DATED 10 November 2020
Contract Marking Services
THESE TERMS AND CONDITIONS OF SALE FOR GOODS AND SERVICES state the basis on which we Contract Marking Services will sell goods and services to our business customers.
Please read them carefully, especially the terms at section 12 (liability).
Contract Marking Services is called ‘the Supplier’ in this agreement.
The buyer is called ‘the Customer’ in this agreement. You are the individual, firm, company or other organisation stated on the order form or other document agreed in writing between us (the Order).
1. Agreed terms
It is agreed that:
1.1. If any word, phrase or explanation used within this agreement is not clear, it will be defined and interpreted according to the definitions and interpretations set out below:
Acts, Legislation: or other similar references shall include any updates and or amendments to the same.
Charges: the charges payable by the Customer to the Supplier according to the terms of this Contract.
Customer: the individual, firm, company or other organisation stated on the Order.
Customer Materials: any materials or information that the Customer provides to the Supplier in relation to the supply of the Services.
Goods: the goods set out in the Order that the Supplier is to supply, according to the terms of this Contract.
Order: the Supplier’s order form, or other document agreed in writing by the Supplier and the Customer.
Services: the services set out in the Services Specification, which the Supplier is to supply according to the terms of this Contract.
Services Specification: the description of the Services supplied by the Supplier to the Customer, which may be included within the quotation provided by the Supplier, the Order or other document agreed in writing by the Supplier and the Customer.
Standard Services Charges: the charges for the Services set out in the Supplier’s price list as in force on the commencement date of the Contract.
Written: and any similar expression, includes email.
1.2. It is also agreed that:
- The Customer wishes to acquire goods and services described in the Order (Goods and Services) and the Supplier wishes to supply them to the Customer, on the terms and conditions set out in this agreement (Terms)
- The Supplier shall only supply Goods and Services to the Customer on these Terms. (Terms can only be varied in writing signed by an authorised officer of the Supplier.)
- Quotes for Goods and Services provided by the Supplier to the Customer are not offers by the Supplier. Any Charges quoted in a quotation shall only be valid for 30 days from the date of the quotation
- Any Orders placed by the Customer are offers for the purchase of the Goods and Services on the basis of these Terms
- When the Supplier accepts an Order in writing, the Supplier’s contract with the Customer for the supply of the Goods and Services in that Order shall come into existence at the point of the Supplier’s written acceptance.
- The Supplier’s contract with the Customer for the supply of the Goods and Services comprises the Order, these Terms and anything else the Supplier expressly agrees in writing (Contract).
- Any descriptions of the Goods and Services contained in the Supplier’s brochures or on the Supplier’s website, along with any samples of Goods, are only for illustrative purposes and do not form part of the Contract
- The Supplier may amend any specification for Goods or the Services Specification as required by law, or to comply with any relevant regulatory obligations.
2.1. The Customer will pay the Charges for Goods set out in
- the quotation sent by the Supplier to the Customer
- the Order, or
- in the Supplier’s written acceptance of the Order.
2.2. If no Charges have been quoted or set out in the Order, or in the Supplier’s written acceptance, then the Charges for the Goods shall be those set out in the Supplier’s price list in force on the commencement date of the Contract.
2.3. The Supplier has the right to change the Charges for Goods at any time prior to delivery of the Goods, to reflect any increases in costs that are beyond the Supplier’s control, including, for example, to reflect changes to foreign exchange rates or taxes, changes in the costs of labour or materials and to reflect any changes requested by the Customer after the commencement date of the Contract.
2.4. Where the Goods are to be delivered to the Customer, the Charges for Goods do not include carriage, insurance or packaging and the Supplier shall be entitled to recover from the Customer all reasonable expenses incurred by it in delivering the Goods to the Customer .
2.5. The Customer will pay the Charges for Services set out in
- any quotation sent by the Supplier to the Customer
- the Order or
- the Supplier’s written acceptance of the Order.
2.6. If no Charges have been quoted, or set out in the Order, or in the Supplier’s written acceptance, then the Charges for the Services shall be the Standard Services Charges.
2.7. The Charges for Services do not include expenses incurred by the Supplier’s staff or sub-contractors such as hotel, food, travel and similar expenses, or any other third-party costs that the Supplier incurs in providing the Services. The Supplier shall be entitled to recover all of these from the Customer.
2.8. The Supplier may charge amounts in addition to the Charges if the Customer requests any change to the Goods or Services after the commencement of the Contract, if the Customer fails promptly to provide any instructions or Customer Materials required by the Supplier for the supply of the Goods or Services, or for any reason that is due to any other act or omission of the Customer.
2.9. The Supplier reserves the right to change the Standard Services Charges by giving at least one months’ written notice to the Customer.
2.10. Unless otherwise stated, the Charges will be exclusive of VAT which the Customer shall be liable to pay to the Supplier in addition to the Charges.
3. Invoicing and payment
3.1. The Supplier is entitled to raise invoices containing the Charges for Goods on or after delivery of the Goods by the Supplier.
3.2. If the Customer is to collect the Goods, the Supplier is entitled to raise invoices containing the Charges for Goods on, or at any time after, the Supplier has notified the Customer that the Goods are ready for collection.
3.3. If the Goods are to be delivered to the Customer and the Customer fails to accept delivery of the Goods, then the Supplier is entitled to raise an invoice containing the Charges for Goods after the Supplier has attempted to deliver the Goods.
3.4. The Supplier shall be entitled to raise invoices for the Charges for Services on a weekly basis on completion of the Services
3.5. The Customer will pay the Supplier within 30 days of receiving the Supplier’s invoice. Payment must be made without any deduction or set-off. Payment shall be treated as made once the Supplier receives cleared funds.
3.6. Time for payment of the Charges shall be of the essence.
3.7. If any amounts owed by the Customer to the Supplier become overdue, then (without compromising any other rights or remedies available to the Supplier), the Supplier:
- shall be entitled to charge interest upon such amounts in accordance with the Late Payment of Commercial Debts (Interest) Act 1998
- may suspend the supply of any further Services and/or delivery of Goods, and any goods and/or services under any other contract between the Supplier and the Customer, until the overdue amounts are paid in full, and/or
- may terminate the Contract.
3.8. Customer is responsible for all reasonable costs and expenses incurred by the Supplier in relation to the recovery by the Supplier of any amounts owed to it by the Customer.
4. Delivery of Goods
4.1. Any dates quoted for delivery of Goods are approximate only and time for delivery of the Goods shall not be of the essence .
4.2. The Supplier will deliver the Goods to the premises identified by the Customer in the Order, or to another location agreed in writing between the Supplier and Customer, unless the Customer has requested to collect the Goods. If the Customer has requested to collect the goods, the Customer shall collect them within seven days of the Supplier notifying the Customer that the Goods are ready for collection.
4.3. If the Customer does not accept delivery of the Goods, or does not collect the Goods within seven days of the Supplier notifying the Customer that the Goods are ready for collection, then (without in any way compromising any other rights or remedies available to the Supplier), the Supplier may
- store the Goods until delivery of the Goods occurs and
- invoice the Customer for the costs and expenses of storage, insurance and other associated costs.
4.4. If the delivery or collection of the Goods has not occurred within 20 days, the Supplier is entitled to sell the Goods to someone else. If this sale leaves the Supplier with less than the amount it would have been paid by the Customer for these Goods, the Supplier can charge the Customer for the difference .
4.5. The Supplier may deliver the Goods by instalments. Each instalment shall be deemed to be a separate contract and any failure or delay by the Supplier to deliver any one instalment shall not entitle the Customer to terminate the Contract in relation to other instalments.]
4.6. If the Supplier fails to deliver the Goods, or an instalment of Goods, then the Supplier’s liability to the Customer shall be limited to an amount equivalent to the excess price (above the amount of the Charges for Goods) that the Customer has to pay for similar goods (at the cheapest market rate) to replace those undelivered Goods.
4.7. Notwithstanding Section 4.6 above, the Supplier will not be liable to the Customer where non-delivery of the Goods is due to a reason beyond the Supplier’s reasonable control, or to a default by the Customer (for which the Supplier shall have no liability)
5. Responsibility for Goods
5.1. For Goods that are delivered to the premises identified in the Order (or any other location agreed between the Supplier and Customer in writing), the responsibility for and risk in the Goods passes to the Customer:
- at the time of delivery of the Goods to those premises, or
- if the Customer fails to accept the Goods, then delivery (and the responsibility for and risk in the Goods passed to the Customer) will be at the time when the Supplier attempted to deliver the Goods to the Customer
5.2. Where Goods are collected by the Customer, the responsibility for and risk in the Goods passes to the Customer at the time when the Supplier notifies the Customer that the Goods are ready for collection.
6. Ownership of Goods
6.1. Ownership of the Goods shall pass to the Customer on receipt by the Supplier of full and cleared payment of the Charges for the Goods.
6.2. Subject to section 6.5, ownership of the Goods does not pass to the Customer until the Supplier has received full and cleared payment of the Charges for the Goods (and for any other goods under any other contract between the Supplier and the Customer for which payment for such goods has become due).
6.3. Until ownership of the Goods passes to the Customer, the Customer will:
- keep and store the Goods separately from any goods belonging to any other person or company;
- ensure that the Goods remain readily identifiable as belonging to the Supplier. The Customer shall not do anything that may obscure or deface any markings indicating that the Goods belong to the Supplier;
- store and keep the Goods in good condition; and
- insure the Goods from the time at which risk in the Goods passes to the Customer.
6.4. If the Customer’s business fails, or is likely to fail, the Customer will immediately notify the Supplier and any right of resale of Goods under the Contract shall terminate immediately. (The Customer’s business will be treated for this purpose as having failed if it meets any of the termination conditions identified in section 14.2.)
6.5. Subject to section 6.4, until the time when ownership of the Goods passes to the Customer, the Customer may use or resell the Goods only in its ordinary course of business. If it does resell the Goods in its ordinary course of business, ownership of such Goods shall pass to the Customer immediately before such resale.
6.6. Until the time when ownership of the Goods passes to the Customer, the Supplier may require the Customer to deliver up all the Goods to the Supplier and if the Customer fails to do so, the Supplier shall have the right to enter the premises at which the Goods are located and retake possession of such Goods.
7. Warranties relating to Goods
7.1. The specification for the Goods can be found in the Supplier’s brochure or on the Supplier’s website, (except to the extent that such specification is amended by any drawing, design or specification supplied by the Customer).
7.2. Subject to the remaining provisions of this section 7, the Supplier warrants that the Goods will correspond in all material respects with the specification of the Goods, that the Goods will be of satisfactory quality and that they will be free from defects in material and workmanship on delivery.
7.3. The Supplier shall not be liable under the warranty in section 7.2 if:
- any use is made of the Goods after the Customer has provided the Supplier with notice that the Goods do not meet the warranty (see section 7.4);
- any defect(s) in the Goods are due to any specification, drawing or design supplied by the Customer;
- any defect(s) in the Goods are due to fair wear and tear, wilful damage, abnormal working conditions, the Customer’s negligence, failure by the Customer to follow any instructions in respect of the Goods, failure by the Customer to follow good practice in respect of the Goods or any misuse of the Goods; and
- any repair or alteration to the Goods has been made without the prior written approval of the Supplier.
7.4. If the Customer considers that any of the Goods do not meet the warranty in section 7.2, then the Customer will promptly provide written notice to the Supplier and will allow the Supplier, at the Supplier’s request, to examine those Goods. The Customer will promptly return these Goods to the Supplier at the Supplier’s cost if requested by the Supplier.
- the Customer has a legitimate claim in respect of Goods not complying with the warranty in section 7.2
- none of the factors listed in section 7.3 apply, and
- the Customer has complied with section 7.4,
the Supplier may, at its option, repair or replace the relevant Goods, or provide a refund to the Customer in respect of such Goods. Once it has done so, the Supplier shall have no further liability to the Customer for those Goods.
7.6. Except as provided in this Contract, all other warranties or conditions implied by statute or by common law are excluded to the maximum extent allowed by law.
8. Supply of Services
8.1. The Supplier shall use reasonable endeavours to meet any dates quoted for the supply and completion of the Services, but any such dates are approximate only, and time for the supply and completion of the Services shall not be of the essence.
8.2. Either party may request a change to the Services Specification. Any such change must be agreed in writing by the parties, but neither party shall unreasonably refuse its consent.
8.3. If a change is requested, the Supplier will provide a written statement to the Customer setting out:
- its effect on the Charges (up or down);
- its effect on timing under the Services Implementation Plan; and
- its any other impact of the change.
9. Warranties relating to services
The Supplier warrants to the Customer that the Services will be supplied:
- using reasonable care and skill; and
- in accordance with the Services Specification in all material respects.
10. Intellectual property rights
10.1. If the Customer provides any specification, drawing or design to the Supplier in respect of the Goods, the Customer shall indemnify the Supplier against all losses, costs and expenses incurred by the Supplier in respect of any claim, made to the Supplier from a third party, that the Supplier’s use of the specification, drawing or design in relation to the Goods, infringes that third party’s intellectual property rights.
10.2. Except in relation to the Customer Materials, all intellectual property rights arising out of the Services belong to the Supplier.
10.3. The Supplier grants to the Customer a fully paid, worldwide, non-exclusive and irrevocable licence of the intellectual property rights in section 10.2 to the extent necessary for the Customer to receive the full benefit of the Services.
11. Obligations of Customer
11.1. The Customer will:
- ensure that the Order, the Customer Materials and any other materials or information (including any specification, design or drawing for the Goods) that the Customer supplies to the Supplier are complete and accurate
- promptly provide the Supplier with such materials and information as the Supplier requires in order to supply the Goods and the Services, and
- comply with all applicable laws and relevant regulatory obligations
11.2. If the Services are to be supplied at the Customer’s premises, the Customer will:
- provide access to such premises and ensure that the premises are ready for the supply of the Services
- provide suitable facilities for the supply of the Services, and
- ensure such premises comply with all health and safety laws.
11.3. If the Supplier is delayed or unable to fulfil any of its obligations under the Contract due to any act or omission of the Customer (Customer Failure), then the Supplier may rely on such Customer Failure to relieve it from its obligations under the Contract.
11.4. To the extent that the delay or inability at section 11.3 is due to the Customer Failure, then without limiting or otherwise compromising any other rights or remedies available to it, the Supplier:
- may suspend the supply of Goods and Services until the Customer makes good the Customer Failure;
- shall not be liable for any losses, costs or expenses which the Customer suffers or incurs because of any delay or suspension that is attributable to the Customer’s Failure; and
- may request immediate payment by the Customer of any losses, costs or expenses that the Supplier suffers or incurs because of the Customer Failure.
11.5. Any right of suspension under this section is additional to any rights available to the Supplier under the law of any relevant jurisdiction.
12.1. Subject to section 12.3, the Supplier is not liable to the Customer for any indirect or consequential loss, any loss of profits or any loss of business, whether arising from tort, breach of contract, indemnity or otherwise under or in connection with the Contract.
12.2. Subject to section 12.3, the Supplier’s liability in respect of all claims, losses or damages of whatever nature, whether arising from tort, breach of contract, indemnity or otherwise, under or relating to, the Contract, shall not exceed the aggregate of the Charges paid by the Customer to the Supplier under the Contract.
12.3. Nothing in the Contract shall exclude or limit either party’s liability for any death or personal injury caused by negligence or for any other liability which cannot be excluded or limited by law.
13. Data Protection
13.1. In this section the following definitions shall apply:
- Data protection Laws: means the General Data Protection Regulation (EU) 2016/679 (GDPR) and the Data Protection Acts 1998 and 2018 and all successor and replacement legislation, and all other laws and regulations relating to personal data and privacy.
- personal data, process, processed or processing, data controller, data processor, data subject and personal data breach, shall each have the meanings given to them in the Data Protection Laws.
13.2. To the extent that the Services involve the processing by the Supplier of personal data on the Customer’s behalf, it is agreed that the Customer is the data controller and the Supplier is the data processor in respect of that personal data. The following sections set out the rights and obligations of each party.
13.3. The Customer will comply with Data Protection Laws and will ensure that it has the necessary notices, and where appropriate necessary consents, to allow for the transfer of personal data from the Customer to the Supplier and to cover the purposes of the processing pursuant to the Contract.
13.4. For the purposes of Data Protection Laws:
- the subject matter, nature and purpose of the processing is COMPLETE
- the duration of the processing is COMPLETE
- the types of personal data to be processed are COMPLETE
- the categories of data subject are COMPLETE.
13.5. The Supplier agrees that when the Supplier is processing personal data as a data processor on the Customer’s behalf:
- the Supplier will comply with Data Protection Laws;
- the Supplier will only carry out processing on the Customer’s written instructions (which for the avoidance of doubt includes this Contract and the terms of the Order) and only for the purposes of the Services, unless the Supplier is under a legal obligation to process personal data without the Customer’s instructions, in which case the Supplier will inform the Customer of that legal obligation prior to processing (unless prohibited to do so by law);
- the Supplier will ensure that any personnel (or others who process personal data on the Customer’s behalf (including any sub-processors)) are subject to a duty of confidentiality or are under a statutory duty of confidentiality;
- the Supplier will take appropriate organisational and technological measures to ensure the security of the personal data appropriate to the risk presented by the processing and to protect against unauthorised or accidental access, loss, alteration, disclosure or destruction of the personal data (including those measures set out in Article 32 GDPR);
- the Supplier will notify the Customer without undue delay when the Supplier becomes aware of any personal data breach. The Supplier will provide all such information and assistance as the Customer may request in relation to any personal data breach;
- the Supplier will not transfer any personal data outside of the European Economic Area without the Customer’s prior written consent. If such consent is granted, either party shall ensure that appropriate safeguards are adopted in compliance with Data Protection Laws or the transfer is otherwise made in compliance with the Data Protection Laws in order to ensure the lawful transfer of personal data and to ensure adequate protection for the personal data;
- the Supplier will provide reasonable assistance to the Customer, at the Customer’s cost, (and taking into account the nature of the processing) in respect of the exercise of rights by a data subject under Data Protection Laws, including in relation to subject access requests;
- the Supplier will provide reasonable assistance to the Customer, at the Customer’s cost, (and taking into account the nature of the processing and the information available to the Supplier) in meeting the Customer’s obligations under Data Protection Laws including in respect of the security of processing, the notification of personal data breaches, data protection impact assessments and consultations with relevant supervisory authorities;
- at the end of this Contract the Supplier will, at the Customer’s option, return to the Customer or delete all personal data and the Supplier will procure the same action is taken by any sub-processors. If the Supplier or any sub-processors, are required to retain personal data by law, the Supplier will promptly inform the Customer of this in writing and this section 13 shall continue to apply to such personal data;
- the Supplier will immediately notify the Customer if the Supplier is asked to do anything which infringes Data Protection Laws;
- the Supplier will keep such information, including records of processing, to demonstrate its compliance with these sections 13.4 to 13.9 of this Contract and with Data Protection Laws and the Supplier will promptly provide the Customer with copies of such information and records on request; and
- the Supplier will allow the Customer, or its nominated representatives, to conduct audits of the Supplier on at least 14 days’ notice and subject to the Customer and/or its nominated representatives first entering into suitable confidentiality undertakings.
13.6. The Customer consents to the appointment of TBA as at the date of this Contract. The Customer confirms it has entered into a written agreement with such sub-processors which include clauses required by the Data Protection Laws, but which for the avoidance of doubt are not the same as the clauses in this Contract.
13.7. If the Supplier wishes to change, appoint or amend any sub-processors (other than those set out in 13.6) it will provide written notice to the Customer of the proposed changes. The Customer shall have 10 days from the date of the notice to raise (by written notice to the Supplier) any objections, on reasonable grounds, to the sub-processors named therein. If the Customer does raise objections to such sub-processors, the parties shall work together to find a reasonable alternative or to resolve the objection. If within 10 days of the notice of objection from the Customer the parties cannot find a reasonable solution, the Supplier may terminate only those Services under the Contract which cannot be supplied without the relevant sub-processors and the Supplier shall have no liability to the Customer in respect of such termination. If the Customer does not provide notice of objection within 10 days of the date of the notice from the Supplier then the Customer will be deemed to accept the change(s) to sub-processors. In respect of any sub-processors, the Customer confirms it will enter into a written agreement with such sub-processors which include clauses required by the Data Protection Laws, but which for the avoidance of doubt are not the same as the clauses in this Contract
13.8. The Supplier shall remain liable to the Customer for any acts or omissions of any sub-processor.
13.9. These sections 13.4 to 13.9 of this Contract are in addition to the obligations of each party under Data Protection Laws, and they are not intended to substitute or change those obligations.
14.1. Either party may terminate the Contract, without liability to the other party, if that other party’s business fails.
14.2. The other party’s business will be treated for this purpose as having failed if:
- the other party is or appears to be unable to pay its debts as they fall due
- the other party makes any voluntary arrangement with that other party’s creditors
- (being an individual or firm) the other party becomes bankrupt
- (being a company) the other party becomes subject to an administration order or goes into liquidation
- any third party takes possession of, or enforces rights over, any of other party’s property or assets under any form of security;
- the other party stops or threatens to stop carrying on business;
- the other party suffers any process equivalent to any of these, in any jurisdiction; or
- the terminating party reasonably believes that any of the events mentioned above are about to occur and the terminating party notifies the other party accordingly.
14.3. Without prejudice to any other rights or remedies available to it, the Supplier may terminate the Contract without any liability to the Customer if:
- the Customer fails to pay any amount under the Contract when due; or
- the Customer commits a material breach of the Contract and fails to rectify the breach within 5 working days.
14.4. Upon termination of the Contract, however caused, and without prejudice to any other rights or remedies available to the Supplier, the Customer shall pay to the Supplier on demand:
- all Charges and other sums due but unpaid at the date of such demand, together with any interest accrued according to the terms of section 3.7;
- any Charges under any invoice that the Supplier raises after termination, relating to any Goods and/or Services that have been supplied prior to termination, but for which the Supplier had not yet raised an invoice before termination; and
- any costs and expenses incurred by the Supplier in recovering the Goods and/or in collecting any sums due under the Contract (including any storage, insurance, repair, transport, legal and remarketing costs).
14.5. Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract that existed at or before the date of termination.
14.6. Any term of the Contract that is specifically stated to continue or that, by its very nature, is intended to continue after termination of the Contract, shall continue to bind the parties following termination or expiry of the Contract.
15. Events beyond the reasonable control of the Supplier (‘Force majeure’)
The Supplier shall not be liable to the Customer for any failure or delay in performing any of its obligations to the extent that such failure or delay is caused by an event beyond its reasonable control. If the event continues for more than 8 weeks then either party may serve 14 days’ written notice on the other party to terminate the Contract.
16.1. The Contract represents the entire agreement between the parties in relation to the subject matter and supersedes all previous agreements, representations or understandings between the parties. The parties agree that they shall have no rights or remedies in relation to any representation or warranty that is not included in the Contract.
16.2. The Customer shall not assign, sub-contract, delegate, or otherwise transfer any of its rights or obligations under the Contract without the prior written consent of the Supplier.
16.3. If any provision of these Terms is held by a competent authority to be invalid or unenforceable, in whole or in part, the validity of the other Terms and of the remainder of the provision in question will not be affected. Every provision is severable from every other.
16.4. No single or partial exercise or failure or delay in exercising any right, power or remedy by a party under the Contract, howsoever arising, shall operate as a waiver by that party of, or impair or preclude any further exercise of that right, power of remedy. To be valid and effective, any waiver must be in writing.
16.5. Unless otherwise expressly stated, nothing in the Contract will create or confer any rights or other benefits pursuant to the Contracts (Rights of Third Parties) Act 1999 in favour of any person other than a party to the Contract.
16.6. Any written notice under these Terms will be deemed to have been sufficiently served if posted by pre-paid official post, couriered, faxed on receipt of successful answerback, or if sent by email (but in this case only on evidence of successful transmission and only if the parties have regularly communicated on contract matters by email).
16.7. The Contract will be governed by the law of England, and the parties submit to the exclusive jurisdiction of the English courts.