the Customer’s behalf and at the Customer’s risk and expense, and the Company reserves the right to make an additional charge for carriage and insurance.
(b) Charges for services shall be on a time and materials basis, calculated according to the Company’s standard hourly rates from time to time. The Company shall be entitled to charge the Customer for any expenses reasonably incurred in connection with the 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 Company for the performance of the services, and for the cost of any materials.
(c) The Company reserves the right to increase the price of the goods and services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the goods and/or services to the Company including (without limitation) any increase due to:
(i) force majeure (as defined below);
(ii) any request by the Customer to change the delivery arrangements, quantities or types of goods ordered, or the specification of the goods or requirements for the services; or
(iii) any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.
(d) The Company will give the Customer written notice of any price increase as soon as reasonably practicable before the proposed date of delivery. If such increase is more than 10% of the total price of the Order the Customer may notify the Company that the price increase is not acceptable in writing within 7 days after the date of the Company’s written notice of increase, in which case the Company shall then have the right without limiting its other rights or remedies to terminate the Contract by giving 3 days written notice to the Customer;
(e) No order which has been accepted by the Company may be cancelled by the Customer otherwise than with the agreement in writing of the Company and the Customer shall indemnify the Company against all losses, including loss of profit, costs, damages, charges and expenses due to the cancellation.
(a) Delivery dates are estimated only and not guaranteed. Time for delivery shall not be of the essence of the contract unless previously specifically agreed by the Company in writing. The Company will endeavour to meet the Customer’s delivery requirements but shall not be liable for any loss or damage whether direct, indirect, consequential or otherwise caused by any delay in delivery.
(b) Delivery is made at the Company’s premises. Where the Company arranges onward delivery from the Company’s premises, this will be at the risk and expense of the Customer, who will be liable to pay the Company’s charges for transport, packaging and insurance. The Customer is responsible for any additional sums charged by carriers due to failed delivery attempts or any other difficulties in delivery. Where the Company agrees to deliver the goods otherwise than at the Company’s premises, the Company shall be under no obligation under section 32(2) of the Sale of Goods Act 1979.
(c) The Company shall have no liability in respect of goods lost or damaged in transit to the Customer. The Company may at its absolute discretion, and without further liability or obligation, pass on to the Customer all or part the benefit of any compensation received from the carrier provided that the Customer or his agent notes such loss or damage on the delivery receipt and gives notice in writing to the Company and the carrier within three days of delivery or such shorter period as may be required by the carrier’s Conditions of Carriage or in the case of a whole consignment failing to arrive gives notice in writing to the Company within five days of the earlier of receipt of the Company’s invoice or despatch note.
(d) If the Company fails to deliver the goods (or any instalment), or goods are damaged in transit, and the Company is held liable to the Customer, the Company’s liability shall be limited:
(i) in the case of non-delivery, to the excess (if any, and in any case not exceeding 25% of the price of the goods) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the goods;
(ii) in the case of damaged goods, at the discretion of the Company, to repairing or replacing the damaged goods.
(e) If the Customer fails to take delivery of the goods or fails to give the Company adequate delivery instructions at the time stated for delivery then, without limiting any other right or remedy available to the Company, the Company may:
(i) store the goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
(ii) sell the goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
5. TERMS OF PAYMENT
(a) UK SALES: Unless stated otherwise in the quotation:
(i) for machines: 30% deposit payable with order, 60% payable on delivery, balance of all sums remaining unpaid payable in full within 30 days after the date of delivery.
(ii) All other goods, services, and any other sums due and payable in full within 30 days after the date of invoice.
(b) EXPORT SALES: As per UK sales unless otherwise stated in the quotation. Compliance with any regulations, legislation or other requirements, and payment of any taxes, duties, or other sums due for the importation of goods into the destination country are the responsibility of the Customer.
(c) Without prejudice to any other rights of the Company if payment is not made as stipulated the Company expressly reserves the right to charge interest on any outstanding balance under the Late Payment of Commercial Debts (Interest) Act 1998 from the due date until the date of payment, whether before or after judgement.
(d) All sums due to the Company are payable in full, without deduction, counterclaim or set-off.
(a) The Company may make any changes to services to be supplied to the Customer 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.
(b) The Customer will
(i) co-operate with the Company in all matters relating to the services;
(ii) provide the Company’s personnel with access to the Customer’s premises and other facilities as are reasonably required by the Company to provide the services;
(iii) provide the Company with such information and materials as the Company may reasonably require to supply the services, and ensure that such information is accurate in all material respects;
(iv) prepare the Customer’s premises for the supply of the services;
(v) 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;
(vi) keep and maintain all materials, equipment, documents and other property of the Company (Company Materials) at the Customer’s premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation.
(c) If the Company’s performance of any of the services is prevented or delayed by any act or omission by the Customer the Company may, without limiting its other rights or remedies, change or suspend performance of the services, and will not be liable for any costs or losses of the Customer due to such change or suspension. The Customer will be responsible for any costs or losses of the Company due directly or indirectly from the Customer’s act or omission.
(d) The Company shall use all reasonable endeavours to meet any agreed dates for the services, but any such dates shall be estimates only and time shall not be of the essence for the performance of the services.
(a) If delivery is arranged by the Company then the risk in the goods shall pass at the time of delivery or, if the Customer wrongfully fails to take delivery of the goods, the time when the Company has tendered delivery of the goods
(b) If the Customer arranges for collection of the goods from the Company’s premises then the risk in the goods shall pass at the time when the Company notifies the Customer that the goods are available for collection.
(a) Notwithstanding delivery and the passing of risk in the goods, or any other provision of these terms, until payment in full is made by the Customer for the goods they shall remain the property of the Company and the goods will be kept separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Company’s property. The Customer may resell or use the goods in the ordinary course of its business.
(b) In the event of default in payment or in the event that the Customer becomes bankrupt or goes into liquidation or has a receiver appointed of the whole or any part of its assets or upon the actual or reasonably anticipated occurrence of the same or any other event of insolvency or cessation of business, then any sums payable for the goods shall be immediately due and payable and the right to resell or use the goods will cease automatically. Without limiting any other right or remedy available to the Company) the Company shall be entitled at its option to do all or any of the following:
(i) To treat the Contract as discharged (but without prejudice to its right to claim payment for the goods and services ordered) and
(ii) To repossess the goods from the Customer’s possession or control (and for such purpose shall have the right together with its servants and agents to enter upon any premises where the goods are stored) and
(iii) To hold the Customer responsible for any costs and expenses incurred in such repossession and the difference between the Contract price for the goods and (if lower) their market value at the date of such repossession.
9. WARRANTY AND EXCLUSIONS
A. SCREEN AND PAD PRINTING EQUIPMENT
(a) The Company warrants that all screen and pad printing equipment (“equipment”) sold by it will be free from defects in materials or workmanship at the date of delivery and will remain so for a period of twelve months from delivery.
(b) The Company shall not be liable under the foregoing warranty unless the Company is notified of any alleged defect, and forthwith upon the same becoming apparent is allowed to inspect the equipment to the Company’s reasonable satisfaction and such inspection shall disclose to the Company’s reasonable satisfaction that such defects or failure have not been caused by misuse neglect improper installation repair alteration or accident.
(c) The Company’s liability under this warranty is limited to repairing or replacing or at the discretion of the Company refunding the purchase price for all or part of any equipment not conforming to this warranty.
B. SCREEN PRINTING AND PAD PRINTING CONSUMABLES
(a) The Company warrants that all screen printing and pad printing consumables (“consumables”) will be free from defects in materials or workmanship at the date of delivery.
(b) The Company shall not be liable under this warranty unless it is notified of any alleged defect within fourteen days after the date of delivery, is allowed to inspect the item to the Company’s reasonable satisfaction, and such inspection discloses, to the Company’s reasonable satisfaction, that the defect has not been caused by misuse neglect improper installation repair alteration or accident. It is accordingly recommended that forthwith upon delivery the Customer should inspect the screen and utilise the same for a sample print run.
(c) Because of their delicate nature and the fact that they are highly susceptible to accidental damage the Company can give no warranty that any consumables will remain free from defects and capable of being used for any specified period of time.
(d) Where the screen has been made up from positives supplied by the Customer then the Company shall not be liable for any defects in the screen which are attributable to defects in such positives.
(e) The Company’s liability under this warranty is limited to repairing or replacing or at the discretion of the Company refunding the purchase price for any consumables not conforming to this warranty.
C. INKS AND SCREEN MESH
All such materials are bought in by the Company and accordingly the Company can give no warranty that such goods will be free from defects or fit for the Customer’s purpose for which they are intended. The Company will however insofar as it has power to do so pass on to the Customer the benefit of any guarantee by the manufacturer or wholesaler of such items.
D. GENERAL EXCLUSIONS
(a) In consideration of the warranties set out above, it is agreed that save as expressly stated in these terms and conditions all representations warranties conditions expressed or implied and statutory or otherwise (including but not limited to any concerning fitness for a particular purpose) are expressly excluded to the fullest extent permitted by law.
(b) The above warranties in this clause 9 (Warranty and Exclusions) are given by the Company subject to the following conditions:
(i) the Company shall be under no liability in respect of any defect arising from:
(1) any drawing, design or specification supplied by the Customer;
(2) fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alteration or repair of the goods without the Company’s approval;
(ii) the Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee):
(1) if the total price for the goods has not been paid by the due date for payment;
(2) if the Customer does not return the goods to the Company for inspection if requested and according to the Company’s requirements;
(3) in the case of any failure by the Customer to ensure that all goods supplied by the Company to the Customer are at all times operated properly and safely in compliance with all relevant provisions of the Health & Safety at Work, Etc., Act 1974 (as varied from time to time) and any instructions concerning the use and operation of the goods. The Customer will indemnify the Company against any actions, claims, damages, costs and expenses incurred or suffered by the Company as a result of any injury or damage caused by any such failure.
(iii) The above warranties do not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company, and subject to any test results, specification, technical advice or other information as to the goods provided by the manufacturer.
(c) The Customer agrees that these Conditions are reasonable and provide reasonable compensation for loss. Except as set out in these Conditions, or in the case of non-excludable statutory liability, the Company 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 direct, indirect or consequential loss, and the Company’s total liability to the Customer for all other losses arising under or in connection with the Contract, whether in contract, tort, breach of statutory duty, or otherwise shall in no circumstances exceed £5,000,000 (Five million pounds).
10. CUSTOMER’S INDEMNITY FOR THIRD PARTY INTELLECTUAL PROPERTY CLAIMS
The Customer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Company’s use of any specification at the direction of the Customer or supplied by the Customer. This clause 10 shall survive termination of the Contract.
(a) The Company shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of any events beyond the reasonable control of the Company including but not limited to strikes, or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law, order, regulation or direction of any authority, accident, breakdown of plant or machinery, fire, flood, storm or default of Company’s suppliers or subcontractors (“force majeure”). If the Company is prevented by force majeure from providing any of the services and/or goods for more than twelve weeks, the Company shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
(b) The Company reserves the right to amend the specification of the goods if required by any applicable statutory or regulatory requirements.
(c) Returns: No return of goods may be made to the Company without prior arrangement and in accordance with any procedure required by the Company.
12. GOVERNING LAW
These Conditions and any dispute or claim arising out of or in connection with them or any Contract or their subject matter or formation (including non-contractual disputes or claims) shall be subject to and construed in accordance with English Law, and the parties submit to the exclusive jurisdiction of the English courts, save that the Company may, at its option, instead refer any such dispute or claim for determination by to a single arbitrator, agreed upon by the parties or, if agreement is not reached within 10 business days of a request to do so, nominated on the application of either party by the President of FESPA UK Association (or its successor association). The provisions of the Arbitration Act 1996 shall apply. The seat of the arbitration shall be London; the governing law shall be English; and the language of the arbitration shall be English.