Terms & Conditions
ULTRAMARINE PARTNERSHIP LTD
STANDARD TERMS AND CONDITIONS OF SALE
GENERAL
1. All orders for print, design, digital media and advertising services (collectively referred to hereinafter as ‘Services’) and / or for goods created or produced during the course of performance of the Services (‘Product’) received by Ultra Marine Limited (‘Company’) from an intended purchaser of the Services and / or Product (‘Customer’) are accepted by the Company strictly on the basis of and subject to the following terms and conditions (‘T&C’s).
2. These T&C’s shall:-
i) apply to the exclusion of all and any other terms and conditions ( to include but not limited to all and any appearing in the Customers order confirmation , purchase order or any other documents created or issued by the Customer) unless otherwise agreed in writing by the Company. ii) not be construed in any way as to give a word, phrase or expression a different meaning to the ordinary everyday meaning iii) supersede and override all and any prior understandings, terms, conditions and agreements, and all other representations and communications, whether written or oral iv) in no way confer on any third party the right to enforce any of the terms of this agreement in accordance with the Contracts (Rights of Third Parties) Act 1999
3. These T&C’s may be revised, amended or updated from time to time by the Company without prior notice to the Customer
STATUS OF ESTIMATES AND QUOTATIONS
4. All quotations and estimates are subject to and have no validity unless confirmed in writing by the Company.
5. Any such quotations or estimates are valid for a period of 14 days from the date of such written quotation/estimate.
6. Any quotation or estimate provided by the Company cannot be construed as an offer or agreement to undertake the Services.
7. Estimates are intended to serve only to indications of the price that the Company may charge to undertake or deliver particular Services or Product and may be amended upon sight of artwork or the provision of further or alternative details or instructions by the Customer.
8. Prices contained on the Company’s website, price lists or brochures may be amended or updated from time to time by the Company without prior notice to the Customer.
9. If a price has not been expressly agreed for the Services and / or Product by the time an order is confirmed in writing by the Company, the Company shall charge the Customer in accordance with the Company's normal pricing structure and the Customer shall not be entitled to subsequently dispute or refuse to pay the price charged.
ORDERS/ ORDER CONFIRMATION
10. All orders from the Customer are subject to written order confirmation by the Company, which order and order confirmation shall be deemed to incorporate these T&C’s.
DELIVERY/DELIVERY DATES
11. All dates given for performance of Services and / or delivery of Product are estimates only.
12. The Company shall use reasonable commercial endeavours to perform Services and / or deliver Product in accordance with any estimated and agreed timetable which is confirmed in writing by the Company but time of such delivery shall not be of the essence and the Company shall not be liable for any loss or damage however suffered by the Customer as a result of any delay.
TERMS OF PAYMENT/ DELAYS IN PAYMENT/ OVERDUE ACCOUNTS
13. All Services performed and Product delivered shall be subject to payment on the terms contained in the written Company order confirmation and will be invoiced and payable at the point of performance of the Services or delivery of the Product, and as the case may be, in whole or in part and regardless of whether the Customer has requested a deferred performance or delivery date.
14. Time of payment by the Customer shall be of the essence in all contracts between Company and Customer
15. All payments by the Customer shall be due in Sterling and shall be paid without any set-off, deduction or counterclaim or delay pending claim in relation thereto
16. Without prejudice to any of its other rights, the Company may charge interest on any overdue accounts at the rate of 5% over the base rate of Barclays Bank plc from time to time to be compounded monthly from the due date until payment is made in full.
CANCELLATION / SUSPENSION OF PERFORMANCE
17. If any amount payable to the Company by the Customer is overdue for payment, the Company may, and without prejudice to any rights already accrued to it:- i suspend performance of its obligations under any or all contracts with the Customer. ii treat any outstanding order for the Customer as cancelled.
18. The Customer is not entitled to cancel an order for Services or Product at any time after it has received and / or approved the Company’s order confirmation.
19. The Company may permit , in its sole discretion and in that event, and provided also that such permission has been granted and confirmed in writing by the Company, the Customer to cancel such an order but shall nevertheless be entitled to payment for loss of profits, work already carried out, materials ordered and any other costs incurred.
PRE PRODUCTION / PREPARATION / PROOFING/COPY
20. All Services rendered and / or Product delivered by the Company on behalf of and / or at the Customers request, whether test, specimen, draft, sample, preparatory, experimental or otherwise howsoever, shall be paid for by the Customer.
21. In relation to any data , text, file , image, illustration or other materials (‘Data’) provided by the Customer to the Company, whether by hard or soft copy , on disc, through a modem , or by ISDN, FTP or other form of communication link (‘Electronic File’) or otherwise howsoever it is the responsibility of the Customer to:-
i) ensure that all Data is supplied in a medium and format suitable for download, viewing, replication , extraction and outputting on equipment normally adequate for such purposes without need or requirement for manipulation, adjustment or other remedial or corrective action by the Company. (All costs incurred and profit lost by the Company as a consequence of any such activity will be charged to and payable by the Customer.)
ii) ensure that all Data is supplied on or before dates agreed with the Company. (All costs incurred and profit lost by the Company in relation to Services rendered in circumstances where Data has been supplied late will be charged to and payable by the Customer.)
iii) maintain a copy of any original Electronic File. (All files copied to and/or generated by any means will automatically be removed from UML servers seven days after despatch, unless archiving had previously been agreed.)
PRINT SERVICES
22. In relation to orders for Print Services and Product, including but not limited to the printing and preparation of stationery and brochures from pre-existing templates and / or designs, the Company will use reasonable care and skill when rendering such Services.
23. Save as provided in the preceding clause all and any terms as to the said Services and Product, compliance with sample or description or fitness or suitability for purpose, whether or not implied by these T&C’s or by operation of law, are hereby excluded.
PROOFS
24. Proofs may be submitted to the Customer for approval. It is entirely the Customers responsibility to ensure all information contained within any proofs is accurate and correct. The Company shall incur no liability for and the Customer shall be solely responsible for any errors not corrected, checked or notified by the Customer in proofs so submitted.
25. All costs incurred and profit lost by the Company in relation to alterations made by the Customer and any additional proofs necessitated thereby will be charged to and payable by the Customer.
26. When format, style, type or layout of proofs is left to the Company's discretion or artistic judgment, the cost of any changes thereafter made by the Company and any profit lost to it, will be charged to and payable by the Customer.
COLOUR REPRODUCTION AND VARIATION
27. Due to variations in equipment, paper, inks and other conditions between colour proofing and actual production runs, the Company cannot guarantee and shall not be required to exactly match the colour or finish of any proofs, samples or examples provided by the Customer, or anything else provided by the Customer or produced by the Company which is to be or has been used previously as a colour or finish reference.
28. A reasonable variation in colour between colour proofs and the completed job will be deemed acceptable.
29. Where precise accuracy is required, the Customer should order wet proofs produced on the intended press as these normally produce more accurate results.
VARIATIONS IN QUANTITY
30. Unless otherwise agreed in writing, all quantities delivered shall be subject to a variation of plus or minus ten percent of the quantity ordered. The Customer shall not be entitled to and shall not claim credit or refund for shortages falling within this tolerance.
DESIGN SERVICES
31. In relation to orders for design Services, including but not limited to advertisements, brochures, magazines, corporate identity, packaging, stationery and logos, the Company will use reasonable care and skill when rendering such Services.
32. Save as provided in the preceding clause all and any terms as to the said Services compliance with sample or description or suitability for purpose, whether or not implied by these T&C’s or by operation of law, are hereby excluded.
DIGITAL MEDIA SERVICES
33. In relation to orders for digital media services, including but not limited to photography, video, print, music or sound production and computer generated art, web or internet based work, the Company will use reasonable care and skill when rendering such services.
34. Save as provided in the preceding clause all and any terms as to the said services compliance with sample or description or fitness or suitability for purpose, whether or not implied by these T&C’s or by operation of law, are hereby excluded.
35. In particular, when rendering digital media copy to and for advertisement by third party suppliers (including but not limited to in-flight / on-board advertisements) on behalf of the Customer , due to variations in available technology , screen-size and mixed media compatibility issues, the Company cannot guarantee and shall not be required to exactly match the type, grade or quality of any proofs, sample or example digital media copy provided by the Customer, or anything else provided by the Customer or produced by the Company which is to be or has been used previously as a presentation quality reference.
36. The Customer warrants and undertakes that all digital media copy provided by the Customer: i does not and will not breach the copyright or other rights of or be defamatory of any third party ii complies with all necessary third party licences , permissions or consents and which have been properly obtained and paid for.
ADVERTISING SERVICES ADVERTISING COPY
37. The Customer warrants and undertakes that all advertising copy provided by the Customer:
i) complies with all statutory and other legal requirements and provisions of the British Code of Advertising Practice
ii) does not and will not breach the copyright or other rights of or be defamatory of any third party
iii) complies with all necessary third party licences , permissions or consents and which have been properly obtained and paid for
RIGHT OF COMPANY TO REFUSE TO PUBLISH, UTILISE OR DISPLAY ANY DIGITAL MEDIA OR ADVERTISING COPY PROVIDED BY CUSTOMER
38. The Company shall have the right to refuse to publish, utilise or display or continue to publish, Utilize or display any Digital Media or Advertising Copy
i) which does not comply in all respects with the Customer's warranties and undertakings detailed above, or
ii) which differs in any material respect from the Digital Media or Advertising Copy specified in the Order Confirmation or is subsequently changed without the approval of the Company
iii) which appears to be or which in its opinion is or may be of an illegal or libellous nature or an infringement of the proprietary or other rights of any third party.
CUSTOMER INDEMNITY IN RELATION TO DIGITAL MEDIA OR ADVERTISING COPY
39. The Customer agrees promptly and fully to indemnify and keep indemnified the Company and hold the Company harmless against any and all expenses, damages, liability, claims and losses of any kind (including legal fees and costs) incurred by the Company in connection with any claims actual or threatened, of any kind (including, without limitation, any claim of trademark or copyright infringement, libel, defamation, breach of confidentiality, breach of any statutory or regulatory duty, false or misleading advertising or sales practices) arising from its use of Digital Media and / or Advertising Copy or other material provided by the Customer or as a result of any breach or non-performance by the Customer of any of the representations, warranties or other terms contained in these T&C’s or implied by law and the indemnity may, without limitation, be claimed as a debt or liquidated demand.
MATERIALS SUPPLIED BY THE CUSTOMER
40. In relation to materials, including but not limited to film, disks, paper or plates, supplied or specified by the Customer, the Company may reject , and decline to process any Order for Services and / or Product , confirmed or otherwise, where it appears to the Company that such materials are or maybe unsuitable for their intended purpose.
41. In that event, all costs incurred and profit lost by the Company will be charged to and payable by the Customer.
42. Where materials are so supplied or specified by the Customer , the Company will take reasonable care to secure satisfactory results, but accepts no liability in relation to and hereby disclaims all responsibility for imperfect or unsatisfactory work substantially or materially caused by any defects in or any unsuitability of such materials.
43. Quantities of materials supplied by the Customer shall be sufficient to cover all aspects of production including spoilage, and shall be agreed with and appear in the Company’s written order confirmation.
STORAGE AND ARCHIVING
44. Archiving of Data on Electronic Files for future use may be charged at the Company’s discretion at one pound sterling per one megabyte of copy (minimum charge twenty five pounds sterling) and is payable in advance.
45. All electronic storage media e.g. discs, zips, dvd, drives, etc. supplied by the Customer will be destroyed fourteen days after date of invoice unless requested to be returned in writing by and at the cost of the Customer
46. Storage may be charged at the Company’s discretion at two pounds sterling per whole or part pallet/reel per day.
COPYRIGHT IN PRINT, DESIGN, ARTWORK, ETC ORIGINATED OR REWORKED BY THE COMPANY 47. The copyright in all print, design, artwork, copy and other material which the Company or its employees or contractors has originated or reworked shall vest in the Company.
RISK/TITLE TO PRODUCT
48. All Product is at the risk of the Customer from the time of delivery.
49. Ownership of the Product shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of: i the Product; and ii all other sums which are or which become due to the Company from the Customer on any account including in relation to Services
50. Until ownership of the Product has passed to the Buyer, the Customer must:
i) hold the Product on a fiduciary basis as the Company’s bailee;
ii) store the Product (at no cost to the Company) separately from all other Product of the Customer or any third party in such a way that it remains readily identifiable as the property of the Company
iii) not destroy, deface or obscure any identifying mark or packaging on or relating to the Product:
iv) maintain the Product in satisfactory condition and keep it insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company.
51. The Customer may resell the Product before ownership has passed to it solely on the following conditions i any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and ii any such sale shall be a sale of the Company’s property on the Customers ’s own behalf and the Customer shall deal as principal when making such a sale. iii any sums received by the Customer are paid over to the Company within 14 days of receipt by the Customer.
52. The Customer’s right to possession of the Product shall terminate immediately if:
i) the Customer ( if an individual or if trading in partnership) has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer , or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
ii) the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
iii) the Customer encumbers or in any way charges any of the Product. 53. The Company shall be entitled to recover payment for Services and Product notwithstanding that ownership of any of the Product has not passed from the Company.
54. The Customer grants the Company, its servants, agents , employees and subcontractors an irrevocable licence at any time to enter any premises where the Product is or may be stored in order to inspect, or, where the Buyer’s right to possession has terminated, to recover the same
55. On request the Customer shall produce the policy of insurance to the Company; and hold the proceeds of the insurance on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
INSOLVENCY OF CUSTOMER ETC
56. If the Customer ceases to pay his debts in the ordinary course of business or cannot repay his debts as they become due or being a company is deemed to be unable to pay its debts or has a winding up petition issued against it or being a person commits an act of bankruptcy or has a bankruptcy petition issued against him, or owes the Company money in respect of any Services or Product , the Company without prejudice to other remedies shall i have the right not to proceed further with any Contract for the performance of Services or delivery of Product , whether the debt arose before or after the said Contract was entered into, and be entitled to charge for all and any Services performed or Product delivered (whether completed or not) and materials purchased for the Customer such charge to be and be payable as an immediate debt due to the Company, and ii have the right to require the Customer to provide security, to the Company’s entire satisfaction, for any Services or Product subsequently undertaken to be performed or delivered for the Customer, and iii in respect of all unpaid debts due from the Customer, have a) a general lien on all goods and property including computer or other electronically stored data in his possession (whether worked on or not) and shall be entitled on the expiration of 14 days’ notice to dispose of such goods or property in such manner and at such price as the Company thinks fit and to apply the proceeds towards such debts and b) the right to apply money held by the Company for any purpose in discharge of such debts.
LIMITATION OF LIABILITY OF THE COMPANY
57. To the fullest extent permitted by law all warranties, conditions and other terms implied by statute or common law are excluded from any Contract for Services and / or Product between the Company and Customer.
58. Nothing in these T&C’s or any contract between the Company and Customer excludes or limits the liability of the Company for death or personal injury caused by its negligence or for fraudulent misrepresentation.
59. However the Company shall not be liable to the Customer for any:
a) loss of profits;
b) loss of anticipated profits;
c) loss of anticipated savings;
d) loss of expected future business;
e) damage to reputation or goodwill; and /or
f) corruption or loss of any data; which arise out of or in connection with the performance or contemplated performance by the Company of any of its obligations to the Customer or
g) any damages, costs, expenses or other claims for consequential compensation or loss whatsoever (howsoever caused) whether arising from negligence, breach of contract or howsoever caused which may not fairly and reasonably be considered to have arisen normally and naturally from a breach of any obligation in the Contract and which was not at the date of the Contract reasonably foreseeable as liable to result from the breach.
60. Without prejudice to the preceding clause , the total liability of the Company to the Customer arising in contract , tort (including negligence or breach of statutory duty) misrepresentation, damage to tangible or intangible or other forms of intellectual property or otherwise arising out of or in connection with the performance or delivery of the Services and / or Product shall be limited to a refund of the sums payable and paid by the Customer in respect of and attributable to the Services and/ or Product to which the claim for liability relates or , in the case of damaged or faulty Services and / or Product and at the election of the Company, the replacement and repair thereof.
DELIVERY AND RISK
61. Unless otherwise stated in the Company Order confirmation, the price quoted excludes delivery charges and that the Company reserves the right to make an additional charge to cover any transport costs.
62. Any time or date for delivery given by the Company is given in good faith, but is an estimate only.
63. Risk in the Product shall pass to the Customer upon delivery to the Customer.
64. Delivery to a carrier, by the Company, will be deemed to be delivery to the Customer.
CLAIMS
65. Any claims (such as to quality, colour, finishing, shortages, damage etc) as to or in respect of the Services and/or Product must be made by the Customer in writing to the Company and any carrier within 7 (seven) working days (excluding weekends and public holidays) after delivery of all or any part of the Services and/or Product.
66. Queries on invoices must be made in writing and delivered to the Company within ten (ten) working days of receipt of the invoice.
67. Claims involving non-delivery must be made within 3 (three) working days after the date of any dispatch note or invoice sent by the Company to the Customer in respect of the Services and/or Product.
68. Failure to make such claim within the above stated periods shall constitute irrevocable acceptance of and an admission that the Services and/or Product fully complies with all terms, conditions and specifications.
69. Any use or distribution of the Product and/or Services by the Customer shall constitute irrevocable acceptance of and an admission that the Services and/or Product fully complies with all terms, conditions and specifications.
FORCE MAJEURE
70. The Company shall not be under any liability for any failure to perform any of its obligations, under any contract with the Customer, due to Force Majeure. Following notification by the Company to the Customer of such cause, the Company shall be allowed a reasonable extension of time for the performance of its obligations.
71. For the purposes of this Condition, ‘Force Majeure’ means fire, explosion, flood, lightning, Act of God or act of Government , act of terrorism, war, rebellion, riot, sabotage, official strike or similar official labour dispute, or events or circumstances outside the reasonable control of the Company.
COMMUNICATIONS
72. All communications between the Company and Customer parties about these T&C’s and any Contract between them must be in writing and delivered by hand or sent properly addressed by pre-paid first class recorded post or sent by facsimile transmission:
i) (in case of communications to the Company) to 11 English Business Park, English Close, Hove , East Sussex, BN3 7ET , United Kingdom or such other address as shall be notified to the Customer by the Company from time to time ; or
ii) (in the case of the communications to the Customer) to its registered office (if it is a company) or (in any other case) to such other address as shall be notified to the Company by the Customer from time to time
73. Communications shall be deemed to have been received:
i) if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
ii) if delivered by hand, on the day of delivery; iii if sent by facsimile transmission or email on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
74. Communications addressed to the Company shall be marked for the attention of its Managing Director, Mr. Max Williams.
MISCELLANEOUS
75. If any provision of these T&C’s is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
76. Failure or delay by the Company in enforcing or partially enforcing any provision of these T&C’s will not be construed as a waiver of any of its rights under its Contract with the Customer
77. Any waiver by the Company of any breach of, or any default under any provision of these T&C’s by the Customer will be without prejudice to the rights of the Company and will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
DISPUTE RESOLUTION
78. Before resorting to legal proceedings the Customer shall attempt to settle in good faith all disputes or differences which arise between them out of or in connection with these T&C’s and any contract for Services and Product , initially by discussion and negotiation and, in the event of failure of such negotiations, by the use of the procedure known as Alternative Dispute Resolution (‘ADR’).Where failure of negotiations in respect of such dispute or difference occurs the parties shall together refer such dispute or difference to CEDR of London who shall, subject to their terms of engagement in force at the time, be invited to attempt to resolve such dispute.
79. The Company and Customer agree to be bound by the relevant rules of CEDR relating to the conduct of the relevant ADR Proceedings, as if the same were incorporated into these T&C’s and any contract between them. Each party shall bear its own costs incurred in the relevant ADR Proceedings, and one half of the fees and expenses of CEDR unless a different agreement is reached as part of any settlement arrived at as a result of the relevant ADR Proceedings.
80. The first reference to CEDR of any such dispute or difference shall be a condition precedent to the occurrence or activation of any right of action of any party against the other in respect of any matter which may arise out of or in connection with these T&C’s and any contract between them to include disputes in relation to the construction and interpretation thereof and also any liability to pay or withhold the payment of money or entitlement to claim set off or counterclaim.
JURISDICTION
81. The formation, existence, construction, performance, validity and all aspects of these T&C’s and any contract between the Company and the Customer shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts .