Terms & Conditions.
In These Contract Terms:
“We/us/our/ours” means Play Retail Limited (company number 0543474). “You/your/yours” means the person, firm or company we provide services to.
“Contract”, “Goods”, “Hired Goods”, “Project”, “Services” and “Specific Contract” have the meanings given to them in clause 1. “Our Premises” means any premises owned or occupied by us. “Your Premises” means any premises owned or occupied by you or under your control or any other premises at which we are required to perform Services, deliver Work and/or deliver and/or install Goods or Hired Goods. “Work” means any of our work which forms part of the Services. Written and in writing include e-mail. In these Contract Terms the singular includes the plural and vice versa unless the context otherwise requires.
1.1 Co-operation: You agree to help us by making available to us all relevant information and by co-operating with us. In particular you agree to give a clear brief to us and ensure that all the facts given about any particular project (“Project”) in respect of which our services are required are complete and accurate and in no way misleading.
1.2 Basis of Contract:
1.2.1 Our services (“Services”), any goods to be sold to you (“Goods”) and any goods to be hired to you (“Hired Goods”) will be supplied to you in accordance with any written estimate which we have supplied to you which is accepted by you, or any written order from you which is accepted by us in writing, subject in either case to these Contract Terms, which, in the absence of any specific written contract (“Specific Contract”) between us and you which is signed by your authorised representative and a director of ours and which expressly excludes or modifies these Contract Terms, will govern any contract between us and you for the supply of Services, Goods and Hired Goods (“Contract”) to the exclusion of any other terms and conditions subject to which any estimate is accepted or purported to be accepted, or any such order is made or purported to be made, by you, and under no circumstances are any other conditions to be construed as a counter offer.
1.2.2 No variation of these Contract Terms shall be binding unless agreed in writing between your authorised representative and one of our directors.
1.2.3 Our employees or agents are not authorised to make any representations concerning Services, Goods or Hired Goods unless confirmed by one of our directors in writing. In entering into any Contract you acknowledge that you do not rely on, and waive any claim for breach of, any such representations which are not so confirmed.
1.2.4 Any typographical, clerical or other error or omission in any sales literature, estimate, quotation, price list, acceptance of offer, invoice or other document or information issued by us shall be subject to correction without any liability on our part.
1.2.5 Our written estimate will remain open for acceptance for a period of 30 days from the date of the estimate.
1.2.6 We shall be entitled to sub-contract all or any part of any Services or the supply of all or any part of the Goods or Hired Goods.
1.2.7 If there is a Specific Contract between us and you and there is any conflict between that Specific Contract and these Contract Terms the terms of the Specific Contract shall prevail.
1.2.8 Time shall not be of the essence in relation to any dates specified by us.
1.2.9 You acknowledge that by this clause 1.2.9 (if not otherwise) we have drawn your attention to the Construction (Design and Management) Regulations 2007 (as re-enacted or modified from time to time) and any related Approved Code of Practice from time to time issued by the Health & Safety Executive (or any statutory body which replaces or takes over the functions of the Executive) and you are aware of, and, if such Regulations apply to any Project or any Contract, shall comply with your duties under those Regulations. If we are to be the Principal Contractor and/or CDM Co-ordinator under those Regulations you will promptly confirm that appointment in writing.
2. Approvals, Authority & Access:
2.1 After obtaining your general approval to our design concept we will submit to you for specific approval detailed drawings, copy, layouts and artwork, should this form part of our Services.
Your approval of drawings, copy, layouts and artwork will be our authority to purchase production materials, prepare proofs, to engage other parties (including without limitation, photographers, models, shopfitters, electrical contractors), to enter into contracts for other facilities necessary to perform the Services and to purchase any Goods or Hired Goods. We shall not be liable for any errors in such drawings, copy, layout and artwork which have been approved by you or which have been submitted to you and in relation to which we have not received notice of the errors from you within 3 days of submission, except to the extent that such errors could not reasonably have been identified by you at the time of approval or submission (as appropriate).
You may on reasonable notice request us to change, or cancel any or all design briefs, plans, schedules or work-in-progress and we shall take all reasonable steps to comply as soon as it is reasonably practicable to do so, provided that we can do so within our contractual obligations to suppliers and other third parties. In the event of any such change or cancellation you will reimburse us for any resulting charges or expenses incurred by us, and for charges or expenses to which we are committed and will pay us for any part of any Services which we have carried out for you or any Goods or Hired Goods which we have supplied to you or purchased from any supplier or third party for sale or hire to you up to that point at the Contract price for them, or if they are not separately priced, at such price as we consider reasonable. This is in addition to your obligations at clause 12.3.
You shall ensure that we have access to Your Premises at whatever times we deem appropriate to enable us to perform the Services and to deliver and where applicable install any Goods or Hired Goods.
3.1 Contract Price:
You will pay us any Contract price in accordance with the estimate accepted by you or the order accepted by us together with any increase in price payable in accordance with clause 3.4 and any additional charges set out in these Contract Terms or agreed between you and us. Where the estimate shows any Contract price is payable in stages you will be invoiced at each stage.
3.2 Incidental Expenditure:
We will bear the cost of UK post and UK telephone expenses but we reserve the right to charge you for expenses of this nature (including without limitation, all courier and parcel delivery charges whether within or outside the UK) and all travel, subsistence and accommodation expenses at cost plus 5% handling fee.
3.3 Value Added Tax:
We shall include in our invoices, where appropriate, VAT as an additional charge. Any Contract price is exclusive of VAT.
3.4 Increase in Price:
We may increase any Contract price of any Services, Goods or Hired Goods to reflect any increase in the cost to us of supplying them which is due to any factor beyond our control (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs or any additional installation costs resulting from the condition or status of Your Premises which we could not reasonably have anticipated), any change in delivery dates, quantities or specifications for such Services, Goods or Hired Goods which are requested by you, or any delay caused by any instructions from you or failure by you to give us adequate information or instructions. Where our estimate is based upon an agreed timetable we may increase the cost of such Services, Goods or Hired Goods if we have to change it to meet your requirements.
3.5 Transport, Packaging and Insurance:
Unless otherwise agreed any Contract price is an ex-works price, and where we agree to deliver Work, Goods or Hired Goods to a place other than Our Premises, you will be liable to pay our charges for transport, packaging and insurance.
4. Terms of Payment:
4.1 Our invoices are payable in pounds sterling unless otherwise agreed by us in writing with a payment structure of 50% deposit prior to project start and 50% remaining balance paid within 30 days of the date of project completion. (without any deduction or set off).
4.2 If you fail to make payment of any sum on the due date under any Contract then, without prejudice to any other right that is available to us, we shall be entitled to:
4.2.1 cancel any Contract or suspend any further Services, Goods or Hired Goods to be supplied to you and/or;
4.2.2 charge you interest (both before and after judgment) on the amount outstanding at a rate of 6% per annum above the prevailing Natwest Bank Plc base rate, until payment in full is made.
4.3 Time for payment shall be of the essence.
5.1 Time for delivery of the Services, any Goods and Hired Goods shall not be of the essence and all such dates are estimates only. We are not responsible if there is any delay in delivery of the Services, any Goods or Hired Goods except if caused by our negligence. If no dates are specified, delivery of the Services, any Goods or Hired Goods will be within a reasonable time.
5.2 If we are delivering the Services, any Goods or Hired Goods in instalments or stages, each delivery is a separate contract and if we do not deliver any one or more of the instalments or stages in accordance with these conditions or you make a claim in respect of any one or more instalments or stages you shall not be entitled to treat the Contract as a whole as ended.
6. Intellectual Property:
6.1 When we refer to ‘Intellectual Property Rights’ we mean patents, registered and unregistered trade marks and service marks, registered designs, utility models, design rights, copyright or any application to register any of the same and any other rights in the nature of intellectual property in the UK or elsewhere relating to any Services, any Goods or Hired Goods whether these rights are in existence at the time of the applicable Contract or created later.
6.2 Subject to any Specific Contract between us and you which expressly excludes or modifies this clause, in relation to ownership and/or use of the Intellectual Property Rights:
6.2.1 we will retain ownership in all Intellectual Property Rights other than any Intellectual Property Rights which we do not own and which are licensed to us by third parties to enable us to provide any Services, Goods or Hired Goods. Where we use stock materials (for example, photographs or audio works) from commercial or other libraries, we shall where appropriate obtain a licence for you to use those materials;
6.2.2 to the extent that we are entitled to do so (but not otherwise) we grant you a royalty-free, worldwide non-exclusive and non-assignable licence to use the Intellectual Property Rights (but not otherwise) for the purposes of the Project in respect of which the applicable Services, Goods and Hired Goods were supplied. This licence does not give you the right to grant sub-licences of the Intellectual Property Rights without our prior written consent. The grant of this licence is conditional upon you paying all monies due to us under the applicable Contract and such licence shall not take effect until all such monies have been paid to us in full.
6.3 You shall indemnify and keep us fully and effectively indemnified from and against all claims, liabilities, loss, damage, costs and expenses (including legal fees) suffered or incurred by us in connection with any use by you of the Intellectual Property Rights which is not in accordance with the licence granted to you in clause 6.2.2.
6.4 If an infringement of the Intellectual Property Rights occurs, then the following provisions apply:
6.4.1 we shall have the sole right to take action against third parties for infringement of the Intellectual Property Rights licensed to you under clause 6.2.2 and if required by us, you shall co-operate fully with us in any such action at our cost;
6.4.2 if we fail to take any such action against third parties or to require you to do so you may serve notice on us and upon the expiry of 30 days after the service of such notice you shall be entitled to prosecute such action yourself and at your own expense provided that we have not served notice within the 30 day period of our own intention to take action;
6.4.3 you shall in no circumstances settle any claim or action against third parties without our prior written consent;
6.4.4 all damages recovered from third parties shall be our exclusive property provided that you shall be entitled to set off any expenses which you are able to claim from us under this clause 6.4 against damages recovered by you.
6.5 You warrant that our use of any materials or information that you supply to us does not and will not infringe the Intellectual Property Rights of whatever nature of any third party and that you are authorised to allow us to use such rights in the performance of the applicable Contract. You agree to indemnify us against any loss, damages, costs, expenses or other claims which we may suffer or incur arising from any such infringement.
6.6 We shall return to you upon your request and at your cost any materials which you have supplied to us which we no longer need in order for us to perform any Services for you.
7. Confidential Information:
7.1 During our performance of a Contract, you may provide us with information that you regard as confidential. You may regard the detail of the Services, Goods and Hired Goods we are supplying to you as confidential. Subject to clauses 7.2 and 7.3 we agree to keep this type of information confidential and not to disclose it without your consent. We may disclose it to any third party we commission or sub-contract as long as we do so in circumstances of confidentiality. We may also disclose your name, your relationship with us and the nature of the Services, Goods and Hired Goods we have supplied to you in any of our own marketing.
7.2 We shall not be under any obligation of confidence about matters that are in the public domain or of which we were already aware. We shall not be in breach of our duty to you if we have to disclose information which you regard as confidential to an official body or Court.
7.3 During our performance of a Contract, we shall be providing you with ideas, concepts and other information. You agree to keep these confidential and only to use them for the purpose of considering your instructions to us. In the event that we agree with you not to use certain concepts, ideas or other information then you shall return to us or (at our request) destroy all materials relating to those (with any copies in whatever form stored) and not make any further use of them whatsoever.
8. Hired Goods:
8.1 Any Goods which are to be hired to you are set out in our estimate.
8.2 The charge for Hired Goods is set out in our estimate.
8.3 You agree to be responsible for any loss or damage to any Hired Goods in your possession and you agree to replace or repair such Hired Goods if required by us.
8.4 You agree to use the Hired Goods only for the purpose for which they are provided.
8.5 You agree not to alter any Hired Goods or remove any sign for or labelling indicating that the Hired Goods are our property.
8.6 You agree to keep the Hired Goods at all times at the location or locations agreed in writing by us.
8.7 You agree not to dispose of or mortgage or charge any Hired Goods or any interest in them.
8.8 You agree to keep any Hired Goods insured in their full replacement value with full comprehensive cover with reputable insurers.
8.9 You agree to indemnify us in respect of any claims made against us and/or damages, costs and expenses suffered or incurred by us as a result of any third party claim arising out of the state, condition or use of any Hired Goods, except to the extent that such claims arise as a result of our breach of the Contract or our negligence.
8.10 You agree to return any Hired Goods to us when required under the Contract or on request.
9 USE OF MATERIALS:
9.1 We may (without your consent or payment to you) make unlimited use of all material relating to any Services, Goods and Hired Goods including but without limitation drawings, artwork, ideas, know how and Intellectual Property Rights to promote, market and advertise our services to any third party.
10.1 Legal Liability:
Where insurance is available at commercially reasonable rates we will carry professional indemnity insurance up to £3,000,000 and we will insure in such amount as we consider appropriate any Work, Goods and Hired Goods until delivery.
10.2 Client’s Risk:
10.2.1 You will carry the risk of loss or damage to your property.
10.2.2 You will be responsible for and insure against loss or damage to the full value any drawings, specifications, films and other items belonging to you during the time that they are in the possession of us or of a third party or in transit to or from Our Premises, Your Premises or any other premises.
10.2.3 Subject to clause 10.3 risk of damage to or loss of any Work, any Goods or Hired Goods will pass to you:
10.2.3.1 in the case where we have agreed to deliver them to Your Premises, at the time of delivery or, if you wrongfully fail to take delivery, at the time when we have tendered delivery of them; or
10.2.3.2 where you are to collect them from Our Premises, the time at which we make them available for collection.
10.3 Where any Goods or Hired Goods require installation by us at Your Premises, delivery of them for the purpose of a Contract is when we have completed their installation at Your Premises.
11. Legal Liability & Other Claims:
11.1 Limitation of our Liability: Nothing in these Contract Terms or any Contract excludes our liability to you for fraudulent misrepresentation or for death or personal injury resulting from our negligence:
11.1.1 We shall not be liable to you by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of any Contract, for any loss of profit, depletion of goodwill, loss of business, loss of opportunity, loss of data, loss of use, loss of contracts, loss of expected savings or interruption to your business or for any costs, expenses (and whether caused by the negligence or default of our employees, subcontractors, agents or otherwise) which arise out of or in connection with the supply to you of Services, any Goods or Hired Goods (whether by us or by any subcontractor or agent) or of their use by you, except as expressly provided by these Contract Terms.
11.1.2 No action or proceedings in relation to or arising out of our performance of any Services, the supply of any Goods or Hired Goods or for any breach of any Contract shall be commenced against us after the expiry of 3 years from completion of such Services or the supply of such Goods or Hired Goods as the case may be or earlier termination of that Contract.
11.1.3 In circumstances where any Project requires that, in addition to the Services, Goods and Hired Goods to be supplied under the applicable Contract, other services are provided by consultants, specialists or contractors, our liability for any costs, claims, loss, expense or damage, whether direct or indirect, arising out of or in connection with that Contract for such Project shall be limited to such proportion of any such sums as it would be just and equitable for us to pay having regard to the extent of our responsibility for the same and on the basis that, all such other consultants, specialists, and contractors should be deemed to have provided to you contractual undertakings in respect of their services and goods no less onerous than that Contract and shall be deemed to have paid you such proportions as would be just and equitable having regard to the extent of their responsibility for such costs, claims, loss, expense or damage, and;
11.1.4 our liability, if any, to you for any loss or damage arising out of any action or proceedings in relation to or arising out of our performance of any Services or for the supply of any Goods or Hired Goods or for any breach of any Contract shall not exceed the lower of:
18.104.22.168 maximum of the Contract price for the Contract in question;
22.214.171.124 the insurance cover (if any) which we are obliged to carry pursuant to clause 10.1, and;
126.96.36.199 if applicable the limit contained in clause 11.1.3.
11.2 Indemnity to Us:
Except in respect of any loss or damage caused by our negligence you will indemnify us against any loss, costs, claims, expenses or fees we may incur relating to any Work approved by you or which has been submitted to you and in relation to which we have not received a notice of errors from you within 3 days of submission.
11.3.1 We warrant to you that Services will be carried out with reasonable care and skill and that any Goods and Hired Goods will be of satisfactory quality. All other conditions, warranties or terms implied by statute or common law are excluded to the fullest extent permitted by law. Where you have a valid claim against us in respect of any Services, Goods or Hired Goods which is based on any defects in their quality or condition we shall be entitled to replace any Services, Goods or Hired Goods, or the part in question, free of charge or, at our sole discretion, refund to you the price of such Services, Goods or Hired Goods (or a proportionate part of the Contract price in respect of such Services, Goods or Hired Goods) but we shall have no further liability to you.
11.3.2 Any claim by you which is based on any defect in the quality or condition of any Services, Goods or Hired Goods shall (whether or not delivery is refused by you) be notified to us in writing within 10 days of delivery or (where the defect or failure was not apparent on reasonable inspection) within 7 days after discovery of the defect or failure. If delivery is not refused, and you do not notify us accordingly, you will not be entitled to reject the Services, Goods or Hired Goods in question and we shall have no liability for such defect or failure, and you will be bound to pay the Contract price as if such Services, Goods and Hired Goods had been delivered in accordance with the terms of the applicable Contract.
11.4.1 Where Part II of the Housing Grants, Construction and Regeneration Act 1996 applies to a Contract either you or we may refer any dispute of difference arising out of it to adjudication. The adjudication procedures will be as set out in the Scheme for Construction Contracts (SI No 649 of 1998 as amended from time to time). The nominating body will be the Technology and Construction Solicitors’ Association or any successor organisation.
11.4.2 Both you and we will be bound to comply forthwith with the decision of any adjudicator until such time (if any) as it is superseded by a decision of the courts in relation to the matter in question.
12. Termination Provisions:
12.1 We may, without prejudice to any of our other rights, suspend the supply of any Services, Goods or Hired Goods we are supplying to you and/or by notice in writing to you terminate any Contract with you for such supply if:
12.1.1 an order is made or a resolution is passed for your winding-up, or;
12.1.2 a receiver, administrator or administrative receiver is appointed over any of your assets or undertaking, or;
12.1.3 (being an individual) an order is made for your bankruptcy, or;
12.1.4 you are unable to pay your debts within the meaning of Section 123 of the Insolvency Act 1986 (or any statutory re-enactment or modification of that Act) or you make a composition with your creditors; or
12.1.5 you suffer any analogous proceedings to those at 12.1.1 to 12.1.4 in any other jurisdiction or under any foreign law, or;
12.1.6 you fail to pay any sum due on the due date, or;
12.1.7 you in any other manner whatsoever materially breach any provision of that Contract and fail to remedy such breach within 7 days of being notified of it by us.
12.2 You may, by notice in writing to us, terminate any Contract if any of the circumstances in any of clauses 12.1.1 to 12.1.6 apply to us. You may, by notice in writing to us, terminate a Contract if the circumstances in clause 12.1.7 apply to us in respect of that Contract
12.3 If you terminate a Contract (other than in accordance with clause 12.2) prior to the Services, any Goods or Hired Goods being delivered, or if we terminate a Contract in accordance with clause 12.1, you will be liable to pay to us:
12.3.1 the amount of any outstanding invoices issued in respect of that Contract, and;
12.3.2 all costs and expenses incurred by us in respect of that Contract up to the date of termination, and;
12.3.3 full compensation for loss of profit on Services supplied in respect of that Contract but not yet billed, Services not yet undertaken and Goods and Hired Goods not yet supplied in respect of that Contract, and;
12.3.4 our costs incurred in respect of sub-contractors and suppliers, including fees for work carried out or goods supplied by them and any compensation for early termination.
12.4 Termination of a Contract shall not terminate or affect any rights, obligations or liabilities of you or us which have accrued under that Contract prior to the date of termination.
12.5 The following clauses shall survive termination of a Contract and shall continue with full force and effect in respect of that Contract: clauses 1, 6.2.2, 6.3, 6.4, 7, 8, 9, 10, 11, 12, 13, 14 and 15.
12.6 FORCE MAJEURE:
12.6.1 For the purposes of this clause 12.6 ‘Force Majeure’ shall mean any circumstances or events beyond a party’s reasonable control including but not limited to, act of god, war, act of terrorism, riot, trade embargo, strike, lock-out, trade dispute, breakdown of plant or machinery, difficulty or increased expense in finding workmen, materials or transport, accident, fire, flood, storm, any order of local or national government or international authority or any other circumstances affecting the performance of the obligations set out in any Contract.
12.6.2 If either party is affected by Force Majeure it shall immediately notify the other party of the nature and extent of it.
12.6.3 Neither party shall be deemed to be in breach of a Contract or otherwise liable to the other by reason of any delay in the performance or non-performance of any of its obligations under that Contract to the extent that such delay or non-performance is due to Force Majeure of which it has notified the other party and the time for performance of that obligation shall be extended accordingly.
13. Advertising Standards:
13.1 In order to satisfy the requirements of the Advertising Standards Authority, the British Code of Advertising Practice, the British Code of Sales Promotion Practice and other codes of advertising standards laid down voluntarily within the advertising industry (‘the Codes’) or any statutory requirements and in the interests of yourselves, ourselves and the public you agree to supply us immediately with objective factual evidence, if so required, in support of any product claims you wish us to make.
13.2 You agree to inform us without delay if you consider that any claim or trade description in any materials submitted to you by us for approval is false or misleading in relation to your product or service having regard to, amongst other things, the Codes.
13.3 We shall not be liable for any breaches of the Codes or other relevant statutes where you have approved any advertising material prepared by us or which has been submitted to you and in relation to which we have not received a notice of errors from you within 3 working days of submission.
13.4 You shall indemnify and keep us fully and effectively indemnified from and against all claims, liabilities, loss, damage, costs and expenses (including legal fees) suffered or incurred by us in connection with your breach of this clause 13.
14.1 Not withstanding the delivery and the passing of risk in materials comprised in any Work, Goods or Hired Goods, or any other provision of these Contract Terms, ownership in such materials, Goods and Hired Goods shall not pass to you until we have received in cash or cleared funds payment in full of the Contract price and all other services agreed to be undertaken by us for you or other goods agreed to be supplied by us to you for which payment is then due.
14.2 Until such time as the ownership in any materials comprised in any Work, Goods or Hired Goods passes to you;
14.2.1 you will hold such materials, Goods and Hired Goods as our fiduciary agent and bailee, and will keep it separate from your own property and that of third parties, properly stored, protected and insured and identified as our property, and;
14.2.2 we shall be entitled at any time to require you to deliver such materials, Goods and Hired Goods to us and if you fail to do so, forthwith to enter upon any of Your Premises or that of any third party where they are stored, and to re-possess them.
15.1 The formation, interpretation and operation of a Contract shall be governed by English Law and you agree to submit to the exclusive jurisdiction of the English Courts in all matters regarding it except to the extent that we invoke the jurisdiction of the courts of any other country.
15.2 Any notice required or permitted to be given by either party to the other under these Contract Terms shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may have been notified pursuant to this clause 15.2 to the party giving the notice and may be delivered personally, by first class post, by first class airmail, letter, e-mail if a normal mode of communication between you and us in connection with a Contract or by fax. A notice shall be deemed to have been served if personally delivered at the time of delivery, if sent by first class post 48 hours after posting, if delivered by first class airmail letter 7 clear days after posting or if sent by fax or e-mail at the time of transmission.
15.3 No waiver by us of any breach by you of any of these Contract Terms shall be considered as a waiver of any subsequent breach of the same or any other provision.
15.4 You shall not assign or transfer the benefit and/or burden of any Contract (or any part of it) to any third party without our prior written consent.
15.5 The Contracts (Rights of Third Parties) Act 1999 shall not apply to a Contract and no person other than you and we shall have any rights under that Contract.