- In the Agreement the following expressions shall have the following meanings: Agreement: means the Proposal and, subject to paragraph 9.3, these terms and conditions of supply, as such agreement is amended from time to time in accordance with its terms; Price: means the Price as defined in the Proposal, as amended from time to time in accordance with the Agreement; Proposal: means the proposal letter to which these terms and conditions are attached, including the schedules to such letter.
- Expressions defined in the Proposal shall have the same meaning in these terms and conditions.
- Any phrase introduced by the words including, include, in particular or any like expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- Optimum or the Client may at any time during this Agreement propose an increase or decrease in the volume of the Services, a change in the description of the Services or the addition of new services or other variations to the Agreement and such variation (and any changes to the Price or other terms as a result) shall be discussed by the parties and if agreed by both parties the Agreement shall be amended accordingly; such agreement may be made orally, by email or otherwise.
- Optimum shall use reasonable skill and care in the performance of the Services.
- Optimum shall be entitled to perform any of its obligations under this Agreement through one or more sub-contractors. Optimum shall be responsible for the performance of such sub-contractors.
3. Client Obligations
- Optimum’s ability to provide the Services is dependent upon the full and timely co-operation of the Client and the accuracy and completeness of any information or data provided by the Client. Accordingly: (a) the Client shall provide to Optimum such information, co-operation and assistance as Optimum may reasonably require to provide the Services including, where applicable, clear and legible copy; (b) Optimum is not responsible for (and gives no representation or warranty in connection with) the content of any information or data provided by the Client or its accuracy, completeness or compliance with any laws.
- The Client shall act promptly where the Client’s approval or any other action on the part of the Client is necessary before a deliverable forming part of the Services can be finalised and: (a) such approval shall not be unreasonably withheld or delayed and shall be deemed to have been given if the Client has not given its approval or comments within 14 days of Optimum making the deliverable available to the Client; and (b) if any part of the Price is payable on finalisation of part of the Services those Services shall be deemed to have been finalised (and so the relevant part of the Price payable) within 30 days of Optimum making the deliverable available to the Client (whether or not the Client has by that date given its approval or taken any action required pursuant to this paragraph 3.2).
- Proofs of all work may be submitted for Client approval and Optimum shall have no liability for any errors not corrected by the Client in proofs so submitted. Client alterations and additional proofs necessitated thereby shall be charged extra. When style, type or layout is left to Optimum’s judgement changes thereto at the request of the Client shall be charged extra.
- Provided the applicable Services have been provided in accordance with the Agreement, Optimum may charge the Client for any additional time or expenses reasonably incurred as a result of any breach by the Client of paragraphs 3.1, 3.2 or 3.3 and/or for any changes or additional Services requested by the Client.
- If to fulfil its obligations under this Agreement Optimum requires the use of any intellectual property rights of the Client, the Client hereby grants to Optimum a non-exclusive, irrevocable, non-transferable and royalty free licence to use such intellectual property rights of the Client as so required.
- Metal, film, glass and other materials owned by Optimum and used in the production of type, plates, film setting, negatives, positives and the like shall remain Optimum’s exclusive property. Such items when supplied by the Client shall remain the Client’s property. Optimum accepts no responsibility for loss or damage to the Client’s originals and the Client should therefore insure accordingly.
- The Price is exclusive of any value added tax which the Client shall be additionally liable to pay at the applicable rate.
- Expenses directly incurred by Optimum in the performance of the Services shall be reimbursed at cost.
- The rates specified in part 2 of Schedule A are Optimum’s standard rates which may be increased by Optimum from time to time.
- Optimum reserves the right to increase the price (not more than once in a 12 month period) by a percentage equal to the increase in the Retail Prices Index over that period.
- Costs specified in Schedule A for printing are based on current costs of production but may be amended at any time by Optimum to meet any rise or fall in such costs.
- All work carried out, whether experimentally or otherwise, at the Client’s request shall be charged.
- Where anything tangible is to be delivered to the Client as part of the Services such delivery shall be to the Client’s address in the Proposal. Optimum may charge the Client for any extra costs involved in delivery to a different address.
- If expedited delivery is agreed Optimum may charge the Client for any overtime or additional costs involved.
- Should the work be suspended at the request of, or delayed for 30 days or more through any default of the Client, Optimum shall be entitled to payment for work already carried out, materials specially ordered and other additional costs including storage.
- Optimum’s invoices shall be paid within 30 days of the invoice date in cleared funds. The Client shall set up a direct debit for any monthly retainer fees payable on the last day of each month.
- The Client shall on reasonable notice allow a duly authorised representative of Optimum or Optimum’s external auditors to inspect, copy and/or audit any records of the Client or its shareholders which are relevant for the purpose of calculating any amount due to Optimum from the Client under this Agreement. The Client shall provide Optimum or its auditors with such assistance as they may reasonably require.
- If as a result of an audit pursuant to paragraph 5.2 there is a dispute in respect of any amount due to Optimum from the Client under this Agreement (including as to the identity of any New Customer) Optimum shall give the Client notice of such claims following which the parties will act reasonably to resolve the dispute, failing which within 14 days of the dispute arising the parties will appoint an independent accountant who shall act as an expert and not as an arbitrator to resolve such dispute. Failing agreement by the parties, as to the identity of the accountant he/she shall be appointed by the President of the Institute of Chartered Accountants. The independent accountant’s decision shall be final and binding on the parties
6. Limitation of Liability
- Optimum shall not be liable to the Client for any loss of profits, loss of business, depletion of goodwill or similar losses, loss of anticipated savings, or any indirect or consequential loss or damage.
- Optimum’s total aggregate liability to the Client arising out of or in connection with the Agreement shall not exceed the sum of £500,000 (being the amount of Optimum’s indemnity insurance).
- Optimum shall have no liability if the performance of its obligations is prevented or delayed by any act or omission of the Client and Optimum reserves the right to charge the Client for any additional time or expenses reasonably incurred as a result of such prevention or delay (Optimum will take reasonable steps to mitigate such expenses).
- The Client shall as soon as reasonably practicable give Optimum notice of any claim arising out of or in connection with this Agreement and Optimum shall have no liability unless it receives such notice: (a) within 14 days of delivery of the relevant Services unless paragraph 6.4(b) applies; or (b) if the defect in the Services was not reasonably apparent at the time those Services were provided within a reasonable time after discovery of the defect.
- Nothing in this Agreement excludes or restricts the liability of either party for fraud, death or personal injury caused by its negligence or for any other liability which cannot by law be limited or excluded.
- Neither party shall be deemed to be in breach of this Agreement nor have any liability to the other, to the extent that it is prevented from carrying out its obligations by any act or event beyond its reasonable control.
- Optimum shall not be required to produce any matter 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.
- Optimum shall be indemnified by the Client in respect of any claims, costs and expenses arising out of any libellous matter or any infringement of copyright, patent, design or of any other proprietary or personal right contained in any material printed for the Client. The indemnity shall extend to any amounts paid on a lawyer’s advice in settlement of any claim.
- Each party acknowledges that in the course of the Agreement confidential information may be disclosed to it by the other party. Except as required to be disclosed by law, each party agrees to keep all confidential information confidential and in particular each party agrees that it will not discuss or disclose or use the other party’s confidential information for any purpose except carrying out its obligations under this Agreement.
- Either party may terminate this Agreement forthwith by giving written notice to the other if the other party:
(a) commits a material breach of this Agreement (which if remediable has not been remedied within 30 days of notification of the breach); or
(b) goes into liquidation or administration; or
(c) has a receiver appointed over any of its assets; or
(d) makes a voluntary arrangement or composition with its creditors within the meaning of the Insolvency Act 1986.
- If any provision (or part of a provision) of the Agreement is found by any court or competent authority to be invalid, unenforceable or illegal such provision or part provision shall be severed without affecting the remaining provisions.
- The Contracts (Rights of Third Parties) Act 1999 is excluded.
- The Agreement contains the entire agreement between the parties with respect to its subject matter and supersedes all previous agreements or negotiations in relation to such matters. Each party acknowledges that it has not relied on any representation, statement or warranty which is not set out in the Agreement and all warranties which might otherwise be implied (whether by statute or otherwise) are expressly excluded. If there is any inconsistency between these Terms and Conditions and the Proposal, the Proposal shall prevail.
- This Agreement shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the English courts.
- Any notice to be given under this Agreement or any waiver of any rights shall be in writing.