The tandard terms and conditions of sale will form the Contract between the Customer and the Company.
1 Definitions
‘Contract’ - means the agreement(s) between the Company and the
Customer for the purchase of the Goods, incorporating these terms and conditions
and any special conditions detailed in the estimate or on the Website
‘Company’ - Tomato Source Ltd, shall mean the ‘Company’
and its permitted assignees
‘Customer’ - The ‘Customer’ shall mean the person, firm
or company to whom any quotation is given or from whom an order for the Goods
to be produced is received. The Customer may not assign, sub-contract or in
any way transfer or dispose any of its rights or obligations under the Contract
without the prior written consent of the Company.
‘Goods’ - means the merchandise/services to be supplied or procured
by the Company and purchased by the Cusomter on the Terms of the Contract, as
detailed in the estimate, order or on the Website
‘Website’ - means any Website operated by the Company for the sale
of the Company’s Goods
‘Artwork’ - means any design, logo, drawing, specification, printed
matter, instructions, copy, materials or information provided by the Customer
in relation to the orderd Goods
A Customer’s own Conditions of Purchase will not in part or full replace
or supercede any of the following Conditions of Sale unless otherwise agreed
to in writing by both parties.
2 Prices/Estimates
All prices/estimates shall only constitute an invitation to treat. All orders
are subject to acceptance by the Company, the Customer’s acceptance of
delivery of said acknowledgement of orders shall be deemed to include acceptance
of these standard terms and condition of sale stated herein. All prices given
are estimated based on the brief, specification and/or full ‘fit for purpose’
description and details given at the time and are subject to final brief, specification
and/or full ‘fit for purpose’ description and details and sight
of artwork. All prices/estimates are valid for a period of 28 days from the
date of issue, unless otherwise stipulated on the estimate. Where sub contracted
services are commissioned our estimates are subject to trade increases in labour
and materials and therefore the price finally charged for the Goods will be
that applicable as at the date of manufacture or supply. All prices on the Website
shall be as per the Company’s price list current at the date of this despatch.
The price of the Goods is based on the current cost at the date of estimate
and is subject to increase to the extent of any subsequent alterations in exchange
rates, new or increased tax levels, levies, duties, quota or any other unforeseen
increase, to be bourne by the Customer. All prices contained in the Original
Chameleon part of the Website are guide prices only and are subject to change
at any time. Origination - All blocks, dies and screens required for printing
will incur additional costs. Carriage - All prices/estimates are exclusive of
postage, carriage and packing, unless otherwise stated. Charges for these items
are available on request. All Goods will be shipped by the approved shipping
agents of the Company.
All prices given on estimates are exclusive of any applicable Value Added Tax.
The Company will charge any Value Added Tax if applicable at the rate ruling
at the time of invoicing for the Goods.
3 Orders
All orders by a Customer shall constitute an offer on the standard terms and
condition of sale stated herein. All orders by a Customer must be confirmed
in writing and must give full details of the Goods required together with any
estimated price given. Telephone orders must be confirmed in writing by letter,
fax or email. No responsibility will be accepted if this is not done. Similarly,
the Company shall not accept responsibilty for any orders lost, misplaced, damaged
or delayed placed via the Website. For repeat orders, he onus is on the Customer
to ensure the Company has all the correct details from previous orders. If no
price has been given, then a price will be estimated prior to the work commencing.
The Company will not process any order until it has been confirmed in writing.
For all new Customers, an additional New Account Form is also required. The
Customer must accept the responsibility for any delay in the processing of an
order as the result on non-compliance of this clause.
The Company reserves the right to produce an Order Confirmation, in addition
to the Order placed by the Customer. In these instances, the Company reserves
the right to request this signed document from the Customer prior to any work
commencing. All delivery dates or periods are approximate and whilst every effort
will be made to meet them, the Company shall not accept responsibility or liability
if any delivery dates are not met. Deliveries may, in any event, be postponed
or suspended, without liability during any period in which circumstances of
any kind outside the Company’s control hinder or prevent the manufacture
or dispatch of the goods or delivery of the Goods to the address specified on
the Order. The Company reserve the right to alter the design, material and product
specification of any product without notice. The Company reserve the right to
charge the Customer for additional costs incurred on account of any alternations
made at the Customer’s request to quantities, delivery date, delivery
rate, delivery destination or agreed changes in specification. Upon receipt
of the Order, the Company reserves the right to request 50% payment of the total
value of the Goods, payable either within 7 or 30 days, subject to account status.
For all new accounts and 1st orders, the Company reserves the right to request
100% payment of the total value of the Goods payable immediately via Pro Forma
invoice. Time of payment shall be of the essence and if any amount shall not
be paid on the due date the Customer shall pay to the Company on demand interest
therein at a monthly rate of 3%, such interest to accrue from day to day and
run after as well as before any Judgement.
4 Website
Sales
No permission to copy, reproduce, modify or download the Website or any part
of such site is given and in particular nothing on such sites may be reproduced
for use in any publication, or distributed for any purpose without the prior
written consent of the Company. Any information found on the Website is intended
for guidance only and the Goods and prices described in it are subject to change
without notice. No representation or warranty is given as to the completeness
or accuracy of any information on the Website, or that such information is current.
Where the Website is hyper-linked to any site operated by any third party, the
Company accepts no responsibility or liability in respect of any products, service,
material or information on such site. The presence of such sites shall not be
deemed to be a commendation or endorsement of such site by the Company. The
Company will not be liable for damage to, or viruses that may affect, any computer
equipment, software, data or other property as a result of access to, use of,
or browsing of the Website or the downloading of any material data, text or
image. The Company will not be liable for any damage, loss, costs, or expenses
suffered by the Customer as a result of any downtime (being the period during
which the Website is unavailable for use by the Customer for any reason whatsoever)
of the Website. All trademarks used in the Company’s catalogue, brochure,
price list or Website belong to the Company or the registered proprietor of
such trademarks. All rights relating to copyright, trademarks, know-how and
any other Intellectual Property rights in materials or information on the Website
are reserved to the ownership of the Company. By continuing to use the Website
the Customer is deemed to accept Clause 4 of standard terms and condition of
sale stated herein. The Customer may not use the Website for any of the following
purposes:
a) disseminating any unlawful, harassing, libellous, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable material
b) transmitting material that encourages conduct that constitutes a criminal offence, results in civil liability or otherwise breaches any relevant laws, regulations or code of practice
c) gaining unauthorised access to other computer systems
d) interfering with any other person's use or enjoyment of the Website
e) breaching any laws concerning the use of public telecommunications networks
f) interfering or disrupting networks or web sites connected to the Website
g) making, transmitting or storing electronic copies of materials protected by copyright without the permission of the owner
The Customer will indemnify the Company against all losses, liabilities, costs and expenses reasonably suffered or incurred by the Company, all damages awarded against the Company under any judgment by a court of competent jurisdiction and all settlements sums paid by the Company as a result of any settlement agreed by the Company arising out of in connection with:
a) any claim by any third party that the use of the Website by the Customer is defamatory, offensive or abusive, or of an obscene or pornographic nature, or is illegal or constitutes a breach of any applicable law, regulation or code of practice
b) any claim by any third party that the use of the Website by the Customer infringes that third party's copyright or other intellectual property rights of whatever nature
c) any fines or penalties imposed by any regulatory, advertising or trading body or authority in connection with the use of the Website by the Customer
Although the Company aims to offer you the best service possible, the Company makes no promise that the services at the Website will meet your requirements. The Company cannot guarantee that the service will be fault free. If a fault occurs in the service the Customer should report it to the Company or by email at enquiries@tomato-source.co.uk and the Company will correct the fault as soon as the Company reasonably can. The Customer’s access to the Website may be occasionally restricted to allow for repairs, maintenance or the introduction of new products, facilities or services. The Company will attempt to restore the service as soon as it reasonably can. Third Party Websites - as a convenience to the Company’s customers, the Website may include links to other websites or material which are beyond its control. The Company is not responsible for content on the Internet or World Wide Web pages. International Use and Users - the Company makes no promise that materials on the Website are appropriate or available for use in locations outside the United Kingdom, and accessing the Website from territories where its contents are illegal or unlawful is prohibited. If, the Customer does choose to access this site from locations outside the United Kingdom, the Customer does so on its own initiative and will be responsible for compliance with local laws.
5 Artwork
All Artwork supplied must be clearly marked up with full instructions. All Artwork
including reductions, enlargements and touching up will be chargeable. Minimum
Artwork charge: £30 plus vat. The Company shall be entitled at its discretion
to charge the Customer for any additional work to Artwork supplied by the Customer
where such Artwork is not usable for the purpose for which it has been provided.
In addition, the Company reserves the right to refuse any Artwork which it may
deem to be unsuitable, or in a condition which would require additional work.
Where Artwork is supplied or specified, the Company will take all reasonable
care to obtain best results, but will not accept responsibility for imperfect
work caused by defects or unsuitability of Artwork so supplied or specified.
Artwork supplied by the Customer shall remain the property of the Customer and
as such while in the possession of the Company or in transit to or from the
Customer shall be deemed to be at the Customer’s risk unless otherwise
agreed and therefore the Customer should insure accordingly.
6 Intellectual
Property
The Customer hereby assigns to the Company all intellectual property rights
which are created, discovered or arise out of or in connection with the performance
by the Company of each Contract and the Company shall execute such documents
and do such acts and things as may be necessary to give effect to the provision
of this.
The Customer warrants and represents that any logos, designs, drawings, specifications,
instructions or information pertaining to the request of Goods supplied by the
Customer to the Company, or instruction furnished or given to the Company shall
not be such as to cause the Company to infringe any third party Intellectual
Property rights. The Customer shall indemnify and keep indemnified in full and
on demand from and against all loss, damage, costs, (including reasonable legal
costs), and expenses suffered or incurred by the Company (including, without
limitation, any economic loss, loss of profits, revenue, business, contracts,
goodwill or like loss) directly or indirectly as a result of any action made
or brought against the Company (whether in the UK or elsewhere) in respect of
any infringement of any third party Intellectual Property rights as a result
of the Goods supplied to the Customer by the Company, or instruction furnished
or given to the Company by the Customer.
The supply of Goods under the Contract shall not confer any rights upon the
Customer to use any of the Company's Intellectual Property without the prior
written consent of the Company and at all times such Intellectual Property shall
remain the property of the Company. The supply of Goods under the Contract shall
not imply any right to the Customer to use any Intellectual Property which the
Company may have or any indemnity against infringement of the Intellectual Property
rights of third parties by the Company.
No licence is granted to the Customer in these Terms and Conditions to use any
trade mark of the Company, or its affiliated companies.
7 Delivery
& Payment
Delivery shall deemed to have taken place either when the Goods have arrived
at the address agreed, or when the Company has notified the Customer that the
Goods are ready for collection. Non-delivery by any carrier must be notified
to the Company in writing within 14 days. If the Customer is unable to accept
delivery then the Company shall be entitled to arrange storage at the Customer’s
expense. Any additional costs in transportation incurred as a result of the
Customer’s inability to accept delivery will also be at the Customer’s
expense. Whilst every endeavour is made to deliver the exact quantity ordered,
on personalised products it may be necessary to supply over or under the Contract
quantity, which will be charged or deducted accordingly. The Customer shall
inspect the Goods immediately on delivery and in the event of any defect and/or
shortage give the Company written notice within 3 working days containing full
details of the alleged defect and/or shortage. The Customer must allow the Company
access to inspect the alleged defective Goods or must return the defective Goods
to the Company. Should the Customer fail to act in accordance with the above
requirements or any one or more of them, the Customer shall be deemed to have
accepted the Goods as delivered and be liable to pay for them. Balance / full
payment shall be made by the Customer without any deduction by way of set-off
or otherwise by the 30th day following the date of the invoice or date as specificed
on the invoice.
The Customer shall have determined the suitability of the Goods for its intended use and will not rely upon any representation made by or on behalf of the Company. Where the Customer has specified that the Goods shall be of a certain colour or size, such specifications shall be subject to reasonable commercial variation save as expressly agreed in writing to the Company.
Unless otherwise specified printing colour, size and position will be at our discretion even on repeat orders. Where Pantone colour matches are requested, a 100% match cannot be guaranteed. We reserve the right to use your logo or image of your product in our brochure or any other marketing material unless otherwise instructed in writing. Where the Customer has ordered batteries as a component part of any Goods to be delivered, the batteries are not guaranteed nor form part of any guarantee applicable to the Goods. Batteries are not guaranteed where they are supplied free of charge, whether separately or as a component part of the Goods. Where new batteries are separately ordered they are subject to the warranty supplied by the manufacturer as indicated on the Order if applicable. Where the Customer has ordered specific (PU) polyurethane Goods, due to the density of the material, it is not always possible to guarantee a consistent and uniform print. All (PU) Goods supplied are for promotional purposes only and are not sold as toys and are not suitable for children or pets.
8 Risk
Goods
The risk in the Goods shall pass to the Customer on delivery to the Customer
or notification of the Goods being ready for collection or when the Goods are
placed in storage as a result of the Customer unable to accept delivery.
9 Title
Until the Goods the subject of this Contract have been paid for in full (and
all other monies due and owing from the Customer to the Company on any account
whatsoever have been paid), legal title to the Goods shall not pass to the Customer
and shall remain with the Company and the Customer will store the Goods in such
manner as the Goods may be separately identified as the property of the Company.
Until such time as the Goods have been paid for in full and title in the Goods
has passed, the Customer shall be entitled (subject to any lein or right of
retention on the part of the Company) to use the Goods in the ordinary course
of business. In the event that the Customer is subject to either sub clause
a), b), or c) of Clause 13 of these standard terms and condition of sale stated
herein, the Company shall be entitled to repossess any Goods held by the Customer
in respect of which title has not passed and for that purpose the Customer hereby
grants to the Company an irrevocable licence to enter upon the Customer’s
premises for the purpose of such repossession.
10 Samples
and Proofs
Plain stock samples can be sent on approval and charged for unless returned
in good condition within 14 days. Where proofs are produced, they will be submitted
for the Customer’s approval and the Company shall incur no liability for
any errors not corrected by the Customer on the proofs submitted. Customer’s
amendments and additional proofs so required will be charged extra. Before the
Company can proceed, all proofs must be duly signed off as being accepted. A
pre-production sample may be requested, subject to production times and delivery
requirements, and may be charged extra.
11 Liability
& Waiver
The Company’s liability to the Customer in respect of any breach of its
contractual obligations arising under this Contract shall be limited to a sum
equal to the Company’s charges for the work or that part so affected.
Subject to this clause, the Company shall not be liable to the Customer in respect
of any breach of its contractual obligations for loss of profits, goodwill or
any type of special indirect or consequential loss howsoever caused (including
loss or damage suffered by the Customer as a result of an action brought by
a third party) even if such loss was reasonably foreseeable.
Waiver - Failure by the Company at any time to enforce any of the provisions of these standard terms and condition of sale stated herein shall not be construed as waiver by the Company of such provisions or in any way affect the validity of these standard terms and condition of sale stated herein.
12 Force
Majeure
The Company shall not be responsible for any loss or damage by delay in the
performance of any of its obligations under this Contract where the delay is
due to any cause beyond the Company’s control. In such an event the Company
may terminate or suspend this Contract with no liability or loss or damage thereby
occasioned. The following, without prejudice to the generality of the above,
be considered causes beyond the Company’s control, including but not limited
to – Act of God, war, civil disturbance, requisition, governmental or
parliamentary restrictions, prohibitions or enactments of any kind, import or
export regulations, strike, lock out, trade disputes (whether involving employees
of the Company or another), difficulties in obtaining labour or materials, breakdown
in machinery, fire or accident.
13 Termination
of Contract / Cancellation of Order
Without prejudice to any other rights which the Company may have, the Company
shall be entitled on giving written notice to the Customer to terminate the
Contract forthwith, demand immediate payment of any amount due or accruing due
to the Company thereunder and to retain any deposits, if any of the following
circumstances occur:
a) The Customer not being a body corporate, becomes bankrupt or compounds or makes any arrangements with the creditors or commits any act of bankruptcy
b) The Customer, being a body corporate, goes into liquidation whether compulsorily or voluntarily (save for the purpose or amalgamation or reconstruction) or has a receiver appointed of its undertaking or assets or any part thereof
c) The Customer commits any material breach of its obligations hereunder
At its discretion, the Company may or may not accept cancellation or amendment of an order but the Customer may be liable, in part or full, where manufacture of Goods has begun at the time of notification of any such cancellation or amendment and for any costs or losses incurred by or on behalf of the Company in administering such cancellations or amendments.
14 Operation
of Law
If any of these conditions or any part of one of these conditions is rendered
void by any legislation to which it is subject it shall be void to that extent
and no further. If any of these conditions or any part of one of these conditions
is rendered unenforceable by any legislation to which it is subject it shall
be unenforceable to the extent that it is not fair or reasonable to allow reliance
on such a condition or part thereof but no further.
15 Performance
Failure by the Company to insist upon strict performance of the terms and conditions
of this Contract shall not be deemed a waiver of any of its rights or remedies
nor be deemed a waiver of any subsequent default hereof. The Customer shall
not assign or otherwise transfer all or part of the agreement without the prior
written consent of the Company
16 Law
This Contract shall be governed by and construed in accordance with English
law and the parties hereby irrevocably submit to the jurisdiction of the English
courts.
Revision date: September 2007
Tomato Source Ltd.
Registered in England and Wales No. 5483660. Registered office 1 Long Street,
Tetbury, Gloucestershire, GL8 8AA
Tomato Source Ltd A&W Building The Docks Portishead BS20 4DF telephone 0117
370 0333 facsimile 01275 845 430