Conditions of Trading of ‘Crashed Inventors’
Your attention is drawn to the following standard conditions of business of ‘Crashed Inventors‘ (in particular Conditions 5, 13, 14, 15 and 18) which contain provisions defining and limiting my liability in respect of any potential default. Reproduction, whether of words, images, printed music or other material is likely to comprise a breach of copyright unless it is authorised. Customers should not request services which involve the use of materials created by third parties unless they are certain that they comply with the warranty contained in Condition 19.
In these Conditions:-
- “the Customer”
- means the person, firm, company or organisation who orders the Commissioned Work pursuant to these Conditions;
- “the Customer’s Materials”
- means all materials delivered to Crashed Inventors by the Customer;
- “the Commissioned Work”
- means the physical work, consultancy, or other work howsoever described;
- “Intellectual Property Rights”
- means any copyright, design right, registered design, trade mark whether registered or not, right of confidentiality or any other similar right whether arising in the United Kingdom or elsewhere in the world.
- “Origination Items”
- is defined in Condition 14(b)
Crashed Inventors and the Customer shall contract subject to these Conditions which shall govern their relationship to the exclusion of any other terms and conditions contained or referred to in the Customer’s order or in correspondence or elsewhere or implied by trade custom, practice or course of dealing and any purported provisions to the contrary are hereby excluded. No variation of these Conditions shall be binding upon Crashed Inventors unless made in writing and signed by a duly authorised representative of Crashed Inventors.
- Unless expressly stated to the contrary all costs and fees are exclusive of any applicable value added or any other sales tax and any applicable delivery charges, for which the Customer shall be additionally liable.
- Crashed Inventors may (at its discretion) increase any part of the costs or fees payable:-
- in respect of work where the Customer’s requirements are not clear, necessitating the production of additional proofs;
- where any change in the Customer’s requirements necessitates additional work and/or materials costs to Crashed Inventors;
- where Crashed Inventors incurs additional costs as a result of any delay caused by any instructions of the Customer, failure of the Customer to give Crashed Inventors adequate information or instructions or failure of the Customer to supply clear or legible copy.
- Unless otherwise agreed in writing by Crashed Inventors, payment of Crashed Inventors’s invoices shall be made within 14 days of the date of invoice therefor or at the time of delivery of the Commissioned Work (whichever shall be the earlier).
- If the Customer fails to make payment on the due date, Crashed Inventors shall be entitled to charge the Customer under the Late Payment of Commercial Debt Act 1998 interest at 8% above the Bank of England base rate. This sub-clause shall continue to apply notwithstanding that Crashed Inventors obtains judgment against the Customer.
Deliveries and Acceptance
- Delivery of the Commissioned Work shall be made in the manner appropriate to the nature of the Commissioned Work (as determined by Crashed Inventors) or as specifically agreed between Crashed Inventors and the Customer
- The Customer shall accept the Commissioned Work by written notification which may be given by electronic transmission including (without limitation) e-mail or facsimile transmission provided that commissioned work shall be deemed accepted if the customer has not notified Crashed Inventors in writing of bona fide reasons for withholding acceptance.
- Crashed Inventors shall incorporate all reasonably requested corrections received pursuant to Clause 4(c) within the Commissioned Work and re-submit it to the Customer for approval, whereupon the terms of Clause 4(b) shall apply as if the re-submitted Commissioned Work were the original Commissioned Work.
- Crashed Inventors shall endeavour to fulfil all orders which may from time to time be placed with it by the Customer and shall endeavour to comply with delivery dates quoted but the time for delivery shall not be of the essence. Crashed Inventors shall not be liable for any loss directly or indirectly attributable to any delay beyond the stated delivery date.
The risk in the Commissioned Work shall pass to the Customer on delivery and the Customer should therefore be insured accordingly.
- Notwithstanding delivery and passing of risk, the legal property in and beneficial ownership of the Commissioned Work shall remain with Crashed Inventors until the Customer has paid all money owed by it to Crashed Inventors on any account.
- Crashed Inventors may for the purpose of checking that these Conditions are being complied with or recovering the Commissioned Work enter upon any premises where it is stored or where Crashed Inventors reasonably believes it to be stored.
- Until payment is made the Customer shall possess the Commissioned Work as fiduciary bailee and agent only and shall store each item of the Commissioned Work securely and separately from the Customer’s own goods or those of any other person or previously Commissioned Work and in a manner which makes them readily identifiable by reference to Crashed Inventors’s invoices.
- The Customer’s right to possession of the Commissioned Work shall cease if any of the events described in Condition 20 occurs.
- The Customer grants Crashed Inventors an irrevocable licence to enter at any time any vehicle or premises owned or occupied by the Customer or in its possession for the purpose of repossessing and removing any of the Commissioned Work the property in which has remained in Crashed Inventors under Condition 7. Crashed Inventors shall not be responsible for and the Customer will indemnify Crashed Inventors against liability in respect of damage caused to such vehicles or premises in such repossession and removal being damage it was not reasonably practicable to avoid.
- 12. Conditions 6, 7, 8, 9, 10 and 11 are without prejudice to Crashed Inventors’s rights and remedies if the Customer fails to make payment on the due date or is otherwise in breach of the terms of these Conditions.
- Whilst Crashed Inventors shall endeavour to preserve the Customer’s Materials in good order (subject to such wear and tear as may be incurred in the course of carrying out work), they remain at the Customer’s risk and liability for damage to, destruction or loss of such materials is excluded save where such damage, destruction or loss is caused by Crashed Inventors’s negligence. The Customer shall supply adequate quantities of such materials to cover spoilage.
- Whilst Crashed Inventors shall endeavour to maintain its usual quality standards where the Customer’s Materials are used, Crashed Inventors shall not be liable for imperfect work caused by defects in or unsuitability of the Customer’s Materials and the Customer shall not be entitled to reject such work.
- Crashed Inventors shall have a lien over the Customer’s Materials against payment of all costs or fees due to it by the Customer from time to time and shall be entitled (if any payment is not made on the due date) to dispose of the Customer’s Materials for such sums (if any) as Crashed Inventors may in its discretion think appropriate towards settlement of the amount due.
- Subject as provided in this Condition, all work originated by Crashed Inventors shall, as to its material elements and as to the copyright or design right in relation to it, belong to Crashed Inventors, and the Customer shall not have any right to reproduce or authorise any other person to reproduce any such work in whole or in part or to do any act which would, in the absence of authorisation by Crashed Inventors, infringe any copyright or design right which may subsist in relation to any such work.
- In the course of the work Crashed Inventors may originate physical material (including without limitation artwork, photographic negatives, transparencies and printing plates, together with all other intermediate material including film work, stereotypes, proofs and progressives). This is referred to in these Conditions as “Origination Items”. Subject as provided in this Condition all Origination Items belong to Crashed Inventors absolutely.
- On due payment by the Customer for work by Crashed Inventors, Crashed Inventors will:
- return to the Customer the Customer’s Materials;
- deliver and transfer to the Customer the Origination Items; and
- at the Customer’s request assign to the Customer Crashed Inventors’s copyright and design right in relation to the work subject to payment by the Customer of all additional expenses relating to such assignment.
Subject always to Condition 16 below:-
- Crashed Inventors shall not be liable to the Customer in respect of a claim relating to the Commissioned Work unless the Customer shall notify Crashed Inventors in writing of such claim such notice to be received by Crashed Inventors within 28 days of delivery Provided that this time limit shall not apply where the Customer can show that compliance with it was not possible and that notice of the Customer’s claim had been given to Crashed Inventors as soon as reasonably practicable.
- any liability incurred by Crashed Inventors in respect of any of the Commissioned Work supplied pursuant to these Conditions howsoever arising shall be limited to replacing the Commissioned Work, refunding the costs or fees paid or replacing or refunding the cost of the Customer’s Materials at the Customer’s option.
- the liability of Crashed Inventors for any claim for injury loss or damage made by the Customer against Crashed Inventors whether in contract or in tort (including negligence on the part of Crashed Inventors, its servants or agents) arising in respect of advice provided by Crashed Inventors shall be limited to the greater of 150% of the amount paid by the Customer for such advice and Â£10,000 in respect of any single occurrence or series of related occurrences provided that in no event shall such liability exceed Â£25,000 more than the amount paid by the Customer for such services.
- nothing in this Condition shall operate to exclude any liability on the part of Crashed Inventors for fraudulent misrepresentation or for personal injury or death.
- These Conditions do not and will not affect the statutory rights of the Customer as a consumer. No provision in these Conditions which would be void by virtue of Section 6 or Section 20 of the Unfair Contract Terms Act 1977 (as amended) shall apply to any consumer transaction governed by these Conditions.
- For the purposes of the foregoing the expressions “consumer” and “consumer transaction” shall have the respective meanings given thereto in paragraph 2 of the Consumer Transactions (Restrictions on Statements) Order 1976 (as amended).
Crashed Inventors shall not be liable to the Customer or be deemed to be in breach of any order for the Commissioned Work by reason of any delay in performing or failure to perform any of Crashed Inventors’s obligations in relation to the order placed by the Customer if the delay or failure was due to any cause beyond Crashed Inventors’s reasonable commercial control.
Customer’s Warranty and Indemnity
- Crashed Inventors may refuse to use any of the Customer’s Materials which in its opinion contains any defamatory or obscene matter or may infringe any Intellectual Property Rights of any third party.
- The Customer warrants to Crashed Inventors that it owns the Customer’s Materials and all Intellectual Property Rights in them and that the Customer’s Materials do not infringe any Intellectual Property Rights of any third party and would not if used in relation to the Commissioned Work or the provision of any services infringe any Intellectual Property Rights of any third party.
- The Customer shall indemnify Crashed Inventors and keep it indemnified in respect of all costs, claims, liabilities and expenses to which Crashed Inventors may be subject as a result of any claim that any of the Customer’s Materials or any material originated by Crashed Inventors on the instructions of the Customer contains any defamatory or obscene matter or infringes any Intellectual Property Rights of any third party. The indemnity shall extend (without limitation) to any amount paid for a lawyer’s advice in settlement of any such claim and to Crashed Inventors’s legal costs.
Insolvency and Breach
- the Customer, being a company, makes any arrangement or composition with its creditors or has a receiver or administrator appointed or if the Customer is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or becomes insolvent or goes into liquidation within the meaning of Section 247 of the Insolvency Act 1986 or an order is made or resolution passed for winding up (except for voluntary amalgamation or reconstruction); or
- the Customer, being an individual, has a bankruptcy petition presented against him or is unable to pay his debts within the meaning of Section 123 of the Insolvency Act 1986 or becomes insolvent or makes any arrangement or composition with his creditors or takes any similar action in consequence of debt;
- the Customer is in breach of any of its obligations under these Conditions, then Crashed Inventors without prejudice to any of its other rights may immediately suspend the performance of any order placed by the Customer and shall be entitled to charge the Customer, and the Customer shall immediately become liable to pay, for any Commissioned Work already carried out (whether completed or not) including the cost of any materials purchased on behalf of the Customer.
In the event of any provision of these Conditions being or becoming legally ineffective or unenforceable either in its entirety or in part this shall be without prejudice to the validity of and shall not invalidate the remaining provisions of these Conditions which shall remain in full force and effect.
These Conditions constitute the entire agreement of the parties as to the subject matter hereof and supersede all previous agreements and understandings (if any) between the parties and all representations made with respect thereto.
These Conditions shall be governed by English law and the parties hereby submit to the non-exclusive jurisdiction of the English Courts.