Phone Calls may be recorded for monitoring and quality purposes.
The Customer’s attention is drawn in particular to the provisions of Clause 8 in these terms.
1.1 Definitions. In these Conditions, the following definitions apply:
- Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
- Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.
- Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
- Customer: the person or firm who purchases the Goods from the Supplier.
- Force Majeure Event: has the meaning given in clause 9.
- Goods: the goods (or any part of them) set out in the Order including without limitation paper and marketing stands, equipment and accessories.
- Order: the Customer’s order for the Goods, as communicated to the Supplier by telephone or otherwise and as confirmed in the Order Confirmation.
- Order Confirmation: the confirmation of the Customer’s Order issued in writing (including by e-mail) by the Supplier and setting out such details as to the Goods required, quality and price.
- Specification: any specification for the Goods that is set out or referred to in the Order Confirmation or otherwise agreed in writing by the parties.
- Supplier: Silverback Visual, a trading name of Innotech Digital & Display Ltd (registered in England and Wales as a limited company with number 08772245).
1.2 Construction. In these Conditions, the following rules apply:
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to a party includes its personal representatives, successors or permitted assigns.
- A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
- Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- A reference to writing or written includes faxes but excludes e-mails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any relevant Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted upon occurrence of the earlier of the following: (i) the Supplier issues an Order Confirmation; or (ii) the Goods or part of the Goods are dispatched, at which point a Contract shall come into existence.
2.4 For the avoidance of doubt, no Order which has been accepted by the Supplier in accordance with clause 2.3 can be cancelled or varied by the Customer other than in accordance with clause 11.6 or on terms otherwise agreed in writing by the Supplier.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or any other contract between the Supplier and the Customer for the sale of the Goods.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall be subject to change at any time upon notification by the Supplier.
3.1 The Supplier shall deliver the Goods to the location set out in the Order Confirmation or such other location as the parties may agree in writing (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
3.2 Delivery of the Goods shall be completed immediately on the Goods’ arrival at the Delivery Location.
3.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event (as defined in clause 9) or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.4 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.5 If the Customer fails to accept delivery of the Goods within 1 Business Day of the Supplier notifying the Customer that the Goods are ready for delivery, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract and without prejudice to any other right or remedy available to the Supplier, the Supplier may at its sole option:-
- Deem delivery of the Goods to have been completed at 9.00 am on the next Business Day following the day on which the Supplier notified the Customer that the Goods were ready for delivery;
- Store the Goods until delivery takes place at a time agreed, and charge the Customer for all related costs and expenses (including without limitation for insurance, carriage and storage);
- Sell the Goods and retain any proceeds of sale and charge the Customer for the reasonable costs (including handling and insurance).
3.6 If 2 Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may at its sole option resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods pursuant to the Contract.
3.7 The Customer shall not be entitled to reject the Goods if the Supplier delivers up to and including the following percentage of Goods (more or less) than the quantity ordered (unless otherwise agreed in writing):-
- 10% in respect of paper;
- 2% in the case of any other Goods but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered to reflect the Price of the quantity of Goods either over or under delivered.
3.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.1 The Supplier warrants that on delivery, the Goods shall:
- Conform in all material respects with their description and any applicable Specification;
- Be free from material defects in design, material and workmanship; and
- Be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
4.2 Unless otherwise agreed in the Order Confirmation or otherwise in writing, the specification shall be in accordance with the Supplier’s Specifications from time to time as set out or referred to in the relevant Order Confirmation. The Supplier may change the Specification of any Goods to conform to any change in law applicable to the Goods occurring after the date of any contract or for any other reason provided that equivalent Goods are provided to the Customer. To the extent that the Customer provides the Specification, the Supplier shall have no liability in respect of any such Specification and the Customer shall ensure the accuracy of the detail of any such Specification as set out on the Order and shall provide the Supplier with all necessary information in relation to the required Specification in sufficient time to enable the Supplier to perform the Contract in accordance with its terms.
4.3 For the avoidance of doubt it is the sole responsibility of the Customer to select the correct Specification of Goods when placing an Order. The Supplier shall have no liability whatsoever to the Customer for the selection of the Specification or type of Goods made by the Customer or its suitability for any particular purpose, whether or not made known to the Supplier.
4.4 Subject to clause 4.5, if:
(a) the Customer gives notice in writing to the Supplier within 1 Business Day of discovery that some or all of the Goods do not comply with the warranty set out in clause 4.1 (and the Customer agrees to inspect the Goods on the day the Goods are delivered to it); and
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier ) promptly returns such Goods to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at its sole option, replace the defective Goods, or refund the price of the defective Goods in full.
4.5 The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 4.1 if:
- The Customer makes any further use of such Goods or any part of them after giving notice in accordance with clause 4.3; or
- The defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, or use of the Goods or (if there are none) good trade practice; or
- The defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer; or
- The Customer alters such Goods without the written consent of the Supplier;
- The Customer cuts, prints or processes any of the Goods (which are paper);
- The defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal or inappropriate storage or working conditions; or
- 3 calendar months from and including the date of delivery have expired.
4.6 Except as provided in this clause 4, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 4.1.
4.7 Except as set out in these Conditions, all representations, warranties, conditions and other terms express or implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
4.8 These Conditions shall apply to any replacement Goods supplied by the Supplier .
5. TITLE AND RISK
5.1 The risk in the Goods shall pass to the Customer on completion of delivery.
5.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
- The Goods; and
- All other sums which are or which become due to the Supplier for sales of the Goods to the Customer.
5.3 Until title to the Goods has passed to the Customer, the Customer shall:
- Hold the Goods on a fiduciary basis as the Supplier’s bailee;
- Store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
- Not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- Maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
- Notify the Supplier immediately if it becomes subject to any of the events listed in clause 7.2; and
- Give the Supplier such information relating to the Goods as the Supplier may require from time to time,
but the Customer may resell or use the Goods in the ordinary course of its business.
5.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 7.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6. PRICE AND PAYMENT
6.1 The price of the Goods shall be the prices set out in the Order Confirmation, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery. The price shall be payable in the currency set out in the Order Confirmation (and if no currency is specified, the price shall be payable in pounds sterling).
6.2 The Supplier may, by giving notice to the Customer at any time up to 1 week before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
- Any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- Any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
- Any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
6.3 Unless otherwise specified on the Order Confirmation, the price of the Goods;
- Which are paper products shall be inclusive of the costs and charges of packaging, insurance and transport of the Goods
- Which are not paper products are exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be paid by the Customer when it pays for the Goods.
6.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
6.5 The Supplier may at any time require payment in full or part in advance of delivery.
6.6 The Supplier may invoice the Customer for the Goods upon despatch.
6.7 Unless otherwise set out on the Order Confirmation otherwise agreed in writing, the Customer shall pay the invoice in full and in cleared funds (by cheque, BACS, credit card or any other method agreed with the Supplier) not later than 30 Business Days from and including the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment of the price for the Goods or any other amount to which the Supplier is entitled hereunder is of the essence.
6.8 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above National Westminster Bank PLC’s base lending rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
6.9 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
6.10 The Supplier may at any time in its absolute discretion appropriate any payments made by the Customer in respect of Goods to such outstanding debt as the Supplier thinks fit notwithstanding any purported apportionment to the contrary by the Customer.
6.11 The Customer shall on demand fully indemnify and keep the Supplier fully indemnified from and against any and all charges, costs, claims, expenses (including without limitation legal costs and expenses), losses and other liabilities, any other liabilities whatsoever and howsoever incurred by the Supplier or its agents as a result of any failure by the Customer to make payment in accordance with provisions of this clause 6 including (without limitation) any costs incurred by the Supplier or its agents in the collection of any monies due to it.
7. CUSTOMER’S INSOLVENCY OR INCAPACITY
7.1 If the Customer becomes subject to any of the events listed in clause 7.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
7.2 For the purposes of clause 7.1, the relevant events are:
- The Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; or
- The Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; or
- Being an individual) the Customer is the subject of a bankruptcy petition or order; or
- A creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
- (Being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; or (f) (being a company) a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; or
- A person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; or
- Any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 7.2(a)to clause 7.2(g) (inclusive); or
- The Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business.
8. LIMITATION OF LIABILITY
8.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
- Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
- Fraud or fraudulent misrepresentation; or
- Any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
8.2 Subject to clause 8.1:
- The Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit (actual or anticipated) loss of income, loss of revenue, loss of business and depletion of goodwill, loss of contract or any indirect or consequential loss or damage arising under or in connection with the Contract whatsoever; and
- The Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the price of the Goods.
9. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics, pandemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
10.1 The Customer shall treat all claims, procedures, instructions, documents and other information of any kind whatsoever and in any form (written, electronic or otherwise) and without limitation all and any information relating to the Goods supplied by the Supplier to the Customer as strictly confidential (except to the extent that any such information is available in the public domain) (“Confidential Information”) and shall not without the prior consent of the Supplier use, disclose or part with possession of any such Confidential Information, extracts therefrom or copies thereof or use any such Confidential Information otherwise than in connection with the purchase and use (but not the re-sale of) the Goods under the Contract to which they relate.
11.1 Assignment and subcontracting.
- The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
- The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
- Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, commercial courier or fax.
- A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2(a); if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by by fax, one Business Day after transmission.
- The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
- If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
- If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.4 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
11.5 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act or otherwise.
11.6 Variation. Any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding if agreed in writing and signed by the Supplier.
11.7 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.