Terms & conditions

Conditions of sale and/or provision of services

1. Definitions "the Company" Fiona Austin t/a DMCC

"the Customer" any client or customer of the Company
"the Contract" any contract for the sale of goods and/or the provision of services by the Company to the Customer
"the Goods" any goods forming the subject of this Contract
"the Services" any services performed by the Company to the Customer
"the Works" the Goods and/or the Services supplied and provided by the Company to the Customer

2. Existence of contract

1) No Contract shall come into existence until the Customers order (however given) is accepted by the earliest of the Company's written confirmation of order, delivery of and/or performance of the Works or the Company's invoice.

2) These terms and conditions shall be incorporated in the Contract to the exclusion of any terms or conditions stipulated or referred to by the Customer.

3) No variations or amendments of these Conditions shall be binding on the Company unless confirmed by it in writing.

3. Pricing

1) The Company's prices shall generally be charged on the basis of the Company's quotation to the Customer in respect of the Customer's specifications for the Works.

2) The Company reserves the right to levy additional charges should the materials and instructions supplied by the Customer not conform to the specifications which formed the basis of the quotation.

3) The Company reserves the right to levy a waiting charge where personnel and equipment have been allocated for a particular job and the job is not delivered by the Customer at the agreed time resulting in under-usage of said personnel and equipment.

4) Any quotation given by the Company is exclusive of VAT.

5) Unless otherwise specified in the quotation, prices are exclusive of delivery.

6) The Company reserves the right to vary the prices for the Works between the date of order and delivery to take account of any increase in the costs to the Company of materials and/or manufacture and/or supply of the Works to the Company, without limiting the Company in any way.

7) Text or other data converted from other systems/media or electronically scanned for setting the Company's equipment shall be treated as a new setting and a charge shall be made for reading and for corrections (in addition to any price quoted) as required or as may be necessary in the event that the data is altered or corrupted during conversion or scanning.

8) Unless expressly agreed to the contrary in writing, the Company does not carryout 'speculative' work for which no charge is made.

4. Payment

1) The Customer shall pay the Company the price for the Works.

2) Time for payment shall be of the essence of the Contract. If the Customer fails to pay the invoice price within 30 days of the date of the invoice the Company reserves the right to charge the Customer interest on any overdue amount from that date until payment is made (whether before or after judgement) on a daily basis at a rate of 5% above Barclay's Bank Plc's base rate from time to time with half yearly rests.

3) Delay or disregard of payment reminders will result in withdrawl of any rite of access of goods or services as supplied by the Company to the Customer .

5. Title to the goods/use of the services

1) The ownership of and all proprietary rights to or in any all of the Works (including "the Works" as defined) delivered by the Company to the Customer under all contracts (including "the Contract" as defined) shall remain with the Company and shall not pass to the Customer until the total amount due for all of them has been paid in full, including interest and any costs incurred for late payment.

2) Until title passes the Customer shall hold the Works (in the case of services the material of form in which the Services have been provided) upon trust as bailee for the Company and shall keep them separate and apart and store or mark them so that they can at all times be identified as the property of the Company.

3) The Company shall be entitled at any time before title passes to repossess the Works without being liable for any damage caused by so doing and to use or sell all or any of the Works (without any liability to the Customer) and for that purpose or for determining what if any works are held by the Customer and for inspecting them, to enter upon any premises of the Customer; and the Company shall inter alia have the right to injunctive relief to restrain the Customer from exercising any rights in making use of the Works and to compel the Customer to deliver up the Works.

4)Without prejudice to the foregoing the Company shall be entitled to maintain an action for the price of any Works notwithstanding that title in them has not passed to the Customer.

6. Risk, delivery and performance

1) The risk in the Works passes when they are delivered to the Customer, as set out below.

2) The Works are delivered to the Customer when the Company makes them available to the Customer and/or any agent of the Customer at the Customer's premises or any other delivery point agreed by the Company.

3) The Company may at its discretion deliver the Works by instalment(s) in any sequence.

4) Where the Works are delivered by instalments, each instalment shall be deemed to be the subject of a separate enforceable contract and no default or failure by the Company in respect of one or more instalment shall vitiate the contract in respect of either the Works previously delivered or undelivered Works.

5) Any dates quoted by the Company for the delivery or performance of the Works are estimated and approximate only and are not of any contractual effect.

6) If the Customer fails or refuses to take delivery of the Works or any part of them on the due date for any reason whatsoever the Company shall be entitled upon giving written notice to the Customer to store or arrange for the storage of the Works: the risk in the Works shall pass to the Customer, and delivery shall be deemed to have taken place. The Customer shall pay to the Company all costs and expenses including carriage, storage and insurance charges.

7) The Company shall not be liable for any penalty loss injury damage or expense arising from any delay or failure in delivery or performance from any cause whatsoever nor shall any such delay or failure entitle the Customer to refuse to accept any delivery or performance or to treat the contract as repudiated.

7. Storage of materials

Without prejudice to the generality of the foregoing the Company shall not be obliged to store any materials relevant to the Works including printed matter, printing plates or electronic data for more than three (3) months following the date of delivery unless expressly agreed to the contrary and the Company may erase or dispose of any such materials at its sole discretion after that period has elapsed. The Company may by agreement archive electronic data for an agreed period of time over and above three months but shall not be liable for any loss or corruption of such data during storage.

8. Claims notification

1) Any claim for non-delivery of any goods must be notified in writing by the Customer to the Company within seven (7) days of the estimated day of delivery, otherwise the Company shall be entitled to assume and it shall be deemed that due delivery has taken place.

2) Any claim that any Works have been delivered damaged or defective or are not of the correct quantity and/or do not comply with their description or in respect of any other defect shall recorded on any delivery note supplied and notified to the Company in writing by the Customer within two (2) weeks/days of their delivery.

3) Any claim under this condition must be in writing and must contain full details of the claim.

4) The Customer agrees to afford to the Company reasonable opportunity and facilities to investigate any claim made under this condition and the Customer shall if so requested by the Company promptly return any Works the subject of any claim and any packing securely packed and carriage paid to the Company for examination.

5) The Company shall have no liability with regard to any claim in respect of which the Customer has not complied with the provisions of this condition.

9. Extent of liability of the Company/indemnity by the Customer

1) Save as is hereinafter provided, the Company shall not be liable to the Customer (other than liability for death or personal injury resulting from the Company's negligence) for any loss or damage of any nature arising from any breach of any express or implied warranty or condition of the contract or any negligence, breach of statutory or other duty on the part of the Company or in any other way out of or in connection with the performance or purported performance of or failure to perform the contract.

2) If the Customer proves to the satisfaction of the Company that any of the Works have not been delivered or have been delivered damaged or defective or are not of the correct quantity or do not comply with their description the Company shall in its sole discretion replace with similar Works any Works which are so undelivered, defective, damaged or do not comply with their description, or allow the Customer credit for their invoice value.

3) Where the Company is liable in accordance with this condition in respect of only some or part of the Works delivered the Contract shall remain in full force and effect in respect of the other or other parts of the Works and no set-off or other claim shall be made by the Customer against or in respect of such other or other parts of the Works.

4) Save for death or personal injury as was referred to in paragraph 1) above, in no other circumstances whatsoever shall the liability of the Company to the Customer exceed the invoice value of the Works.

5) The Customer agrees to indemnify (and keep indemnified) the Company against all claims, losses, damages and costs (including legal costs) on a full indemnity basis which may arise or be incurred by the Company if it is alleged that any of the Works delivered or performed by the Company to or for the Customer are defamatory or illegal or infringe copyright, patents, design rights, trade and service marks or in respect of any dispute concerning these or other proprietary rights.

10. Intellectual property rights/moral rights/copyright/trade marks

1) Materials supplied or generated by the Company and used in the production of the Works including all artwork, illustrations, photographs, electronic data, film, bromide, printing plates and the like shall remain the Company's property.

2) The copyright and if requested in writing - design rights, in any works (including "the Works" as defined) produced by the Company for and/or on behalf of the Customer shall remain with the Company until all the Works are paid for in full by the Customer when they shall pass to the Customer subject to and preserving any moral rights which may vest in the Company as set out in the Copyright, Designs &Patents Act 1988. Any copyright and/or design rights so passing to the Customer shall pass solely for and be restricted to the use stipulated in the Contract. All other copyright and/or design rights in the Works not so passing shall remain with the Company and the Works may not be used for any purpose other than that stipulated in the Contract without the express permission of the Company. Until the copyright shall pass to the customer as hereinbefore provided, and notwithstanding the delivery of the Works to the Customer, the Company shall be entitled to restrain the Customer from using, dealing with or in any way exploiting the Works and to demand the same to be delivered up to the Company by injunctive or other relief.

11. Periodical work

Where the Customer has contracted with the Company for work to be produced on a periodical basis a minimum of times in each calendar year, this Contract may not be terminated by the Customer unless:-

(i) in the case of weekly, fortnightly or monthly work by not less than thirteen (13) weeks' written notice; and
(ii) in the case of two-monthly or quarterly work by not less than sixteen (16) weeks' written notice.

The Company reserves the right to cancel the Contract for whatever reason at its sole discretion and the same shall be lawfully terminated by two (2) weeks' notice in writing by the Company to the Customer.

Payment of the relevant peridocal charge will be owed if termination does not comply with the above.

12. General

1) The Contract is between the Company and the Customer as principals and shall not be assignable by the Customer. The Company may at its sole discretion and for whatsoever reason sub-contract the performance of the Contract in whole or in part.

2) The Company may at its discretion suspend or terminate the performance or the supply of any Works if the Customer fails to make any payment when and as due or otherwise defaults in any of its obligations under the Contract or any other agreement with the Company or enters into a Deed of Arrangement or has a Receiver appointed of the whole or part of its property or has a petition for winding up presented or fails to comply with any statutory demand or makes a voluntary arrangement under the Insolvency Act 1986 or the Company bona fide believes that any of those events may occur, and in the case of termination the Company shall be entitled to forfeit any deposit paid, and thereupon the Customer shall no longer be in possession of the Works with the Company's permission.

3) Any notice to be given under the Contract shall be given in writing and shall be sent by first class prepaid letter post addressed to the receiving party at the last known address of the recipient (in which event it shall be deemed to have been given on the second day following the day on which it was posted) or by facsimile transmission.

4) Clause headings are for information purposes only and do not form part of these Terms and Conditions.

13. Force Majeure

The Company shall not be liable for any failure in the performance of any of its obligations under the Contract caused by factors or circumstances outside its control.

14. Choice of Law

All orders accepted by the Company and any dispute or litigation arising therefrom shall be governed by English Law and subject to the exclusive jurisdiction of the English Courts.