1. Interpretation
1.1 In these
Conditions:
“Conditions” means the standard terms and
conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer
and Magenta signs;
“Contract” means the contract between the
Customer and Magenta
signs for the supply of Goods and/or
Services in accordance with these Conditions;
“Customer” means the person whose order for
Goods and/or Services is accepted by Magenta signs;
“Goods” means the goods
which Magenta
signs sells to the Customer under
these Conditions;
“Order Confirmation” means the
acknowledgement of the Quotation provided by Magenta
signs to the Customer whether written
or oral;
“Quotation” means the quotation for the
Goods and Services provided to the Customer by Magenta
signs whether written
or oral;
“Services” means any services provided to
the Customer (including all of them or any part of them) under a Contract; and
“Magenta
signs” means
the Magenta
signs business selling the Goods and/or
Services, details of which are given in the Quotation and/or whose details have been provided to the Customer either in writing or orally.
1.2 Any reference in these Conditions
to any provision of a statute shall be construed as a reference to that provision as amended re-enacted or extended at the relevant
time.
1.3 The headings in these Conditions are
for convenience only and shall not affect their interpretation.
2. Making the Contract
2.1 Each Quotation will be deemed to be an
offer by the Customer to buy the Goods and/or Services in accordance with these Conditions. The Contract is made when the Quotation is accepted by Magenta
signs by the issue to the Customer of an
Order Confirmation. The Contract will not be made until an Order Confirmation has been issued by Magenta
signs or Magenta
signs commences provision of the Goods
and/or Services.
2.2 The Contract is subject to these
Conditions which shall govern the Contract to the exclusion of any other terms and conditions and all previous oral or written representations made by Magenta
signs, but subject to the provisions of
Condition 2.3.
2.3 No variation to these Conditions shall
be binding unless agreed in writing between the authorised representatives of the Customer
and Magenta
signs.
2.4 The Customer must ensure that the terms
of the Quotation and any applicable specification are complete and accurate. If the Customer wishes to amend any aspect of the information the Customer has given it must
contact Magenta
signs immediately.
Although Magenta
signs will use
reasonable endeavours to implement any such amendment which
the Customer requests, Magenta
signs cannot guarantee that it will be able
to do so after the Order Confirmation has been issued. If such amendment changes any other aspect of the Quotation (for example the price) and Magenta
signs is able and willing to amend it,
then Magenta
signs will send the Customer a new Order
Confirmation.
2.5 All Quotations are, unless agreed
otherwise in writing, valid for 30 days only or until earlier acceptance by the Customer after which time they may be altered by Magenta
signs without giving notice to the
Customer.
2.6 Any advice or recommendation given
by Magenta
signs or its employees or agents to the
Customer or its employees or agents as to the storage, application, suitability or fitness for purpose for use of the Goods which is not confirmed in writing
by Magenta
signs is followed or acted upon entirely at
the Customer’s own risk, and accordingly Magenta
signs shall not be liable for any such
advice or recommendations which is not so confirmed.
3. Provision of the Goods and Services
3.1 The quantity, quality and description
of and any specification for the Goods and Services shall be those set out in the Quotation. It is the obligation of the Customer to check the structure to which the Goods are to be affixed,
and to prepare surfaces to which the Goods may be applied, so that in each case they are suitable for such affixing and application. The Customer acknowledges that following installation it
is responsible for the inspection, maintenance and repair of Goods supplied under the Contract.
3.2 If the Goods are manufactured or any
process is applied to the Goods by Magenta
signs in accordance with a specification
submitted by the Customer whether in writing or otherwise the Customer shall indemnify Magenta
signs against all loss damages costs and
expenses awarded against or incurred by Magenta
signs in connection with or paid or agreed
to be paid by Magenta
signs in settlement of any claim for
infringement of any patent, copyright, design, trademark (whether registered or not), or other industrial or intellectual property rights of any third party which results
from Magenta
signs’ use of any or all of the Customer’s
specification.
3.3 Magenta
signs reserves the right to make any changes in the
specification of the Goods and/or Services which are required to confirm with any applicable legal or regulatory requirements (including but not limited to safety requirements) or which do
not materially affect their quality or performance.
3.4 No order which has been accepted
by Magenta
signs may be cancelled by the Customer
except with the agreement in writing of Magenta
signs and on terms that the Customer shall
indemnify Magenta
signs in full against all loss (including
loss of profit) costs (including the cost of all labour and materials used) damage charges
and expenses incurred by Magenta
signs as a result of
cancellation.
3.5 Where a Quotation is based upon
information supplied by the Customer, the Customer is responsible for its accuracy and any increased costs of supply resulting in any inaccuracy are the Customer’s
responsibility.
3.6 All samples, drawings, descriptions,
specifications, illustrations and advertising issued by Magenta
signs or contained in any
of Magenta
signs’ catalogues or brochures or on any website
connected with Magenta
signs (together “Samples”) are issued or
published for the sole purpose of giving an approximate idea of the Goods represented by or described in them. Samples do not form part of the Contract and the Contract is not a sale by
sample.
3.7 At the request of the Customer and at
its cost, and at the sole discretion of Magenta
signs, Magenta
signs may remove materials (including but
not limited to old signage) from the premises of the Customer.
3.8 Magenta
signs requires the Customer, prior to the provision
of the Goods and/or Services, to obtain any necessary consents and approval to:
3.8.1 the installation and/or application
of the Goods, including but not limited to any planning and/or landlord consents; and
3.8.2 the use of any
logo, trade
mark or design required for the Goods
(included but not limited to the right to use the copyright and any other intellectual property rights in such logo, trade
marks and
design).
3.9 All intellectual property rights
(including but not limited to copyright) arising from the creation of Goods by Magenta
signs shall remain the property
of Magenta
signs and the Customer shall not copy or
reproduce the Goods without the prior written consent of Magenta
signs.
4. Price of the Goods
4.1 The price of the Goods and Services
shall be the price set out in the Order Confirmation or (where the price is not referred to in the Order Confirmation) as set out in the Quotation, or (where no price has been quoted or a
quoted price is no longer valid) the price calculated by Magenta
signs from its normal price list from time
to time.
4.2 Magenta
signs reserves the right to increase the price of
the Goods and/or Services to cover:
4.2.1 any increase in the cost
to Magenta
signs which is due to any factor beyond the
control of Magenta
signs (such as without limitation any
foreign exchange fluctuation currency regulation, alteration of duties, significant increases in the costs of labour, materials, or other costs of
manufacture);
4.2.2 any change in delivery dates
quantities or specification of the Goods and Services which are requested by the Customer;
4.2.3 any delay caused by any instruction
of the Customer or failure of the Customer to give Magenta
signs adequate information
or instructions;
4.2.4 the costs of additional work carried
out by Magenta
signs to be able to perform the Services
(including but not limited to the preparation of surfaces to which Goods are to be applied and the disposal of materials at the request of the Customer); or
4.2.5 to comply with any requirements
referred to in Conditions 2.4, 3.5 and 3.7.
4.3 Except as otherwise expressly set out
in the Contract all prices are given by Magenta
signs exclusive
of:
4.3.1 packaging and delivery of the Goods
to the Customer’s premises; and
4.3.2 any applicable value added tax or
other applicable sales tax or duty and such sums shall be added
to the price.
5. Terms of Payment
5.1 Subject to any special terms agreed in
writing between the Customer and Magenta
signs Magenta
signs shall be entitled to invoice the
Customer for the price of the Goods and the Services on or at any time after delivery of the Goods and/or performance of the Services unless the Goods are to be collected by the Customer or
the Customer fails to take delivery of the Goods and/or accept performance of the Services after Magenta
signs has notified the Customer that the
Goods are ready for collection and/or the Services are to be provided in which event Magenta
signs shall be entitled to invoice the
Customer for the price at any time after such notification or(as the case may be) Magenta
signs has tendered delivery of the Goods
and the Customer has failed to take delivery.
5.2 Subject to Condition 5.3 below the
Customer shall pay the price of the Goods and/or the Services within no more than 30 days of the date of delivery of the Goods and/or performance of the Services notwithstanding that delivery
may not have taken place and the property in
the Goods has not passed to the Customer.
The time of payment of the price shall be the essence of the Contract. Receipts for payment will only be issued on request by the Customer.
5.3 If the Customer fails to make any
payment on the due date then without prejudice to any other right or remedy available to Magenta
signs Magenta
signs shall be entitled
to:
5.3.1 cancel the Contract or suspend
further deliveries of Goods and/or provision of Services to the Customer;
5.3.2 appropriate any payment made by the
Customer to such of the Goods (or the Goods supplied under any Contract between the Customer and Magenta
signs)
as Magenta
signs think fit (not withstanding any
purported appropriation by the Customer); and
5.3.3 charge the Customer interest (both
before and after any judgement) on the amount unpaid at the rate of four per cent per annum above Barclays Bank plc base rate from time to time until payment in full is made (a part of a
month being treated as a full month for the purpose of calculating interest).
6. Delivery
6.1 Delivery of the Goods shall be made by
the Customer collecting the Goods at Magenta
signs’ premises at any time
after Magenta
signs has notified the Customer that the
Goods are ready for collection or if some other place for delivery is agreed by Magenta
signs by Magenta
signs delivering the Goods to that place
subject to Condition 4.3. Provision of the Services shall be made at the location notified by the Customer at any time after Magenta
signs has notified the Customer that the
Services are ready to be provided.
6.2 Any dates quoted for delivery of the
Goods and/or provision of the Services are approximate only and Magenta
signs shall not be liable for any delay in
delivery of the Goods and/or provision of the Services howsoever caused. Time for delivery and/or provisions shall not be of the essence unless previously agreed in writing
by Magenta
signs. The Goods may be delivered and/or the
Services provided to the Customer in advance of the quoted date upon giving reasonable notice to the Customer.
6.3 If the Customer fails to take delivery
of the Goods or accept provision of the Services or fails to give Magenta
signs adequate delivery instructions at the
time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of Magenta
signs’ fault) than without prejudice to any
other right or remedy available to Magenta
signs Magenta
signs may:
6.3.1 store the Goods until actual delivery
and charge the Customer for the reasonable costs (including insurance) of storage; or
6.3.2 sell the Goods at the best price
readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any
shortfall below the price under the Contract.
6.4 Magenta
signs may deliver the Goods by separate
instalments and perform any Services in stages. Each separate instalment or stage will be invoiced and paid for in accordance with the provisions of the Contract.
6.5 Each instalment or stage will be a
separate Contract and, unless specifically set out in these Conditions, no cancellation or termination of any one Contract relating to an instalment or stage will entitle the Customer to
repudiate or cancel any other Contract or instalment or stage.
7. Risk and Property
7.1 Risk of damage to or loss of the Goods
shall pass to the Customer:
7.1.1 in the case of Goods to be delivered
at Magenta
signs’ premises at the time
when Magenta
signs notifies the Customer that the Goods
are available for collection; or
7.1.2 in the case of the Goods to be
delivered otherwise than at Magenta
signs’ premises at the time of delivery to such
premises or, if the Customer fails to take delivery of the Goods, from the time when Magenta
signs has tendered delivery of the
Goods.
7.2 Notwithstanding delivery and the
passing of risk in the Goods or any other provision of these
Conditions ownership of the Goods shall not
pass to the Customer until Magenta
signs has received in cash or cleared funds
payment in full of the price of the Goods and all other Goods and Services for which payment is due from Magenta
signs.
7.3 Until such time as ownership of the
Goods passes to the Customer the Customer shall hold the Goods as Magenta
signs’ fiduciary agent and bailee and shall keep
the Goods separate from those of the Customer and third parties and properly stored protected and insured and identified as Magenta
signs’ property.
7.4 The Customer shall be entitled to
resell or use the Goods in the ordinary course of its business but shall account to Magenta
signs for the proceeds of sale or otherwise
of the Goods whether tangible or intangible including insurance proceeds and shall keep all such proceeds separate from any monies or property of the Customer and third parties and in the
case of tangible proceeds properly stored protected and insured.
7.5 Until such time as ownership in the
Goods passes to the Customer (and provided the Goods are still in existence and have not been resold) Magenta
signs shall be entitled at any time to
require the Customer to deliver up the Goods to Magenta
signs and if the Customer fails to do so
forthwith to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
7.6 The Customer shall not be entitled to
pledge or in any way charge by way of security for any
indebtedness any of the Goods which remain
the property of Magenta
signs but if the Customer does so all
monies owing by the Customer to Magenta
signs shall (without prejudice to any other
right or remedy of Magenta
signs) forthwith become due and
payable.
8. WARRANTIES, LIABILITIES AND INDEMNITY
8.1 Magenta
signs will within a period of 12 months
from the date of delivery of Goods and from the date of provision of Services, in respect of Goods and/or Services which are proved to the reasonable satisfaction of both parties to be
damaged or defective, or not to comply with the agreed specification due to defects in material, workmanship or design (other than a design made, furnished or specified by the Customer),
repair, or at its option replace, such Goods, and/or re-perform or at its option refund the price of such Services. This obligation will not apply where:
8.1.1 the Customer has improperly used the
Goods in any way whatsoever, or the Goods have been subjected to misuse, unauthorised repair, damage, negligence, adverse
weather conditions and/or alteration;
8.1.2 the Customer has not complied with
any instructions relating to preparation of the surfaces and areas to which the Goods are applied, and/or such surfaces or areas have been subjected to previous workmanship by third parties
and/or contain latent defects;
8.1.3
damage, discolouration or failure to painted surfaces has
occurred through no fault of Magenta signs;
8.1.4 Magenta
signs carries out work which is not provided for in
the Order Confirmation, and is beyond the scope of the Services;
8.1.5 the Customer has not complied with
any instructions as to use and care of the Goods in all respects; or
8.1.6 the Customer has failed to
notify Magenta
signs of any problem or suspected problem
within 2 days of the provision of the Services and/or supply of the Goods.
8.2 Any repaired or replacement Goods or
re-performed Services will be liable to repair or replacement (or re-provision or, at Magenta
signs’ option, refund) under the terms specified
in Condition 8.1 for the unexpired portion of the 12 month period from the original date of
delivery of the replaced Goods or from the original date of provision of the re-performed Services.
8.3 The above warranty does not extend to
parts materials or equipment not manufactured by Magenta
signs in respect of which the Customer
shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Magenta
signs.
8.4 Magenta
signs accepts liability for personal injury or
death caused by the negligence of Magenta
signs or its employees (acting within the
course of their employment or duties and the scope of their authority) and for any other matter for which it would be illegal to exclude or attempt to limit or exclude its
liability.
8.5 Except as provided in Condition
8.4, Magenta
signs will be under no liability to the
Customer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any damage or for any direct, indirect or consequential loss
(all three of which terms include, but are not limited to, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in
connection with:
8.5.1 any breach
by Magenta
signs of any of the express or implied
terms of the Contract;
8.5.2 any of the Goods and/or Services
(including but not limited to any use made by the Customer of any Goods, or of any product incorporating any of the Goods), or the manufacture or sale or supply, or failure or delay in
supply, of the Goods and/or Services by Magenta
signs or on the part
of Magenta
signs’ employees, agents or sub-contractors;
or
8.5.3 any non-fraudulent statement made or
not made, or advice given or not given, by or on behalf of Magenta
signs.
8.6 Except as set out in Condition
8.4, Magenta
signs hereby excludes to the fullest extent
permissible in law, all express (other than those set out in the Contract) or implied, statutory, customary clauses, warranties and stipulations or otherwise which, but for such exclusion,
would or might subsist in favour of the Customer, including (but not
limited to) the terms implied by sections 13 to 15 of the Sales of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act
1982.
8.7 The Customer acknowledges that the
above provisions of this Condition 8 are reasonable and
reflected in the price which may be higher
without those provisions, and the Customer will accept
such risk and/or insure
accordingly.
8.8 Magenta
signs shall not be liable to the Customer
or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of Magenta
signs’ obligations in relation to the Goods
and/or Services if the delay or failure was due to any cause beyond Magenta
signs’ reasonable control. Without prejudice to
the generality of the foregoing, causes beyond Magenta
signs’ reasonable control shall include (but not
be limited to) the following:
8.8.1 act of God, storm, explosion, flood,
tempest, fire or accident;
8.8.2 war (or threat of war), riot, civil
commotion or malicious damage;
8.8.3 compliance with any law or
governmental order, rule, regulation or direction;
8.8.4 import or export regulations
or embargoes;
8.8.5 strike, lock-out or other industrial
actions or trade dispute (whether involving employees or Magenta
signs or a third
party);
8.8.6 failure of a utility service or
transport network;
8.8.7 difficulties in obtaining raw
materials labour fuel parts
or machinery;
8.8.7 power failure or breakdown of plant
or machinery; and
8.8.8 default of suppliers or
sub-contractors.
8.9 The Customer agrees to indemnify, keep
indemnified and hold harmless Magenta
signs from and against all direct, indirect
or consequential loss (all three of which terms include, but are not limited to, loss of profits, loss of business, depletion of goodwill and like loss), costs, expenses, liabilities,
injuries, damages, claims, demands, proceedings or legal costs and judgements which Magenta
signs incurs or suffers as a consequence of
direct or indirect breach or negligent performance or failure in performance by the Customer of any of the terms of the Contract, including in particular (but not limited to) the Customer’s
ongoing obligations under Condition 3.1.
9. Data Protection
By placing a Quotation, the Customer
allows Magenta
signs to use the Customer’s personal
details for the purposes of supplying the Goods and performing the Services (including passing the Customer’s details on to subcontractors) and for the marketing to it
by Magenta
signs. Magenta
signs may share the Customer’s information
with Magenta
signs Limited and/or other franchisees in
the Magenta
signs network,
but will not use the Customer’s details
for other purposes without seeking the Customer’s consent.
10. General
10.1 Any notice required or permitted to be
given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address may be
at the relevant time have been notified pursuant to this provision giving the notice.
10.2 Magenta
signs may transfer, assign, hold on
trust, licence or sub-contract all or any part of
its rights or obligations under any Contract.
10.3 Each and every Contract is personal to
the Customer and the Customer may not transfer all or any of its rights or obligations under any Contract without the prior written consent of Magenta
signs.
10.4 Neither party intends that any of the
terms of any Agreement will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it, save that Magenta
signs Limited shall be entitled to enforce
any provision of the Contract.
10.5 No waiver
by Magenta
signs of any breach of the Contract by the
Customer shall be considered as a waiver of any subsequent breach of the same or any provisions.
10.6 If any provision of these Conditions
is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question
shall not be affected thereby.
10.7 Any dispute arising under or in
connection with these Conditions and any Contract shall be governed by and construed in all respects in accordance with English law and the parties hereby submit to the exclusive jurisdiction
of the English courts.