1.1 This part of the document sets out the full terms and conditions of this agreement (“this Agreement”) made between Creator International Limited (“the Company”) and the customer (“the Customer”) described overleaf for the sale and/or hire of goods services and equipment more fully described overleaf (“the Services”).
1.2 These conditions supersede all previous conditions and no person or employee of the Company shall be entitled to vary alter amend or waive any of these conditions unless approved in writing by a director.
2.1. All goods services and scenery to be supplied by the Company will be supplied only on the basis of these conditions. These conditions supersede all previous conditions and will apply to both the present transaction and all further and subsequent dealings between the Company and Customer. No person or employee of the Company shall be entitled to vary alter amend or waive any of these conditions unless approved in writing by a Director of the Company.
2.2 All goods and services are sold subject to any special conditions set out in writing and signed by a Director of the Company. Such special conditions shall be deemed to be incorporated herein.
3. The Company shall use its reasonable endeavours to fulfill its obligations to the Customer. It is hereby specifically agreed between the Customers and the Company that:
(a) Unless effected by the Company the Customer shall be wholly responsible for the erection and striking of allscenery, sets and goods manufactured and/or supplied by the Company. The Company does not give any warranty that the articles manufactured by them comply with any local authority fire regulations and/or other statutory consents and it is the specific obligation of the Customer that all permissions consents and approvals should be obtained by the Customer.
(b) The Company gives no warranty as to the suitability of any scenery or goods manufactured and/or supplied by them for subsequent erection in any structure or building and it shall be the Customer’s responsibility to ensure that all scenery or goods manufactured and/or supplied by the Company shall be suitable in size and character and for the structure or building in which the same is to be installed.
(c) While the Company will use its reasonable endeavors to ensure that all goods are manufactured and/or supplied in accordance with the Customer’s specification, the Company specifically reserves the right to alter any materials used in the manufacture of the goods and/or specifications thereof in its sole discretion and it is the Customer’s responsibility to ensure that the construction of all items and use of materials is in accordance with the Customer’s requirements.
(d) The Customer agrees to indemnify the Company against any claim made against the Company concerning the copyright in any set or design supplied by the Customer to the Company. In the event of the Company incurring any such liability of whatever nature, the Customer will indemnify the Company on a full indemnity basis including all and any such loss and expense incurred by the Company howsoever arising.
(e) The Customer shall supply electricity to the site and sufficient power points to enable the Company to comply with its obligations under this Agreement.
(f) The Customer shall be liable and pay or reimburse the Company in respect of all additional expenses incurred by the Company due to unforeseen difficulties with access to or the site of the proposed works.
(g) The Customer shall replace or refund the full reinstatement value all goods and equipment hired to the Customer which is stolen damaged or destroyed.
(h) The Company shall not be liable for any acts or omissions of subcontractors whether nominated by the Customer or the Company and the Customer shall be liable for any loss sustained by the Company as a result thereof.
(i) The Customer shall be responsible for all additional expenses incurred by the Company as a result of additional works services and hiring of goods not described overleaf whether requested orally or in writing by or on behalf of an agent or employee of the Customer.
(j) Without prejudice to the generality of the conditions herein the Company shall not be liable for any losses expenses incurred by the Customer as a result of the Company’s failure to complete the works or by the stipulated delivery time as a result of variations in this Agreement sought by the Customer or delay in delivery of goods labour and equipment by any courier or recruitment company employed by the Customer or the Company.
(k) The Customer warrants that it is not a consumer as defined in the Unfair Contract Terms Act 1977 Section 12 and all other warranties conditions or terms relating to fitness for purpose merchantability or condition of the goods whether implied by statute or common law or otherwise are excluded.
(l) The person signing this Agreement on behalf of the Customer accepts that he or she shall be liable for the Customer’s obligations hereunder if the Customer defaults.
4.1 Unless otherwise specifically agreed the Company’s costs for goods manufactured and supplied and services rendered shall unless otherwise specified be payable as to Fifty per cent (50%) upon the commencement of work or acceptance of the Company’s quotation whichever shall be the earlier and Fifty per cent (50%) upon delivery of goods to the Customer, or completion of the Services required to be carried out.
4.2 Until the Company has been paid in full for the Services:
(a) The legal and beneficial ownership in the goods supplied shall remain with the Company (although the risk therein passes to the Customer at the point where delivery begins or if earlier the date when the Company notify the Customer that the goods are ready for delivery or collection in accordance with clause 8.1 hereof).
(b) At the Customer’s expense the Company may recover those goods at any time from the Customer if in Customer’s possession should the amount outstanding from the Customer to the Company in respect of any goods or services supplied shall remain unpaid after the due date for payment has passed and for that purpose the Company and the Company’s servants or agents shall be entitled to enter unhindered upon the land or buildings upon which the goods are situate and the Customer shall forthwith supply the Company upon request with full details of the whereabouts of the goods and such other information as the Company may reasonably and properly require.
(c) If monies are due from the Customer as aforesaid and the Customer being in possession or control thereof effects any sale or dispossession thereof which confers any rights of title in or against the goods in favour of any third party the Customer shall until all monies whatsoever and howsoever due from the Customer have been paid stand possessed of the proceeds of such sale or disposition or of any right to receive the same as trustee for the Company to apply the same in satisfaction of any monies due from the Customer. Without prejudice to any other rights or remedies the Company may have, the Company shall have the right to proceed against the Customer’s own customer to the extent that their own customer’s account with them is unpaid.
(d) For so long as any goods remain in the Company’s legal and beneficial ownership or in the physical possession custody or control of the Customer the Customer shall stand possessed of such goods as bailee for the Company (notwithstanding that such goods may be at the buyers risk as hereinbefore provided).
(e) If the Customer does dispose of the goods any warranties conditions or representations given made or implied by the Company to any third party shall not be binding on the Company and the Company shall be indemnified by the Customer in relation thereto.
5.1 Where collection or delivery is made or is to be made by instalments, any non-delivery or delay of any installation shall not entitle the Customer to cancel the remainder of the deliveries or any of them.
5.2 Whilst the Company shall use its reasonable endeavours to effect any delivery or make available any collection in accordance with pre-arranged times and dates, any time or date named by the Company for collection or delivery is given and intended as an estimate only and the Company shall not be liable to make good any damage or loss whether arising directly or indirectly out of any delay in collection or delivery.
5.3 It is the Customer’s responsibility to check carefully the quantity and type of goods sold or delivered and claims for non-delivery of any goods must be made in writing within three days of the date upon which they should have been delivered or forthwith upon receipt of the Company’s invoice whichever is the earliest.
5.4 In respect of non-delivery or late delivery or defective goods the Company shall not be liable for any claim for loss or profits, machine time or any other consequential loss or damage.
5.5 In the event that the Customer fails to collect goods manufactured and/or supplied by the Company on the due date for collection or in the event that the Company are unable to deliver the same to the Customer then the Company shall have the right by notice in writing to require the Customer to collect the said goods within a period of 48 hours after having received such notice after which the Company shall be entitled without prejudice to any other right or remedy (including the Company’s right to full payment) to destroy the goods or to dismantle the same and re-use the component parts for its own use. Without prejudice to the above the Company shall be entitled to charge a storage fee in respect of all goods that are not collected on the due date for collection or which the Company are unable to deliver.
6. The Company reserves the right to charge collection or delivery fees unless the same is specifically referred to as being included in any quotation issued by the Company.
7. Without prejudice to any other rights the Company may have against the Customer the Company shall have the right to terminate this Agreement or defer delivery of goods ordered and/or billed in the event of:
(a) the Customer’s account with the Company being overdue for payment or,
(b) if the Customer be in breach of any of its obligations to the Company or
(c) should the Customer enter into any composition or arrangement with or for the benefit of its creditors or have a receiving order made against it (if a corporate body) or go into liquidation either voluntarily or compulsorily (except for the purpose of reorganization or reconstruction) or
(d) should the Customer have a Receiver appointed of its assets or undertaking or part thereof.
8.1 It is the Customer’s responsibility to insure all items or property accepted or held by the Company against all risks. The risk in all goods passes to the Customer at the point where delivery begins or if earlier the date when the Company notifies the Customer that the goods are ready for delivery or collection. The Company shall not be responsible for any loss or damage caused in transit. The Company recommended that insurance shall be affected in an insurance office of repute in the sum of thirty thousand pounds (£30,000) or the full value of any goods together with a suitable contingency. Without prejudice to the generality of the foregoing the Customer is responsible for all public liability arising out or in connection with the use of the items supplied or manufactured by the Company and it is the Customer’s obligation to effect the appropriate insurance to indemnify the Company in connection therewith.
8.2 In the event that any scenery or goods are supplied by the Company to the Customer on hire then the terms and conditions herein contained shall apply to such hire insofar as the same are consistent therewith. Without limitation to other provisions contained herein in the event that any hired articles are not returned to the Company prior to the date specified for their return then the Customer shall pay a late return fee equivalent to the hire charge in addition to the rental rate agreed up until such goods are returned. In the event that any goods hired are not returned within twenty one (21) days after the date due to be returned then at the election of the Company at any time after such twenty one (21) day period the Company shall be entitled to deem such goods irrecoverable whereupon the Customer shall be liable for the entire cost and/or replacement value (whichever shall be the greater) of the said articles in addition to any accrued hire charges and late return fee.
9. No forbearance or indulgence by the Company or shown or granted to the Customer whether in respect of these conditions or otherwise shall in any way affect or prejudice the Company’s rights against the Customer or be regarded as a waiver of any of these conditions. Any variation of these conditions approved by a Director of the Company shall only apply to the particular order in respect of which the variation was made.
10. The Company shall be entitled to sub-contract any service or order that the Company agrees to perform for the Customer.
11. The Company reserves the right to vary prices (whether specifically quoted or otherwise) to take account of increases in cost of raw materials manufacture, transport or wages arising before dispatch.
12. Interest at the rate of 8% above the Bank of England base rate per month is payable on invoices from the date of invoice (in accordance with The Late payments of Commercial debts (Interest) Act 1998, as amended and supplemented by the Late Payment of Commercial Debts Regulations 2002 ). The aforementioned right to charge interest shall not prejudice the Company’s rights of recovery or the Company’s other rights against the Customer. In the event of payment being made within the time specified on the invoice for net cash payment the Company shall waive rights to the aforementioned interest on such payments received.
13. The Company reserves the right to close any trading account for any reason by notice to the Customer. If a trading account is closed any balance (including interest) then outstanding must be discharged within 21 days.
14. Where the Company accepts into its possession or custody whether or not pursuant to any agreement any other materials goods artwork or legal property of any description (hereinafter referred to as “property”) and or where the Company give possession or custody of such property or any part thereof to an employee agent or sub-contractor of the Company and where such property or any part thereof is lost stolen damaged or destroyed, the liability for such loss theft damage or destruction whether the same be accidental or be caused or contributed to by the negligent breach of contract or breach of duty by the Company their servants agents or sub-contractors shall be limited to the payment by the Company of the replacement cost to the Company of such property or £100 whichever sum be the smaller unless the Company prior to acceptance shall have agreed in writing that a particular sum be payable in the event of any such loss theft damage or destruction.
15. All orders accepted by the Company are subject to variation and cancellation by the Company without prejudice to the Company’s accrued rights in the event that due performance is impracticable due to act of God, war, civil commotion, riot, strikes, lockouts, fire, drought, flood, destruction or damage to premises plant or machinery, explosion, shortage, failure of fuel materials or transportation, acts of Governments, Local or Public Authorities or other causes beyond the Company’s control or owing to the inability to procure materials or goods except at enhanced prices due to any of the aforesaid or any other causes. The Company shall not be responsible for any failure or inability to supply due to such contingencies.
16. All specifications patterns drawings photographs samples and information provided by the Company to the Customer shall remain the exclusive property of the Company and shall not be disclosed to any third party without the Company’s written consent.
17. All moulds tools plant or other equipment provided by the Company to the Customer shall remain the exclusive property of the Company and the Customer shall not use the Company’s property other than in accordance with this Agreement.
18. Any notices required to be served pursuant to this Agreement shall be writing as served by first class post or by hand on the Company at the Company’s address shown overleaf or such other address as the Company may from time to time notify to the Customer and on the Customer at the Customer’s registered office or principal place of business.
19. The Customer may not withhold payment of any invoice or other amount due to the Company by reason of any right of set-off or counterclaim which the Customer may have or alleged to have or for any other reason whatsoever.
20. If any part of these conditions and definitions are deemed to be invalid or unenforceable it shall not affect the validity of the balance of the conditions of sale or definitions.
21. These conditions and all orders and contracts as regards validity performance and construction thereof shall be governed by the laws of England.