“In these conditions: Contract” means the agreement between Fireshield and the Purchaser for the provision of Products and/or Services incorporating these Conditions and including any terms set out in an estimate in writing for design products/services provided by Fireshield;
“Force Majeure” means any circumstances beyond a party’s reasonable control including, without limitation, an act of God, strikes or other form of industrial action, war and terrorism;
“Intellectual Property Rights” means trade marks (whether registered or unregistered) patents, registered designs, unregistered designs, copyrights, database rights, design rights, technical/confidential information, know how or inventions and similar rights or proprietary rights of a similar nature in the United Kingdom and abroad including applications for any of the foregoing;
“Purchaser” means the person/company/firm/business entering into a Contract with Fireshield for the supply of Products and/or Services;
“Products” means products of whatever description provided by Fireshield to the Purchaser;
“Services” means services of whatever description provided by Fireshield to the Purchaser whether as part of the provision of Products or otherwise;
“Delivery Date” means the estimated date on which the Products are due to be delivered by Fireshield to the Purchaser under the Contract;
“Price” means the price of the Products and/or the Services sold or supplied by Fireshield to the Purchaser under the Contract;
“Third Party Materials” means materials sourced from a third party by Fireshield on behalf of the Purchaser for incorporation in the Products.
1.1 The singular number includes the plural and vice versa. References to persons include references to companies or any other forms of legal entity. Headings are for convenience only.
1.2 Any order for Products and/or Services placed by the Purchaser, or the Purchaser’s acceptance of an estimate, shall be deemed to be an offer by the Purchaser to purchase the Products and/or Services pursuant to these conditions and the Contract shall be formed on the earlier of (a) Fireshield’s acceptance of the Purchaser’s offer, (b) the date of Fireshield’s initial invoice issued under clause 2 and (c) Fireshield commencing the performance of its Services and/or the provision of its Products.
1.3 These Conditions contain the only terms under which Fireshield contracts. They replace any conditions of a Purchaser and may only be varied or added to with the express approval in writing of Fireshield.
1.4 For the avoidance of doubt, any terms or conditions endorsed on/delivered with/contained in a Purchaser’s acceptance of an estimate from Fireshield, or any other terms that the Purchaser purports to include, under any purchase order, confirmation of order or similar document, will not form part of the Contract.
PRICE AND PAYMENT TERMS
Any quote or estimate provided by Fireshield to the Purchaser for the Products or Services is valid for a period of 30 days.
Fireshield shall not incur any outlays on behalf of the Purchaser without the prior written consent of the Purchaser. Fireshield may request and the Purchaser shall be required to submit payment for any outlays, including outlays for Third Party Materials to Fireshield in advance of such outlays being incurred by Fireshield.
2.1 The Purchaser shall reimburse Fireshield for all reasonable out of pocket expenses necessarily incurred by Fireshield in carrying out the Services or providing the Products. Fireshield shall obtain the Purchaser’s consent to such expenditure prior to it being incurred and shall make available to the Purchaser all receipts and invoices evidencing the same.
2.2 For all Contracts falling under The Late Payment of Commercial Debts (Interest) Act 1998, interest shall accrue at the prevailing statutory rate from time to time on a daily basis on any overdue payments from the due date for payment until receipt of cleared funds. For all Contracts to which The Late Payment of Commercial Debts (Interest) Act 1998 does not apply, interest at the rate of 5% per annum above the base rate from time to time fixed by the Royal Bank of Scotland plc shall accrue on a daily basis on any overdue payments from the due date for payment until receipt of cleared funds.
2.3 Fireshield reserves the right and shall be entitled at any time prior to delivery of the Products and/or the Services on giving written notice to the Purchaser to increase the Price in the event of Fireshield incurring any extra costs due to increased labour or material costs caused by a change in the Delivery Date, quantities or specifications for the Products or Services which are requested by the Purchaser or any delay caused by any instructions of the Purchaser or failure of the Purchaser to give adequate information or instruction. For the avoidance of doubt, any corrections required other than as a result of an error on the part of Fireshield, including the style and cost of additional proofs and necessity by such connections will incur cost additional to the Price. Where proofs are submitted to the Purchaser for approval, Fireshield will have no liability for any errors not corrected by the Purchaser. The Purchaser shall be bound to accept the Products or Services when they are ready for delivery by Fireshield.
2.4 Any prices quoted exclude VAT.
3.1 Following acceptance of an estimate for design products/services from Fireshield by the Purchaser, Fireshield will advise the Purchaser of the Delivery Date.
3.2 Fireshield will not deliver the Products or provide the Services until it has received payment from the Purchaser in accordance with Condition 2.2 hereof and is in receipt of a sign off sheet completed by the Purchaser which shall be provided by Fireshield to the Purchaser.
3.3 Fireshield shall use all reasonable endeavours to meet the Delivery Date but the Purchaser acknowledges that the Delivery Date is an estimate only and Fireshield shall not incur any liability for failure to meet the Delivery Date.
3.4 Delivery shall be effected upon the issuing by Fireshield of an electronic version of the Product to the Purchaser (in the case of Products) or completion of the Services (in the case of Services).
4.1 The Purchaser shall not be entitled to cancel any order for Products or Services in whole or in part.
4.2 Written notice of any claims for bugs or defects in the Products must be given to Fireshield within 30 days from date of delivery by Fireshield of the Products.
5.1 The Purchaser warrants that all information provided to Fireshield to enable Fireshield to carry out the Contract shall be accurate and not contain any illegal or defamatory material or infringe any third party Intellectual Property Rights. For the avoidance of doubt, any copyright material provided by the Purchaser to Fireshield for inclusion in any Products shall be the property of or shall have been validly assigned to the Purchaser. The Purchaser hereby grants to Fireshield a non-exclusive, royalty-free licence to use, reproduce and copy such copyright material for the purposes of carrying out the Contract. The Purchaser will indemnify Fireshield, its employees and agents any and all losses, damages or costs sustained by Fireshield, its employees and agents as a result of infringement of third party rights including third party Intellectual Property Rights when complying with the Purchaser’s instructions.
UNDERTAKINGS BY Fireshield
6.1 Fireshield shall if requested to do so by the Purchaser use reasonable endeavours to source Third Party Materials for incorporation in the Products subject to payment of a fee in addition to the Price (the “Sourcing Fee”). Fireshield shall be entitled to invoice the Purchaser following delivery of the Products and/or the Services for the Sourcing Fee which shall be payable by the Purchaser in accordance with Condition 2.1 hereof.
6.2 Fireshield will at all times use reasonable skill and care in the manufacture/supply of Products and/or performance of Services. Fireshield accepts no responsibility for the quality of any products or services provided by third parties including, without limitation, Third Party Materials which are incorporated or used by Fireshield in the Products or the Services.
6.3 Whilst Fireshield will use all reasonable endeavours to ensure that when performing work for the Purchaser it does not infringe the rights of a third party, no warranty is given. Whilst Fireshield may provide recommendations to the Purchaser with regards to third parties who may provide additional or related services and products including Third Party Materials, Fireshield shall not be liable for any direct or consequential loss or damage, including loss of profits or revenue suffered as a result of any services or products provided by any third party so recommended, or any loss suffered as a result of such a third party becoming apparently insolvent, going into liquidation or receivership or administration, as the case may be.
6.4 Fireshield will fix free of charge any defects or bugs in the Products notified to Fireshield by the Purchaser in accordance with the timescale in Condition 4.2 hereof. This is the sole extent of Fireshield’s liability. Fireshield shall not be liable for any direct, indirect, special or consequential loss or damage including loss of profit, loss or corruption of data, loss of income, loss of goodwill, loss of business or loss of anticipatory savings suffered by the Purchaser.
6.5 Fireshield will exercise care with prints, photographs, negatives and samples etc provided by a Purchaser for use by Fireshield in carrying out the Services or producing the Products. Fireshield shall not be responsible for the loss or damage of such prints, photographs, negatives, samples etc whether such loss or damage was incurred in transit or otherwise.
6.6 For the avoidance of doubt, Fireshield cannot guarantee the availability of any particular domain name and shall not be liable for the heads of losses contained in clause 6.4 which result from the unavailability of a particular domain name.
6.7 All guarantees and warranties whether express or implied, statutory or otherwise are hereby excluded to the fullest extent permitted by law.
6.8 Fireshield’s entire and aggregate liability to the Purchaser whether under the Contract or otherwise (including under the law of negligence) shall not exceed the sum equivalent to the Price.
INTELLECTUAL PROPERTY RIGHTS
7.1 Any and all Intellectual Property Rights generated by Fireshield in the Products and/or the Services (“Fireshield’s Intellectual Property Rights”) shall belong to Fireshield. Subject to payment in full of all sums due to Fireshield under the Contract, Fireshield hereby grants to the Purchaser a non-exclusive, royalty-free licence to use Fireshield’s Intellectual Property Rights. For the avoidance of doubt, said licence shall not entitle the Purchaser to copy or reproduce, alter, adapt or reformat any of Fireshield’s Intellectual Property Rights without the prior written permission of Fireshield.
8.1 Fireshield reserves the right to terminate any Contract with the Purchaser by immediate written notice (i) should the Purchaser be in material breach of its obligations and fail to remedy such breach within seven days following written notice from Fireshield; or (ii) should the Purchaser (being an individual) be sequestrated or become bankrupt or make any arrangements with its creditors or become apparently insolvent or (being a corporate entity) have an administrator or liquidator or receiver appointed to it or (in any case) cease, or threaten to cease, trading.
PAYMENT OF PRICE
9.1 Payment of the Price will be made in full without any deduction. No withholding or retention shall be permitted without Fireshield’s prior approval.
LIMITATION OF LIABILITY
10.1 Subject to the terms of Clause 10.3 and without prejudice to Clause 10.2, Fireshield’s entire aggregate liability to the Purchaser arising under this Contract (including any liability for the acts or omissions of its employees, agents or subcontracts) or otherwise, including under the laws of negligence, shall not exceed a sum equivalent to the Price.
10.2 Neither party shall be liable to the other for any indirect, special or consequential loss howsoever arising, including without prejudice to the generality of the foregoing loss of profit, loss or corruption of data, loss of income, loss of goodwill, loss of business or loss of anticipatory savings.
10.3 Nothing in this Contract shall limit either party’s liability for death or personal injury which may arise as a direct result of the negligent act or omission of such party.
11.1 The Purchaser will keep confidential and not disclose to any third party any trade secrets or confidential information of Fireshield which may be acquired as a result of the performance by Fireshield of the Contract for the Purchaser.
12.1 The Purchaser shall not be entitled to assign any of its rights or obligations under the Contract without Fireshield’s prior written consent.
13.1 The Purchaser will pay all sales taxes (including value added tax), customs or other import duties, costs of regulatory approvals and the like. If Fireshield meets any such costs the Purchaser will make reimbursement on demand.
14.1 Scots law shall govern these Conditions and the Contract. The parties agree to submit to the exclusive jurisdiction of the Scottish Courts in the event of dispute.
15.1 Neither party will be liable to the other for any delay in or failure to perform or comply with its obligations (except those relating to payment) under the Contract as a result of Force Majeure. The affected party shall promptly notify the other of the commencement and cessation of a Force Majeure. If Force Majeure continues for a period in excess of 90 days either party shall be entitled to terminate the Contract forthwith by written notice and without liability for termination. If the Contract is terminated under this Condition 15, all orders for Products and Services placed prior to the date of termination will be deemed to have been cancelled and the Purchaser shall pay Fireshield for all Products and Services already supplied, work-in-progress, and the cost of materials reasonably ordered by Fireshield in expectation of completing the Contract.