In this Agreement the following words and expressions have the following meaning unless inconsistent with the context:
1.1 ‘Agreement’ means this agreement being contracted into by all parties involved.
1.2 ‘Seller’ in this Agreement means Bell Graphics Ltd.
1.3 ‘Client’ means the individual or body corporate, its agents or their representatives who hold the appropriate locus to enter into an agreement with the Seller.
1.4 ‘Goods’ means the products created as a result of this Agreement.
1.5 ‘Work’ means all products (by way of intermediate of finished product) and services supplied or to be supplied by the Seller to the Client;
1.6 ‘Intermediates’ means all products produced during the manufacturing process including non-exhaustively, discs, film, plates and intellectual property.
1.7 ‘Price’ means the price for purchase of the Goods and/or services supplied or to be supplied by the Seller.
1.8 ‘Order’ means any order made by the Client, to the Seller, specifying the parties to the Agreement, the actions and prices quoted, to be completed in accordance with the terms of this Agreement.
1.9 ‘Warranties’ means the warranties, representations and undertakings set out in the Agreement.
2. Entire Agreement
2.1 This Agreement contains the whole agreement between the parties and supersedes any prior written agreement between them .
2.2 The parties confirm that they have not entered into this Agreement on the basis of any representations that are not expressly incorporated in this Agreement (including any terms or conditions which the Seller purports to apply under any sale order, confirmation of order, specification or other document).
2.3 This Agreement may not be varied except in writing signed by the authorised representatives of all the parties to this Agreement.
2.4 It is expressly provided that nothing in these Terms and Conditions shall exclude any liability of the Seller for fraudulent misrepresentations.
3. Right to Vary Terms and Conditions
3.1 The Seller retains the right to vary the terms of the Agreement at any time.
3.2 In the event of variation all reasonable endeavours shall be made to bring them to the attention of the Client.
4 If any provision of this Agreement shall be prohibited by law or adjudged by a court to be unlawful, void or unenforceable such provision shall to the extent required be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and shall not in any way affect any other circumstances or of the validity or enforcement of this Agreement.
5. Force Majeure
5.1 The Seller shall not have any liability to the Client if it is prevented from performing any of its obligations on account of any circumstances beyond the Seller’s reasonable control which includes but is not limited to: extreme weather conditions, Act of God, terrorism, war, labour dispute, strike or difficulty in obtaining materials and/or labour.
5.2 In the event that any of the events in 5.1 should occur, the Seller reserves the right to terminate the Agreement by written notice to the Client.
5.3 If the events described in 5.1 continue for 30 days or more the Client may by notice in writing to the Seller elect to terminate the order.
5.4 If the Client elects to terminate the order in accordance with clause 5 the Seller will produce an invoice detailing all the intermediate work done for which the Client is liable.
5.5 In the event of premature termination in accordance with clause 5 the Seller shall, at the expense of the Client, deliver all intermediate products to the Client and the client shall be responsible for the cost thereof.
6.1 Reference to any statute or statutory provision or tax includes a reference to:
6.1.1 that statute or statutory provision, acts of parliament tax etc as from time to time amended, extended, re-enacted or consolidated whether before or after the date of this Agreement; and.
6.1.2 all statutory instruments or orders or tax provision made pursuant to it.
6.2 Words denoting the singular shall include the plural, mutatis mutandis.
6.3 Words denoting any gender include all genders and words denoting persons shall include firms and corporations, mutatis mutandis.
6.4 Unless the context otherwise requires reference to any clause, sub-clause or schedule to a clause, is a reference to a sub-clause or schedule (as the case may be) of or to this Agreement.
6.5 The headings in this document are inserted for convenience only and shall not affect the construction or interpretation of this Agreement.
7. Proofs and Errors
7.1 Proofs are available for the Client’s approval on request.
7.2 No responsibility or liability will be accepted by the Seller for:
7.2.1 Any errors not corrected by the Client after inspecting the proofs or where the Client declines to make such request; or.
7.2.1 Any work for which the Client has given instructions which requires or allows Seller to exercise a degree of artistic licence .
7.3 While the Seller shall rectify any errors at the Client’s cost, the Client shall not be entitled to unilaterally reject the Proofs, unless agreed by both parties in writing. .
8. Price, Payment, Delivery and Quotations
8.1 All offers for the sale of goods/provision of services are described in the Order.
8.2 After taking instructions from the Client the Seller will provide a written statement for the proposed work, consisting of but not limited to:
8.2.1 the date for delivery of the goods.
8.2.2 the price (excluding VAT).
8.2.3 the period for which the Seller is prepared to hold prices firm for acceptance, subject to Clause 5.
8.3 The Seller reserves the right to amend any quotation given to reflect any incomplete, inaccurate or amended instructions, samples or materials given by the Client.
8.4 Any verbal quotation is an estimate only and will not be binding unless and until confirmed by the Seller in writing.
8.5 Provided that the Seller has not previously withdrawn it, and subject to Clause 5, any quotation is valid for acceptance for a period of 14 days only from its date of communication by the Seller.
8.6 All quotations shall be deemed to be an invitation to treat by the Seller to provide goods and/or services upon the terms and conditions of this Agreement. .
8.7 The quotation shall be deemed to be accepted when the Client communicates its written instructions to commence production.
9.1 The Price shall be as quoted on this website, except in cases of obvious error, where we retain the right to cancel the order and refund any payment taken without penalty or liability for any losses incurred by the buyer.
9.2 The Price is exclusive of VAT (where applicable) which shall be due at the rate ruling on the date of the transaction.
Variation of Price.
9.3 Events which may cause variation in Price or delivery time by increasing or decreasing production costs include but not exclusively:
9.3.1 all factors beyond the reasonable control of the Seller, including but not limited to any variations of cost of materials that the Seller requires to complete the Order.
9.3.2 any change in delivery, dates, quantities or specifications for the order requested by the Client;
9.3.3 any delay caused by any action or inaction of the Client to assist the Seller in the completion of the Order.
9.3.4 any corrections, amendments and alterations to the information, instructions or material that impede the completion of the order, other than typographical errors of the Seller.
9.3.5 any defects in the materials, information or assistance provided by the client required to complete the Order.
9.3.6 force majeure.
In the event that the cost of production increases or decreases between the acceptance of the Quotation and completion of production the Seller shall vary the agreed price as follows:
9.4 For Agreements between the Seller and Clients buying during the course of a business or trade (“Business Clients”) .
9.4.1 the Seller shall use his best endeavours to notify the Client of any variation in Price.
9.4.2 The Client shall have the right to cancel the Order if the variation of price is caused by the reason listed in 9.3 AND the price increase is more than 10%.
9.4.3 If the variation is due to the reasons listed in 9.3.2 – 9.3.6 the Client may only cancel if the price increase is greater than 20%.
9.4.4 On the decision to cancel the Order the Client shall immediately communicate to the Seller their intention to do so, whereby the Client shall pay on a pro rata basis for services rendered and costs incurred up to the date of cancellation.
9.5 For Agreements between the Seller and private Clients (‘Consumer Clients’).
9.5.1 the Price shall be varied if the Seller gives written notice (‘Variation Notice’) to the Client of this and the Client agrees to this. .
9.5.2 the Variation Notice shall state the reason for the variation and the new price for the Order, which is broken down to reflect all predictable price increases.
9.5.3 the Variation Notice must be accepted by the Client within ten working days of the Seller sending it. If on the eleventh day the Client has not accepted the new price on the Variation Notice the Seller shall at its discretion terminate the Agreement in accordance with clause 20.11.
10. Invoicing and Payment
10.1 The Seller may invoice the Client:
10.1.1 for goods as soon as services are provided or when goods are ready for collection or delivery; .
10.1.2 for services provided on or after commencement of the Agreement;
10.2: notwithstanding clause 10.1, the Seller shall supply an invoice to the client, following 30 days after suspension or delay of an Order caused by any act or omission on the part of the Client, the pricing of which shall be on a pro rata basis, based on the expenses incurred up to the date of invoicing.
10.3: for Business Clients, the Seller may at its sole discretion issue invoices to the Client in installments. The Client shall be bound to pay the invoices as and when they fall due, irrespective of the inoperability, frustration or otherwise of other invoices for services rendered. .
10.4 Payment of the Price and VAT shall be made with thirty days of the date of the invoice. .
10.5 Time for payment shall be of the essence.
10.6 After thirty days from the date of the invoice, interest on overdue invoices shall accrue from the date when payments because due from day to day until the date of payment at a rate of 4% above Barclays Bank plc’s base rate from time to time in force and shall accrue at such rate after as well as before any judgment. .
10.7 All other contracted services shall be discontinued until all outstanding invoices are settled and the Seller shall have no liability in respect of any discontinued services.
11. Delivery and Risk
11.1 Delivery of the Goods shall be made to the Client’s address on the Delivery Date specified on the invoice as far as is practicable provided it is agreed that he Seller is arranging delivery.
11.2 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
11.3 For Business Clients, the Seller may deliver goods in separate installments, as and where agreed by the parties or in default of Agreement at the Client’s premises.
11.4 Subject to the conditions in this Agreement the Seller shall have no liability to the Client for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods and/or provision of the services except for:
11.4.1: in the case of Consumer Clients if caused by the Seller’s negligence or breach of contract; or
11.4.2: in the case of Business Clients the delay was caused by the Seller’s failure to use its reasonable endeavours to comply with delivery dates agreed between the parties.
11.4.3 In case of any of the circumstances in this clause 11 or in this Agreement at all the Seller’s liability shall be limited to the Price.
11.5 If the Client fails to take delivery of goods when they are ready for delivery or to provide any instructions, documents or authorizations required to enable the goods to be delivered on time, save for where the Seller is at fault, .
11.5.1 risk in the Goods shall immediately pass to the Client and .
11.5.2 the Client hereby agrees to fully insure the same, the Goods will be deemed to be delivered and
11.5.3 (without prejudice to its other rights) the Seller may store or arrange for the storage of the Goods until actual delivery, the costs of which shall be borne by the Client. .
12. Retention of Title
12.1 The Goods remains the Seller’s property until the Client has paid for them and discharged all other debts owing to the Seller .
12.2 Until title in the Goods passes to the Client in accordance with the terms of this Agreement the Client shall hold the Goods on a fiduciary basis as bailee for the Seller and shall (at no extra cost to the Seller) separately store the Goods from all other goods of the Client or any third party in such a way that they remain readily identifiable as the Seller’s property.
12.3 Where the Client’s right to possession has terminated or never acquired the Client grants the Seller, its agents and employees an irrevocable licence at any time without notice to enter the premises where the goods are or may be stored to recover them and to remove them. .
12.4 If the Client becomes subject to Insolvency and the Goods have not been paid for in full the Seller may recover the goods by:
12.4.1 Entering the Client’s premises and/or..
12.4.2 Inspecting and/or labeling the goods so as to identify them clearly as belonging to the Seller.
12.5 If the Client shall sell the goods before they have been paid for in full, he shall hold the proceeds of sale on trust for the Seller in a separate account until any sum owing to the Seller has been discharged from such proceeds.
12.4 On termination of the contract, howsoever caused, the Seller’s (but not the Client’s) rights contained in clauses 10– 12 shall remain in effect.
12.5 Without prejudice to other remedies in respect of all unpaid debts due from the Client, the Seller shall have a lien on all goods and property belonging to the Client.
13. Warranties of the Seller
13.1 Where the Seller is not the producer of the goods ordered or provider of the ordered services, the Seller will endeavour to transfer to the Client the benefit of any warranty or guarantee given to the Seller.
13.2 The Seller warrants that (subject to the other provisions in this Agreement):
13.2.1 any goods will, as far as predictable, correspond to the description of the Client’s order and will be of satisfactory quality.
13.2.2 The Goods will at the time of delivery correspond, as far as practicable, to the description given by the Seller .
14. Warranties of the Client
The Client warrants that:
14.1 It has good legal title to the materials it provides to the Seller.
14.2 The product ordered from the Seller is fit for its intended use. .
14.2.1 The Seller will therefore not be held liable if the Client orders a product that is not suitable for its intended use. .
14.2.2 The Seller will take all reasonable steps to assist the Client in specifying the correct product or materials needed if the Client so requests.
14.2 The materials do not infringe any intellectual property rights of any third party and would not, if used in or in relation to the sale of any material to be produced by the Seller or the provision of any services infringe on any intellectual property rights of any third party.
14.3 The Client indemnifies the Seller in respect of any breaches of this Clause 14.
15. Materials Supplied or Specified by the Client
15 .1 The Seller may reject any unsuitable materials (including without limitation any paper, plates, computer disks or CDROMS) supplied or specified by the Client, such rejection not to be unreasonably made.
15.2 The Seller reserves the right to refuse to undertake any works, services or supplies which infringes or appears in the sellers absolute opinion to infringe the copyright or other intellectual property rights of any third party or which contains any unlawful material.
15.3 The Seller agrees to take reasonable care of such materials while in their possession. All materials supplied by the Client to the Seller are retained at the Client’s risk until the conclusion of the Agreement (unless otherwise agreed, in writing) and the Seller accepts no liability for damage, destruction or loss thereof. It is in the Client’s interests, therefore, to insure for the value of these materials.
15.4 The Seller shall be entitled to make a reasonable charge for the storage of any Client’s property left with the Company before receipt of the order or after notification to the Client of completion of the Work.
15.5 The Seller shall have a lien over any materials supplied to it by the Client against payment of all monies due to it by the Client from time to time and shall be entitled (if any sum is not paid on the due date) to dispose of such property as The Seller shall in its discretion think appropriate towards settlement of the sums due, subject to reasonable notice having been given to the Client of their intention to dispose of such property.
16. Materials Supplied by the Seller
16.1 All metals, films, and other materials owned by the Seller and used in the production of intermediates, including but not limited to types plates, film-setting, negatives, positives, electronic files and other production processes (“Intermediates”), together with items thereby produced, shall remain the Seller’s exclusive property, unless otherwise agreed between the parties in writing.
16.2 All Intermediates created during and for the purposes of the Order are to be destroyed at the Seller’s discretion at completion thereof, unless otherwise agreed between the parties in writing, in which case storage shall be at the Client’s expense.
16.3 The Seller shall not be obliged to download any digital data from his equipment or to upload any to his equipment or supply the same to the Customer on disc, tape or by any telecommunication link.
17.1 The Client shall be responsible for obtaining all necessary authorities and consents to reproduce (nonexhaustively) artwork, photographs, copyright text and the like (“the Materials”) prior to instructing the Seller to reproduce the same.
17.2 The Client warrants that any design or other material furnished by it or any design material created by the Seller pursuant to the Client’s instructions is and/or will not be defamatory or obscene or be such as will cause the Seller to infringe any intellectual property rights of any third party or any legislation for the time being in force in the United Kingdom in the performance of the order.
17.3 The Client shall indemnify the Seller against all demands, actions, costs, expenses (including but not limited to legal costs and disbursements), losses and damages arising from or suffered or incurred by reason of any claim (including but not limited to the defence and damages of such claim) that the reproduction of the Materials by the Seller infringes the intellectual property or other rights of any third party or misuses the confidential information of a third party.
17.4 All design Work commissioned or ordered by the Client and originated by the Seller shall, as to its material elements and as to the copyright or design right in relation to it, belong to the Seller.
17.5 The Client shall not have any right to reproduce or authorize any other person to reproduce any such design Work in whole or in part or do any act which would, in the absence of written authorization by the Seller, infringe any copyright or design right which may subsist in relation to any such design Work.
17.6 In the event that the Client has requested the production of original design work The Seller may engage the services of third party designers in producing such supplies, works or services.
17.7 All proofs or preliminary design work remain The Seller’s copyright at all times and may not be used or re-produced by the Client in any form in whole or in part;
17.8 Upon the final proof and/or design being agreed, the final proof and any part of the final proof, remain The Seller’s copyright and the Client may not use or reproduce in whole or in part the original design work until full payment is made to The Seller.
17.9 Upon receipt of full payment:
17.9.1 the Client hereby provide irrevocable authorisation to The Seller to use the original design work for any business promotional purposes of The Seller’s business only; .
17.9.2 in the event that The Seller has engaged third party designers to produce the original design work and where that third party designer has assigned copyright in such work to The Seller, The Seller shall grant a non-exclusive royalty free licence of the copyright in the original design work to the Client but cannot warrant that the designer who is commissioned to produce the work will not offer such work or any part of it to any third party.
17.10 The Client shall retain hard copies of all documents sent to the Seller and seek advice from its appropriate professional advisors prior to the destruction of any original documentation.
17.11 The Seller shall not be liable for any loss suffered by the Client by virtue of the anything supplied by the Seller being inaccurate, defective or being erased unless such loss arises by virtue of the Seller’s negligence and/or breach of contract.
17.12 The Client shall promptly notify The Seller in the event of any claim being made or action brought against a Client arising out of a breach of the Client’s warranty in clause 17.
18. Data Protection
18.1 The Client warrants, in compliance with the Data Protection Act 1998, and any other relevant legislation, that it has obtained all necessary consents from data subjects for the use of such data subjects’ personal data which it requires The Seller to process in the provision of goods and/or services.
18.2 By placing an Order with the Seller the Client consents to its details being held by the Seller for accounting purposes and passed to third party contractors where necessary to complete the Work (including but not limited to carriers for the purpose of delivering the work to the Client as for future marketing and promotion of the Seller and its associates).
18.3 On completion of the Order and cessation of any trading relationship the Seller shall retain the Client’s information for marketing purposes whereby the Seller may notify the Client about its products, services or special offers that may be of interest, unless otherwise agreed.
19.1 Advice of damage delay loss of goods in transit or non delivery must be given in writing to the Seller and the carrier within three clear days of delivery (or in the case of non-delivery, within seven days of notification of dispatch).
19.2 All other claims must be made in writing to the Seller within fourteen days of delivery.
19.3 The Seller shall not be liable in respect of any claim unless the requirements listed above have been complied with except in any case where the Client proves that:
19.3.1 it was not reasonably possible to comply with the requirements, and.
19.3.2 the claim was made as soon as reasonably possible.
19.4 If the Work is defective so that the Client reject it by operation of law, it is the Client’s responsibility to supply:
19.4.1 a written account of their reasons for rejecting the Work.
19.4.2 samples for the Seller’s inspection within seven days of receipt of the goods, failing which the Client shall be deemed to have accepted the Work.
20.1 Insofar as is permitted by law where Work is defective for any reason, including negligence, the Seller’s liability shall be limited to rectifying such defect.
20.2 Where the Seller performs its obligations to rectify defective Work the Seller shall not be liable for:
20.2.1 Indirect loss.
20.2.2 Consequential Loss; or.
20.2.3 third party claims in respect of the Work.
nor shall the Client be entitled to repudiate the contract, refuse to pay for the work or cancel further deliveries.
20.3 The full quantity of defective Work must be returned to the Client before a replacement can be issued. If the subject Work is not available to the Seller the Seller shall hold that the Client has accepted the Work.
20.4 In the event that completion of the Work is delayed, whether as a result of the Seller’s negligence or otherwise, the Seller shall not be liable for.
20.4.1 indirect loss.
20.4.2 consequential loss.
20.4.3 third party claims that result from the delay.
20.5 Where the Seller offers to replace defective Work the Client must accept the offer unless he can show clear cause for rejecting.
20.6 In the event of the Client approaches, without the knowledge of the Seller, a third party for the purposes of amending or altering the Work the Client’s rights to any remedy or restitution from the Seller are automatically revoked.
20.7 Where the Work will be forwarded by or on behalf of the Client to a third party for further processing the Client will be deemed to have inspected and approved the Work prior to forwarding and the Seller shall accept no liability for Claims arising from any work done by the third party.
20.8 Nothing in these Terms and Conditions shall exclude the Seller’s liability for death or personal injury as a result of its negligence. .
21. Termination – Insolvency and Breach
The order will terminate immediately should the Client become:
21.1 insolvent, .
21.2 fail to, become unable to or admit in writing their inability to pay their debts, .
21.3 institute or have instituted against them proceedings seeking a judgment of insolvency or bankruptcy; .
21.4 have a resolution passed for its winding up or liquidation; .
21.5 seeks or becomes the subject of the appointment of an administrative receiver or similar official in respect of its assets; .
21.6 enter into any arrangement or composition with its creditors; .
21.7 cease or threaten to cease to carry on any significant part of its business; .
21.8 suffer a change of management or ownership which The Seller deems to be against its interests;
and clause 21.10 shall come into effect.
21.9 If the Client is in breach of any of its obligations under these terms and conditions then The Seller may without prejudice to any of its other rights immediately suspend the performance of any order placed by the Client.
21.10 In the event of termination by the Client’s breach of terms, the Client shall immediately become liable to pay for any works services and supplies already carried out (whether completed or not) including the cost of any materials purchased on behalf of the Client.
21.11 On the termination of the Agreement by the above clauses, any sums due to the Seller shall accrue from the date of termination until the date of payment at a rate of 4% above Barclays Bank plc’s base rate from time to time in force and shall accrue at such rate after as well as before any judgment.
Failure or delay by The Seller to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at time or times thereafter.
23. Consumer Rights
These terms and conditions do not and will not affect the statutory rights of a Consumer Client. No provision which would be void by virtue of Sections 6 or 20 of the Unfair Contract Terms Act 1977 (as amended) or by virtue of the Unfair Contract Terms in Consumer Contracts Regulations 1994 shall apply to any order made by a Consumer Client.
24. Third Party Rights
No person who is not a Client shall have any rights pursuant to the Contracts (Rights and Third Parties) Act 1999.
25. Law and Jurisdiction
25.1 This Agreement shall be governed by and construed in accordance with the law of England and Wales.
25.2 Each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales.
25.3 Any dispute regarding this Agreement shall be dealt within the jurisdiction of Chester District Courts.
The Seller shall be entitled to recover on an indemnity basis the costs of enforcing the terms of this Agreement