1.1 In these conditions of sale the following words shall have the following meanings:
- "Conditions" means the terms set out below and on the Order Acknowledgement.
- “Confidential Information” means all commercial information, know-how, specifications, initiatives and other information of a confidential nature disclosed by or on behalf of one party to the other in connection with a Contract and whether disclosed before, on or after the date of each Contract.
- "Contract" means any contract between the Seller and the Customer for the supply of any Works
- "Customer" means the company, firm, organisation, body or person purchasing the Works.
- "Goods" means any goods which the Seller agrees to supply to the Customer.
- "Intellectual Property Rights" means all rights in Confidential Information, patents, utility models, supplemental protection certificates, copyright, database rights, topography rights, moral rights, rights in designs, trade or business names, trade and service marks, rights in goodwill (whether or not any of these are registered and including applications for registration of any such things and all rights in things that are in principle capable of protection by such things) and all other intellectual property rights and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.
-"Order Acknowledgement" means the written acknowledgement of order issued by the Seller to the Customer.
- "Seller" means MIKE STONELAKE DESIGN & ILLUSTRATION LTD (Company Number 6065538) whose registered office is at 48 Askew Crescent W12 9DW.
- "Services" means any works and/or services which the Seller agrees to provide to the Customer.
-"Works" means the Goods and/or Services (as appropriate).
1.2 In these Conditions: (a) the words "agreed in writing" shall mean agreed in writing and signed by a director of the Seller; (b) words such as “include” or “including” mean “including without limitation to the generality of the preceding words”; and (c) any reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended, re-enacted or consolidated.
2 FORMATION OF CONTRACTS
2.1 All Contracts shall incorporate these Conditions to the exclusion of any other terms in any document or other communication used by the Customer in concluding any Contract. In particular the Customer's standard terms of purchase are expressly excluded from all Contracts. Any reference to the Customer's purchase order, specification or other similar document shall not include any terms delivered with, referred to or stipulated or contained in such documents and they shall not form part of any Contract.
2.2 No amendment or addition to these Conditions shall form part of any Contract unless it is agreed in writing and contains a specific reference to these Conditions.
2.3 Unless otherwise agreed in writing all drawings, illustrations, descriptions, specifications, technical data, advertising and other similar information issued by the Seller or contained in the Seller's catalogues, brochures, trade literature, price lists or other similar materials are issued only for the purpose of giving an approximate idea of the Works described in them and shall not form part of the Contract.
2.4 Each purchase order issued by the Customer shall be deemed to be an offer by the Customer to purchase Works subject to these Conditions. No order the Customer places shall form a binding contract or be deemed to be accepted by the Seller until an Order Acknowledgement is issued by the Seller or (if earlier) the Seller starts work on the Works or delivers them to the Customer. The Customer shall ensure that its purchase orders and any applicable specifications are complete and accurate in all respects.
2.5 The Customer may only cancel an order with the written agreement of the Seller (which may be withheld in the Seller’s sole discretion) and on the terms that the Customer shall indemnify the Seller in full on demand against all losses (including loss of profit), liabilities, costs, claims and expenses incurred by the Seller in connection with this.
3.1 Any quotation is given on the basis that no Contract shall come into existence otherwise than in accordance with Condition 2.4 and the acceptance of any quotation by the Customer will not form a contract.
3.2 Any quotation given is valid for a period of 30 days from its date of issue (or such other period as may be set out in writing on the quotation) provided that the Seller has not previously withdrawn it by written or oral notice to the Customer.
4 DELIVERY AND RISK
4.1 Unless otherwise agreed in writing, the Seller shall arrange for the carriage of Works to the address for delivery set out on the Order Acknowledgement or otherwise agreed in writing between the parties and delivery shall be deemed to be completed when the Works are delivered to such premises.
4.2 All dates and times for delivery are given in good faith but are estimates only. The Seller shall use reasonable efforts to deliver within these timescales but dates and times for delivery shall not be of essence to the Contract.
4.3 The Seller may deliver the Works in installments and each instalment shall be a separate Contract. Breach of these Conditions in respect of one or more instalments shall not entitle the Customer to reject further instalments or terminate the Contract as a whole.
4.4 Risk in Works shall pass to the Customer on delivery and unloading shall be at the Customer's risk.
4.5 Whilst the Seller shall use reasonable endeavours to supply the exact quantity of the Works ordered by the Customer, the Seller may supply and the Customer will accept up to 10% more than the exact quantity ordered.
5 OWNERSHIP OF GOODS
5.1 Ownership in the Works (legal and equitable) shall remain with the Seller and shall not pass to the Customer until the Seller has received in cash or cleared funds payment in full of:
(a) all sums due in respect of the Works concerned; and
(b) all other sums which are or which become due to the Seller from the Customer on any account whatsoever.
6.1 The Seller shall provide the Customer with a final proof of the Works ("Proof") before incurring any printing costs or expenses.
6.2 The Customer shall examine the Proof and confirm in writing to the Seller within  days of receipt that the Proof complies with the description and specification (if any) set out in the Contact, is free from any and all grammatical, spelling or other errors or omissions and is in a form suitable to go to print.
6.3 The Seller will not be responsible or liable for any errors contained in the Works once written approval has been received from the Customer pursuant to clause 6.2 and the Customer agrees to indemnify and keep indemnified the Seller against any and all printing and other cost and expenses incurred by the Seller.
7.1 The Customer shall examine all Works on receipt and shall notify the Seller in writing of any shortages in or failure to supply Works (together with all relevant details) within 7 days of the actual date of receipt (for shortages), or the anticipated date of receipt (for failure to supply).
7.2 The Seller shall, if any Works have not been delivered as a result of the Seller's fault, deliver sufficient Works to make up for any shortages or non-delivery notified in accordance with Condition 7.1. Subject to Condition 9.2, if the Seller complies with this Condition then it shall have no further liability in contract, tort (including negligence) or otherwise howsoever for any shortage or non-delivery of the Works.
8.1 Where Goods are manufactured by the Seller or the Seller performs Services the Seller warrants that:
(a) on delivery the Goods shall comply in all material respects with the description and specification (if any) set out in the Contract and be free from material defects in materials and workmanship.
(b) the Services shall be performed with reasonable skill and care by properly qualified and experienced persons.
8.2 Subject to Condition 9.2, the Seller shall not be liable for any breach of any of the warranties in Condition 8.1 unless the Customer gives written notice of the defect to the Seller within 14 days of the date when the Customer discovers or ought reasonably to have discovered the defect;
8.3 The Seller shall not be liable for a breach of any of the warranties in Condition 8.1 where and to the extent that they arise as a result of any materials or workmanship not performed by the Seller or any materials, designs, specifications or instructions provided by or on behalf of the Customer.
8.4 Subject to Conditions 8.2 and 8.3, if any of the Works breach the warranties set out in Condition 8.1 the Seller shall repay the Customer’s reasonable cost of carriage incurred in returning such Works (where it requested this under Condition 8.2) and shall, at its option and cost: (a) replace such Goods or re-perform such Services; or (b) refund the price of the defective Works.
8.5 Subject to Condition 9.2, if the Seller complies with Condition 8.4 it shall have no other liability in contract, tort (including negligence) or otherwise for breach of any of the warranties in Condition 8.1.
9 LIMITATION OF LIABILITY
9.1 THE PRICES CHARGED FOR THE WORKS ARE BASED STRICTLY ON THE UNDERSTANDING OF ACCEPTANCE BY THE CUSTOMER OF THE LIMITS ON THE SELLER’S LIABILITY IN THESE CONDITIONS. SHOULD THE CUSTOMER WISH TO REQUEST THE SELLER TO ACCEPT ADDITIONAL LIABILITY THIS MAY BE DISCUSSED BETWEEN THE PARTIES AND THE PRICE MAY BE INCREASED ACCORDINGLY IF IT IS AGREED BY THE SELLER THAT THE SELLER SHALL ACCEPT ANY ADDITIONAL LIABILITY.
9.2 Nothing in these Conditions shall exclude or limit the liability of the Seller for death or personal injury caused by the Seller's negligence or for any breach of the conditions implied by section 12 of the Sale of Goods Act 1979 and section 2 of the Supply of Goods and Services Act 1982 or for fraud.
9.3 All warranties, conditions and other terms that would otherwise be implied by statute or common law, other than the conditions implied by Section 12 of the Sale of Goods Act 1979 and Section 2 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
9.4 Subject to Condition 9.2, the Seller shall not be liable in contract, tort (including negligence) or otherwise howsoever for any:
(a) direct or indirect loss of revenue, profit, anticipated profit, business, contracts, or anticipated savings;
(b) damage to the Customer's reputation or goodwill; or
(c) special, indirect or consequential loss or damage
arising out of or in connection with the Contract.
9.5 Subject to Condition 9.2, the Seller's total liability arising out of or in connection with any Contract and whether in contract, tort (including negligence) or otherwise howsoever shall not exceed the Contract price.
10 FORCE MAJEURE
10.1 Subject to the rest of this Condition 10, neither party shall be liable for any failure to perform, misperformance or any delay in performing any of its obligations under the Contract to the extent that this is caused by reasons outside their control including by an Act of God, explosion, flood, tempest, fire or accident, war or threat of war or sabotage, civil disturbance or requisition acts, terrorism, strike, lock-out or industrial disputes, currency restrictions, regulations, by-laws, prohibitions of measures of any kind on the part of any governmental parliamentary or local authority, import or export regulations or difficulties in obtaining raw materials, labour, fuel parts or machinery, power failure or breakdown in machinery. This Condition shall not apply to any obligations to make payments.
10.2 Should any of the events listed in 10.1 continue to persist for 3 months from the date of commencement of the event, the Seller shall be entitled to terminate the Contract with immediate effect.
11.1 The price payable for the Works shall be that quoted by the Seller (as varied by Condition 11.3).
11.2 Unless otherwise agreed in writing, prices are based on delivery of the Works in accordance with Condition 4.1 and are exclusive of any value added tax and any other tax or duty relating to the manufacture or sale of the Works. Such taxes shall (where applicable) be added to the Seller’s invoice and be payable by the Customer at the same time as it is obliged to pay for the Works.
11.3 The Seller may increase prices from those quoted at any time to take account of:
(a) changes in the Customer's specification, instructions or design; or
(b) changes in the quantities of Goods ordered by the Customer.
12.1 The Seller may invoice the Customer for each instalment of Works any time after delivery of the relevant instalments. All payments made are to be in the same currency as that quoted by the Seller.
12.2 Subject to the rest of this Condition 12.2, Customers who have been granted by the Seller a credit account facility shall pay the price for Works within 30 days of the date of the invoice. The Seller may (in its sole discretion) amend the terms of or withdraw such credit account facility at any time without notice with immediate effect. On withdrawal, all amounts accruing to the Seller under the Contract shall become due and shall be paid immediately. All new Customers shall, in respect of their first order only, pay 50% (fifty per cent) of the price within 3 days of the date of the Order Acknowledgement with the balance being paid within 30 days of the date of the Seller's invoice following delivery.
12.3 All payments shall be made in full (without any withholding, deduction, set-off or counterclaim save to the extent that this cannot be excluded by law) by the Customer in cash or cleared funds. Interest shall be payable on all overdue amounts at Lloyds TSB Bank plc base rate from time to time plus 5% compounded daily until payment is made in full (whether before or after any judgment).
12.4 The Seller shall be entitled to use any payment received from the Customer in payment towards any debt owed to the Seller by the Customer regardless of which Contract or instalment the Customer purports to appropriate it to. The Seller may also suspend deliveries under all Contracts without liability if payment is not made on time under any Contract until payment is received in full.
13.1 The Seller may in its discretion terminate any Contract or suspend further deliveries under any Contract with immediate effect by written notice if:
(a) the Customer fails to pay the price or any part of it with 10 days of the due date for payment or the Customer is in breach of any term of the Contract and has failed to remedy it within 28 days of receipt of notice specifying the breach and requiring it to be remedied;
(b) the Customer goes into liquidation either compulsory or voluntary;
(c) a provisional liquidator is appointed or if an administrator, administrative receiver or receiver is appointed over the whole or part of the Customer's assets;
(d) any petition or application for the appointment of such persons is filed in respect
of the Customer;
(e) any statutory demand is served on the Customer or the Customer becomes unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or any equivalent or analogous event occurs in any other jurisdiction; or
(f) the Company reasonably considers that any of the events described in this subsection has occurred; or
(g) any similar event to those described in Conditions 13.1(b) to 13.1(e) occurs in any jurisdiction.
13.2 Any Conditions which impliedly have effect after termination (howsoever arising) shall
continue to be enforceable notwithstanding such termination, including Conditions 5, 9, 12, 14 and 15.
14.1 Subject to Condition 14.2, each party shall:
(a) keep the other party’s Confidential Information confidential and shall only use it for the purposes of enjoying their rights or complying with or enforcing their obligations under the Contract; and
(b) restrict disclosure of the other party’s Confidential Information to such of its and its group companies’ employees, agents or subcontractors as need to know the same and shall ensure that they are subject to and comply with equivalent obligations of confidentiality to those in this Condition.
14.2 The restrictions in Condition 14.1 shall not apply to any Confidential Information;
(a) in the receiving party’s possession (with full right to disclose) prior to receiving it;
(b) which is public knowledge other than by breach of this Condition; or
(c) which the receiving party may independently develop or receive from a third party with full right to disclose).
Nor shall the restrictions prevent a party from disclosing any Confidential Information to the extent that it is required to do so by any court, tribunal or competent regulatory authority.
15 INTELLECTUAL PROPERTY
15.1 Unless otherwise agreed in writing, ownership in all Intellectual Property Rights in, resulting from or relating to the Works or any materials created in connection with them shall, as between the parties, vest in or be assigned to the Seller. If the Customer acquires any such rights it shall promptly inform the Seller and assign such rights to the Seller (and do all things that the Seller reasonably requires, at the Customer’s expense, to do this).
15.2 The Customer shall keep the Seller indemnified in full on demand against all losses, liabilities, costs, claims and expenses incurred in connection with any infringement or alleged infringement of any Intellectual Property Rights arising out of any instructions, designs, specifications or materials provided by or on behalf of the Customer.
15.3 Nothing in these Conditions shall be construed as any representation or warranty by the Seller that the design, manufacture, use or sale of the Works does not infringe any third party's Intellectual Property Rights.
15.4 The Customer shall not, unless otherwise agreed in writing, reproduce the whole or any part of the Works.
16.1 Nothing in the Contract shall render either party the agent or partner of the other and neither party shall enter into any contract as agent of any other party.
16.2 Subject to the rest of this Condition, neither party shall assign, transfer or hold on trust the Contract or any part of it to or for any other person without the other party’s consent. The Seller may:
(a) transfer its rights under the Contract (in whole or in part) to any other person; and
(b) subcontract its obligations under the Contract.
16.3 Any notice given by either party to the other under the Contract shall be in writing addressed to that other party at its registered office or such address, email address or fax number as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Any notice or document shall be deemed served, if delivered by hand at the time of delivery, if posted, 48 hours after posting, if sent by email when delivered to the electronic mailbox of the intended recipient, and if sent by facsimile transmission, at the time of transmission (provided that a successful transmission sheet is obtained).
16.4 If any of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other Conditions and the remainder of the Condition in question shall continue in full force and effect. To be clear, each part of Conditions 5 and 9 shall be severable from the other parts of those Conditions.
16.5 Any waiver of the exercise of any right, power or remedy under the Contract shall not be deemed a waiver of any subsequent right, remedy, power or remedy and shall not affect the other terms of the Contract. Each of the Seller's rights and remedies under each Condition of the Contract are cumulative and are in addition to the Seller's other rights and remedies whether under the Contract or otherwise.
16.6 A person who is not a party to the Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
16.7 The Customer agrees that it shall have no remedy in respect of any untrue statement innocently or negligently made by or on behalf of the Seller prior to the Contract whether such statement was made orally or in writing (unless made fraudulently).
16.8 These Conditions shall be governed and construed in accordance with the laws of England