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Terms and conditions

ONSURFACE LTD STANDARD TERMS AND CONDITIONS FOR THE SALE OF GOODS AND SERVICES

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 Onsurface;
"Contract" means the contract between the Customer and Onsurface 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 Onsurface;
"Goods" means the goods which Onsurface sells to the Customer under these Conditions;
"Order Confirmation" means the acknowledgement of the Quotation provided by Onsurface to the Customer whether written or oral;
"Quotation" means the quotation for the Goods and Services provided to the Customer by Onsurface 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
"Onsurface" means the 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 Onsurface either by the issue to the Customer of an Order or verbal and a Confirmation or Works in Progress. The Contract will not be made until an Order Confirmation has been issued by Onsurface or Onsurface 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 Onsurface, 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 Onsurface.
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 Onsurface immediately. Although Onsurface will use reasonable endeavours to implement any such amendment which the Customer requests, Onsurface 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 Onsurface is able and willing to amend it, then Onsurface will send the Customer a new Order Confirmation for additional work.
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 Onsurface without giving notice to the Customer.
2.6 Any advice or recommendation given by Onsurface 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 Onsurface is followed or acted upon entirely at the Customer's own risk, and accordingly Onsurface shall not be liable for any such advice or recommendations which is not so confirmed.
2.7 Orders accepted by Onsurface may be cancelled by Customer upon written consent of Onsurface provided such order is not "NC/NR" or "Non-Cancellable/Non-Returnable", "Non-Standard Products" or governed by a Purchase Order. Non-Standard Products are defined as Products that are special orders, custom made orders, orders for non-standard products, and products not customarily in stock or orders for value-added products. Non-standard products are non-cancellable and non-refundable.

3. PROVISION OF THE GOODS AND SERVICES
3.1 Preliminary Work; All work carried out, whether experimentally or otherwise including designs, visuals, test prints at customer's request shall be chargeable.
3.2 Copy; Where any additional work of whatever nature is necessary as a result of copy supplied by a customer not being clear and/or legible, Onsurface shall be entitled to make additional charges on a time and materials basis to cover such additional work.
3.3 Proofs of all work may be submitted for customer's approval and Onsurface shall incur no liability for any errors not corrected by the customer in proofs so submitted. Additional charges shall be made for any additional proofs that are required as a result of alterations required by the customer. When style, type or layout is left to Onsurface's discretion, any subsequent changes to such style, type or layout required by the customer shall be subject to additional charges on a time and materials basis.
3.4 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.
3.5 If the Goods are manufactured or any process is applied to the Goods by Onsurface in accordance with a specification submitted by the Customer whether in writing or otherwise the Customer shall indemnify Onsurface against all loss damages costs and expenses awarded against or incurred by Onsurface in connection with or paid or agreed to be paid by Onsurface 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 Onsurface' use of any or all of the Customer's specification.
3.6 Full Colour Printing, all reasonable efforts shall be made to obtain the best possible colour reproduction on customer's work but variation is inherent in the print process and it is understood and accepted as reasonable that, Onsurface shall not be required to guarantee an exact match in colour or texture between the customer's photograph, transparency, proof, electronic graphic file, previously printed matter (whether printed by Onsurface or other party) or any other materials supplied by the customer and the printed article the subject of the customer's order. Furthermore the customer acknowledges and accepts that visual representations displayed on computer screens vary significantly
and Onsurface cannot guarantee that the colours of completed work will match those displayed on your computer screen during the ordering process.
3.7 Onsurface 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.
3.8 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.
3.9 All samples, drawings, descriptions, specifications, illustrations and advertising issued by Onsurface or contained in any of Onsurface' catalogues or brochures or on any website connected with Onsurface (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.
3.10 At the request of the Customer and at the customers cost, and at the sole discretion of Onsurface, Onsurface may remove materials (including but not limited to old signage) from the premises of the Customer and dispose under our waste licence the costs of which will be passed to the customer.

4. PERMISSIONS, LOCAL AUTHORITY AND COPYRIGHTS
4.1 Onsurface requires the Customer, prior to the provision of the Goods and/or Services, to obtain any necessary consents and approval to:
4.2 the installation and/or application of the Goods, including but not limited to any planning and/or landlord consents; and
4.3 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, trademarks and design).
4.4 All intellectual property rights (including but not limited to copyright) arising from the creation of Goods and Artwork by Onsurface Designers shall remain the property of Onsurface and the Customer shall not copy or reproduce the Goods or Design or derivative of same without the prior written consent of Onsurface and an agreed "license of right" issued by Onsurface Ltd.

5. PRICE OF THE GOODS AND SERVICES
5.1 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 Onsurface from its normal price list from time to time.
5.2 Onsurface reserves the right to increase the price of the Goods and/or Services to cover:
5.2.1 any increase in the cost to Onsurface which is due to any factor beyond the control of Onsurface (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);
5.2.2 any change in delivery dates quantities or specification of the Goods and Services which are requested by the Customer;

5.2.3 any delay caused by any instruction of the Customer or failure of the Customer to give Onsurface adequate information or instructions;
5.2.4 the costs of additional work carried out by Onsurface 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
5.2.5 to comply with any requirements referred to in Conditions 2.4, 3.5 and 3.7.
5.3 Except as otherwise expressly set out in the Contract all prices are given by Onsurface exclusive of:
5.3.1 packaging and delivery of the Goods to the Customer's premises; and
5.3.2 any applicable value added tax or other applicable sales tax or duty and such sums shall be added to the price.
5.3.3 Time charges are based on hourly rates for principals and other technical staff. In assessing the hourly rate all relevant factors are considered, including the complexity of the work, the qualifications, experience and responsibility of the designer, and the character of any negotiations. Hourly rates for principals shall be agreed in advance. We will maintain records of time spent on services performed on a time basis, chargeable in 15 minute units. The company will make such records available to the client on reasonable request.

6. TERMS OF PAYMENT
6.1 Where credit or account terms are offered Onsurface 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 Onsurface has notified the Customer that the Goods are ready for collection and/or the Services are to be provided in which event Onsurface shall be entitled to invoice the Customer for the price at any time after such notification or (as the case may be) Onsurface has tendered delivery of the Goods and the Customer has failed to take delivery.
6.2 Subject to Condition 6.3 below the Customer with account terms shall pay the full price of the Goods and/or the Services within no more than 30 days, or an earlier date as specified on the confirmation of order 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.
6.3 If the Customer fails to make any payment on the due date then without prejudice to any other right or remedy available to Onsurface and Onsurface shall be entitled to:
6.3.1 cancel the Contract or suspend further deliveries of Goods and/or provision of Services to the Customer;
6.3.2 appropriate any payment made by the Customer to such of the Goods (or the Goods supplied under any Contract between the Customer and Onsurface) as Onsurface think fit (not withstanding any purported appropriation by the Customer); and
6.3.3 charge the Customer interest (both before and after any judgement) on the amount unpaid at the rate of eight per cent per annum above Bank Of England 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); and
6.3.4 Onsurface charge debt collection fees when 30 days past due with costs of £40 for debts of less than £1000, £70 for debts between £1000 and £10,000 and £100 for debts of £10,000 or more.
6.4 Customers without account facilities shall pay the price of the Goods and/or the Services on confirmation of order and receipt of cleared funds.
6.4.1 For Customers without an approved account facility who are placing orders in excess of £500 and where agreed by Onsurface and offered in the confirmation of order supplied to the customer, Onsurface will at its discretion accept an initial payment or deposit equal to 50% of the total order value and full payment of VAT that is applicable to the whole of the order value.
6.4.2 A minimum charge of £50.00 (plus VAT) will be levied for small orders and no credit account orders will be accepted under £30.00 (plus VAT). Orders up to and including £30.00 (plus VAT) should be accompanied by the appropriate remittance.

7. DELIVERY
7.1 Delivery of the Goods shall be made by the Customer collecting the Goods at Onsurface' premises at any time after Onsurface has notified the Customer that the Goods are ready for collection or if some other place for delivery is agreed by Onsurface by Onsurface delivering the Goods to that place subject to Condition 5.3. Provision of the Services shall be made at the location notified by the Customer at any time after Onsurface has notified the Customer that the Services are ready to be provided.
7.2 Any dates quoted for delivery of the Goods and/or provisions of the Services are approximate only and Onsurface 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 Onsurface. 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.
7.3 If the Customer fails to take delivery of the Goods or accept provision of the Services or fails to give Onsurface 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 Onsurface' fault) than without prejudice to any other right or remedy available to Onsurface may:
7.3.1 store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
7.3.2 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. Not applicable to custom made
7.4 Onsurface 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.
7.5 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.

8. RISK AND PROPERTY
8.1 Risk of damage to or loss of the Goods shall pass to the Customer:
8.1.1 in the case of Goods to be delivered at Onsurface' premises at the time when Onsurface notifies the Customer that the Goods are available for collection; or
8.1.2 in the case of the Goods to be delivered otherwise than at Onsurface' premises at the time of delivery to such premises or, if the Customer fails to take delivery of the Goods, from the time when Onsurface has tendered delivery of the Goods.
8.2 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 Onsurface 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 Onsurface.
8.3 Until such time as ownership of the Goods passes to the Customer the Customer shall hold the Goods as Onsurface' 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 Onsurface' property.
8.4 The Customer shall be entitled to resell or use the Goods in the ordinary course of its business but shall account to Onsurface 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.
8.5 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) Onsurface shall be entitled at any time to require the Customer to deliver up the Goods to Onsurface 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.
8.6 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 Onsurface but if the Customer does so all monies owing by the Customer to Onsurface shall (without prejudice to any other right or remedy of Onsurface) forthwith become due and payable.

9. WARRANTIES, LIABILITIES AND INDEMNITY
9.1 Onsurface 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:
9.1.1 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;
9.1.2 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;
9.1.3 damage, discolouration or failure to painted surfaces has occurred through no fault of Onsurface;
9.1.4 Onsurface carries out work which is not provided for in the Order Confirmation, and is beyond the scope of the Services;
9.1.5 the Customer has not complied with any instructions as to use and care of the Goods in all respects; or
9.1.6 the Customer has failed to notify Onsurface of any problem or suspected problem within 2 days of the provision of the Services and/or supply of the Goods.

9.2 Any repaired or replacement Goods or re-performed Services will be liable to repair or replacement (or re-provision or, at Onsurface' option, refund) under the terms specified in Condition 9.1 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.
9.3 The above warranty does not extend to parts materials or equipment not manufactured by Onsurface 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 Onsurface.
9.4 Onsurface accepts liability for personal injury or death caused by the negligence of Onsurface 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.
9.5 Except as provided in Condition 8.4, Onsurface 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:
9.5.1 any breach by Onsurface of any of the express or implied terms of the Contract;
9.5.2 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 Onsurface or on the part of Onsurface' employees, agents or sub-contractors; or
9.5.3 any non-fraudulent statement made or not made, or advice given or not given, by or on behalf of Onsurface.
9.6 Except as set out in Condition 8.4, Onsurface 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.
9.7 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.
9.8 Onsurface 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 Onsurface' obligations in relation to the Goods and/or Services if the delay or failure was due to any cause beyond Onsurface' reasonable control. Without prejudice to the generality of the foregoing, causes beyond Onsurface' reasonable control shall include (but not be limited to) the following:
9.8.1 act of God, storm, explosion, flood, tempest, fire or accident;
9.8.2 war (or threat of war), riot, civil commotion or malicious damage;
9.8.3 compliance with any law or governmental order, rule, regulation or direction;
9.8.4 import or export regulations or embargoes;
9.8.5 strike, lock-out or other industrial actions or trade dispute (whether involving employees or Onsurface or a third party);
9.8.6 failure of a utility service or transport network;
9.8.7 difficulties in obtaining raw materials labour fuel parts or machinery;
9.8.7 power failure or breakdown of plant or machinery; and
9.8.8 default of suppliers or sub-contractors.
9.9 The Customer agrees to indemnify, keep indemnified and hold harmless Onsurface 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 Onsurface 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 3.4.

10. DATA PROTECTION
By placing a Quotation, the Customer allows Onsurface 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 Onsurface. Onsurface may share the Customer's information with Onsurface Limited, but will not use the Customer's details for other purposes without seeking the Customer's consent.

11. GENERAL
11.1 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.
11.2 Onsurface may transfer, assign, hold on trust, licence or sub-contract all or any part of its rights or obligations under any Contract.
11.3 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 Onsurface.
11.4 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 Onsurface Limited shall be entitled to enforce any provision of the Contract.
11.5 No waiver by Onsurface 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.
11.6 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.
11.7 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.