1.1 Definitions. In these Conditions, the following definitions apply:
“Applicable Law” any applicable Act of Parliament, subordinate legislation within the meaning of Section 21(1) of the Interpretation Act 1978, exercise of the royal prerogative, enforceable community right within the meaning of Section 2 of the European Communities Act 1972, regulatory policy, guidance or industry code, judgment of a relevant court of law, or directives or requirements or any regulatory body.
"Business Day" a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
"Commencement Date" has the meaning set out in clause 2.2.
"Conditions" these terms and conditions as amended from time to time in accordance with clause 18.7.
"Contract" the contract between the Supplier and the Customer for the supply of Services and/or Deliverables in accordance with these Conditions.
"Customer" the person or firm who purchases the Services and/or Deliverables from the Supplier.
“Customer Materials” documents, drawings, logos, data, diagrams, reports and any other content or materials provided by the Customer to the Supplier for use in provision of the Services of creation of or incorporation into the Deliverables.
"Deliverables" the products and materials developed by the Supplier in the provision of the Services, including, without limitation any copy, artwork, layouts, designs, Printed Materials, communications or electronics files as set out in the Order.
"Delivery Location" has the meaning set out in clause 4.2.
"Force Majeure Event" has the meaning given to it in clause 17.1.
"Intellectual Property Rights" patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
"Order" the Customer's order for the supply of Services and/or Deliverables, as set out in the Customer's purchase order form, or the Customer's written acceptance of the Supplier's quotation.
“Printed Materials” the product of the Services (or any of them), where the Services include reproduction, printing and/or print finishing or ancillary or like services as set out in the Order.
"Services" the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification.
"Specification" the description or specification for the Services, including any Deliverables provided in writing by the Supplier to the Customer.
"Supplier" Inc Direct Limited registered in England and Wales with company number 04684891.
"Supplier Materials" has the meaning set out in clause 8.1.7.
“Third Party Carrier” has the meaning given in clause 4.9.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase the Services and any Deliverables in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
2.6 All of these Conditions shall apply to the supply of both Services and Deliverables except where application to one or the other is specified.
3.1 The Deliverables are described in the Specification.
3.2 To the extent that the Deliverables are to be manufactured or produced in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 Where the Supplier supplies proofs of Deliverables to the Customer the Customer shall be responsible for checking whether the proofs are in accordance with the Specification or as otherwise agreed by the Supplier and the Customer. The Customer shall approve the proofs and after approval, any remaining errors, whether in:
3.3.1 the content of Customer Materials;
3.3.2 any design, content or layout created, made or carried out by the Supplier; or
3.3.3 the application of the Specification for the creation of the Deliverables (relating to such matters for example as the colours to be used, size, position, folding etc),
shall be the responsibility of the Customer and not the Supplier. The Supplier shall be entitled to use the approved proof as the basis for carrying out the remainder of the Services.
3.4 The Customer acknowledges and accepts that:
3.4.1 the colours used in a proof will not necessarily match those in the Deliverables; and
3.4.2 such differences are caused by the use of different equipment, inks, paper and other technical factors in the proofing process compared to those used in producing the Deliverables.
3.5 The Supplier reserves the right to amend the Specification if required by any Applicable Law.
4. DELIVERY OF PRINTED MATERIALS
4.1 the Supplier shall ensure that:
4.1.1 each delivery of Printed Materials is accompanied by a delivery note; and
4.1.2 if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
4.2 The Supplier shall deliver the Printed Materials to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Printed Materials are ready.
4.3 Save as provided in clause 4.9 delivery of the Printed Materials shall be completed on the Printed Materials' arrival at the Delivery Location.
4.4 Any dates quoted for delivery of the Printed Materials are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Printed Materials that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Printed Materials.
4.5 If the Supplier fails to deliver the Printed Materials, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement materials of similar description and quality in the cheapest market available, less the price of the Printed Materials. The Supplier shall have no liability for any failure to deliver the Printed Materials to the extent that such failure is caused by a Force Majeure Event the Customer's failure to provide the Supplier with adequate delivery instructions for the Printed Materials or any relevant instruction related to the supply of the Printed Materials.
4.6 If the Customer fails to accept or take delivery of the Printed Materials within three Business Days of the Supplier notifying the Customer that the Printed Materials are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract in respect of the Printed Materials delivery of the Printed Materials shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Printed Materials were ready; and the Supplier shall store the Printed Materials until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 The Customer shall not be entitled to reject the Printed Materials if the Supplier delivers up to and including 5 per cent more or less than the quantity of Printed Materials ordered, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Printed Materials was delivered.
4.8 If agreed between the Customer and the Supplier, the Supplier may deliver the Printed Materials by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.9 Where the Supplier and the Customer have agreed that the Supplier shall engage third party carriers, couriers, postal providers and/or down stream access providers (Third Party Carrier) to carry or arrange the carriage of Printed Materials:
4.9.1 the Delivery Location shall be the Supplier’s premises at 5 Dencora Centre, Dundee Way, Enfield, Middlesex EN3 7SX;
4.9.2 delivery of the Printed Materials shall be completed on the completion of the loading of the Printed Materials at the Delivery Location
4.9.3 the Supplier shall organise carriage of the Printed Materials on behalf of and as agent for the Customer using such Third Party Carriers as the Supplier shall engage and shall be responsible for the cost of carriage;
4.9.4 the Supplier shall not under any circumstances be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any for any losses costs, claims, actions or demands arising from the acts or omissions of the Third Party Carrier; and
4.9.5 in the event of any failure, loss or delay resulting from the actions of the Third Party Carrier, the Supplier shall, if reasonably required by the Customer, use reasonable endeavours to recover such compensation or remedy as may be available from the Third Party Carrier, and shall pay to the Customer any such compensation received after deduction of the reasonable costs of recovery incurred by the Supplier.
5. QUALITY OF PRINTED MATERIALS
5.1 The Supplier warrants that on delivery, the Printed Materials shall, subject to clause 3 of these conditions:
5.1.1 conform in all material respects with the Specification;
5.1.2 be fit for any purpose held out by the Supplier.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing within a reasonable time of discovery that in excess of 2% of the Printed Materials do not comply with the warranty set out in clause 5.1;
5.2.2 the Supplier is given a reasonable opportunity of examining such Printed Materials; and
5.2.3 the Customer (if asked to do so by the Supplier) returns such Printed Materials to the Supplier's place of business at the Customer's cost,
the Supplier shall, at its option, provide replacement Printed Materials, or refund the price of the defective Printed Materials in full.
5.3 The Supplier shall not be liable for the Printed Materials' failure to comply with the warranty in clause 5.1 if:
5.3.1 the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, of the Printed Materials;
5.3.2 the defect arises as a result of the Supplier complying with the Specification supplied by the Customer.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Printed Materials' failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Printed Materials supplied by the Supplier under clause 5.2.
6. TITLE AND RISK
6.1 The risk in the Printed Materials shall pass to the Customer on completion of delivery.
6.2 Title to the Printed Materials shall not pass to the Customer until the Supplier receives payment in full ( cleared funds) for the Printed Materials and any other materials, Deliverables or Services that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Printed Materials shall pass at the time of payment.
6.3 If before title to the Printed Materials passes to the Customer the Customer becomes subject to any of the events listed in clause 16.1.2 to clause 16.1.13, then, without limiting any other right or remedy the Supplier may have:
6.3.1 the Customer's right to resell Printed Materials or use them in the ordinary course of its business ceases immediately; and
6.3.2 the Supplier may at any time:
(a) require the Customer to deliver up all Printed Materials in its possession; and
(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Printed Materials are stored in order to recover them.
7. SUPPLY OF SERVICES
7.1 The Supplier shall provide the Services to the Customer in accordance with the Specification in all material respects.
7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any Applicable Law, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
8. CUSTOMER'S OBLIGATIONS
8.1 The Customer shall:
8.1.1 ensure that the terms of the Order and (if submitted by the Customer) the Specification are complete and accurate;
8.1.2 co-operate with the Supplier in all matters relating to the Services;
8.1.3 be solely responsible for maintaining its own procedures for the reconstruction of lost or altered files, data and programs to the extent it is deemed necessary by the Customer;
8.1.4 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
8.1.5 provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
8.1.6 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
8.1.7 keep and maintain all materials, equipment, documents, data and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation; and
8.2 The Customer shall:
8.2.1 ensure that the provision of the Services by the Supplier is permitted under all Applicable Law;
8.2.2 ensure that all materials provided by the Customer, and the provision of the Services in accordance with the Specification by the Supplier shall comply with normally accepted codes of conduct for the direct marketing industry, including, but not exclusively the British Code of Advertising, Sales Promotion and Direct Marketing; and
8.2.3 indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier as a result of any claims, complaint or actions against the Supplier arising from failure to comply with this clause 8.2.
8.3 The Customer shall be responsible for the accuracy of all information and Customer Materials supplied to the Supplier by the Customer in connection with the supply of the Services and shall pay the Supplier any extra costs occasioned by any discrepancies, errors or omissions therein.
8.4 If the Supplier's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
8.4.1 the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
8.4.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 8.4; and
8.4.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
9. ILLEGAL MATERIAL
9.1 If in the reasonable opinion of the Supplier, the Supplier considers that any Customer Material provided to the Supplier by or on behalf of the Customer:
9.1.1 are defamatory
9.1.2 contain, express or indicate illegal racist or otherwise discriminatory opinions;
9.1.3 contain any designs, images, graphics or photographs which are illegally racist or otherwise discriminatory;
9.1.4 are illegal or contain illegal content;
9.1.5 infringe or breach the Intellectual Property Rights of a third party; or
9.1.6 are used outside the provisions of any licence that the Customer or the Supplier may have to use those Customer Materials,
then the Supplier shall not be required to supply any Services in relation to such Customer Materials or any Deliverables based on them.
9.2 The right not to provide any Services shall also apply where carrying them out would involve the creation, design, layout, production or reproduction of copy, designs, artwork or images (in any format) which fall into one of the categories set out in clause 9.1.
10. MATERIALS PROVIDED ELECTRONICALLY
10.1 If the Customer provides Customer Materials to the Supplier by electronic means (Electronic Files), the Supplier shall not be responsible for checking:
10.1.1 (where the Customer Materials consist of copy) the accuracy of the content, including but not limited to checking whether the copy is spelt correctly, is grammatically correct, or formatted in accordance with any Specification, layout or design or in accordance with any estimate or Order;
10.1.2 (where the Customer Materials consist of artwork or layouts) whether the artwork or layouts are positioned correctly on a page or in accordance with any instructions as to how the artwork or layout are to be reproduced or printed; or
10.1.3 (where Customer Materials are supplied as a file ready for use or reproduction any of the contents, layout or commands, markings, formatting or other matters.
10.2 For Customer Materials submitted as Electronic Files:
10.2.1 the Customer acknowledges and agrees that:
(a) the devices on which Electronic Files are stored (or on which they are submitted by the Customer), and/or
(b) the communication methods used by the Customer to transmit the Electronic Files to the Supplier,
may be subject to corruption or alteration which is not within the reasonable control or reasonable knowledge of the Supplier;
10.2.2 the Customer shall keep one or more copies as backup;
10.2.3 the Customer shall make available copies of the Electronic Files at dates and times that the Supplier reasonably requires; and
10.2.4 the Customer shall submit Electronic Files in the software programme, version and format the Supplier specifies from time to time (Supported Format).
10.3 Where the Customer wishes to provide Customer Materials for use or reproduction without further intervention by the Supplier other than preparation to produce Deliverables, the Printer shall be entitled to assume that the Customer Materials are in the Supported Format.
11. CHARGES AND PAYMENT
11.1 The price for Services and/or Deliverables shall be the price set out in the Order. The price is exclusive of all costs and charges of packaging, insurance, transport of Printed Materials, which shall be paid by the Customer when it pays for Printed Materials.
11.2 The Supplier reserves the right to increase the price of the Services and/or Deliverables, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Services and/or Deliverables to the Supplier that is due to:
11.2.1 any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
11.2.2 any request by the Customer to change the delivery date(s), quantities or types of Deliverables ordered, or the Specification; or
11.2.3 any delay caused by any instructions of the Customer in respect of the Deliverables or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Deliverables.
11.3 In respect of Printed Materials, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer monthly in arrears unless otherwise agreed between the Supplier and the Customer.
11.4 The Customer shall pay each invoice submitted by the Supplier:
11.4.1 within 30 days of the date of the invoice; and
11.4.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
11.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Deliverables at the same time as payment is due for the supply of the Services or Deliverables.
11.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above HSBC Bank plc base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
11.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
11.8 In addition to the price of the Services and/or Deliverables, the Customer shall pay any reversion charges levied by any Third Party Carrier, and shall indemnify the Supplier against all such charges incurred.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
12.2 The Supplier grants to the Customer (subject to payment of all charges) a non-exclusive, royalty free licence to use any Intellectual Property Rights necessary for the proper use of the Deliverables.
12.3 The Customer hereby grants to the Supplier non-exclusive rights in Customer Materials for the period during which the Supplier provides Services to the Customer and for incorporation into the Deliverables.
12.4 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer's use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
12.5 All Supplier Materials are the exclusive property of the Supplier.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 13 shall survive termination of the Contract.
14. DATA PROTECTION
14.1 In this paragraph the term “GDPR” means the General Data Protection Regulation 2016 and any subordinate legislation made under such Regulation from time to time together with any guidance and/or codes of practice issued by the Information Commissioner or relevant government department in relation to such legislation. The terms “Data Controller”, “Data Processor”, “Personal Data” and “Process” shall have the meaning prescribed under the GDPR.
14.2 Each of the Supplier and the Customer shall comply with their respective obligations under the GDPR.
14.3 The Supplier agrees that where in provision of the Services it acts as Data Processor in respect of Personal Data for which the Customer is the Data Controller, the Supplier shall Process Personal Data only on the instructions of the Customer as Data Controller.
14.4 The Customer shall indemnify the Supplier against any and all costs, liabilities, damages, obligations, claims, demands and expenses (including reasonable legal fees), incurred by the Supplier, made or brought by any person, organisation or authority as a result of the Customer’s unauthorised or unlawful possession, control or processing or loss or destruction or damage to any Personal Data or the Customer’s failure to comply with its obligations under this clause.
15. LIMITATION OF LIABILITY
15.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
15.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
15.1.2 fraud or fraudulent misrepresentation;
15.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
15.1.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
15.1.5 defective products under the Consumer Protection Act 1987.
15.2 Subject to clause 15.1:
15.2.1 the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
15.2.2 the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed sums paid by the Customer under the Contract..
15.3 The Supplier shall not be liable for any reversion charges levied by any Third Party Carrier, and all such charges shall be the responsibility of the Customer.
15.4 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
15.5 This clause 15 shall survive termination of the Contract.
16.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
16.1.1 the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within seven days after receipt of notice in writing to do so;
16.1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
16.1.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
16.1.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
16.1.5 the other party (being an individual) is the subject of a bankruptcy petition or order;
16.1.6 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
16.1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
16.1.8 the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
16.1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
16.1.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.1.2 to clause 16.1.9 (inclusive);
16.1.11 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
16.1.12 the other party's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
16.1.13 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
16.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment
16.3 Without limiting its other rights or remedies, the Supplier may suspend the supply of Services or all further deliveries of Printed Materials under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 16.1.2 to clause 16.1.13, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
16.4 On termination of the Contract for any reason:
16.4.1 the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services or Deliverables supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
16.4.2 the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
16.4.3 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
16.4.4 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
17. FORCE MAJEURE
17.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
17.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
17.3 If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Printed Materials for more than four weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
18.1 Assignment and other dealings.
18.1.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
18.1.2 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
18.2.1 Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.
18.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 18.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
18.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
18.3.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
18.3.2 If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
18.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
18.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
18.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.
18.8 Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
18.9 Jurisdiction Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).