Tomblets®
Terms & Conditions of Sale
1. General
1.1 These Terms and Conditions shall apply to and
govern all Contracts (as defined) between Collins
Clayton & Co trading as Tomblets, Oatfield House,
Campbeltown, Argyll PA28 6PH ("TL") and any
person, firm, corporation or other body of persons
acquiring Products from TL ("the Customer"). These
Terms and Conditions take precedence over and
exclude any terms and conditions the Customer
may attempt to introduce.
1.2 In these Terms and Conditions:-
Confidential Materials means all and any
confidential information which is disclosed to the
Customer by TL in connection with the Contracts
or shall otherwise come into the hands of the
Customer in relation to TL’s Business, the Products
or the Process other than information which is
already in the public domain;
Contract means any contract between TL and the
Customer for the manufacture and /or sale of the
Products;
Input Material means any and all photographs,
images, design or text supplied by the Customer to
TL for the purpose of creating the Stencil;
IPR means any and all intellectual or industrial
property rights of any description in any country
(whether registered or registerable or not) including
but not limited to patents, registered designs,
unregistered design rights, copyright, database
right, trade marks (whether registered or
unregistered) and inventions in any form of media
whatsoever carried out and/or used by TL in relation
to the Stencil;
Franchise Agreement means any agreement
entered into between the Franchisee and TL;
Franchisee means the other party to a Franchise
Agreement entered into with TL;
Order means the Customer’s purchase order for
the Products;
Output Material means all reports, documents or
other materials and/or data or other information
relating to the Products;
Price means TL’s list of prices as established from
time to time as modified by the Franchise Agreement
and exclusive of all charges for packing, packaging,
shipping, carriage, insurance and delivery of the
Products to the Customer (if applicable) and any
imports, duties or levies including Value Added Tax
if applicable unless specifically agreed otherwise
by TL in writing;
Process means TL’s commercially confidential
process of preparing and manufacturing the Stencils;
Products means any product or training sold by
TL to the Customer including (but not limited to)
engraved products, glue, mask-making equipment
and materials, raw film, Stencils and training in the
use of these items;
Specification means any specification agreed by
the parties for the creation of the Stencil and includes
but is not limited to any descriptions, drawings,
illustrations and other descriptive information relating
to the Stencil;
Stencil means each individual shot-blast engraving
Stencil manufactured by TL using the Process and
made at the request of the Customer in accordance
with the Specification;
Trade Marks means the trade marks owned by TL.
2. Applicability of Conditions
2.1 These Conditions shall, subject to clause 2.4,
be deemed to be incorporated in and shall govern
all Contracts between TL and the Customer.
2.2 No waiver, alteration or modification of or addition
to any of the provisions of these Terms and
Conditions shall have any effect or be binding upon
TL unless the same shall be in writing and signed
by a partner or director of TL.
2.3 The statutory rights of the Customer are not
affected by these Conditions.
2.4 In the event that the Customer is a Franchisee
of TL then the terms of the Franchise Agreement
shall prevail over any conflicting term herein.
3. Acceptance of Order
3.1 Orders for Products are submitted only upon
and subject to these Terms and Conditions.
3.2 All Orders must be submitted to TL in writing
unless otherwise agreed by TL and the Customer
shall be responsible for ensuring the accuracy of
each Order.
3.3 No Order shall be binding upon TL unless
expressly accepted in writing by an officer of TL or
by an employee of TL with actual authority to accept
such Order.
3.4 The Customer may not, unless TL has given its
prior written agreement, withdraw, cancel, defer or
amend any Order placed or any Contract. Where
such consent is given it is an express condition
thereof that TL shall be reimbursed for all materials,
labour costs and liabilities incurred by it for the
purposes of that contract prior to cancellation
together with a reasonable addition thereto in respect
for loss of profit.
4. Prices
4.1 The Price quoted by TL is exclusive of VAT and
the Price of the Product shall be calculated at the
date of acceptance of the Order.
4.2 Prices quoted by TL for Products are subject to
variation and may be increased on 14 days notice
prior to delivery for any reason.
5. Delivery and/or Provision
5.1 TL will make reasonable efforts to deliver the
Products on the date agreed with the Customer.
Any date suggested by TL for delivery of Products
is given as a guide only and time of delivery is not
of the essence. TL will make reasonable endeavours
to advise the Customer of any delays in delivery.
5.2 Delivery of the Products shall take place when
TL posts or otherwise sends the Products to the
delivery address stated by the Customer in the
Order. Should TL arrange for an alternative mode
of delivery of the Products it shall do so as the
Customer’s agent and the Customer shall indemnify
TL on demand in respect of all costs and expenses
incurred thereby.
6. Shortages, Damage and/or Loss in Transit
6.1 The Customer must:-
6.1.1 examine any Products delivered
upon receipt;
6.1.2 notify TL in writing within 7 days
of delivery of any shortage of, damage to or defect
in the Product;
6.1.3 notify TL in writing of any latent
defect in the Product within 7 days of the defect
becoming apparent; and
6.1.4 afford TL and/or its agents
reasonable opportunity to verify and/or inspect any
damaged Products as delivered.
6.2 if the Customer complies with all of sub-clauses
6.1.1 to 6.1.4 above inclusive, the Customer’s sole
remedy in the event of any non-delivery, shortfall
or shortage shall in TL’s sole discretion be
replacement by TL of the relevant Products.
6.3 if the Customer fails to comply with all or any
of sub-clauses 6.1.1 to 6.1.4 above inclusive, TL
shall not be liable for any such non-delivery, damage,
defect, shortfall or shortage and the Customer may
not reject such Products.
7. Risk
7.1 Risk in the Products will pass to the Customer
on delivery.
7.2 The Customer shall insure the Products from
the period from which risk in the Products passes
until the passing of title in the Products to the
Customer as detailed in clause 8 below for the full
replacement value and the Customer shall, until
sums due have been paid in full or in cleared funds,
hold the insurance policy and any proceeds
thereunder in trust for TL to the extent of the unpaid
sums.
8. Property
8.1 The property in any Products supplied by TL
shall not pass to the Customer until such time as
TL is in actual receipt of the full amount due in
respect thereof in cash or in cleared funds.
8.2 Until such payment, the Customer will have
possession of the Products as trustee for TL and
will ensure that the Products are properly stored,
protected and insured and remain clearly identifiable
as the property of TL and in the Customer’s
possession or control.
8.3 TL reserves the right to repossess any Products
in respect of which payment is overdue and
thereafter to resell same and for this purpose, the
Customer shall immediately make the Products
available for collection and grant to TL and its agents
the right to enter upon the Customer’s premises
during normal business hours.
8.4 If the amount received by TL on the sale of any
repossessed Products shall be less than the amount
due by the Customer, either in respect thereof or
any other grounds whatsoever, such repossession
shall not extinguish the Customer’s liability of either
for any deficiency in the amount received by TL on
such sale, or for damages in respect of any loss
occasioned by TL as a result of its exercising its
right hereunder.
8.5 The Customer shall not be entitled to pledge or
in any way charge by way of security for any
indebtedness any of the Products which remain the
property of TL, but if the Customer does so all
moneys owing by the Customer to TL shall (without
prejudice to any other right or remedy of the Seller)
forthwith become due and payable.
8.6 The Customer shall indemnify TL on demand,
in addition to any other amount for which the
Customer may be liable, for all costs, charges,
expenses (including but not limited to legal costs)
on a full indemnity basis occasioned by such
exercise by TL of its said right to repossess.
8.7 If the Customer is situated outwith Scotland,
the proceeds of any sale by the Customer to a third
party shall be held by the Customer in trust for TL
and TL shall be entitled to trace such proceeds in
the hands of the Customer or any Trustee, Receiver
or Liquidator of the Customer.
9. Payment
9.1 Unless otherwise agreed in writing, payment
shall be made to TL by the Customer in full and in
advance. Time shall be of the essence for such
payment whether on these terms or on other terms
agreed in writing by TL.
9.2 In the case of a Customer resident outside the
United Kingdom, payment will if so required by TL,
be made by confirmed irrevocable letter of credit
issued by a bank acceptable to TL and lodged at a
bank nominated by TL not later than the date on
which the Contract is entered into. TL shall be
entitled to payment under any such letter of credit
on presentation to the bank of such letter of credit.
9.3 In the case of a credit account being agreed,
the Customer contracts to pay in Sterling all charges
for supplies and services, together with any VAT or
other taxes or duties thereon, no later than the
fifteenth day of the month following the month of
invoice.
9.4 Without prejudice to TL’s whole other rights and
remedies, if any payment should become more than
28 days overdue, all further supplies will be
automatically suspended until it has been received
and TL shall be entitled to charge the Customer
interest on any late payments at the greater of the
rate of 2% compound interest per calender month
or part thereof from the date of invoice and the
amount prescribed by The Late Payment of
Commercial Debts (Interest) Act 1998 on the whole
amount of any late payment until payment in full,
whether before or after judgement.
10. Intellectual Property
10.1 The Customer must at the Customer’s own
expense, retain duplicate copies of all Input Materials
and insure against its accident or loss or damage.
TL does not accept liability for any such loss or
damage, however caused.
10.2 The property and IPR in any Input Material
shall belong to the Customer. The IPR in any Stencil
shall, unless otherwise agreed in writing between
the Customer and TL, belong to TL.
10.3 The Customer warrants that all Input Material
will not infringe the IPR of any third party and the
Customer shall indemnify TL on demand in respect
of all losses, damages, costs, expenses and claims
suffered by TL as a result of such infringement. The
Customer confirms that all necessary permissions
for the use of the Input Material by TL have been
obtained.
10.4 Subject to clause 10.3 above, so far as TL is
aware but after carrying out no enquiries, TL warrants
to the Customer that any Stencil and its use by the
Customer will not infringe the IPR of any third party.
This warranty is granted in lieu of all other warranties
which are excluded to the fullest extent permitted
by law.
10.5 The Customer shall not infringe any IPR owned
by or licensed to TL.
11.Confidentiality
11.1 The Customer shall not disclose and shall
procure that its officers, employees, agents and
consultants whomsoever do not disclose any
Confidential Materials and/or IPR therein to any
third party except where they have obtained the
consent of TL or where it is or becomes public
knowledge through no fault of the Customer.
11.2 The Customer will indemnify TL on demand
(on a full indemnity basis) against all losses,
damages, claims, costs and expenses (including,
without limitation, legal expenses) incurred by TL
arising directly or indirectly from any breach by the
Customer of the foregoing obligations of this clause
11.3 These obligations will commence upon the date
of TL’s first contact with the Customer and shall
subsist in perpetuity.
12. Liabilities
12.1 TL shall use reasonable endeavours to ensure
that the Stencils comply with the relevant
Specification in all material respects at the time of
delivery but shall not be responsible for errors,
omissions or other defects in any Product arising
from the use of the Input Material or any infringement
or alleged infringement of any rights of any third
party arising as a result thereof or TL’s use thereof.
All other guarantees, warranties and assurances,
whether express or implied are hereby excluded to
the fullest extent permitted by law.
12.2 Unless the Customer notifies TL in writing
within 7 days of delivery of the Products that there
is a shortage of, damage to or defect in the Products,
the Customer will be deemed to have accepted the
Products.
12.3 TL’s aggregate liability in respect of any
occurrence or series of occurrences to the Customer
whether for negligence, breach of contract,
misrepresentation or otherwise shall in no
circumstances exceed the price of the Stencils
supplied in pursuance of the Order from which such
liability arises. The Customer may by written notice
to TL request TL to agree a higher limit of liability
provided insurance cover can be obtained therefor.
The premiums in respect of insurance up to such
higher limit will be for the account of the Customer.
12.4 TL shall not be liable for any indirect or
consequential loss, claims, damages or liabilities
or loss of profit even if advised of the possibility of
same.
13. Promotional Materials
Any promotional material given to the Customer on
a free of charge basis remain the property of TL
and shall be returned to TL by the Customer at the
Customer’s expense on demand.
14. Health and Safety
The Customer shall use its best endeavours to
ensure that any Products supplied by TL and
subsequently supplied onwards by the Customer
shall be accompanied with the relevant information,
instructions or advice which TL may make available
with or in connection with the Products.
15. Force Majeure
15.1 None of the parties to any Contract shall be
responsible to any other party for any delay in
delivery of the Products or fulfilling the Contract due
to Force Majeure, but the one affected party shall
promptly, upon the occurrence of any such causes,
inform the other parties in writing stating that such
cause has delayed or prevented its performance
hereunder and thereafter such party shall take all
action within its power to comply with the terms of
the Contract as fully and promptly as possible.
15.2 If such circumstances continue for a continuous
period in excess of 90 days, the parties shall be
entitled but not obliged to terminate the Contract
upon prior written notice.
16. Cancellation
16.1 No Contract may be cancelled without the prior
consent in writing of TL. Where consent to
cancellation is given it is an express condition thereof
that TL shall be reimbursed forthwith on demand
for all materials and labour costs and liabilities
incurred by it for the purposes of such Contract
prior to such cancellation together with a reasonable
addition thereto in respect of loss or profit.
16.2 In the event of cancellation of a Contract, in
addition to the reimbursement by the Customer of
all costs incurred by TL in respect of such Contract
prior to such cancellation, TL shall be entitled to
charge a cancellation fee of 25% of the value of the
Contract.
17. Customer’s Indemnity
The Customer shall indemnify TL on demand against
all costs, claims, damages and expenses arising
directly or indirectly out of the Customer’s breach
of any provision of these Terms and Conditions.
18. Termination
Without prejudice to any other rights which TL may
have, TL reserves the right to suspend further
deliveries of Products by notice in writing to the
Customer terminating the Contract if:
(a) the Customer breaches any of these Conditions
and in the case of such a breach which is capable
of remedy, fails to remedy the same within 30 days
after receipt of a written notice giving full particulars
of the breach and requiring it to be remedied.
(b) the Customer shall commit any act of bankruptcy
or shall suffer any execution or distress to be levied
on his Products or (being a company) shall enter
into liquidation (whether compulsory or voluntary,
save for the purposes of and followed by
reconstruction or amalgamation) or shall have a
receiver or administrator appointed, or enters into
a trust deed for the benefit of its creditors, becomes
insolvent or compounds with its creditors or ceases
to trade or takes or suffers an analogous action or
proceedings under the law of any other jurisdiction.
19. Notices
19.1 Any notice required to be given by either TL
or the Customer to the other shall be deemed validly
served as served by:
(i) Prepaid registered letter posted to the address
for the recipient given herein or such other address
as may from time to time be notified in writing for
this purpose; or
(ii) Personal delivery by hand; or
(iii) (if appropriate) by facsimile machine during
normal business hours.
19.2 Any notice served in terms of clause 17.1
above shall be deemed to have been served:-
(a) in the case of (i) above, 48 hours after posting
same; and
(b) in the case of (ii) above upon delivery; and
(c) in the case of (iii) above when sent.
20. contact details
Any communication with TL should be directed
to
Tomblets
Oatfield House
Campbeltown
Argyll PA28 6PH
United Kingdom
Tel No: +44 (0)1586 551818
Fax No: +44 (0)1586 551855
E-mail:
21. General
21.1 The Customer shall not assign, subcontract
or otherwise transfer any of its rights or obligations
under the Contract.
21.2 Nothing in these Conditions shall limit or restrict
the ability of TL to subcontract all or any of its
obligations under the Contract.
21.3 TL may at any time assign all or any of its
rights and obligations under the Contract or these
Terms and Conditions to any third party at its sole
discretion.
21.4 No waiver by TL of any breach of these Terms
and Conditions by the Customer shall be considered
as a waiver of any subsequent breach of the same
or any other provision.
21.5 If any provision of these Conditions are said
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.
22. Governing Law
All contracts governed by these conditions shall be
subject to and interpreted in accordance with Scots
law and the parties hereby submit to the exclusive
jurisdiction of the Scottish Courts, without prejudice
to the rights of TL to seek recovery of any sum due
by the Customer before any court of competent
jurisdiction.
|