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terms and conditions of use
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TOTAL VINYL Ltd
Terms of Trading
1 Price
1.1 The price quoted excludes VAT and delivery (unless otherwise stated). Rates of tax and duties on the goods will be those applying at the time of delivery.
1.2 Our quotations lapse after 30 days (unless otherwise stated).
1.3 Unless otherwise stated, the price quoted is an illustrative estimate only and the price charged will be our price current at the time of delivery.
1.4 At any time before delivery we may adjust the price to reflect any increase in our costs of supplying the goods.
2 Delivery
2.1 Although we make all reasonable efforts to manufacture and deliver in accordance with prearranged dates, such dates are estimates only and time shall not be of the essence. Our manufacturing completion periods are provided as general indicators and do not begin to run until all items required for manufacture are received by us (purchase orders, masters, films, and, where appropriate, the certificate from the MCPS certifying its receipt of the duties for the titles ordered).
2.2 If we fail to deliver within a reasonable time, you may (by informing us in writing by recorded delivery post) cancel the contract, however:
2.2.1 You may not cancel if we receive your notice after the goods have been dispatched; and
2.2.2 If you cancel the contract, you can have no further claim against us under that contract.
2.3 If you accept delivery of the goods after the estimated delivery time, it will be on the basis that you have no claim against us for delay (including indirect or consequential loss, or increase in the price of the goods).
2.4 If for any reason you fail to accept delivery of any goods when they are ready for delivery, or we are unable to deliver the goods because you have not provided adequate instructions, or if you do not collect the goods by the date we give for collection, we may:
2.4.1 treat the goods as having been delivered on that day (for the purposes of risk, inspection and payment); and
2.4.2 Charge you for the storage or redelivery of those goods.
2.5 We may deliver the goods in installments. Each installment is treated as a separate contract.
2.6 We may decline to deliver if:
2.6.1 We believe that it would be unsafe, unlawful or unreasonably difficult to do so; or
2.6.2 The premises (or the access to them) are unsuitable for our vehicle.
2.7 We may deliver in quantities of 10% more or less than the quantity ordered and charge you for the quantity actually delivered.
3 Risk
3.1 The goods are at your risk from the time of delivery.
3.2 Delivery takes place either:
3.2.1 When the goods are loaded at our premises (if you are collecting them or arranging carriage); or
3.2.2 When the goods are unloaded at your premises or address specified by you (if we are arranging carriage).
3.3 You must inspect the goods on delivery. If any goods are damaged or not delivered, you must write to tell us (by recorded delivery post) within three days of delivery or the expected delivery time. You must give us (and any carrier) a fair chance to inspect the damaged goods. If you fail to notify us in accordance with these requirements, you will not be entitled to reject the goods and will be deemed to have accepted the goods in accordance with the contract.
3.4 It is further agreed that any "parts" (definition to include paper parts, films, masters, glass, stampers, proofs and finished goods and to include anything supplied in the course of the manufacturing process) whether paid for or not are stored on an ex-gratia basis with the exception of sleeves which will be stored at a charge of £5.50 per pallet per calender month. It is further agreed that if no order is received for a three month period we shall be free after a seven day grace period and without notifying you to dispose of the goods without giving rising to any claim on the part of you and you agree that the goods have been deemed unwanted.
4 Payment terms
4.1 You are to pay us in cash or in cleared funds with your order, unless you have an approved credit account.
4.2 If you have an approved credit account, payment is due no later than 30 days after the date of our invoice unless otherwise agreed in writing.
4.3 If you fail to pay us in full on the due date we may:
4.3.1 Suspend or cancel future deliveries;
4.3.2 Cancel any discount offered to you;
4.3.3 charge you interest at the rate set under s.6 of the Late Payment of Commercial Debts (Interest) Act 1998;
a. calculated (on a daily basis) from the date of our invoice until payment;
b. compounded on the first day of each month; and
c. before and after any judgment (unless a court orders otherwise);
4.3.4 claim fixed sum compensation from you under s.5A of that Act to cover our credit control overhead costs; and
4.3.5 Recover (under clause 4.7) the cost of taking legal action to make you pay.
4.4 If you have an approved credit account, we may withdraw it or reduce your credit limit or bring forward your due date for payment. We may do any of those at any time without notice.
4.5 You do not have the right to set off any money you may claim from us against anything you may owe us.
4.6 While you owe money to us, we have a lien on any of your property in our possession.
4.7 You are to indemnify us in full and hold us harmless from all expenses and liabilities we may incur (directly or indirectly including financing costs and including legal costs on a full indemnity basis) following any breach by you of any of your obligations under these terms.
5 Title
5.1 Until you pay all debts you may owe us:
5.1 1 all goods supplied by us remain our property;
5.1.2 You must store them so that they are clearly identifiable as our property;
5.1.3 You must insure them (against the risks for which a prudent owner would insure them) and hold the policy on trust for us;
5.1.4 You may use those goods and sell them in the ordinary course of your business, but not if:
a. we revoke that right (by informing you in writing); or
b. you become insolvent.
5.2 You must inform us (in writing by recorded delivery post) immediately if you become insolvent.
5.3 If your right to use and sell the goods ends you must allow us to remove the goods.
5.4 We have your permission to enter any premises where the goods may be stored:
5.4.1 At any time, to inspect them; and
5.4.2 After your right to use and sell them has ended, to remove them, using reasonable force if necessary.
5.5 Despite our retention of title to the goods, we have the right to take legal proceedings to recover the price of goods supplied should you not pay us by the due date.
5.6 You are not our agent. You have no authority to make any contract on our behalf or in our name.
5.7 In the case of lacquers, positives, negatives, stampers, plates and glass mastering, all charges are for the process of manufacture and not for purchasing the goods and title remains with us. Masters are not available for purchase however stampers may be purchased for the sum of £25.00 per side. We reserve the right to charge for precious metal content at current rates.
6 Warranties
6.1 We warrant that the goods:
6.1.1 Comply with their description; and
6.1.2 are free from material defect at the time of delivery (as long as you comply with clause 6.3).
6.2 We give no other warranty (and exclude any warranty, term or condition that would otherwise be implied) as to the quality of the goods or their fitness for any purpose.
6.3 If you believe that we have delivered goods that are defective in materials or workmanship, you must:
6.3.1 Inform us (in writing), with full details, as soon as possible; and
6.3.2 Allow us to investigate (we may need access to your premises and product samples).
6.4 If the goods are found to be defective in material or workmanship (following our investigations), and you have complied with those conditions (in clause 6.3) in full, we will (at our option) replace the goods or refund the price.
6.5 We are not liable for any other loss or damage (including indirect or consequential loss, financial loss, loss of profits or loss of use) arising from the contract or the supply of goods or their use, even if we are negligent.
6.6 Our total liability to you (from one single cause) for damage to property caused by our negligence is limited to one million pounds (or the appropriate amount of insurance we have in place when the contract is performed).
6.7 For all other liabilities not referred to elsewhere in these terms our liability is limited in damages to the price of the goods.
6.8 Nothing in these terms restricts or limits our liability for death or personal injury resulting from negligence.
7 Specification
7.1 If we produce to goods to your specifications or using your materials, you must ensure that:
7.1.1 Specifications and materials are accurate and supplied to us within a reasonable time;
7.1.2 Materials are of good quality and suitable for our use;
7.1.3 Any material or image forming part of your specifications is of good quality and resolution;
7.1.4 goods produced in accordance with your specifications will be fit for the purpose for which you intend to use them; and
7.1.5 Your specifications or instructions will not result in the infringement of any intellectual property rights of a third party including as an example only rights of the Mechanical Copyright Protection Society, or in the breach of any applicable law or regulation.
7.2 There may be variations in the shade of reproductions of colour images for which we are not liable. If you wish to avoid variations you should request a proof.
7.3 All materials or tools used to produce the goods are our property. We may dispose of materials or tools when the goods have been paid for.
7.4 Materials supplied by you remain your property at all times and we will hold them at your risk. You must insure them for their full value against all reasonable risks which arise out of our handling, storing or processing of them.
7.5 We reserve the right;
7.5.1 To make any changes in the specifications of our goods that are necessary to ensure they conform to any applicable safety or statutory requirements; and
7.5.2 To make without notice any minor modifications in our specifications we think necessary or desirable.
8 Proofs
8.1 If you request proofs we will send these to you before completing your order.
8.2 You must check proofs carefully and inform us in writing if you approve the proofs or if you require any changes. We may charge you for variations to your order.
8.3 If we do not hear from you within 14 days of us sending you proofs we may treat you as having approved them.
8.4 We will not be liable for any loss which arises out of the production of goods where you have approved a proof.
9 Return of goods
9.1 We will accept the return of goods from you only:
9.1.1 By prior arrangement (confirmed in writing);
9.1.2 on payment of an agreed handling charge (unless the goods were defective when delivered); and
9.1.3 Where the goods are as fit for sale on their return as they were on delivery.
10 Export terms
10.1 Where the goods are supplied by us to you by way of export from the United Kingdom Clause 9 of these terms applies (except to the extent that it is inconsistent with any written agreement between us).
10.2 The ‘Incoterms’ of the International Chamber of Commerce which are in force at the time when the contract is made apply to exports, but these terms prevail to the extent that there is any inconsistency.
10.3 Unless otherwise agreed, the goods are supplied ex works our place of manufacture.
10.4 Where the goods are to be sent by us to you by a route including sea transport we are under no obligation to give a notice under section 32(3) of the Sale of Goods Act 1979.
10.5 You are responsible for arranging testing and inspection of the goods at our premises before shipment (unless otherwise agreed). We are not liable for any defect in the goods which would be apparent on inspection unless a claim is made before shipment. We are not liable for any damage during transit.
10.6 We are not liable for death or personal injury arising from the use of the goods delivered in the territory of another State (within the meaning of s.26 (3) (b) Unfair Contract Terms Act 1977).
11 Modifications and Cancellations
11.1 You may not cancel or change the order the order unless we agree in writing (and clauses 2.2.2 and 11.2 then apply) you must request the change and inform us in writing and send it to us by recorded delivery post. Our policy is to charge 25% of the full order price, as liquidated damages , if we chose to agree a cancellation before we start manufacture. We cannot accept your request to cancel if we have started manufacturing which includes pre-production.
11.2 If the order is cancelled (for any reason) you are then to pay us for all stock (finished or unfinished) that we may then hold (or to which we are committed) for the order.
11.3 If we agree to your request to change the order it is on condition that you pay our revised price for the order.
11.4 We may suspend or cancel the order, by written notice if:
11.4.1 You fail to pay us any money when due (under the order or otherwise);
11.4.2 You become insolvent;
11.4.3 You fail to honour your obligations under these terms.
12 Waiver and variations
12.1 Any waiver or variation of these terms is binding in honour only unless:
12.1.1 Made (or recorded) in writing;
12.1.2 Signed on behalf of each party; and
12.1.3 Expressly stating an intention to vary these terms.
12.2 All orders that you place with us will be on these terms (or any that we may issue to replace them). By placing an order with us, you are expressly waiving any printed terms you may have to the extent that they are inconsistent with our terms.
13 Force majeure
13.1 If we are unable to perform our obligations to you (or able to perform them only at unreasonable cost) because of circumstances beyond our control, we may cancel or suspend any of our obligations to you, without liability.
13.2 Examples of those circumstances include act of God, accident, explosion, war, terrorism, fire, flood, transport delays, strikes and other industrial disputes and difficulty in obtaining supplies.
14 General
14.1 English law is applicable to any contract made under these terms. The English and Welsh courts have non-exclusive jurisdiction.
14.2 If you are more than one person, each of you has joint and several obligations under these terms.
14.3 If any of these terms are unenforceable as drafted:
14.3.1 It will not affect the enforceability of any other of these terms; and
14.3.2 If it would be enforceable if amended, it will be treated as so amended.
14.4 We may treat you as insolvent if:
14.4.1 You are unable to pay your debts as they fall due; or
14.4.2 You (or any item of your property) become the subject of:
a. any formal insolvency procedure (examples of which include receivership, liquidation, administration, voluntary arrangements (including a moratorium) or bankruptcy);
b. any application or proposal for any formal insolvency procedure; or
c. any application, procedure or proposal overseas with similar effect or purpose.
14.5 All brochures, catalogues and other promotional materials are to be treated as illustrative only. Their contents form no part of any contract between us and you should not rely on them in entering into any contract with us.
14.6 Any notice by either of us which is to be served under these terms may be served by leaving it at or by delivering it to (by recorded delivery post or by fax) the other’s registered office or principal place of business. All such notices must be signed.
14.7 No contract will create any right enforceable (by virtue of the Contracts (Rights of Third Parties) Act 1999) by any person not identified as the buyer or seller.
14.8 The only statements upon which you may rely in making the contract with us, are those made in writing by someone who is our authorised representative and either:
14.8.1 Contained in our estimate (or any covering letter) and not withdrawn before the contract is made; or
14.8.2 Which expressly state that you may rely on them when entering into the contract.
14.9 Nothing in these terms affects or limits our liability for fraudulent misrepresentation.
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