Terms and Conditions
GENERAL CONDITIONS OF TRADE
1.1 In these Conditions the following words have the following meanings:
“the Company” means eclipse 4dm Limited or eclipse red Limited or DL Marketing (Direct Link) Limited or any connected company
“Contract” means any contract between the Company and the Customer incorporating these Conditions for the sale and purchase of the Goods and/or Services
“Customer” means the party that has placed the order for the Goods and/or Services
“Customer’s Group” shall include all subsidiaries (as defined in the Companies Act 1985 as amended) of the Customer’s ultimate parent undertaking
“Force Majeure” means an act beyond the control of the Company, including but not limited to any act of God, fire, flood, power failure, reduction of power supplied, mechanical failure, lack of shortage of materials (not being due to the wilful default of the Company) act of government or state, war, civil commotion, insurrection, embargo, strike, lockout, industrial dispute or action taken by the Company or any other person, firm or connected company, and any other reason beyond the control of the Company
“Goods” means the work and materials to be produced or the work to be carried out by the Company as the case may be pursuant to this contract
“Services” means the services to be carried out by the Company as the case may be pursuant to this contract
1.2 In these Conditions:
1.2.1 reference to the Company and the parties shall include their respective successors in title to substantially the whole of their respective undertakings;
1.2.2 references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced;
1.2.3 headings will not affect the construction of these Conditions.
2 APPLICATION OF TERMS
2.1 Subject to Condition 2.2, the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms and conditions which the Customer purports to apply under any order, confirmation of order, specification or other document).
2.2 No modification or addition to these Conditions shall be binding on the Company unless made in writing and signed by a Director or authorised officer of the Company.
3 ACCEPTANCE OF ORDER
3.1 Each order by the Customer shall be deemed to be an offer by the Customer to purchase Goods and/or Services subject to these Conditions.
3.2 If the Customer wishes to place an order on the basis of any quotation provided by the Company such order must be accompanied by sufficient information to enable the Company to proceed with the order. Delay in supplying such information may lead to the Company revising the quotation.
3.3 No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company and the Company confirms to the Customer the date of delivery or the Company delivers the Goods and/or Services to the Customer.
3.4 The Customer must ensure the terms of its order and any applicable specification is complete and accurate.
3.5 Each order issued by the Customer to the Company for Goods and/or Services and accepted by the Company shall constitute a separate Contract.
4 CANCELLATION AND VARIATION
4.1 No order which has been accepted by the Company may be altered or withdrawn by the Customer except by an agreement in writing of the Company on terms that the Customer shall indemnify the Company in full against all losses (including loss of profit) costs (including the cost of all labour and materials used) damages charges and expenses incurred by the Company as a result of such alteration or withdrawal.
4.2 The Customer shall indemnify the Company against all additional costs incurred by the Company resulting from any alteration or withdrawal of an order by the Customer made without the written consent of the Company. Such additional costs shall be paid within 7 days of the Company’s demand.
5.1 The Customer shall contract as principal unless the Customer discloses in writing before the despatch by the Company of the acceptance:
5.1.1 that it is acting as agent; and
5.1.2 the identity of the principal.
5.2 The Customer shall remain liable under this Contract unless the Company acting by an authorised officer shall agree otherwise in writing.
5.3 Where such written agreement is obtained it shall be presumed by the Company that the Customer is fully authorised to act on behalf of its principal and that the principal shall be contractually liable on this Contract.
5.4 The Customer will forward any invoices to the principal within 7 days of receipt.
6 PRELIMINARY WORK
6.1 All preliminary work executed at the Customer’s request (whether or not experimental) will be charged to the Customer.
7.1 The Customer shall be responsible for ensuring that any art work, sketches, specifications, descriptions or information or other instructions supplied by the Customer or by any agent or representative of the Customer in connection with the manufacture or production of the Goods and/or the supply of Services are accurate, unambiguous and clearly legible and meet the Customer’s requirements.
7.2 The Customer shall also be responsible for ensuring that all computer files whether submitted to the Company on diskette, magnetic tape, cartridge, direct transfer or otherwise:
7.2.1 are capable of being read and processed by the Company;
7.2.2 are supplied with a file layout in respect of each format of file supplied;
7.2.3 are provided within sufficient time to allow all required processing to take place and for results to be evaluated before processing and manufacture proceed; and
7.2.4 are computer virus free.
7.3 The Company may reject any computer file, paper, film, plate, printed sheets, signatures or other materials supplied or specified by the Customer or the resulting product of any direct input provided by or on behalf of the Customer if in the Company’s opinion it is unsuitable, substandard or of defective quality. Any additional cost incurred by such rejection at any stage during or after production shall be charged by the Company. The materials shall be supplied within a reasonable time prior to manufacture or production and be of an adequate quality to allow for normal spoilage. In particular but without prejudice to the generality of the foregoing, where 100% production or manufacture is required, the Customer must take a view on what quantities are necessary (normally not less than 100%) and shall be responsible for the consequences of any failure to supply adequate quantities to the Company.
7.4 The Customer shall indemnify the Company fully in respect of any liability, loss, injury, damage, demand, cost, charge or expense which may be incurred or sustained by the Company by reason of or arising directly or indirectly in respect of any failure, delay, inaccuracy, ambiguity, illegibility or virus in respect of any such art work, sketches, specifications, descriptions, information, computer files or otherwise in relation to the Customer’s responsibilities set out in this Condition 7.
7.5 The Customer grants to the Company a non-exclusive, non-transferable, royalty-free licence to use any materials supplied by the Customer only to the extent necessary for the Customer to perform the Services and produce the Goods and the Customer shall obtain all necessary approvals, authorisations, licences, consents and waivers for such use by Company of any such material which belong to a third party.
7.6 The Customer shall indemnify the Company fully for any liability, loss, injury, demand, cost, charge or expense which may be incurred or sustained by reason of or arising directly or indirectly in respect of any material used in the Goods or to perform the Services belonging to a third party.
8 PROOFS AND ADDITIONAL WORKS
8.1 Proofs of work may be submitted for the Customer’s approval and the Company shall incur no liability for any errors not corrected by the Customer in proofs so submitted. Customer’s alterations and additional proofs necessitated thereby and all other works carried out at the Customer’s request shall be charged to the Customer. When style, type or layout is left to the Company’s judgement, changes made by the Customer shall be charged extra. A charge may also be made to cover any additional work involved where the copy supplied is not clear and legible.
9.1 “Delivery” shall mean whichever is the first to occur of (i) the Goods leaving the premises of the Company whether upon collection by Royal Mail or otherwise or (ii) the Company giving notice in writing to the Customer that the Goods are ready for collection.
9.2 If the Customer fails to collect the Goods within 7 days of such notice the Company shall be entitled at its absolute discretion to:
9.2.1 arrange transport of the Goods on the Customer’s behalf and at the Customer’s expense to the Customer’s address; or
9.2.2 to arrange storage of the Goods either at its own premises or elsewhere on the Customer’s behalf and at the Customer’s expense.
9.3 Where the Goods are stored at the Company’s expense then the charge for such storage shall be not less than 2% of the Contract price of the Goods per month. All charges for such transport and storage shall be payable by the Customer within 7 days of demand.
9.4 The time for the Delivery of the Goods shall be the time agreed in writing between the Company and the Customer. If no such time is agreed it shall be the reasonable time after the date of the despatch of the acceptance.
9.5 Time shall not be of the essence of the Contract.
9.6 The Customer shall not be entitled to reject any Goods by reason of late Delivery where such Goods have been delivered after the time for Delivery unless:
9.6.1 the Customer has given to the Company not less than 21 days’ written notice of his intention to do so, after the date for Delivery ; and
9.6.2 the Goods have not been delivered within such time.
10 RISK AND PROPERTY
10.1 The Goods are at the risk of the Customer from the time of Delivery, or where the Customer fails to collect the Goods as contemplated by Condition 9.1(ii) upon the commencement of whichever is the first to occur of transportation or of storage of the Goods