Terms & Conditions of Trading
APPLICATION OF THESE TERMS AND CONDITIONS These Terms and Conditions apply to all supplies of goods and/or services or any part of either of them provided by InkTree to the Customer unless otherwise agreed in writing by a duly authorised representative of InkTree.
InkTree’s employees and agents are not authorised to make any representations in relation to goods or services offered by InkTree (unless that employee or agent provides written confirmation that they are a duly authorised representative of InkTree).
IMPORTANT: LIMITATION OF LIABILITY
As with all businesses we have to take account of things going wrong.
Accordingly these terms and conditions do limit our liability in such events. It is important that you read and understand these limitations of liability as contained in these terms and conditions.
(A) Any quotation given by InkTree will only be binding if given in writing on InkTree notepaper (by a duly authorised representative of
InkTree) and the quotation has not expired. A written quotation will be based on samples and materials provided and on the basis of instructions given by the Customer. InkTree reserve the right to amend any quotation given to reflect any incomplete inaccurate or changed instructions or samples or materials given by the Customer.
Any verbal quotation is an estimate only and will not be binding unless and until confirmed by InkTree in writing. Any quotation is valid for a period of 14 days only from its date of issue by InkTree, (provided that InkTree has not previously withdrawn it and subject to the provisions of condition 2
below) and shall be deemed to be an offer by InkTree to provide goods and/or services upon these terms and conditions to the Customer. Any order made in respect of a written quotation shall be deemed to be an acceptance of the offer set out in that written quotation by the Customer.
(B) The Customer must ensure that any quotation it wishes to accept, its order and any applicable specification are complete and accurate.
The quantity and description of the goods or services shall be as set out in InkTree’s written quotation or the Customer’s order as accepted.
(C) (i) Subject to condition 4(B) a Business Customer (a Customer who is dealing with InkTree in the course of its business) may not cancel an order which InkTree has accepted except with the agreement in writing of InkTree and any Customer cancelling any order hereby agrees to indemnify InkTree in full against all losses (including loss of profits), costs (including the costs of all labour and materials used until the date of cancellation), damages, charges and expenses incurred by InkTree as a result of the cancellation.
(ii) InkTree may cancel an order at any time prior to delivery upon notice to the Customer whereupon a refund of any monies paid for the relevant goods and/or services will be promptly made.
(D) The price payable will (subject to condition 2) be as stated in InkTree’s written quotation and/or the order as accepted.
(E) The price payable (unless specifically stated otherwise) is exclusive of:
(i) any costs of packaging and carriage of goods; and
(ii) any value added tax or other applicable sales tax or duty; which shall be added to the sum in question.
PRELIMINARY OR PREPARATORY WORK
(F) For the avoidance of doubt, all works services or goods supplied at the Customer’s request including work and/or services of a preliminary or preparatory nature unless specifically stated otherwise are provided on the basis that they will be charged for.
2. PRICE VARIATIONS
(A) If there is any increase or decrease in the cost to InkTree in providing/fulfilling the order due to:
(i) any factor beyond the reasonable control of InkTree, this includes (without limitation) increase in the cost of materials and other production costs;
(ii) any change in delivery, dates, quantities or specifications for the Order requested by the Customer;
(iii) any delay caused by any instructions of the Customer or failure of the Customer to give InkTree adequate information or instructions;
(iv) any corrections, amendments and alterations in style or content to material provided by the Customer, other than typographical errors of InkTree, and for additional proofs necessitated thereby;
(v) additional costs incurred as a result of materials provided by the Customer proving unsuitable; the price/quotation shall be recalculated to take account of the resulting increased or decreased cost of meeting/fulfilling the order.
(B) Notwithstanding the provisions of condition 2(A) above:
(i) in the case of Business Customers, InkTree shall seek to notify the Customer of the amount of any increase as soon as reasonably practicable. The customer shall have the right to cancel the order if the reason for the price increase is as set out in paragraph 2(A)(i) above and the price is increased by more than 10% provided that notice of cancellation is given by the Customer as soon as reasonably practicable on receiving notice of such increase but the Customer shall pay InkTree on a pro rata basis calculated on the basis of the costs and fees originally agreed for any part of the works which have been completed at the time of the cancellation of the order. If the reason for the increase is as set out in paragraph 2(A)(ii), (iii), (iv), (v) above the Customer may cancel if the price increase is more than 20% and the pro rata costs to be paid by the Customer shall be calculated on the basis of the increased costs; and (ii) in the case of all Consumer Customers, the relevant price/ quotation shall only be adjusted upwards if, before InkTree has incurred the additional cost, it has notified the Customer in writing of such an increase and has given the Customer the right to withdraw from the order within 3 days of receipt of such notice in default of which it shall be deemed to have accepted the revised price and InkTree shall be entitled to invoice the Customer for all works services or supplies carried out and/or made before the date of such cancellation.
3. PROOFS AND ERRORS
Proofs are available for the Customer’s approval on request. No responsibility or liability will be accepted by InkTree for:
(i) any errors not corrected by the Customer after inspecting the proofs or where the Customer declines to make such request; or
(ii) any work for which the Customer has given instructions which requires or allows InkTree to exercise a degree of artistic licence; and the Customer shall not be entitled to reject such work although InkTree shall rectify any such error at the Customer’s cost.
4. DELIVERY, PAYMENT AND RISK
(A) Delivery of the goods and/or provision of the services shall be made at the InkTree Centre or such other place as agreed by the parties in writing.
The Customer will take delivery of the goods and/or services within 7 days of InkTree giving it notice that the goods and/or services are ready for delivery/completed.
(B) Any dates specified by InkTree for delivery of the goods or performance of the services are approximate only and may not be made of the essence unless specifically agreed by InkTree as such in writing. If no dates are specified, delivery will be within a reasonable time.
(C) Subject to the other provisions of these conditions InkTree shall have no liability to the Customer for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods and/or provision of the services (except in the case of Consumer Customers if caused by InkTree’s negligence or breach of contract).
(D) In the case of Business Customers, any delay or failure in delivery or performance will not entitle the Customer to cancel the order unless and until the Customer, has given 7 days written notice to InkTree requiring delivery or performance to be made within a reasonable period (and in the case of Consumer Customers if they have given reasonable notice to InkTree requiring delivery or performance to be made within a reasonable period) and InkTree has not fulfilled the delivery or performed within that period. If the Customer cancels the order in accordance with this condition 4(D) then (i) InkTree will refund to the Customer any sums which the Customer has paid to InkTree in respect of that order (or part of order) which has been cancelled; and
(ii) the Customer will be under no liability to make any further payments under condition 4(F) in respect of the order (or part of
order) which has been cancelled.
(E) If the Customer fails to take delivery of goods when they are ready for delivery or to provide any instructions, documents or authorisations required to enable the goods to be delivered on time (except where InkTree is at fault) risk in goods will pass to the Customer and the Customer hereby agrees to fully insure the same, the goods will be deemed to be delivered and (without prejudice to its other rights) InkTree may store or arrange for the storage of the goods until actual delivery and charge the Customer for all related costs and expenses (including, without limitation, storage and
insurance) it incurs.
(F) InkTree may invoice the Customer:
(i) for goods provided when or at any time after notifying the Customer that the goods are ready for delivery;
(ii) for services provided on or at any time after performance of the services commences;
(iii) notwithstanding the provisions in conditions 4(F)(i) and (ii), in the event that an order is suspended or delayed as a result of any act or omission on the part of the Customer for a period in excess of thirty days, for any part of the order which has been processed/ delivered and/or performed.
(G) Payment is due in pounds sterling, or such other currency agreed in advance by InkTree in writing, immediately after issue of such invoice and InkTree shall be entitled to recover the payment notwithstanding delivery may not have taken place and legal title has not passed to the Customer (except in the case of approved credit account Customers with whom alternative arrangements have been agreed in writing by InkTree). Time of payment shall be of the essence.
(H) For Business Customers InkTree may deliver goods in separate instalments and/or perform any services in stages. Each separate instalment or stage shall be invoiced and paid for in accordance with the provisions of these terms and conditions. Each instalment or stage shall be a separate contract and no cancellation or termination under clause 4(D) of any one contract relating to an instalment or stage shall entitle the Customer to repudiate or cancel any other contract, instalment or stage.
(I) All sums payable to InkTree under any order shall become due immediately upon termination/cancellation of the order.
(J) All payments to be made by the Customer under the order shall be made in full without any set-off, restriction or condition and without any deduction for or on account of any counterclaim.
(K) If the Customer fails to make any payment when payment is due then without prejudice to any other right or remedy available to InkTree, InkTree shall be entitled to:
(i) cancel the order or suspend any performance of the order;
(ii) appropriate any payment made by the Customer as InkTree may think fit (notwithstanding any purported appropriation by the Customer);
(iii) charge the Customer with all costs and expenses involved in collecting the overdue payment together with interest (both before and after any judgement) on the amount unpaid at the rate of 2% per month above Barclay’s Bank plc base rate or such higher rate as provided for by legislation from the due date until payment in full is made (part of a month being treated as a full month for the purpose of calculating interest);
(iv) sell all items held by InkTree and which belongs to the Customer.
(L) Legal title in the Goods shall not pass to the Customer until InkTree receives payment in full (in cash or cleared funds) of all sums whether in respect of the goods, services or otherwise due owing or incurred including VAT. Until legal title passes the Customer shall hold the goods on a fiduciary basis as InkTree’s bailee and shall store the goods (at no cost to InkTree) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as InkTree’s property. Where the Customer’s right to possession has terminated the Customer grants InkTree, its agents and employees an irrevocable licence at any time to enter any premises where the goods are or may be stored to recover them. On termination of the contract, howsoever caused, InkTree’s (but not the Customer’s) rights contained in this condition 4 shall remain in effect.
(A) Where InkTree is not the producer of the goods ordered or provider of the ordered services InkTree will endeavour to transfer to the Customer the benefit of any warranty or guarantee given to InkTree.
(B) InkTree warrants that (subject to the other provisions of these terms and conditions) upon delivery:
(i) any goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1994; and
(ii) any services will be performed by appropriately qualified and trained personnel, with reasonable care and diligence
(C) The Customer warrants to InkTree that it owns all materials provided to InkTree and all intellectual property rights in them and that the materials provided by the Customer do not infringe any intellectual property rights of any third party and would not, if used in or in relation to the sale of any material to be produced by InkTree or the provision of any service infringe any intellectual property rights of any third party.
(D) Upon delivery the Customer shall be required to check the goods and/or services immediately for any immediately apparent defects.
InkTree shall not be liable for a breach of the warranty in condition
5(B) unless the Customer gives written notice of any apparent defect to InkTree within 7 days of the date of delivery and InkTree is given a reasonable opportunity after receiving the notice of examining such goods and the Customer (if asked to do so by InkTree) returns such goods to InkTree’s place of business for the examination to take place there.
(E) If the Customer makes a valid claim against InkTree based on a defect in the quality of goods, InkTree shall at its option repair or replace such goods (or the defective part), or refund the price of such goods at the relevant proportion of the price paid or payable.
If InkTree complies with this condition it shall have no further liability for a breach of warranty in condition (B) in respect of the quality of such goods.
(F) If the Customer is dealing as a Business Customer:
(i) to the maximum extent permissible in law, all conditions and warranties which are implied by statute or otherwise by general law into this contract in relation to goods or services or supplies are hereby excluded;
(ii) InkTree shall not be liable to the Customer by reason of any representations (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 any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claim for compensation whatsoever (whether caused by InkTree’s negligence or otherwise) which arise out of or in connection with the supply of goods or services or supplies.
(G) If the Customer is a Consumer Customer and goods and/or services are provided to the Customer then
(i) to the maximum extent permissible in law, all conditions and warranties which are implied by statute or otherwise by general law into this contract in relation to goods or services are hereby excluded;
(ii) under no circumstances shall InkTree be liable for any business related loss (which includes without limitation, any loss of contracts, loss of profits, loss of revenue or loss of anticipated savings in expenditure) as a result of either InkTree’s breach of contract or InkTree’s negligence or otherwise.
(H) Nothing in conditions 5(F) or (G) excludes, or attempts to exclude, InkTree’s liability in respect of death or personal injury caused by InkTree’s negligence.
(I) The total liability of InkTree to the Customer in contract, tort (including negligence or breach of statutory duty), statute or otherwise (other than for death or personal injury arising due to the negligence of InkTree, its employees or agents), in connection with the performance or contemplated performance of the order shall be limited for Business Customers to the price quoted and for Consumer Customers to twice the price quoted.
6. CUSTOMER’S OWN MATERIALS
(A) InkTree may reject any unsuitable materials (including without limitation any paper, plates, computer disks or CD-Roms) supplied or specified by the Customer and InkTree reserves the right to refuse to undertake any works, services or supplies which infringes or appears to infringe the copyright or other intellectual property rights of any third party or which in its opinion contains any material which is an any way unlawful.
(B) Any Customer’s artwork or other materials supplied to InkTree remain at the Customer’s risk and InkTree accepts no liability for damage, destruction or loss thereof. In the case of Consumer Customers, InkTree agree to take reasonable care of such art work or other materials while the same are in their possession although it is the responsibility of the Customer to ensure that such items are covered by their own insurance.
(C) InkTree shall have a lien over any materials supplied to it by the Customer against payment of all monies due to it by the Customer from time to time and shall be entitled (if any sum is not paid on the due date) to dispose of such property as InkTree shall in its discretion think appropriate towards settlement of the sums due, subject to reasonable notice having been given to the Customer of their intention to dispose of such property.
(A) The Customer warrants that any design or other material furnished by it or any design material created by InkTree pursuant to the Customer’s instructions is and/or will not be defamatory or obscene or be such as will cause InkTree to infringe any intellectual property rights of any third party or any legislation for the time being in force in the United Kingdom in the performance of the order.
(B) In the event that the Customer has requested the production of original design work InkTree may engage the services of third party designers in producing such supplies, works or services.
(C) In the event that Inktree are required to provide original design work (whether or not such original artwork incorporates the Customer’s materials):
(i) all proofs or preliminary design work remain InkTree’s copyright at all times and may not be used or re-produced by the Customer in any form in whole or in part;
(ii) upon the final proof and/or design being agreed, the final proof and any part of the final proof, remain InkTree’s copyright until InkTree have been paid in full for providing the original design work and the Customer may not use or reproduce in whole or in part the original design work until full payment is made to InkTree.
(D) Upon receipt of full payment:
(i) in the event that InkTree has created the original design work Inktree shall assign to the Customer copyright in such work;
(ii) the Customer shall provide irrevocable authorisation to InkTree to use the original design work for any business promotional purposes of the Inktree business only;
(iii) in the event that InkTree has engaged third party designers to produce the original design work and where that third party designer has assigned copyright in such work to InkTree, Inktree shall grant a non-exclusive royalty free licence of the copyright in the original design work to the Customer but cannot warrant that the designer who is commissioned to produce the work will not offer such work or any part of it to any third party.
(E) The Customer shall fully indemnify InkTree in respect of all costs, claims, liabilities and expenses (including any amount paid in settlement on legal advice and InkTree’s own legal costs) arising from any breach of the Customer’s warranty in clause 7(A).
(F) The Customer shall promptly notify Inktree in the event of any claim being made or action brought against a Customer arising out of a breach of the Customer’s warranty in clause 7(A).
8. DATA PROTECTION
(A) The Customer warrants, in compliance with the Data Protection Act 1998, and any other relevant legislation, that it has obtained all necessary consents from data subjects for the use of such data subjects’ personal data which it requires InkTree to process in the provision of goods and/or services.
(B) InkTree shall only process such personal data for the purpose of providing the services and/or goods in respect of the order.
9. SCANNING AND ARCHIVING
The Customer having been advised to retain hard copies of all documents and seek advice from its appropriate professional advisors prior to the destruction of any original documentation, InkTree shall not be liable for any loss suffered by the Customer by virtue of the product supplied by InkTree being inaccurate, containing defects or being erased unless such loss arises by virtue of InkTree’s negligence and/or breach of contract.
The order will terminate immediately should the Customer become insolvent, fail or become unable or admit in writing their inability to pay their debts, institute or have instituted against them proceedings seeking a judgement of insolvency or bankruptcy; have a resolution passed for its winding up or liquidation; seeks or becomes the subject of the appointment of an administrative receiver or similar official in respect of its assets; enter into any arrangement or composition with its creditors; cease or threaten to cease to carry on any significant part of its business; suffer a change of management or ownership which InkTree deems to be against its interests.
(A) Any Order may be terminated by either party at any time by notice in writing if the other party, being an individual or partnership has a statutory demand or bankruptcy petition issued against him or any partner or applied to the court for an interim order under the Insolvency Act 1986 or makes a proposal for an individual voluntary arrangement under that legislation or being incorporated; goes into compulsory or members voluntary liquidation or passes a resolution for voluntary winding up or its directors convene a meeting of shareholders for that purpose; or has an administrative receiver or receiver appointed over all or any part of its assets or undertaking; or is the subject of any judgment or order made against it which is not complied with within seven days or is the subject of any execution, distress, sequestration or other process levied upon or enforced against any of its assets; or has any action, step, legal proceedings or other procedure taken in respect of it by its directors, shareholders, bankers creditors or any person seeking to appoint a liquidator or an administrator or takes any such act or step itself; or has proposed in respect of it a company voluntary arrangement pursuant to the Insolvency Act 1986 from time to time or ceases or threatens to cease to carry on business; or gives the termination party reasonable grounds for believing that it (the other
party) is unable to meet its debts as they fall due within the meaning of Section 123 of the Insolvency Act 1986 as amended.
(B) If the Customer is in breach of any of its obligations under these terms and conditions then InkTree may without prejudice to any of its other rights immediately suspend the performance of any order placed by the Customer and shall be entitled to charge the Customer, and the Customer shall immediately become liable to pay, for any works, services and supplies already carried out (whether completed or not) including the cost of any materials purchased on behalf of the Customer.
Failure or delay by InkTree to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at time or times thereafter.
13. ILLEGALITY AND SEVERANCE
If any provision of these terms and conditions is held by a competent authority to be invalid or unenforceable in whole or in part then that provision shall, to the extent required, be severed from the order and shall be ineffective without as far as possible modifying any other provision or part of the order and this shall not affect any other provisions of the order which shall so far as is reasonably possible remain in full force and effect.
14. ENTIRE AGREEMENT
(A) These provisions constitute the entire agreement between InkTree and the Customer and replace all prior agreements, understandings, statements and communications between InkTree and the Customer, ulness agreed in writing and signed and dated by both parties as a variation to these provisions.
(B) The Customer acknowledges that he has not relied on any representations or warranty not contained in these Conditions.
(C) it is expressly provided that nothing in these Conditions shall exclude any liability of InkTree for fraudulent misrepresentations.
15. FORCE MAJEURE
InkTree will make every effort to carry out the Customer’s instructions and the order but shall be under no liability if unable to carry out any provision of the order for any reason beyond InkTree’s reasonable control (without limiting the foregoing) including the inability to secure labour, materials or supplies, breakdown of machinery, or as a result of the Act of God, war, labour dispute, fire, flood, drought, legislation, failure of power supply or any other cause beyond InkTree’s reasonable control. During the continuance of such instance of Force Majeure the Customer may by notice in writing to InkTree elect to terminate the order and pay for works, services and/or supplies provided or used up to such notice but subject thereto shall otherwise accept delivery when available.
InkTree may assign, licence or subcontract all or any part of its rights or obligations under the order.
17. GOVERNING LAW
The formation, existence, construction, performance, validity and all aspects whatsoever of the order or of any term of the contract shall be governed by English Law. The English Courts shall have non- exclusive jurisdiction to settle any disputes which may arise out of or in connection with the order.
18. CONSUMER RIGHTS
These terms and conditions do not and will not affect the statutory rights of a Consumer Customer. No provision which would be void by virtue of Sections 6 or 20 of the Unfair Contract Terms Act 1977 (as
amended) or by virtue of the Unfair Contract Terms in Consumer Contracts Regulations 1994 shall apply to any order made by a Consumer Customer.
19. THIRD PARTY RIGHTS
No person who is not a Customer shall have any rights pursuant to the Contracts (Rights and Third Parties) Act 1999.