Terms and Conditions
FORMS PLUS LTD
GENERAL CONDITIONS OF SALE
1. DEFINITIONS AND INTERPRETATION
1.1
“Availability”
ensuring that authorised users ONLY have access to information and associated processing methods.
“Forms Plus”
Forms Plus Ltd
“Conditions”
the standard terms and conditions of sale and supply set out in this document together with any special terms agreed In Writing between Forms Plus and the Customer
“Confidentiality”
preventing unauthorised access or disclosure
“Confidential Information”
all information concerning the business or affairs of the parties (or of any member of the group of companies to which the parties belong) whether conveyed orally, In Writing, in machine readable form or otherwise including Databases, know-how or other matters connected with the Products or Services, and information concerning either parties’ relationships with actual or potential clients, customers or suppliers and the needs and requirements of either or such persons and any other information which, if disclosed, will be liable to cause harm to either party
“Contract”
the contract between Forms Plus and the Customer for the sale and purchase of the Products and/or the supply of the Services, incorporating these Conditions
“the Customer”
the persons, firm or company who purchases the Products or Services from Forms Plus
“Data Protection Legislation”
the Data Protection Act 1998 and Privacy and Electronic Communications (EC Directive) Regulations 2003
“Database”
a collection of names and addresses and/or other information to be stored, amended, deleted or retrieved using the Computer System (and the meaning of “Data” shall be construed accordingly and shall include personal data as defined in Data Protection Legislation)
“Force Majeure”
any act, event, omission or accident beyond Forms Plus’ reasonable control which shall include acts of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, epidemic, insurrection or civil disturbance; terrorism, governmental actions; acts of a third party; strikes, lockouts or other industrial actions or trade disputes (whether or not relating to either party’s workforce); difficulties in obtaining raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery; restraints or delays affecting carriers; malicious damage or acts of hackers; failure in information technology or telecommunications services; failure of a third party software manufacturer; a Virus that cannot be detected or controlled by the use of reasonable anti-virus protective measures
“Integrity”
safeguarding the accuracy and completeness of information and processing methods
“Intellectual Property Rights”
all intellectual and industrial property rights (including patents, know how, registered trade marks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights and unregistered trade marks, rights to prevent passing off for unfair competition and copyright, database rights, domain names, topography rights and any other rights in any invention, discovery or process) in the United Kingdom and all other countries in the world and together with all renewals and extensions thereof
“In Writing”
communication by letter, fax or email
“Multimedia Services”
products or services which do not result in the production of printed material or other physical matter and which are accessed and utilised via a computer, typically (but not limited to) web applications, other browser based applications, software designs and production, production of data, production of CD-ROMS, presentations, mobile phone services (SMS), research and development and bulk emailing
“Products”
any Forms Plus products to be supplied and/or delivered to the Customer or third parties on a Customer’s behalf under the Contract (including any part or parts of them)
“Service/Services”
the services (if any) which Forms Plus is to perform pursuant to or in connection with the Contract
“Sign-Off”
the Customer’s final approval of the Product proofs by signature of a form given to it by Forms Plus or its acceptance, in writing, of the final proof
“Supplied Items”
materials and components (including any Database) for the Products supplied by the Customer, its agents or third party suppliers to Forms Plus
“Working Day(s)”
8.45am to 5.15pm Monday to Friday excluding bank holidays
“Written Notice”
notice from one party to another by letter (excluding fax, email and comparable means of communication)
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, consolidated, re-enacted, modified, extended or replaced at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their construction or
interpretation.
1.4 Any phrase in these Conditions introduced by the term “include”, “including”, “in particular” or any similar expression will be construed as illustrating and will not limit the sense of the words preceding that term.
1.5 In these Conditions the masculine includes the feminine and the neuter and the singular includes the plural and vice versa.
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2. ACCEPTANCE
2.1 Subject to any variation under clause 2.5 the Contract will be on these Conditions to the exclusion of all other terms and conditions and all previous oral or written representations. No terms or conditions endorsed upon, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document will form part of the Contract whether or not such document is referred to in the Contract.
2.2 Forms Plus may provide a quotation to the Customer by post, fax, email, electronic transfer or verbal communication.
2.3 Provided that Forms Plus has not previously withdrawn it, a quotation given by Forms Plus is only valid for a period of thirty Working Days from its date, unless otherwise expressly agreed by Forms Plus in Writing. Each order or acceptance of a quotation for Products or Services by the Customer shall be deemed to be an offer by the Customer to purchase Products or Services subject to these Conditions.
2.4 No order placed by the Customer shall be deemed to be accepted by Forms Plus until the order is either acknowledged by Forms Plus In Writing or (if earlier) Forms Plus delivers the Products or performs the Services.
2.5 These Conditions apply to all sales of Products and Services by Forms Plus and any variation to these Conditions and any representations about the Products or Services shall have no effect unless expressly agreed In Writing and signed by an authorised representative of Forms Plus.
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3. SPECIFICATION
3.1 The quantity and description of the Products and/or Services shall be as set out in Forms Plus’ quotation or acknowledgement of order.
3.2 Forms Plus may make any changes to the specification, design, materials or finishes of the Products or provision of the Services:
3.2.1 which are required to conform with any applicable safety or other statutory or regulatory requirements;
3.2.2 are required to prevent the Products infringing third party Intellectual Property Rights; or
3.2.3 which, in Forms Plus’ reasonable opinion, do not materially affect their quality or performance.
3.3 The customer must ensure that the terms of its order are complete and accurate, and any artwork, sketches, specifications, descriptions, information or other instructions supplied by the Customer or by any agent or representative of the Customer in connection with the manufacture or sale of the Products or provision of the Services are accurate, unambiguous and clearly legible and meet the Customer’s requirements.
3.4 Work done whether experimentally or otherwise at the Customer’s request will be charged separately or included in Forms Plus’ invoice at Forms Plus’ option.
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4. SIGN OFF
4.1 Forms Plus will provide the Customer with proofs of the Products prior to print, which the Customer will proof read and, if necessary, edit before returning to Forms Plus for amendment if amendment is necessary. The Customer will only proof read subsequent amended proofs provided by Forms Plus against the amendments made to the initial proof. It is Forms Plus’ responsibility to ensure that the remainder of the proof is correct. Prior to print but following final checking of the proof, Forms Plus will ask the Customer to Sign-Off the amended version of the proof.
4.2 Except as set out in clause 4.1 above, following Sign-Off Forms Plus will not be responsible for errors in the printed Products, unless it has failed to print strictly in accordance with the proofs Signed-Off by the Customer.
4.3 The Customer shall pay for any re-prints that may be necessary due to the Customer’s failure to amend the proofs correctly prior to Sign-Off. Forms Plus shall produce at no additional cost to the Customer any re-prints that may be necessary due to Forms Plus’ failure to print the Products strictly in accordance with the approved versions.
4.4 Forms Plus may charge the Customer an additional charge (which may include standing time if a printing press or other equipment is subsequently inactive) if alterations, additional proofs and/or other works are carried out:
4.4.1 at the Customer’s request after proofs or samples have been Signed-Off;
4.4.2 where style, type or layout is left to Forms Plus’ judgment and the Customer requests variations to that aspect or aspects of the proof; or
4.4.3 where drawings, proofs or other instructions supplied to Forms Plus by the Customer are not clear and/or legible.
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5. CANCELLATION OF ORDERS
5.1 Subject to clause 5.2, no order which has been accepted by Forms Plus may be cancelled by the Customer except with the agreement of Forms Plus In Writing and on the terms that the Customer shall indemnify Forms Plus in full against all losses including any loss of profit or any indirect or consequential loss or damage (whether for loss of business, depletion of goodwill or otherwise), costs (including the cost of all labour and materials used), expenses, damages, charges or other claims for consequential compensation whatsoever suffered or incurred by Forms Plus as a result of such cancellation, subject to Forms Plus’ obligation to mitigate its loss.
5.2 Orders for Products that are, in Forms Plus’ opinion, standard stock items may be cancelled by Written Notice to Forms Plus received before the Products are allocated to the Contract.
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6. DATABASE/DATA PROTECTION
6.1 If the Customer is required to supply a Database to Forms Plus, such Database shall be provided on computer diskette, floppy disk, compact disc, dvd, hard disk, electronic transfer or computer tape in machine readable files in the format specified by Forms Plus to the Customer on request (“Compatible Format”) or, if agreed In Writing by the parties, in hard copy. The Customer will supply the Database to Forms Plus within the time specified by Forms Plus to allow Forms Plus to perform its obligations under the Contract. Forms Plus may reject any Database which is not so supplied or may at its own discretion and at the Customer’s sole expense, reformat the computer diskette, floppy disk, compact disk, dvd, hard disk, electronic transfer or computer tape so that it is in Compatible Format. Forms Plus may, in order to fulfil its duties under the Contract, enter into sub-contracting arrangements with third parties and may provide such third parties with access to the Database.
6.2 Forms Plus will be responsible for loading the Database onto the Computer System. Forms Plus will retain the Database whether on the Computer System or otherwise until advised by the Customer In Writing to return or destroy the Database. The Customer is solely responsible for making and keeping secure any back-up copy of any Database supplied to Forms Plus and Forms Plus shall not be liable for any loss sustained as a result of the Database supplied to it being lost or destroyed in whole or in part.
6.3 The Customer confirms that it has the requisite authority and consents to pass the Database to Forms Plus for the purposes specified in the Contract including, without limitation, authority to permit Forms Plus to pass the Database to its agents and sub-contractors.
6.4 The Customer warrants that:
6.4.1 the Database does not infringe any third party Intellectual Property Rights;
6.4.2 it has and will maintain for the duration of the Contract the appropriate data protection notification which includes provisions covering the processing of Data by the Customer in relation to the Contract and the processing of Data by Forms Plus or its sub-contractors or agents in accordance with the provisions of the Contract; and
6.4.3 any use of the Database by Forms Plus in carrying out its duties under the Contract will not breach the provisions of Data Protection Legislation.
6.5 Forms Plus shall be entitled to refuse to carry out any work which contravenes the Data Protection Legislation or in its opinion is contrary to the British Code of Advertising, Advertising Standards Agency, Sales Promotion and Direct Marketing, APACS standards, the ICSTIS Code of Practice or any other relevant legislation, legal instrument or guidance.
6.6 Both parties warrant that they will comply with their obligations under Data Protection Legislation.
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7. DELIVERY/RISK
7.1 Except where expressly agreed In Writing between Forms Plus and the Customer, delivery of the Products shall be made ex-works (delivery to take place at Forms Plus’ premises or the premises of its sub-contractors as applicable) as defined in Incoterms 2000 and the Services shall be performed at the place specified in the order.
7.2 The Customer will take delivery of the Products on a date to be agreed between the Parties. Delivery of the Products will be made during Forms Plus’ usual business hours.
7.3 If the Customer has any special requirements regarding delivery (including in relation to the quantity of Products delivered, place of delivery or method of delivery) the Customer shall request this In Writing at the time of ordering.
7.4 Forms Plus shall use reasonable endeavours to deliver the Products or perform the Services within the time agreed when the Customer places an order and, if no time is agreed, then within a reasonable time, but the time of delivery or performance shall not be of the essence. If, despite those endeavours, Forms Plus is unable for any reason to fulfil any delivery or performance on the specified date, Forms Plus will be deemed not to be in breach of the Contract, nor (for the avoidance of doubt) will forms Plus have any liability to the Customer for direct, indirect or consequential loss (all three of which terms include pure economic loss, loss of profit, loss of business, depletion of goodwill and like loss) howsoever caused (including as a result of negligence) for any delay or failure in delivery or performance except as set out in this clause 7.4. Any delay in delivery or performance will not entitle the Customer to cancel the order unless and until the Customer has given 10 Working Days’ written notice to Forms Plus requiring the delivery or performance to be made and Forms Plus has not fulfilled the delivery or performance within that period. If the Customer cancels the order in accordance with this clause 7.4 then:
7.4.1 Forms Plus will issue a credit note (at the pro-rata Contract rate) to the Customer in respect of sums which the Customer has paid to Forms Plus pursuant to that order or part of the order which has been cancelled; and
7.4.2 the Customer will be under no liability to make any further payments under clause 14 in respect of that order or part of the order which has been cancelled.
7.5 The quantity of any consignment of Products as recorded by Forms Plus upon despatch from Forms Plus’ place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
7.6 If, to assist the Customer in removing the Products from point of delivery, Forms Plus, its employees, agents for sub-contractors load any of the Products free of charge, no liability whatsoever (except liability for death or personal injury resulting from Forms Plus’, its employees’, agents’ or its sub-contractor’s negligence) shall be incurred by Forms Plus (including where arising from Forms Plus’ negligence), its employees, agents or sub-contractors and the Customer shall indemnify Forms Plus, its employees, agents and sub-contractors in respect of any such liability.
7.7 If the Customer, its employees, agents or sub-contracts, request the use of Forms Plus’ property, including any lifting equipment or transport, to assist in the loading or unloading of the Products, the Customer accepts all liability for all the associated risks and agrees to comply fully with any instructions issued by Forms Plus.
7.8 If for any reason the Customer will not accept delivery of any of the Products when they are ready for delivery, or Forms Plus is unable to deliver the Products on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
7.8.1 risk in the Products will pass to the Customer and following risk passing to the Customer Forms Plus shall have no liability for those Products (including for loss or damage caused by Forms Plus’ negligence);
7.8.2 the Products will be deemed to have been delivered and Services deemed to have been performed on the due date; and
7.8.3 Forms Plus may store the Products until delivery and the Customer will be liable for all related costs and expenses (including storage and insurance).
7.9 Unless otherwise expressly agreed In Writing between the parties, if Forms Plus delivers to the Customer a quantity of Products of up to 10% more or less than the quantity ordered, the Customer shall not be entitled to object to or reject the Products or any of them by reason of the surplus or shortfall and shall pay for such Products at the pro rata Contract rate.
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8. STOCK OBSOLESCENCE POLICY
8.1 Forms Plus will hold at its premises such stocks of printed material and associated items as it deems reasonably necessary to fulfil its obligations under the Contract and will at all times manage such stock to ensure that the stock levels, and thereby the financial risks in relation to such stock borne by the Customer, are the minimum reasonably possible.
8.2 Forms Plus will periodically provide details of stock held and will bring to the Customer’s attention changes in stock movement pattern which may result in a cost to the Customer pursuant to this clause 8. The Customer will endeavour to keep Forms Plus updated of any changes which may impact upon stock movement.
8.3 If there is No Demand (as defined below) for a particular item of stock in any period of twelve consecutive months, Forms Plus may submit an invoice to the Customer for 100% of the sales value to Forms Plus of that stock.
For the purposes of this clause “No Demand” shall mean either: no sales of the relevant items to the Customer during twelve consecutive months; or actual demand during the twelve month period results in the remaining stock being in excess of twelve months’ requirements.
8.4 If, following payment for stock by the Customer pursuant to clause 8.3, No Demand for that stock is received in the subsequent six month period, Forms Plus may, with the prior consent of the Customer, dispose of the remainder of that stock.
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9. OWNERSHIP
9.1 Ownership of the Products shall not pass to the Customer until Forms Plus has received in full (in cash or cleared funds) all sums due to it in respect of the Products and Services and all other sums which are or which become due to Forms Plus from the Customer on any account.
9.2 Until ownership of the Products passes to the Customer, the Customer must:
9.2.1 hold the Products on a fiduciary basis as Forms Plus’ bailee;
9.2.2 store the Products (at no extra cost to Forms Plus) separately from all other products of the Customer or any third party in such a way that they remain readily identifiable as Forms Plus’ property;
9.2.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and
9.2.4 maintain the Products in satisfactory condition insured on Forms Plus’ behalf for their full price against all risks to the reasonable satisfaction of Forms Plus. On request the Customer shall produce the policy of insurance to Forms Plus.
9.3 The Customer may resell the Products before ownership has passed to it solely on the following conditions:
9.3.1 any sale shall be effected in the ordinary course of the Customer’s business at full market value and the Customer shall account to Forms Plus accordingly; and
9.3.2 any such sale shall be a sale of Forms Plus’ property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale.
9.4 The Customer’s rights to possession of the Products shall terminate immediately if any of the circumstances set out in clause 16.1 occur.
9.5 Forms Plus shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from Forms Plus.
9.6 The Customer grants Forms Plus, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
9.7 On termination of the Contract, howsoever caused, Forms Plus’ rights contained in this clause 9 shall remain in effect.
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10. CUSTOMER’S PROPERTY
10.1 Forms Plus will take reasonable care of any property of the Customer left with it for the purpose of the contract (including any obsolete stock purchased by the Customer pursuant to clause 8) save that all property supplied to Forms Plus by or on behalf of the Customer will remain at the risk of the Customer.
10.2 Forms Plus reserves the right to make a reasonable charge for storage of any property of the Customer left with it, including excess Products and Supplied Items. If the Customer does not wish to pay for such storage Forms Plus may destroy the Products and/or Supplied Items after giving the Customer not less than four weeks notice of the charge for storage.
10.3 Any Products rejected by the Customer or by Forms Plus shall remain the property of Forms Plus who may dispose of the same in any way in which it thinks fit.
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11. PRICES
11.1 Quotation for Products or a Service which comprises printing are made subject to the suitability and availability of drawings, proofs or other instructions to be provided by the Customer to Forms Plus and of any Supplied Items (whether charged to Forms Plus or not) and of any materials to be supplied by Forms Plus which are specially requested by the Customer and which are not normally used by Forms Plus in the course of its business.
11.2 All quotations are made on the basis of the use of industry standard processed colours. If the Customer wishes to use other colours, Forms Plus may charge an additional charge.
11.3 Unless otherwise agreed In Writing the price payable by the Customer shall be the price set out in Forms Plus quotation or, where applicable, Forms Plus’ published price list or pricing matrix current at the date of delivery of the Products or provision of the Services and is exclusive of:
11.3.1 any costs of loading and carriage of the Products;
11.3.2 any export or import tax and/or duties; and
11.3.3 any value added tax or other applicable sales tax or duty which will be added to the sum in question.
11.4 Prices may be altered by Forms Plus without notice to the Customer (although Forms Plus will endeavour to give reasonable notice to the Customer verbally or In Writing) to reflect increases in the cost of manufacture or distribution of the Products or increases in the cost of providing the Services which are due to:
11.4.1 any factor beyond the reasonable control of Forms Plus; this includes foreign exchange fluctuation, currency regulation, alteration of duties, charges and taxes, increases in the cost of labour, materials, other manufacturing costs, service costs and transport costs; or
11.4.2 any change in delivery dates, quantities or specifications for the Products or Services requested by the Customer; or
11.4.3 any delay in Forms Plus receiving Supplied Items or receiving Supplied Items of inferior quality which require replacing; or
11.4.4 any delay caused by any instructions of the Customer or failure of the Customer to give Forms Plus adequate information or instructions.
Any dispute as to the amount of any increase in price shall be governed by the dispute resolution procedure in clause 19.
11.5 If the Customer requires delivery of the Products or provision of the Services to be expedited or notifies Forms Plus of any special requirements regarding delivery of the Products or provision of the Services, Forms Plus may charge the Customer an additional sum to cover additional costs incurred including overtime payable to its employees or sub-contractors.
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12. PAYMENT
12.1 Unless otherwise agreed In Writing or stated on Forms Plus’ quotation, invoices are due for payment by the Customer no later than 30 days from the end of the month in which the invoice is raised.
12.2 Time for payment shall be of the essence.
12.3 Forms Plus reserves the right at any time before proceeding or proceeding further with a Contract to demand full or partial payment of monies due and payable under the Contract and under any other contract between Forms Plus and the Customer.
12.4 Payments shall be made in such currency and into such bank account as Forms Plus shall nominate from time to time In Writing.
12.5 Payment will not be deemed to have been received until Forms Plus has received cleared funds.
12.6 All payments payable to Forms Plus under the Contract shall become due immediately upon termination of the Contract despite any other provision.
12.7 The Customer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by Forms Plus to the Customer.
12.8 If the production or delivery of the Products suspended at the request of the Customer or delayed due to the default of the Customer, Forms Plus may charge the Customer for the work carried out to such time, any materials ordered for the Customer and any other additional costs incurred as a result of such suspension or delay, and such charge shall be payable immediately by the Customer.
12.9 If the Customer defaults in any payment then, without prejudice and in addition to Forms Plus’ other rights under the Contract, Forms Plus may suspend work, delay or withhold delivery or cancel the Contract or suspend work, delay or withhold delivery under or cancel any other contract between Forms Plus and the Customer and retain any progress payments or payments on account already received under the Contract or under any other contract between Forms Plus and the Customer.
12.10 If the Customer fails to make any payment under the Contract on the due date then (without prejudice to its other rights and remedies) Forms Plus may charge the Customer interest (both before and after judgment) on the amount unpaid at the annual rate of 4% above HSBC Bank plc’s base rate from time to time, accruing on a daily basis, until payment is made in full.
12.11 Forms Plus shall have a lien on all undelivered Supplied Items or other goods being the subject of the Contract for all monies due from the Customer to Forms Plus under any contract between them.
12.12 The Customer shall indemnify and keep indemnified Forms Plus from and against any costs (including legal costs on an indemnity basis), expenses and other liabilities which Forms Plus may reasonably incur either before or after the commencement of any action, in connection with any legal proceedings Forms Plus may bring in respect of a breach by the Customer of any of its obligations under the Contract or warranties given by the Customer under the Contract including proceedings for the collection of any sums due from the Customer pursuant to the Contract together with the enforcement of any settlement or judgment obtained in respect thereof.
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13. CONDITIONS, WARRANTIES AND QUALITY
13.1 It is a condition of the Contract that:
13.1.1 any specification or other materials (including the Specified Items) provided by the Customer to Forms Plus for the purpose of Forms Plus carrying out the Services shall not be:
13.1.1.1 defamatory, offensive or abusive; or
13.1.1.2 of an obscene, nuisance or threatening nature; or
13.1.1.3 calculated to demean or be discriminatory of any person or vitiate their human or moral rights; and
13.1.2 that any electronic communications (including e-mail or SMS) to be sent by Forms Plus on behalf of the Customer comply with the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any other relevant legislation, legal instrument or guidance.
13.2 Forms Plus warrants that the Services will be provided with reasonable care and skill.
13.3 Forms Plus warrants that (subject to the other provisions of these Conditions) upon delivery and for a reasonable period of time from the date of delivery the Products will be of satisfactory quality within the meaning of the Sale of Goods Act 1994. Unless otherwise expressly agreed In Writing between the parties, Forms Plus will have sole discretion to determine what constitutes a reasonable period of time for the purposes of this clause taking certain factors into account (including the Customer’s storage procedures).
13.4 Forms Plus shall not be liable for any defects in the Products or in the performance of the Services, or for breach of the warranty in clauses 13.2 and 13.3 if:
13.4.1 the defect arises because the Customer failed to follow Forms Plus’ oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products or (if there are none) good trade practice; or
13.4.2 Customer alters or repairs such Products without the written consent of Forms Plus; and/or
13.4.3 the defect in such Products arises from any design defect in any drawing, design or specification supplied or approved by the Customer or from the Customer failing to amend the proofs correctly prior to Sign Off.
13.5 Forms Plus shall not be liable for a breach of any of the warranties in clauses 13.2 and 13.3 unless the Customer gives notice In Writing of such alleged breach within two Working Days of:
13.5.1 the date of the provision of the Services or date of delivery of the Products (where the defect would be apparent to the Customer upon a reasonable inspection); or
13.5.2 (in the case of non-delivery of the Products or non-provision of the Services) the date when the Products would in the ordinary course of events have been received or when the Services would have been performed; or
13.5.3 the date when the Customer knew or ought reasonably to have known of the defect (where the defect would not be apparent to the Customer upon a reasonable inspection).
13.6 Subject to clauses 13.4 and 13.5, if any of the Products or Services do not conform with any of the warranties in clauses 13.2 and 13.3 Forms Plus shall at its option repair or replace such Products (or the defective part) or re-perform the Services (or the defective part) or refund the price of such Products or services at the pro rata Contract rate provided that, if Forms Plus so requests, the Customer shall return the Products or the part of such Products which is defective to Forms Plus.
13.7 If Forms Plus produces a Product or performs a Service which, in Forms Plus’ reasonable opinion, is fit for its purpose, albeit not exactly conforming to the Customer’s specification, the Customer shall not be entitled to reject the Product or Service immediately, but shall enter into good faith negotiations with Forms Plus to agree a suitable credit note or reduction in price.
13.8 If Forms Plus complies with clauses 13.6 and/or 13.7 it shall have no further liability for a breach of any of the warranties in clauses 13.2 and 13.3 in respect of such Products or Services.
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14. LIMITATION OF LIABILITY
14.1 Forms Plus does not exclude its liability (if any) to the Customer:
14.1.1 for breach of Forms Plus’ obligations arising under section 2 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982;
14.1.2 for personal injury or death resulting from Forms Plus’ negligence;
14.1.3 under section (3) Consumer Protection Act 1987;
14.1.4 for any matter which it would be illegal for Forms Plus to exclude or to attempt to exclude its liability; or
14.1.5 for fraud.
14.2 Except as provided in clauses 7.4, 13.7 and 14.1, Forms Plus will be under no liability to the Customer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in connection with:
14.2.1 any of the Products, Services, Multimedia Services, or the manufacture or sale or supply, or failure or delay in supply, of the Products, Services, Multimedia Services, by Forms Plus or on the part of the Forms Plus’ employees, agents or sub-contractors;
14.2.2 any breach by Forms Plus of any of the express or implied terms of the Contract;
14.2.3 any use made or resale by the Customer of any of the Products, or of any product incorporating any of the Products; or
14.2.4 any statement made or not made, or advice given or not given, by or on behalf of Forms Plus
or otherwise under the Contract.
The Customer’s attention is in particular drawn to the provisions of clauses 14.3 and 14.4.
14.3 Except as set out in clauses 7.4, 13.7 and 14.1 Forms Plus hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Customer.
14.4 Subject to clause 14.1 Forms Plus’ aggregate liability under the Contract (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused will be limited to the price payable under the Contract or if delivery is by instalments or performance is in stages, that part of the Contract to which the delivery or performance relates together with any sums for which Forms Plus is liable pursuant to clause 7.4.
14.5 The Customer shall indemnify Forms Plus against all liability, actions, proceedings, costs, claims, damages or demands in any way connected with the Contract brought or threatened to be brought against Forms Plus by any third party except to the extent Forms Plus is liable to the Customer in accordance with these Conditions.
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15. INTELLECTUAL PROPERTY RIGHTS
15.1 Forms Plus shall not produce or deliver any Products which in its sole opinion are or may be obscene or otherwise illegal or libellous or which may infringe any Intellectual Property Rights of another party.
15.2 The Customer shall indemnify and keep indemnified Forms Plus against all actions, costs (including reasonable legal fees), claims, proceedings and demands arising directly or indirectly in respect of:
15.2.1 Products or Services which are obscene or otherwise illegal or libellous; or
15.2.2 any infringement or alleged infringement by Forms Plus of any Intellectual Property Rights attributable to Forms Plus’ use of any Software, Data or other materials in each case supplied by the Customer and relating to the Products or Services or to Forms Plus’ complying with any instructions from or requirements of the Customer relating to the Products or Services; or
15.2.3 any breach of the Data Protection Legislation by Forms Plus in carrying out its obligations under the Contract, provided such breach was attributable to the Customer failing to comply with its obligations under Data Protection Legislation and/or the Contract.
15.3 The Customer shall grant to Forms Plus a non-exclusive licence to use the Customer’s Intellectual Property Rights in any artwork, designs, business forms or other materials provided to Forms Plus by the Customer (the “Customer’s Materials”) for the purposes of Forms Plus carrying out its obligations under the Contract.
15.4 The Customer warrants that it owns the Intellectual Property Rights in the Supplied Items and the Customer’s Materials and that Forms Plus’ use of the Supplied Items and the Customer’s Materials will not infringe any third party Intellectual Property Rights.
15.5 Any artwork, designs, business forms or other materials prepared by Forms Plus in the production of the Products or provision of the Services and all Intellectual Property Rights therein are and shall remain the exclusive property of Forms Plus, unless provided by the Customer or otherwise agreed In Writing by Forms Plus.
15.6 In the event that any artwork, designs, business forms or other materials are created by Forms Plus as a result of a proposal by Forms Plus to the Customer that is not accepted or a commission from the Customer that is subsequently cancelled, then the Customer shall have no licence to use any Intellectual Property Rights in any such material and the Customer shall promptly return all such material to Forms Plus.
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16. TERMINATION
16.1 Forms Plus may by Written Notice served on the Customer immediately terminate the Contract if the Customer:
16.1.1 is in material breach of any of the terms of the Contract and, where the breach is capable of remedy, the Customer fails to remedy such breach within the number of days specified in any notice In Writing from Forms Plus specifying the breach and requiring it to be remedied. Failure to pay any sums due in accordance with clause 12.1 is a material breach of the terms of the Contract which is not capable of remedy;
16.1.2 becomes bankrupt, insolvent, has a receiver, manager or administrative receiver appointed, makes any composition with its creditors or has a receiver appointed under the Mental Health Act 1982;
16.1.3 has any distraint, execution, or other process levied or enforced on any of its property;
16.1.4 ceases or threatens to cease to trade;
16.1.5 has a change in its management and/or control as defined by section 416 Income and Corporation Taxes Act 1988; or
16.1.6 any equivalent event occurs to the Customer in another jurisdiction
or if Forms Plus reasonably anticipates that one of the above set of circumstances is about to occur.
16.2 The termination of the Contract howsoever arising is without prejudice to the rights, duties and liabilities of either the Customer or Forms Plus accrued prior to termination. The conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
16.3 Forms Plus shall be entitled to suspend any deliveries following service of a Written Notice under clause 16.1.1, until either the breach is remedied or the Contract terminates, whichever occurs first.
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17. FORCE MAJEURE
17.1 Subject to clauses 17.2, Forms Plus shall not be deemed to be in breach of the Contract or otherwise liable to the Customer in any manner whatsoever for any failure or delay in performing its obligations under the Contract due to Force Majeure.
17.2 Forms Plus reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Products and/or Services ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to Force Majeure.
17.3 Subject to clause 17.4, if the Force Majeure in question continues for a continuous period in excess of 30 days, the Customer shall be entitled to give Written Notice to Forms Plus to terminate the Contract. The notice to terminate must specify the termination date, which must not be less than 15 days after the date on which the notice is given, and once such notice has been validly given, the Contract will terminate on that termination date.
17.4 The Customer agrees that it shall give Forms Plus a reasonable opportunity to put forward alternative proposals for continuing the performance of the Contract in the event of Force Majeure and the Customer shall not unreasonably withhold its consent to Forms Plus’ proposals.
17.5 If Forms Plus’ performance of its obligations under the Contract is affected by Force Majeure Forms Plus shall not be required to obtain elsewhere in the market goods or services with which to replace or permit it to produce the Products or perform the Services, the production, delivery or performance of which has been postponed or cancelled as a result of Force Majeure. In the event of cancellation, Forms Plus shall be paid pro rata for work done to the date of cancellation.
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18. CONFIDENTIALITY
18.1 The parties shall keep confidential any and all Confidential Information that they may acquire about each other pursuant to the Contract. Confidentiality agreements are to be complied with by the Customer during visits to Forms Plus sites. At all times, the parties shall protect the Confidentiality, Integrity and Availability of all information, data that they may interact with whilst in the pursuant of the contract.
18.2 The parties shall not use the Confidential Information for any purpose other than to perform their obligations under the Contract. Each party shall ensure that its officers, employees, agents and sub-contractors comply with the provisions of this clause.
18.3 The obligations on the parties set out in clause 18.1 shall not apply to any information which:
18.3.1 is publicly available or becomes publicly available through no act or omission of the parties;
18.3.2 is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party;
18.3.3 is received from another person who (the disclosing party can prove through written documentation) lawfully acquired it and who is under no obligation restricting its disclosure; or
18.3.4 the parties are required to disclose by order of a Court of competent jurisdiction or a competent regulatory authority.
18.4 The provisions of this clause 18 shall continue to apply after expiry or termination of this Contract.
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19. DISPUTE RESOLUTION
19.1 This clause 19 will not prevent either party from:
19.1.1 seeking injunctive relief in the case of any breach or threatened breach by the other;
19.1.2 commencing any proceedings where this is reasonably necessary to avoid any loss of a claim due to the rules on limitation of actions; or
19.1.3 commencing proceedings in the case of non-payment of an undisputed invoice.
19.2 If any dispute arises out of the Contract (“a Dispute”) the parties will attempt to resolve it by negotiating in good faith. Subject to clause 19.1 the procedures set out in the rest of this clause 19 will be followed prior to the issue of any proceedings or in relation to any Dispute concerning matters of procedure and management.
19.3 Any Dispute which the parties fail to resolve within five Working Days of its first notification by one party to the other will be referred to the parties’ respective contract managers for resolution.
19.4 If the relevant Dispute remains unresolved within 15 Working Days of its referral to the parties’ respective contract managers the Dispute will be referred to Forms Plus’ sales manager and the Customer’s equivalent manager for resolution.
19.5 If the relevant Dispute remains unresolved within 15 Working Days of its referral to Forms Plus’ sales manager and the Customer’s equivalent manager the Dispute will be referred to a director of Forms Plus and a director (or equivalent senior manager) of the Customer for resolution.
19.6 If the relevant Dispute remains unresolved within 15 Working Days of its referral to a director of Forms Plus and director (or equivalent senior manager) of the Customer then either party is free to pursue the rights granted to it under the Contract through the courts.
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20. NOTICES
20.1 All notices between the parties about the Contract must, according to the type of notice, be In Writing or by Written Notice and delivered by hand or sent by first class post, facsimile transmission or by email:
20.1.1 in the case of notices to Forms Plus, to its registered office or such address as shall be notified to the Customer by Forms Plus from time to time; or
20.1.2 in the case of notices to the Customer, to the registered office of the Customer (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to Forms Plus by the Customer from time to time.
20.2 Notices shall be deemed to have been duly served:
20.2.1 if delivered by first class post, two Working Days after being posted;
20.2.2 if delivered by hand, at the time of delivery;
20.2.3 if delivered by facsimile transmission, at the time of successful transmission, provided that a confirming copy is sent by first class post to the other party within 24 hours of transmission;
20.2.4 if delivered by email, at the time of sending, provided that a confirming copy is sent by first class post to the other party within 24 hours after sending and that no notification informing the sender that the message has not been delivered has been received by the sender.
20.3 Notices addressed to Forms Plus shall be marked for the attention of the Managing Director.
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21. GENERAL
21.1 Each right or remedy of Forms Plus under the Contract is without prejudice to any other right or remedy of Forms Plus whether under the Contract or not.
21.2 Forms Plus may assign, license or sub-contract all or any part of its rights or obligations under the Contract without the Customer’s consent.
21.3 The Customer shall not be entitled to assign the Contract or any part of it without the prior consent of Forms Plus in Writing.
21.4 Neither Forms Plus nor the Customer shall during the term of the Contract and for 12 months following its termination either directly or indirectly solicit or entice away (or seek to attempt to solicit or entice away) from the employment of the other party any person employed by such other party’s group (in the case of Forms Plus) in the provision of the Products and Services to the Customer or (in the case of the Customer) in the receipt and/or administration of the Products and Services from Forms Plus without the other party’s prior agreement In Writing providing that nothing in this clause 21.4 shall prohibit a party from engaging a person who replies to a general advert and who is not otherwise solicited or enticed.
21.5 No failure or delay by Forms Plus to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
21.6 If any condition or part of the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Contract and will be ineffective without, as far as is possible, modifying any other provision or part of the Contract and this will not affect any other provisions of the Contract which will remain in full force and effect.
21.7 Save as expressly stated otherwise in these Conditions the parties to this Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
21.8 The Contract and the specification contain all the terms which Forms Plus and the Customer have agreed in relation to the Products and/or Services and supersedes any prior written or oral agreements, representations or understandings between the parties relating to such Products and/or Services. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Forms Plus which is not set out in the Contract or specification. Nothing in this clause 21.8 will exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently.
21.9 This Contract shall be governed by and construed in accordance with English laws and each party agrees to submit to the exclusive jurisdiction of the English Courts.
