The following terms and conditions of service and terms and conditions of purchase are applicable to Deluxe UK:
TERMS AND CONDITIONS OF SERVICE:
These conditions shall govern the supply to any person, company or other entity (“Customer”) of products and services by either of Deluxe UK Holdings Limited; Deluxe 142 Limited; Deluxe Media Europe Limited; or Deluxe Digital Studios Limited (hereinafter individually called “Deluxe”) and shall apply in place of and prevail over any terms or conditions contained or referred to in the Customer’s order, invoice, purchase order or in correspondence or elsewhere or implied by trade custom practice or course of dealing unless specifically agreed to in writing by an authorised member of Deluxe’s staff and any purported provisions to the contrary are hereby excluded and extinguished.
1. ORDERS
(a) Deluxe shall be under no liability for any order received until the order has been accepted on Deluxe’s printed order acceptance by an authorised member of Deluxe’s staff. An accepted order may only be varied or cancelled with Deluxe’s consent, the giving of such consent by an authorised member of Deluxe’s staff shall not in any way prejudice Deluxe’s right to recover from the Customer full compensation for any loss or expense arising from such variation or cancellation. A Customer, by issuing to Deluxe an order, is accepting the terms and conditions set out in this document.
(b) Where Deluxe has supplied a Quotation and Schedule for specific services, this will be based on the Customers brief, and Deluxe shall be under no liability to supply the services until the Customer has accepted the Quotation and Schedule in writing and supplied Deluxe with a Purchase Order.
(c) Deluxe shall be entitled to rely on instructions given to Deluxe by any third party purportedly on the Customer’s behalf.
2. CHARGES
(a) Not withstanding any charge specified in any quotation or order Deluxe charges shall be those ruling on the dates on which goods or services are supplied by Deluxe and shall be in Sterling unless otherwise agreed by Deluxe in writing. Current published Deluxe charges shall be available on request.
(b) Deluxe shall be entitled to make additional charges in respect of (i) all taxes including import, export duties, local taxes and other levies in respect of the supply and delivery of goods and services (ii) the cost of effecting delivery in accordance with clause 5(a) or (iii) additional costs arising from the quality of the Customer’s materials being unsuitable for processing the ordered products or services (e.g. where negatives are old or shrunken, have damaged edges or are badly spooled) or (iv) goods or services to be supplied out of normal working hours and (v) goods or services supplied by others (where cost plus 10% will be charged).
(c) Quoted Deluxe charges are subject to Value Added Tax at the prevailing rate & all taxes referred to in clause 2(b)(i). Whilst given in good faith, Deluxe shall not be bound by any estimate of price.
3. CUSTOMER’S MATERIALS
(a) Definitions: In these Terms, ‘the Customer’s materials’ shall mean all those tangible materials delivered into Deluxe’s custody by or by the order of the Customer whether or not such materials incorporate any copyright work; any materials derived from the Customer’s materials shall, in these Terms, be referred to as ‘products’; ‘goods’ shall include both Customer’s materials and products. Deluxe’s ability to provide any services to the Customer is subject to the Customer’s materials being in commercially acceptable condition for Deluxe to perform its services. Deluxe will not be responsible for any failure of the customer to deliver such Customer materials to Deluxe on a timely basis or in commercially acceptable quality.
(b) Risk and Insurance: Deluxe shall use all reasonable care in providing products and services and hereby excludes to the fullest extent permitted by law any and all warranties, terms and conditions other than those set out expressly herein (whether express, implied by statute, contract, course of dealing or otherwise) including without limitation any implied warranties as to fitness for purpose or satisfactory quality. Nevertheless Deluxe accepts and processes the Customer’s materials entirely at the Customer’s sole risk and Deluxe shall not be liable for any loss or damage of any kind whatsoever except as provided under Clause 6. Without prejudice to the generality of the foregoing, Deluxe shall have no liability for any digitally created intermediate delivered by the Customer to Deluxe without either a safety interpositive or an order for Deluxe to supply one. Deluxe does not insure any of the Customer’s materials while in its possession or in transit and Customers are advised to insure their materials to the full value against all risks, at their own expense, prior to passing such materials to Deluxe.
(c) Labelling etc: The Customer shall ensure that, on delivery to Deluxe, the Customer’s materials are accompanied by a clear indication as to the nature of such materials and a clear statement of any special processing or other requirements, together with the full contact name and details of a representative of the Customer.
(d) Storage: At Deluxe’s request, the Customer shall promptly give Deluxe disposal instructions in respect of goods which may be held by Deluxe to the Customer’s order in default of which Deluxe may, at Deluxe’s option, but at the Customer’s expense and risk, either dispose of or store such goods. No nitrate material will be stored.
At any time Deluxe may require the Customer to collect any or all of the goods and to pay any outstanding storage charges. Upon failure of the Customer to collect such goods and pay such charges Deluxe may serve notice on the Customer at the Customer’s last known address giving the Customer 30 days to make arrangements or give Deluxe specific instructions for the collection of such goods and the payment of such charges. In the event that such arrangements or instructions are not received by Deluxe within such time, then Deluxe will be entitled to destroy or otherwise dispose of the goods without incurring any liability to the Customer whatsoever.
4. CUSTOMER’S OBLIGATIONS
(a) Regulations: The Customer shall ensure that its employees, officers, representatives, contractors, subcontractors and agents (i) obey security fire and safety regulations and any statutory requirements relating to Deluxe’s premises and (ii) comply with Deluxe’s instructions in operating or using any of Deluxe’s equipment or facilities and the Customer shall indemnify Deluxe against all losses and expenses arising from any failure to do so (whether or not Deluxe may have an independent cause of action against the employee, officers, representatives, contractor, agent or subcontractor concerned).
(b) Warranties and Indemnities: The Customer warrants that (i) it owns or has the authority of the owner of the Customer’s materials to pass the Customer’s materials into the possession of Deluxe (ii) it has the authority to give Deluxe orders in respect of the Customer’s materials and in particular that in fulfilling the Customer’s orders Deluxe shall not infringe any third party’s intellectual property rights, including copyright, design rights, patents or other rights (whether proprietary, registerable or otherwise) (iii) the Customer’s materials do not contain anything which is obscene, which contravenes the Protection of Children Act 1978 or any other statute or which offends against good taste or common decency or would place any person in contempt of Court or subject to any civil or criminal proceedings and (iv) the Customer shall indemnify Deluxe against all actions claims proceedings costs whether direct or indirect (including legal fees) damages expenses and losses whatsoever against or incurred by Deluxe in any way arising from any breach of such warranties given in (i) to (iii) inclusive of these Terms.
(c) Intellectual Property Clearance: At Deluxe’s request the Customer shall produce to Deluxe and shall allow Deluxe to take copies of those documents whereunder the Customer derives the authority referred to in clause 4(b)(ii) and Deluxe reserves the right to refuse or cease to perform services, without liability, if such documentation is not provided on request (without placing on Deluxe any obligation to monitor such documentation)..
5. DELIVERY
(a) Place of Delivery: At the Customer’s request expense and sole risk Deluxe will arrange to despatch goods to any address specified by the Customer provided that it shall be the Customer’s sole obligation to insure the goods (both in transit and whilst the goods are in the custody or control of Deluxe); on default of any such request the Customer shall collect the goods from Deluxe’s premises. In all cases delivery shall occur at Deluxe’s premises.
(b) Time of Delivery: Deluxe shall use all reasonable efforts to deliver goods in accordance with quoted times but shall not be liable for any loss or damage arising from late delivery howsoever caused. Delivery dates are approximate and subject to delivery of appropriate Customer materials to Deluxe. Deluxe shall not be liable for not notifying the Customer of any delay and any delay (whether within or beyond Deluxe’s control) shall not be grounds for termination or cancellation by the Customer of an order.
(c) Special packaging: The Customer shall meet the cost of any special packaging requested by the Customer or any packaging rendered necessary by delivery other than Deluxe’s normal means of delivery.
(d) Force Majeure: Without limiting the generality of the provision of clause 5(b) above, Deluxe shall not be liable for any failure or delay, loss or damage (whether direct or indirect) in the performance of its obligations if such delay or failure results from acts of God, acts of civil or military authorities, fires, floods, epidemics, pandemics, government restrictions, quarantine restrictions, wars, riots, strikes, labour difficulties, equipment failure, whole or partial satellite malfunctions, uplink failures, internet outages, communications line failures or power failures, delays in transportation, shortage of material or other similar causes or any delays caused by acts or omissions of the Customer or any third party beyond Deluxe’s control. The time for performance of such obligation shall be extended accordingly.
(e) Deluxe will not be prohibited or restricted at any time by the Customer from utilizing any skills or knowledge of a general nature acquired during the course of providing the services, not uniquely applicable to the Customer.
(f) License to Methods. To the extent the deliverables incorporate any Deluxe IP (other than the Deluxe Software, which is licensed pursuant to the separate license in Clause 5(g) below), Deluxe hereby grants the Customer a non-exclusive, irrevocable, royalty-free, fully paid-up license, throughout the universe and in perpetuity, to use the proprietary tools, methods or methodologies, systems, know-how, concepts, ideas, technology, information, materials, techniques, expertise, equipment, workflows, processes and the like used or improved by Deluxe in rendering the services (“Methods”) only as contained or embedded in the deliverables solely as necessary in the distribution of the Customer products into which such deliverables are incorporated.
(g) License to Software. (i) If access is granted to any Deluxe website, web portal or other software platform (whether SaaS, PaaS or IaaS), including without limitation, Deluxe One®, DL3®, and Mediacloud (collectively, the “Deluxe software”), such Deluxe software is licensed and not sold. The Customer acknowledges and agrees that Deluxe and/or its licensors own all legal right, title and interest in and to such Deluxe software, and all IP rights that subsist in the Deluxe software anywhere in the world. Apart from a limited, personal, non-assignable licence to use the Deluxe software for its intended purpose, the Customer obtains no right, title or interest in or to any such IP rights in or to the Deluxe software. Except with the prior written consent of Deluxe, the Customer must not disclose to any other person any usernames, passwords, tokens or other access methods supplied by Deluxe.
(ii) The Customer shall be solely responsible for maintaining its own equipment and establishing its own connection via the internet to the Deluxe software. The Customer shall not attempt to gain unauthorized access to the Deluxe software or any restricted portion of the Deluxe software, exceed its permitted use, attempt to access any other user’s data or content, or otherwise compromise any aspect of the Deluxe software. The Customer shall not take any action to interfere with the Deluxe software or any other user’s use of the Deluxe software.
(iii) The Customer will not: (a) disassemble, copy, decompile, reverse engineer, recreate, modify, adapt, create derivative works from or otherwise attempt to discover the Deluxe software; (b) delete, alter, cover, or distort any patent, copyright, trademark, or other proprietary rights notice placed by, on or in the Deluxe software; and (c) sell, rent, lease, lend, sublicense, distribute, provide a service bureau or otherwise transfer or provide access to all or any portion of the Deluxe software to any third party (including as an SaaS, IaaS or PaaS).
(iv) The Customer is solely responsible and liable, and Deluxe has no responsibility to the Customer or any third party, for any content that is created, transmitted, stored or displayed by the Customer while accessing the Deluxe software.
(v) All rights not otherwise granted herein are reserved to Deluxe.
6. QUALITY AND LIMITATION OF LIABILITY
(a) Quality of Service: Deluxe shall use all reasonable care in performing the services and supplying products. Deluxe does not give any warranty or representation (express or implied by statute or otherwise) as to the standard or quality of products and services supplied or as to satisfactory quality of products or fitness for a particular purpose of products.
(b) Defects: Where no damage has been caused to the Customer’s materials but the Customer is not satisfied with the quality of any product or service and has notified Deluxe in writing within 7 days of the provision of the product or with the quality of any product or service and has notified Deluxe in writing within 7 days of the provision of the product or service and the defect has arisen other than through (i) defects in the Customer’s materials (ii) Deluxe complying with Customer’s instructions (iii) the Customer incorrectly operating Deluxe’s equipment or (iv) defects inherent in the relevant process then Deluxe will, at its own expense, use reasonable endeavours to rectify such defect but will have no further liability.
(c) Reparable Damage: If reparable damage is caused to the Customer’s materials as a result of negligence default or breach of contract by Deluxe its employees sub-contractors or agents (and such negligence default or breach is acknowledged by an authorised employee of Deluxe) and the Customer has notified Deluxe in writing within 7 days of the occurrence of the loss or damage the liability of Deluxe is limited to Deluxe at its own expense using reasonable endeavours to rectify such damage.
(d) Irreparable damage: If irreparable loss or damage is caused to the Customer’s materials as a result of negligence default or breach of contract by Deluxe its employees sub-contractors or agents (and such negligence default or breach is acknowledged by an authorised employee of Deluxe) and the Customer has notified Deluxe in writing within 7 days of the occurrence of the loss or damage the liability of Deluxe is limited to the cost in accordance with the manufacturer’s current price list of the replacement raw stock of unexposed film damaged or lost by Deluxe. For the avoidance of doubt, Deluxe shall waive the charges for the processing of the film irreparably damaged or lost. If the Customer has paid in advance the relevant amount will be refunded.
(e) Determination: Acting reasonably Deluxe will determine whether damage is irreparable or reparable in accordance with conditions 6(c) and 6(d). Deluxe will thereafter advise the Customer as to the appropriate action to be taken in the circumstances.
(f) Excess Liability: If the Customer requires a level of liability from Deluxe in excess of that set out in clauses 6(b), 6(c) and 6(d) details including prices are available from Deluxe upon request. Customer’s particular attention is drawn to the fact that prices quoted for the work undertaken by Deluxe do not take any account of any special value of any Customer materials passed to, or stored by, Deluxe. Customer acknowledges that the cost of insuring Customer materials against all risks to its full value (if such insurance could be obtained) would result in a substantial increase in Deluxe’s prices for services. Customer will insure all Client Materials passed to Deluxe against all risks to their full replacement value.
(g) Limitation of liability: Deluxe will have no further liability to the Customer except as set out in clauses 6(b) to 6(d)(inclusive) and 6(f) as appropriate. In no event and under no circumstances shall Deluxe be liable to any loss of profit or any indirect or special damages or consequential loss, costs expenses or other claims (whether caused by the negligence of Deluxe its servants or agents or otherwise) which arise out of or in connection with the supply of products and services by Deluxe. In addition, Deluxe makes no representation, warranty or covenant with respect to (i) the Customer materials or the exploitation of the deliverables, (ii) claims resulting from Deluxe’s compliance with the direction or artistic and/or technical specifications of the Customer, or (iii) any third party’s IP rights relating to disc structure, disc or content format (including the codecs/output formats or ultraviolet/DECE), content protection (including DRM, Macrovision or watermarking), disc or content replication, the reading or playback of discs or content by playback machines/software, disc or content-related connectivity or disc manufacturing, including, but not limited to, anything required or described in standards or format guidelines for disc or content formats with which the deliverables are intended to be used.
(h) The Customer waives all rights of subrogation of its underwriters and insurers against Deluxe under any policy of insurance covering the Customer or Customer’s materials.
7. PAYMENT
(a) Non-Account Customers: For Customers not having a credit account with Deluxe, payment shall be made in advance of any supply of goods or work being undertaken on the Customer’s materials against documents or invoice.
(b) Account Customers: For Customers having an approved credit account with Deluxe and unless otherwise agreed in advance of order, payment shall be made within 30 days from the date of invoice; Deluxe may add interest to the outstanding balance of overdue accounts at the highest rate permitted under the Late Payment of Commercial Debts (Interest Act) 1998 or any re-enactment, variation or modification thereof, such rate to run from the due date for payment thereof until receipt by Deluxe of the full amount whether or not after judgement and may withdraw any applicable discounts. Any requirement for advance payment will be notified to the Customer at the time of quotation.
(c) Allocation: Deluxe may allocate payments made by the Customer in respect of products and services ordered by the Customer in such order of priority and in favour of such debts owing by the Customer as Deluxe may think fit.
(d) Allocation within Group: Payments made by the Customer in respect of products and services ordered by the Customer may at Deluxe’s option be applied by Deluxe instead in reduction of any amount owing to Deluxe by any associated company of the Customer (i.e. any subsidiary or holding company of the Customer or any other subsidiary of such holding company; ‘subsidiary’ and ‘holding company’ having the meanings ascribed by S.736 of the Companies Act 1985).
(e) Lien: In addition and without prejudice to any other liens rights or remedies to which Deluxe may be entitled Deluxe shall have a general lien on all of the Customer’s materials and products in its possession for any sums owed by the Customer to Deluxe and Deluxe shall have the right to withhold delivery and retain possession of and to refuse access to any products and Customer materials in its possession where payment of any sums owed by the Customer to Deluxe (whether or not in relation to the goods withheld) is overdue. Should Deluxe opt to take advantage of this general lien, the Customer’s obligation to insure the Customer’s materials and products remains and Deluxe accepts no liability for loss or damage caused to the Customer’s materials and/or products held under the terms of the general lien.
(f) Any claims for adjustment in connection with an invoice must be presented to Deluxe within 14 days from the date of the invoice in question or such claim shall be deemed waived by the Customer.
(g) Cancellation: (i) In the event of the Customer cancelling works later than 24 hours before works are due to commence, Deluxe reserves the right to issue a cancellation charge to the Customer at 50% of the estimated total invoice amount; (ii) Specific payment or cancellation terms may apply to certain Deluxe services, as detailed in the Quotation for such services as noted in 1 (b) above.
(h) The Customer is responsible for all other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges.
8. SCREEN CREDITS AND PUBLICITY
The Customer shall procure that whatever practicable appropriate screen credits are given for products and services supplied by Deluxe. Screen credits for other Deluxe services should be agreed with an authorised member of Deluxe’s staff. Deluxe shall have the right to use the Customer’s name for Deluxe publicity and marketing purposes limited in reference to the product or services supplied by Deluxe.
Following the theatrical release of the picture, the Customer hereby grants Deluxe the limited right to exhibit the work, or excerpts thereof, on Deluxe’s websites, in press releases, or in “demo reels” for the limited purpose of demonstrations of Deluxe’s work in accordance with standard industry practice. Prior to the theatrical release of the picture, Deluxe may include the “teaser trailer” of the picture in a demo reel with the prior approval of the Customer (not to be unreasonably withheld or delayed).
9. SUB-CONTRACT
Deluxe may without consent (but without reducing its obligations to the Customer) sub-contract all or any of its rights and obligations to provide products and services.
10. TERMINATION
If the Customer becomes insolvent, is wound up, is subject to the appointment of any administrator or has a receiver appointed in respect of all or any of its assets or is otherwise subject to any insolvency procedure whether under the laws of England and Wales or otherwise, or is in breach of any of these terms of business, or provides materials that are not of the necessary standard to enable Deluxe to perform the services, Deluxe may forthwith on written notice to the Customer terminate any contract without incurring liability to the Customer and without prejudice to Deluxe’s own rights which may have accrued prior to date of termination and in particular the continuation of its rights under clause 7(e) above.
11. WAIVER
Failure by Deluxe to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
12. NOTICE
Any notice of communications to a Customer by Deluxe shall be deemed to have been duly given if sent by prepaid first class post, telephone or email to the party concerned at its last known address and contact details, as the case may be. Notices sent by first class post shall be deemed to have been given seven days after despatch and notices sent by email shall be deemed to have been given on the date of despatch subject to satisfactory delivery supported by a delivery receipt to that effect.
13. COMPLIANCE
(a) The Customer shall comply and take all appropriate measures to ensure its employees, representatives, officers, contractors, subcontractors comply with (i) all applicable laws, statutes, regulations, sanctions and codes from time to time in force; and (ii) and any mandatory Deluxe policies (including Anti-Bribery and Anti-slavery Policy, CSR Policy, Ethics Policy, Data and Privacy Policy, Code of Conduct) as provided from time to time to Customer.
14. GENERAL
(a) No variation or addition to these terms of business shall be effective unless contained in a written instrument signed by a duly authorised officer of Deluxe. For the avoidance of doubt, these terms may not be modified by language contained in any purchase order, invoice or business form. No verbal or other non-written communications by the Customer, its employees, representatives, officers, agents or subcontractors shall vary the terms herein whether purportedly accepted by Deluxe or its employees, representatives, agent or officer.
(b) If any provision of these conditions is declared unenforceable or invalid such provision shall be deemed modified to the minimum extent necessary to render it enforceable and valid. The unenforceability or invalidity of any provision shall not affect any other provision of these conditions and shall continue in full force and effect and be continued and enforced accordingly.
(c) The headings in these conditions are inserted for convenience only and shall not affect their interpretation. The interpretation and application of these terms of business shall be in accordance with the laws of England and Wales and shall be subject to the exclusive jurisdiction of the courts of England.
(d) Any occupation of Deluxe’s premises by the Customer will not confer exclusive occupation on the Customer who shall occupy as licencee only; not create any relationship of landlord and tenant; be personal to the Customer; and (unless otherwise agreed) be subject to the payment of a licence fee as imposed by Deluxe.
(e) These Terms shall not be taken to constitute a partnership or the relationship of employer and employee.
(f) Subject to (g), a person who is not a party to these Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these terms but this does not affect any right or remedy of any third party which exists apart from that Act.
(g) Each group company may enforce these terms to the extent that it has provided services and or materials to the Customer.
CONDITIONS OF CONTRACT (TERMS AND CONDITIONS OF PURCHASE):
1. DEFINITIONS
1.1 In the Contract, unless the context otherwise requires the following words and expressions shall have the following meanings assigned to them.
1.1.2 Deluxe: either of Deluxe UK Holdings Limited; Deluxe 142 Limited; Deluxe Media Europe Limited; or Deluxe Digital Studios Limited.
1.1.3 Deluxe Property: All property issued or made available for use by Deluxe to the Supplier in connection with the Contract.
1.1.4 The Appendix: Any Appendix to these Terms.
1.1.5 The Purchase Order: Deluxe’s official purchase order which is issued subject to these Terms.
1.1.6 The Contract: These Terms including the Purchase Order, any Appendix, any Special Conditions, Specification, Pricing Schedule, Supplier’s tender, acceptance letter and any relevant documents agreeing modifications exchanged before the Contract is awarded, and any subsequent amendments or variations agreed in writing.
1.1.7 The Supplier: The person, firm company or body who undertakes to supply the Goods to Deluxe as defined in the Contract.
1.1.8 Contract Period: The time period stated in the Appendix or otherwise provided in the Contract, for the supply of the Goods.
1.1.9 Contract Price: The price exclusive of VAT set out in the Contract for which the Supplier has agreed to supply the Goods.
1.1.10 Contract Supervisor: The duly authorised representative of Deluxe notified in writing to the Supplier for all purposes connected with the Contract. Any Notice or other written instruction given by or made to the Contract Supervisor shall be taken as given by or made to Deluxe.
1.1.11 Intellectual Property Rights: All Intellectual Property Rights including without limitation, patents, patent applications, design rights, registered designs, utility models, trade and service marks and applications for same, copyright know-how, rights in semi-conductor chip topography, and in each case whether protectable at law or not, and if protectable, whether an application has been made for such protection or not, and all similar industrial, commercial, monopoly or other intellectual property rights whether present or future, vested or contingent wherever protected.
1.1.12 Mandatory Policies: Deluxe business policies and codes including but not limited to: Anti-Bribery and Anti-Slavery Policy, CSR Policy, Ethics Policy, Data and Privacy Policy, Code of Conduct, as amended from time to time.
1.1.13 Notice: Any written instruction or notice given to the Supplier by the Contract Supervisor, delivered by: a) fax, or hand delivery to the Supplier’s registered office or other address notified for the purposes of the Contract and deemed to have been served at the date and time of delivery; b) first class post to the Supplier’s registered office. Such Notices are deemed to have been served 48 hours after posting.
1.1.14 Permission: Express permission given in writing before the act being permitted.
1.1.15 Goods: All Goods detailed in the Specification including any additions or substitutions as may be requested by the Contract Supervisor. Where the Contract is for the provision of Goods and Services, the words “the Goods” shall mean, where the context allows, to include the Services the Contractor has agreed to provide.
1.2 All headings in these Terms are for ease of reference only, and shall not affect the construction of the Contract.
1.3 Any reference in these Terms to a statutory provision will include all subsequent modifications.
1.4 All undefined words and expressions are to be given their normal English meaning within the context of this Contract. Any dispute as to the interpretation of such undefined words and expressions shall be settled by reference to the definition in the Shorter Oxford English Dictionary.
2. PRECEDENCE
To the extent that the following documents form the Contract, in the case of conflict of content, they shall have the following order of precedence: Purchase Order; any Appendix; any Special Conditions; Specification; Pricing Schedule; Drawings, maps or other diagrams; these Terms.
3. CONTRACT SUPERVISOR
The Supplier shall strictly comply with any instruction given by the Contract Supervisor concerning or about, the Contract. All such instructions shall be in writing. The Supplier is not obliged to comply with any verbal instruction from the Contract Supervisor that is not confirmed in writing within 7 working days save where it agrees to do so.
4. THE GOODS
4.1 Save as agreed in writing, the Supplier shall provide all staff, equipment, materials and any other requirements necessary for the performance of the Contract using all skill, care and diligence, and to the satisfaction of the Contract Supervisor.
4.2 The Supplier shall only employ in the execution and superintendence of the Contract persons who are suitable and appropriately skilled and experienced. The Contract Supervisor shall be at liberty to object to and require the Supplier to remove any person employed in or about the Contract who is unsuitable, misconducts himself, is incompetent or negligent in the performance of his duties or persists in conduct which could endanger the health or safety of others. Such persons shall not be employed again on the Contract without the Permission of the Contract Supervisor.
5. ASSIGNMENT
5.1 The Supplier shall not assign, transfer or sub-contract the Contract, or any part of it, without the Permission of the Contract Supervisor. Deluxe shall be free to assign the Contract within the Deluxe group with Supplier’s consent not to be unreasonably withheld
5.2 Any assignment, transfer or sub-contract entered into, shall not relieve the Supplier of any of his obligations or duties under the Contract.
5.3 Nothing in this Contract confers or purports to confer on any third party any benefit or any right to enforce any term of the Contract
6. CONTRACT PERIOD
The Supplier shall supply the Goods within the time stated in the Purchase Order or Appendix, subject to any changes arising from clause 10 (Variations,) and/or clause 11 (Extensions of time.)
7. PROPERTY
7.1 All property issued by Deluxe to the Supplier in connection with the Contract shall remain the property of Deluxe, and shall be used in the execution of the Contract, and for no other purpose whatsoever without the prior approval of the Contract Supervisor.
7.2 The Supplier shall keep all Deluxe Property in safe custody and good condition, set aside and clearly marked as the property of Deluxe.
7.3 On expiry or earlier termination of the Contract the Supplier shall, if so required, either surrender such property to Deluxe or otherwise dispose of it as instructed by the Contract Supervisor.
8. MATERIALS
8.1 The Supplier shall be responsible for establishing his own sources of supply for goods and materials and will be responsible for ensuring the reasonable and proper conduct by his suppliers and staff whilst on Deluxe’s premises.
8.2 The Supplier shall not place, or cause to be placed, any orders with suppliers or otherwise incur liabilities in the name of Deluxe or any representative of Deluxe.
9. SECURITY
9.1 The Supplier shall be responsible for the security of all goods and equipment belonging to Deluxe and used by the Supplier in the provision of the Goods, belonging to the Supplier, or Supplier’s staff, or sub-contractors whilst on Deluxe premises.
9.2 This clause shall not prejudice Deluxe’s rights under clause 15.
10. VARIATIONS
10.1 The Contract Supervisor may vary the Contract by adding to, deleting or otherwise modifying the Goods to be supplied, by amendment to Purchase Order to the Supplier in writing,
10.2 The value of any such variation, other than any variation arising out of clause 10.3, shall be determined by reference to the rates contained in the Pricing Schedule. Where the Goods so ordered are not covered in the Pricing Schedule, they shall be valued at a fair and reasonable rate agreed between the Contract Supervisor and the Supplier.
10.3 Where a variation is the result of some default or breach of the Contract by the Supplier or some other cause for which he is solely responsible, any additional cost attributable to the variation shall be borne by the Supplier.
10.4 The Supplier may also propose a variation to the Goods but no such variation shall take effect unless agreed and confirmed in writing by the Contract Supervisor.
10.5 No variation shall have the effect of invalidating the Contract, if that variation is reasonably consistent with the nature, scope and value of the Contract.
11. EXTENSIONS OF TIME
11.1 Should the performance of the Contract be directly delayed by any cause beyond the reasonable control of the Supplier, and provided that the Supplier shall first have given the Contract Supervisor written notice within five working days after becoming aware that such delay was likely to occur, then the Contract Supervisor, if satisfied that this clause applies:
11.1.1 in the case of any delay of which Deluxe is not the cause, may grant the Supplier such extension of time, as in his opinion is reasonable, having regard without limitation, to any other delays or extensions of time that may have occurred or been granted under the Contract. The Contract Price shall not increase as a result of such an extension of time.
11.1.2 in the case of any delay of which Deluxe is the cause, shall grant the Supplier a reasonable extension of time to take account of the delay.
11.2 No extension of time shall be granted where in the opinion of Deluxe the Supplier has failed to use best endeavours to avoid or reduce the cause and/or effects of the delay.
11.3 Any extension of time granted under this clause shall not affect Deluxe’s rights to terminate or determine the Contract under clauses 13 and 14.
12. DEFAULT
12.1 The Supplier shall be in default if he:
12.1.1 fails to perform the Contract with due skill, care, diligence and timeliness;
12.1.2 refuses or neglects to comply with any reasonable written instruction given by the Contract Supervisor;
12.1.3 is in breach of the Contract.
12.2 Where in the opinion of the Contract Supervisor, the Supplier is in default, the Contract Supervisor may serve a Notice giving at least seven days in which to remedy the default.
12.3 If the Supplier fails to comply with such a Notice the Contract Supervisor may, without prejudice to any other rights or remedies under the Contract, take over for as such a period as is necessary the performance of the relevant part of the Contract and make other arrangements for its completion. Any extra costs arising from this action will be paid by the Supplier or deducted from any monies owing to him.
13. TERMINATION
13.1 Deluxe may immediately, without prejudice to any other rights and remedies under the Contract, terminate all or any part of the Contract by Notice in writing to the Supplier, Receiver, Liquidator or to any other person in whom the Contract may become vested, if the Supplier: a) fails in the opinion of the Contract Supervisor to comply with (or take reasonable steps to comply with) a Notice under clause 12.2, or b) becomes bankrupt or insolvent, or has a receiving order made against him, or makes and arrangement with his creditors or (being a corporation) commences to be wound up, not being a voluntary winding up for the purpose of reconstruction or amalgamation, or has a receiver, administrator, or administrative receiver appointed by a Court.
14. DETERMINATION
14.1 Without prejudice to any other rights or remedies under the Contract, Deluxe reserves the right to determine the Contract at any time by giving not less than one month’s Notice, (or such other time period as may be appropriate).
14.2 Deluxe shall pay the Supplier such amounts as may be necessary to cover his reasonable costs and outstanding and unavoidable commitments necessarily and solely incurred in properly performing the Contract prior to determination.
14.3 Deluxe will not pay for any costs or commitments that the Supplier is able to mitigate and shall only pay those costs that Deluxe has validated to its satisfaction. Deluxe’s total liability under this clause shall not in any circumstances exceed the Contract Price that would have been payable for the Goods if the Contract had not been determined.
15. INDEMNITY
15.1 Without prejudice to Deluxe’s remedies for breach of Contract, the Supplier shall fully indemnify Deluxe and its staff against any liability, loss, costs, expenses, claims or proceedings in respect of:
15.1.1 death or injury to any person;
15.1.2 loss or damage to any property excluding indirect and consequential loss;
15.1.3 infringement of third party Intellectual Property Rights which might arise as a direct consequence of the actions or negligence of the Supplier, his staff or agents in the execution of the Contract.
15.2 This clause shall not apply where the damage, injury or death is a direct result of the actions, or negligence of Deluxe or its staff.
16. LIMIT OF SUPPLIER’S LIABILITY
16.1 The limit of the Supplier’s liability for each and every claim by Deluxe, other than for death or personal injury, whether by way of indemnity or by reason of breach of contract, or statutory duty, or by reason of any tort shall be:
16.1.1 the sum stated in the Appendix;
16.1.2 if no sum is stated, the Contract Price or five million pounds whichever is the greater.
17. INSURANCE
17.1 The Supplier shall insure and maintain insurance against liabilities under clause 15 (Indemnity) in the manner and to the values listed in the Appendix to these terms. If no sum is stated, the value insured shall be £5M (five million pounds.)
17.2 If specifically required by Deluxe, nominated insurances shall be in the joint names of the Supplier and Deluxe.
17.3 The Supplier shall, upon request, produce to the Contract Supervisor documentary evidence that the insurances required are fully paid up and valid for the duration of the Contract.
18. MONITORING AND AUDIT
The Contract Supervisor may inspect and examine the Goods being carried out on the Deluxe’s premises, or elsewhere at any reasonable time. Where the Goods are being supplied on other than Deluxe’s premises, reasonable notice to inspect shall be given to the Supplier. The Supplier shall give all such facilities as the Contract Supervisor may reasonably require for such inspection and examination.
19. CONTRACT PRICE
19.1 The Contract Price will be paid by Deluxe to the Supplier as amended by any Variations ordered under clause 10 (Variations).
19.2 In addition to the Contract Price, Deluxe will pay to the Supplier such Value Added Tax (if any) as may properly be chargeable at rates ruling at the time of invoice.
20. INVOICING AND PAYMENT
20.1 Invoices shall only be submitted for work already satisfactorily completed, and accompanied by such information as the Contract Supervisor may reasonably require to verify the Supplier’s entitlement to payment. Such invoices will be paid in seventy-five (75) days from receipt by Deluxe.
20.2 If any sum is payable under the Contract by the Supplier to Deluxe, whether by deduction from the Contract or otherwise, it will be deducted from the next available invoice.
21. INTELLECTUAL PROPERTY RIGHTS
21.1 The Supplier warrants to Deluxe that the supply of the Goods, shall not in any way infringe any Intellectual Property Rights belonging to any third party and shall fully indemnify Deluxe against all actions, claims, costs, charges, expenses and liabilities of whatsoever nature arising from or incurred by reason of any infringement, or alleged infringement.
21.2 The Supplier shall not be liable under this clause if such infringement arises from the use of any design, technique or method of working provided by or specified by Deluxe.
21.3 If the Supplier is prevented from carrying out his obligations under the Contract due to any infringement or alleged infringement of any Intellectual Property Rights, Deluxe may without prejudice to any other rights and remedies under the Contract, exercise the powers and remedies available to it under clauses 13 and 14, Termination and Determination respectively.
22. WARRANTY
The Supplier warrants that the Goods supplied by him are fit for Deluxe’s intended purpose so far as this has been communicated to him, or which he would reasonably be expected to know.
23. STATUTORY REQUIREMENTS
The Supplier shall fully comply with all relevant statutory requirements in the performance of the Contract, including, but not limited to the giving of all necessary notices and the paying of all fees.
24. ENVIRONMENT
The Supplier shall in all his operations, including purchase of materials goods and services, adopt a sound proactive environmental approach, designed to minimise harm to the environment and be able to provide proof of so doing to the Contract Supervisor on demand.
25. PUBLICITY
The Supplier shall not advertise or publicly announce that he is supplying Goods or undertaking work for Deluxe without the Permission of the Contract Supervisor.
26. LAW
This Contract shall be governed and construed in accordance with English Law, and subject to the jurisdiction of the courts of England and Wales.
27. WAIVER
27.1 No delay, neglect or forbearance by Deluxe in enforcing any provision of the Contract shall be deemed to be a waiver, or in any other way prejudice the rights of Deluxe under the Contract.
27.2 No waiver by Deluxe shall be effective unless made in writing.
27.3 No waiver by Deluxe of a breach of the Contract shall constitute a waiver of any subsequent breach.
28. ENFORCEABILITY
If any part of the Contract is found by a court of competent jurisdiction or other competent authority to be invalid or legally unenforceable, that part will be severed from the remainder of the Contract which will continue to be valid and enforceable to the fullest extent permitted by law.
29. COMPLIANCE
29.1 In performing its obligations under the Contract, the Supplier shall procure that it shall comply with (i) all applicable laws, statutes, regulations, sanctions and codes from time to time in force; and (ii) the Mandatory Policies.
29.2 Breach of clause 29.1 shall constitute a material breach of the Contract.
30. GENERAL
30.1 Neither party to the Contract will be liable to the other for any delay in performing or failing to perform its obligations (other than a payment obligation) under the Contract because of any cause outside its reasonable control. Such delay or failure will not constitute a breach of the Contract and the time for performance of the affected obligation will be extended by a reasonable period.
30.2 The Contract contains the whole agreement between the parties and supersedes all previous communications, representations and arrangements, written or oral. It is accepted that the Contract has not been entered into on the basis of any representations that are not expressly contained in the Contract. Deluxe reserves the right to vary these terms and conditions from time to time. The latest version of the terms and conditions is available on written request and is currently available at www.bydeluxe.com
30.3 Any occupation of Deluxe’s premises by the Supplier will not confer exclusive occupation on the Supplier who shall occupy as licencee only; not create any relationship of landlord and tenant; be personal to the supplier; and (unless otherwise agreed) be subject to the payment of a licence fee as imposed by Deluxe.
30.4 These Terms shall not be taken to constitute a partnership or the relationship of employer and employee.
30.5 Subject to clause 30.6, a person who is not a party to these Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these terms but this does not affect any right or remedy of any third party which exists apart from that Act.
30.6 Each group company may enforce these terms to the extent that it has received services and or materials from the Supplier.