Terms and Conditions
These terms and conditions ("Conditions") shall apply to all
tenders, quotations and orders accepted byEvoke Creative
Limited("Company") to the exclusion of any other terms and
conditions whether or not the same are endorsed upon, delivered
with or referred to in any purchase order or other document
delivered by you, the customer ("Customer").
- 1. BASIS OF THE CONTRACT, QUOTATIONS AND
ACCEPTANCE
1.1 These Conditions alone (including the documents
referred to in them) shall govern and be incorporated in every
contract made between the Company and the Customer ("Contract") for
the supply of goods (including software) ("Goods") and any services
provided in accordance with Condition 6 ("Services"). A variation
of these Conditions is valid only if it is in writing and signed by
a director or authorised representative of the Company.
1.2 Acceptance by the Customer of delivery of the
Goods and/or commencement of the Services shall (without prejudice
to Condition 1.1 or any other manner in which acceptance of these
Conditions may be evidenced) be deemed to constitute unqualified
acceptance of these Conditions.
1.3 A quotation by the Company does not constitute
an offer. The Company reserves the right to withdraw or revise a
quotation at any time prior to the Company's acceptance of the
Customer's order. Any quotation is valid for a period of 30 days
only from its date, provided that the Company has not previously
revised or withdrawn it.
1.4 The Company's acceptance of the Customer's order
(including orders made by email or telephone) shall be effective
only where such acceptance is in writing and signed by an
authorised representative of the Company. No Contract shall come
into existence until the Company despatches a written acceptance of
the Customer's order.
- 2. DESCRIPTION, SPECIFICATION AND
CANCELLATION
2.1 The quantity and description of the Goods shall
be as set out in the Company's quotation or written acceptance of
the Customer's order and the Customer should ensure that its order
and the specification of the Goods are sufficient and suitable for
its purpose(s).
2.2 Any representations about the Goods and/or
Services shall have no effect unless expressly agreed in writing
and signed by a director or an authorised representative of the
Company. The Customer acknowledges that it has not relied on
any statement, promise or representation made or given by or on
behalf of the Company which is not set out in the
Contract.
2.3 Allspecifications, designs, drawings and other
data submitted by the Company with a tender or quotation
("Materials") are approximate and such Materials shall not form
part of any Contract unless expressly stated. Any descriptions and
illustrations contained in catalogues, price lists and other
advertising matter issued by the Company are intended only to
present a general idea of the Goods. The Company accepts no
responsibility for any errors, omissions or other defects in any
specifications or designs not prepared by the Company. All
Materials shall be treated as confidential and shall not be
disclosed to any third party without the Company's prior written
consent or used by the Customer other than for purposes authorised
by the Company. All Materials remain the property of the Company
and shall be returned to the Company on demand.
2.4 Any performance indications which are given by
the Company are estimates only. The Company accepts no liability if
the indications are not obtained unless the Company has
specifically guaranteed them in writing.
2.5 On receipt of any subsequent instructions from
the Customer which alter the Contract, the Company reserves the
right to suspend production or delay delivery until revised prices
have been agreed. Any extra costs thereby caused shall be
payable by the Customer.
2.6 Should the order be cancelled by the Customer
(for reasons other than failure by the Company) the Customer shall
pay to the Company an amount equivalent to the sales value of the
actual and committed expenditure of the Company in respect of the
order at the time of cancellation.
- 3. PRICE AND PAYMENT(UKSALES ONLY)
3.1 Unless otherwise agreed in writing, the price
payable for the Goods and/or Services is the price quoted by the
Company subject to the quotation remaining valid in accordance with
Condition 1.3. If no price had been given or if the quotation is no
longer valid, the price payable for the Goods and/or Services is
the price listed in the Company's then-current price list. Prices
quoted assume that the Customer accepts the Company's quotation or
tender in all respects. If any price quoted is subject to variation
the basis of such variation shall be shown in the Company's
quotation. Unless otherwise agreed, the Customer shall pay in
addition to the price value added tax and all costs or charges in
relation to, packaging, loading, unloading, carriage and
insurance.
3.2 The Company may at any time prior to the supply
of the Goods and/or Services withdraw any discount from its normal
prices, and/or revise its prices to take account of inflation,
increases in costs including costs of any goods, materials,
carriage, labour or overheads and the increase or imposition of any
tax, duty or other levy.
3.3 Payment of the price for the Goods shall be made
in pounds sterling in full without deduction within 30 days of the
date of the Company's invoice. Payment of the price for the
Services shall be made in pounds sterling in full without deduction
annually or monthly in advance (as specified in the Service
Agreement Document) within 30 days of the date of the Company's
invoice. Time of payment is of the essence of a Contract. The
Company reserves the right to suspend the provision of Goods to the
Customer until all overdue amounts have been paid. No payment shall
be deemed to have been received until the Company has received
cleared funds.
3.4 Interest is payable on overdue accounts accruing
on a daily basis to run from the due date for payment until receipt
by the Company of the full amount (including any accrued interest)
in accordance with the rate set out under the Late Payment of
Commercial Debts (Interest) Act 1998.
3.5 The Company reserves the right to require that
the Customer pays a deposit of up to 50% of the price of the Goods
if specified in any quotation. Any extension of credit allowed to
the Customer may be changed or withdrawn at any time. If, in the
opinion of the Company, the credit-worthiness of the Customer
deteriorates before delivery of the Goods, the Company may require
full or partial payment of the price prior to delivery or the
provision of security for payment by the Customer in an agreed
form.
- 4. DELIVERY AND STORAGE
4.1 The delivery or despatch dates or periods
mentioned in any quotation, order acceptance form or elsewhere are
approximate only and time for delivery is not of the essence. If no
delivery dates are specified, delivery shall be within a reasonable
time. No delay in the delivery of the Goods shall entitle the
Customer to terminate or rescind a Contract unless such delay
exceeds 180 days.
4.2 The Customer shall provide the Company with full
instructions for delivery of the Goods with the order. Unless
otherwise stated the price quoted is ex-works Company's premises
(Incoterms 2010).
4.3 The Customer shall take delivery of the Goods
within seven days of the Company giving notice that the Goods are
ready for delivery. The Customer is solely responsible for
loading and/or unloading the Goods at the point of delivery and
shall provide (at its expense) adequate and appropriate equipment
and labour for loading and/or unloading the Goods. The Customer
shall indemnify the Company against each loss, liability and cost
arising as a result of the Company or its subcontractors assisting
the Customer in the loading, unloading or other removal of the
Goods from the point of delivery and/or for any damage to the
Company's property caused whilst loading the Goods at the Company's
premises.
4.4 If for any reason the Customer refuses or fails
to take delivery of any of the Goods when they are ready for
delivery or fails to take any action necessary on its part for
delivery of the Goods, the Company is entitled to terminate the
Contract with immediate effect, to dispose of the Goods as the
Company may determine and to recover from the Customer any loss or
additional costs incurred as a result of such refusal or failure
(including storage costs from the due date of delivery).
4.5 The Company may deliver of the Goods in one or
more instalments. Each instalment shall be treated as a separate
Contract and no cancellation or termination of any one Contract
relating to an instalment shall entitle the Customer to repudiate
or cancel any other Contract or instalment. The quantity of any
consignment of Goods as recorded by the Company upon despatch from
the Company's premises shall be conclusive evidence of the quantity
received by the Customer on delivery.
4.6 Unless otherwise agreed in writing, packaging
will be in accordance with the Company's standard packaging and the
Customer shall be solely responsible for the disposal of all
packaging in accordance with all relevant regulations.
- 5. RISK AND PROPERTY
5.1 Risk of damage to or loss of the Goods shall
pass to the Customer from the time of delivery, being: (i) in the
case of Goods to be delivered at the Company's premises, at the
time when the Company notifies the Customer that the Goods are
available for collection; or (ii) in the case of Goods to be
delivered otherwise than at the Company's premises at the time of
delivery (before unloading) at the designated place for delivery;
or, (iii) if the Customer wrongfully fails to take delivery of the
Goods, the time when the Company has tendered delivery of the
Goods.
5.2 Notwithstanding delivery and the passing of risk
in the Goods, or any other provision of these Conditions, the
property in the Goods shall not pass to the Customer until the
Company has received (in cash or cleared funds) payment in full of
the price of the Goods (together with any accrued interest) and all
other goods agreed to be sold by the Company to the Customer for
which payment is then due. The Company reserves the right to
repossess and resell any of the goods to which it has retained
title.
5.3 Until such time as the property in the Goods
passes to the Customer: (i) the Customer shall hold the Goods as
the Company's fiduciary agent and bailee, and shall keep the Goods
separate from other goods and properly stored, protected and
insured and identified as the Company's property, but the Customer
shall be entitled to resell or use the Goods in the ordinary course
of its business; and (ii) the Company shall be entitled at any time
to require the Customer to deliver up the Goods to the Company or
to enter upon any premises of the Customer or any third party where
the Goods are stored and repossess the Goods.
5.4 The Customer shall not be entitled to pledge or
in any way charge by way of security for any indebtedness any of
Goods which remain the property of the Company.
- 6. INSTALLATION, SUPPORT AND TESTS
6.1 If agreed in advance, the
Company shall install the Goods at the delivery address at a
suitable time arranged with the Customer. If the Company has
delivered the Goods to the Customers premises, installation shall
be immediately following delivery.
6.2 In the event that the Customer
requires that the Company providessupportand maintenance services,
the description of any such Services shall be as set out in the
Service Agreement Document and the Service Agreement Schedules. The
Customer should ensure that the Services are sufficient and
suitable for its purpose(s). The Company shall not be liable for
any failure to provide the Services, or delay in providing the
Services which is due to the Customer's failure to comply with the
Service Agreement Document and the Service Agreement Schedule or
any other documentation regarding the Services provided by the
Company to the Customer. Unless otherwise agreed, installation
and/or training required by the Customer shall be the subject of a
separate contract and charges.
6.3 The Customer shall give full access to its
premises to the Company for the purpose of installing the Goods
and/or providing the Services, shall undertake any previously
agreed preparatory work and shall compensate the Company for any
additional costs incurred by reason of the Customer's failure to
properly undertake any such preparatory work.
6.4 If for any reason the Customer refuses or fails
to allow the Company access to its premises for the provision of
any of the Services or fails to take any action necessary on its
part for the provision of the Services, the Company is entitled to
terminate the Contract with immediate effect and to recover from
the Customer any loss or additional costs incurred as a result of
such refusal or failure (including transport, labour and other
expenses reasonably incurred by the Company).
6.5 The Company shall procure that
its employees who provide the Services comply with all reasonable
health and safety, security and other regulations which are in
force or apply at the Customer's premises and the Customer shall
indemnify and hold the Company harmless against any loss, damage,
cost and/or expense which the Company may suffer or incur as a
result of any injury to its employees or damage to or loss of its
property whilst at the Customer's premises resulting from anything
other than the negligence of the Company or its employees.
6.6 The Goods are carefully
inspected and where practicable, submitted to the Company's
standard tests. If special tests or tests in the presence of the
Customer or the Customer's representative are required, these,
unless otherwise agreed, shall be made at the Company's premises
and shall be subject to additional charges. In the event of any
delay on the part of the Customer in attending such tests after
seven days notice that the Company is ready, the tests shall
proceed in the Customer's absence and shall be deemed to have been
made in the presence of the Customer.
- 7. INTELLECTUAL PROPERTY
7.1 In these Conditions"Intellectual Property"means
any and all intellectual property rights including patents, trade
marks, design rights, copyright, rights in databases, domain names
know-how, look and feel, rights in confidential information and all
similar rights together with the right to apply for registration of
and/or register such rights any and all goodwill relating or
attached thereto and all extensions and renewals thereof.
7.2 The Intellectual Property in the Goods shall
belong to the Company or its licensors and, except to the extent
necessary to facilitate its use of the Goods in the ordinary course
of its business, the Customer shall have no right or title to the
same.
7.3 The Customer grants the Company a worldwide,
royalty free licence to use its Intellectual Property to the extent
necessary to perform the Company's obligations under the
Contract.
7.4 If at any time it is alleged (or reasonably
likely to be alleged) that the Goods infringe the rights of any
third party, the Company may at its own option and expense: (i)
modify or replace the Goods (or the relevant part) without
detracting from the overall performance of the Goods, so as to
avoid the infringement; (ii) procure for the Customer the right to
continue to use the Goods; or (iii) repurchase the Goods from the
Customer at the price paid by the Customer less depreciation at the
rate that the Company applies to its own equipment.
7.5 The Customer shall notify the Company
immediately of any claim made or action brought or threatened
alleging infringement of the rights of any third party. The Company
shall have control over and conduct of any such proceedings and the
Customer shall provide all such reasonable assistance as the
Company may request. The cost of any such proceedings shall
be borne by the Company.
7.6 If the Goods are to be manufactured or any
process is to be applied to them by the Company in accordance with
the specifications submitted by the Customer, or if the Goods are
to be marked with any trade mark at the request of the Customer,
the Customer shall indemnify and hold the Company harmless against
any liability whatsoever which results from the Company's use of
the Customer's specifications or the marking of the Goods or from
the sale or supply of such Goods by the Company.
- 8. GUARANTEE AND LIABILITY
8.1 Subject to the provisions in this Condition
8,the Company undertakes (at its own cost) to make good by
replacing or at its option by repairing at its premises, defects
which under proper use and/or storage appear and arise from faulty
design material or workmanship within a period of twelve months (or
such other period as may be agreed and stated in the Contract)
after the original Goods have been despatched. This guarantee is
given in lieu of any liability or guarantee condition implied by
law in respect of the liability of the Company. Defective Goods or
parts thereof must be promptly returned to the Company's premises,
properly packed and carriage paid. If the Goods are found to be
either serviceable or to be defective for reasons outside this
guarantee then, the entire costs of the test, repair or replacement
and carriage shall be borne by the Customer. In respect of parts or
components with a finite life not manufactured by the Company the
Customer shall receive only such guarantee as shall be given by the
manufacturer or supplier thereof to the Company.
8.2 The Company shall not be liable to the Customer
for: (i) non-delivery unless the Customer notifies the Company of a
claim within seven days of the date of the Company's invoice; (ii)
shortages in quantity delivered unless the Customer notifies the
Company of a claim within seven days of receipt of the Goods by the
Customer; (iii) damage to or loss of the Goods or any part of them
in transit (where the Goods are delivered by the Company) or during
provision of the Services (if applicable) unless the Customer
notifies the Company of a claim within seven days of receipt of the
Goods or the scheduled date of delivery, whichever is the earlier,
or provision of the Services; (iv) defects in the Goods caused by
fair wear and tear, abnormal or unsuitable conditions of storage or
use or any act, neglect or default of the Customer or of any third
party; or (v) other defects in the Goods unless notified to the
Company within seven days of receipt of the Goods by the Customer
or if the defect would not have been apparent on reasonable
inspection, within seven days of becoming aware of the defect and
in any event no later than 12 months from receipt. If liability is
accepted by the Company under this Condition 8.2 the Company's only
obligation is to remedy the defect or shortage in accordance with
Condition 8.1.
8.3 The Company shall not be liable for any loss,
damage or liability of any kind suffered by any third party
directly or indirectly caused by repairs or remedial work to the
Goods carried out without the Company's prior written
approval. The Customer shall indemnify the Company against
each loss, liability and cost arising out of such claims.
8.4 All conditions, warranties and representations
expressed or implied by statute, common law or otherwise in
relation to the Goods (save for the conditions implied by Section
12 of the Sale of Goods Act 1979) are excluded from the Contract to
the fullest extent permitted by law.
8.5 Subject to Conditions 8.3, 8.6 and 8.7, the
Company's aggregate liability to the Customer under a Contract
whether for negligence, breach of contract, breach of statutory
duty, misrepresentation, restitution or otherwise shall in no
circumstance exceed the cost of the defective, damaged or
undelivered Goods which give rise to such liability as determined
by the net price invoiced to the Customer in respect of any
occurrence or series of occurrences.
8.6 Nothing in these Conditions excludes or limits
the Company's liability for death or personal injury caused by the
Company's negligence, for fraud or fraudulent misrepresentation, or
for any matter which it would be illegal for the Company to exclude
or attempt to exclude its liability.
8.7 Subject to Condition 8.6, the Company shall not
be liable for any indirect, special or consequential liabilities,
losses, charges, damages, costs and expenses suffered by the
Customer howsoever caused (including by any delay to delivery of
the Goods or provision of the Services) and including pure economic
loss, loss of anticipated profits, goodwill, revenue, reputation,
anticipated savings, management time, business receipts or
contracts or losses or expenses resulting from third party
claims.
- 9. FORCE MAJEURE
If the Company is
prevented, hindered or delayed from or in supplying the Goods in
accordance with these Conditions by any events, circumstances or
causes beyond its reasonable control (a "Force Majeure Event") the
Company may, at its option: (i) suspend deliveries while the Force
Majeure Event continues; (ii) if the Company has insufficient
stocks to meets its commitments, apportion available stocks between
its customers as it decides; or (iii) terminate any Contract so
affected with immediate effect by written notice to the Customer,
and the Company is not liable for any loss or damage suffered by
the Customer as a result.
- 10. TERMINATION
10.1 On or at any time after the occurrence of any of the events
in Condition 10.2 the Company may: (i) stop any Goods in transit;
(ii) suspend further deliveries to the Customer; (iii) suspend the
provision of Services to the Customer; (iv) exercise its rights
under Condition 5; and/or (v) terminate any Contract with the
Customer with immediate effect by written notice to the
Customer.
10.2 The events are: (i) the Customer being in breach of an
obligation under a Contract with the Company; (ii) the Customer
passing a resolution for its winding up or a court of competent
jurisdiction making an order for the Customer's winding up or
dissolution; (iii) the making of an administrative order in
relation to the Customer or the appointment of a receiver over, or
an encumbrancer taking possession of or selling, an asset of the
Customer; or (iv) the Customer making an arrangement or composition
with its creditors generally or making an application to a court of
competent jurisdiction for protection from its creditors
generally.
10.3 Upon termination of a Contract pursuant to Condition 9 or
Condition 10.2 any outstanding sums due from the Customer to the
Company shall become immediately due and payable and the Company is
relieved of any further obligation to supply Goods and/or provide
Services to the Customer pursuant to that Contract.
- 11. MISCELLANEOUS
11.1 Headings are for identification and indexing purposes only
and shall not affect the interpretation or construction of these
Conditions.
11.2 References in these Conditions to: (i) "a person" includes
a natural person, corporate or unincorporated bodies (whether or
not having a separate legal personality) and that person's legal
and personal representatives, successors and permitted assigns,
(ii) "a party" shall mean either the Company or the Customer as the
context requires and "parties" shall mean both of them; (iii)
"including" will be construed without limitation unless
inconsistent with the context; and (iv) "working days" are all days
other than Saturday, Sundays and English public holidays.
11.3 A notice under or in connection with a Contract shall be in
writing and shall be delivered personally or sent by first class
post or facsimile transmission to the other party at its last known
address or facsimile number in the absence of evidence of earlier
receipt, service of a notice is deemed to have been effected as
follows: (i) if delivered personally, when left at the delivery
address; (ii) if sent by post, two working days after posting it
(excluding the day of posting); or (iii) if sent by facsimile on a
working day before 5.00 p.m. at the time of its transmission and
otherwise on the next working day. Notice by e-mail shall not be
valid notice under a Contract.
11.4 The Customer may not assign or transfer or purport to
assign or transfer any of its rights or obligations under a
Contract without first having obtained the Company's written
consent.
11.5 If any invalid, unenforceable or illegal Condition (or part
of a Condition) would be valid, enforceable or legal if some part
of it were deleted, the parties shall negotiate in good faith to
amend such provision such that, as amended, it is legal, valid and
enforceable, and, to the greatest extent possible achieves the
commercial intention of the parties.
11.6 The failure or delay by the Company to exercise any right,
power or remedy provided by a Contract or by law does not
constitute a waiver of any right, power or remedy. No single
or partial exercise of a right, power or remedy provided by a
Contract shall prevent any further or alternative exercise of a
right, power or remedy. Each right or remedy of the Company under a
Contract is without prejudice to any other right or remedy of the
Company whether under the Contract or not.
11.7 Nothing in a Contract is intended to confer on any person
any right to enforce any Condition of a Contract which that person
would not have had but for the Contracts (Rights of Third Parties)
Act 1999.
11.8 All Contracts shall be governed by, and shall be construed
in accordance with, English law. The courts of England have
exclusive jurisdiction to hear and decide any suit, action or
proceedings, and to settle any disputes, which may arise out of or
in connection with a Contract and, for these purposes, each party
irrevocably submits to the jurisdiction of the courts of
England.