These are the sole terms of trading of Mastrad Limited and its associated companies and trading divisions (each being herein called 'the Company') and shall govern all transactions between the Company and any customer ("the Customer") save as expressly agreed in writing on behalf of the Company.
The term "Agreement" means these conditions together with any terms (including those as to price and quantity) contained in any order which is accepted by an authorised Representative of any Price and Service Agreement (where relevant) as described in paragraph 2.
The term "Services" shall mean the services which are the subject matter of any Agreement, including mastering, provision of artwork, film or packaging and delivery and physical distribution services.
|1.||Quotations by the Company shall not constitute an offer and may be withdrawn or revised at any time until written acceptance by the Company of the Customer's order or the commencement of work by the Company as referred to in paragraph 2 below.|
|2.||An Agreement shall be concluded upon acceptance by the Company of the Customer's order in writing or by the Company commencing work or preparatory procedures pursuant to the order (whichever is the sooner) and its only terms shall be those specified herein and in any Price and Service Agreement which may be entered into with the Customer ("PASA") and in the event of any conflict or inconsistency between the terms specified herein and the terms of the PASA then the terms of the PASA will take precedence (but only to the extent of the conflict or inconsistency). This Agreement shall apply in place of and prevail over any terms and conditions contained or referred to in documentation issued by the Customer or in correspondence or elsewhere or implied by custom, practice or course of dealing (including, expressly without prejudice to the generality of the foregoing, in any representation written or oral as to the time for performance of any obligation of the Company) unless specifically agreed to in writing by an Authorised Representative (and only the Company's General Manager, Sales and Customer Services, a director or an authorised General Manager shall be an Authorised Representative for these purposes) and any purported provision to the contrary or in conflict with the foregoing is hereby excluded by the Company and waived by the Customer.|
|3.||Price Variation. At any time before delivery of the goods or commencement of the Services the Company may increase the price payable to reflect any increase in labour or material coats relating to its performance of the Agreement.|
|4.||Value Added Tax. The Customer shall pay all Value Added Tax or similar tax chargeable in respect of the Goods and/or any services supplied pursuant to the Agreement whether stated in any quotation or not.|
|5.||Preliminary Work. All work carried out, whether experimentally or otherwise, at the Customer's request will be charged for.|
|6.||Copy. A charge may be made to cover any additional work involved where copy (including label copy) supplied by the Customer is not clear or legible.|
|7.||Proofs. Proofs of all work may be submitted for the Customer's approval and the Company shall not incur any liability for any errors not corrected by the Customer. Any additional proofs necessitated thereby shall be charged extra. If any issues of style, type or layout are left to the judgement of the Company, changes arising from these issues made by the Customer shall be charged extra.|
|8.||Delivery of Goods
and Services. For the purposes of this Agreement, "Days" shall refer to
any Day of the week (including Saturdays and Sundays) and "Working Days"
shall refer to any day except Saturdays and Sundays and any English bank
or public holiday.The Company shall endeavour to meet any agreed delivery
date or dates but time shall not be of the essence and the Company shall
not be liable for any loss arising out of any delay in delivery. The
delivery date shall be agreed on acceptance of the order by the Company
unless the Company agrees to defer agreement of the delivery date. The
Company may on terms which it sees fit agree any request from the Customer
to vary the agreed delivery date. All costs associated with delivery shall
be borne by the Customer unless expressly agreed otherwise with the
The Customer shall accept delivery when tendered or deemed tendered whether before or after the agreed delivery date. Tender shall be deemed made on the earlier of:
(i) on the agreed delivery date if the Goods are then ready to be delivered but have not previously been tendered or deemed tendered: or
|(ii) on three Working Days' written
notice to the Customer that the Goods are ready to be delivered.
If the Customer does not take delivery when tendered the Company shall be deemed to have performed its obligations in respect of the Goods and the Customer shall pay any additional expenses incurred by the Company including (but not limited to) a storage charge.
Any agreed time period shall be calculated by reference to the number of Working Days between receipt of a workable order and despatch of the Goods from the Company's premises or completion of the performance of the Services. Day one shall be the first Working Day after receipt by the Company of a workable order and the last Day shall be the Working Day of despatch. An order becomes a workable order on the Working Day when:
|(i)||all of the components required for manufacture have been delivered|
|(ii)||all components are to specification and in a condition suitable for use in manufacturing|
|(iii)||all licences and any other necessary clearances, permissions or certificates have been received by the Company|
|(iv)||without prejudice to its rights under paragraph 17 (A), if the material falls within a category which the Company considers is offensive or potentially illegal, the Company has received clearances which are satisfactory to the company; and|
|(v)||the Company has all the information required to perform the Services and the Customer has supplied such assistance and carried out such preparations as the Company may require.|
|If performance of the Agreement is
delayed for more than fourteen Days by failure of the Customer to duly
supply any materials, copy, instructions or other matter to be supplied by
the Customer and required by the Company the Customer shall immediately
pay for work so far carried out, materials specially ordered and any other
additional costs (including storage). At any time after the expiry of the
fourteen Day period, the Company may give seven Days' notice to the
Customer that it is treating such a failure as repudiation by the Customer
of the whole or part of the Agreement.
The Company shall deliver the Goods but the Goods may be collected by the Customer by prior arrangement with the Company and the Customer shall be responsible for all costs in relation thereto.
|9.||Damage or Loss in Transit. If the Company or its carrier is to deliver Goods the Customer shall examine them immediately upon, and in any event within three days of, receipt or scheduled delivery to delicvery point and shall notify the Company immediately if they are received in a damaged condition or if there are shortages and will indemnify the Company against any loss which it suffers because any such notification is received too late to enable it to claim against carriers or insurers in respect of such damage or loss in transit not caused by the Company. Subject to the above, in all circumstances of loss or damage to the Goods the Customer's claim shall be limited to the invoiced value of the Goods. Furthermore, the Company must informed in writing within three days of intended delivery failing which the Company shall be under no liability whatsover to the Customer.|
Deliveries. Subject to the Agreement. the Customer may collect or the
Company may deliver the Goods in instalments and in such event each
instalment shall be deemed a separate contract to, the following purposes:
|11.||Quantity. The Company shall endeavour to deliver the quantity or quantities ordered but such quantities are plus or minus 20% credit or debit being given pro rata.|
|12.||Terms. All monies
payable by the Customer under the Agreement shall be paid in full net cash
without any deductions set-off or counterclaim whatsoever. All payments
are to be made in the currency of the invoice and, if by cheque, the
cheque to be drawn on an UK clearing account and to be received by the
Company three working days before the due date. Payments by Telegraphic
Transfer may be made up to midday on the due date.
In respect of approved credit accounts payment is due at the time specified in the PASA, or if none then 30 days from the invoice date. In all other cases payment is due against Pro Forma invoice on acceptance of the order.
Without prejudice to any other rights of the Company the Customer shall pay interest on any sums overdue to, payment at a rate four percentage points above the Base Rate from time to time of Barclays Bank PLC from the due date for payment until payment (as well after as before judgement).
For the avoidance of doubt sums payable for additional costs and extras shall be such as are in the circumstances fair and reasonable.
|(A)||If the Customer fails to pay any sum when due under this or any other agreement between the Customer and the Company or if any "event mentioned under (B) occurs then the Company may at its option:|
|(i)||treat this and any other agreement between the parties as having been repudiated and recover damages accordingly|
|(ii)||suspend further performance until all sums owing to the Company by the Customer under any agreement have been paid|
|(iii)||withhold further performance under this or any other agreement until it has received payment in advance of all monies to become payable thereunder:|
|(iv)||suspend any or all credit granted to the Customer on any account.|
|(B)||Without prejudice to any other rights under the Agreement or otherwise, the Company may determine forthwith by notice in this writing or any other agreement with the Customer if:|
|(i)||the Customer, is in breach of any term of this Agreement or any other subsisting agreement with the Company;|
|(ii)||any person becomes entitled to levy or does levy distress, execution or other legal process upon the Customer's property or assets or if the Customer makes or offers any arrangement or composition with its creditors or commits any act of bankruptcy or if any petition or receiving order in bankruptcy is presented or made against him or if any resolution or petition to wind up a corporate customer whether voluntary or compulsory other than for amalgamation or reconstruction in a state of solvency is presented or if an administrator, receiver, or administrative receiver, or administrative receiver of the Customer's undertaking property and assets or any part thereof is appointed or the Company has reasonable grounds for believing that the Customer will fail to discharge its obligations to the Company when due.|
|(C)||If the Company determines the agreement under (B) all sums to become payable to the Company and all loss whatsoever to it arising our of the termination of the Agreement shall become immediately due and payable.|
|14.||Property and Retention of Title|
|(A)||Title of the Goods will pass to the Customer only when payment in full for the Goods delivered to the Customer under the relevant Agreement (including any interest payable under paragraph 12) has been received by the Company. Until title to the Goods passes in accordance with this paragraph the Customer shall hold the Goods as Bailee of the Company and if the Company requires the Customer shall store the Goods separately from other goods and shall ensure that they are clearly identifiable as belonging to the Company. The Company by it's employees or agents shall be entitled to enter upon or into any land, buildings or vehicles of the Customer to satisfy itself that this obligation is being complied with.|
|(B)||the company by its employees or agents shall be entitled to enter upon or into any land, buildings or vehicles of the Purchaser to retake possession of those Goods in respect of which title has not passed to the Customer in the event that the right of resale granted under paragraph 14(C) terminates pursuant to paragraph 14(D)|
|(C)||Subject to the remaining provisions of this paragraph 14 the Customer shall be entitled to sell the Goods as mercantile agent but only on terms that title to the Goods shall not pass to the purchaser in accordance with the provisions of sub-section 12(3) of the Factors Act 1889. The Customer's right of resale shall terminate in accordance with paragraph 14(D). The Customer has no right to commit the Company to any liability to any third party. The proceeds of resale shall be kept separate from all other monies (including those of third parties) in the possession of the Customer and the said proceeds together with any claim to such proceeds will belong to the Company until such time as all monies owing from the Customer to the Company shall have been paid in full.|
|(i)||the happening of any event which would give the company the right to terminate this Agreement; or|
|(ii)||the Company reasonably considering for any reason that the Goods are in jeopardy; or|
|(iii)||the happening of any event or default which causes the Company reasonably to consider that its title to the Goods or proceeds of sale may be adversely affected; the Customer's authority to sell the Goods shall end and all Goods in respect of which title has not passed to the Customer shall be redelivered to the Company and all proceeds of sale received by the Customer from sales made prior to the withdrawal of the authority shall be paid direct to the Company or paid into a bank account separate from all other monies of the Customer and held in such account on trust for the Company.|
|(E)||The Customer shall notify the Company forthwith of the happening of any matters referred to in paragraph 14(D).|
|(F)||The Customer shall not be entitled to pledge or grant any security in any way for any indebtedness over or in respect of any of the Goods in respect of which title has not passed to the Customer.|
|(G)||Notwithstanding the provisions of paragraphs 14(C),(D),(E) and (F) the Company shall, if it retakes the Goods and resells them, account to the Customer for the balance (if any) as determined pursuant to paragraph 14(H).|
|(H)||The balance in respect of which the Company shall account to the Customer in the circumstances specified in paragraph (G) shall be the proceeds of sale of the Goods less:|
|(i)||the expenses of resale; and|
|(ii)||the sum owing from the Customer to the Company.|
|15.||Metal Parts and Printing Plates. All masters, metal parts, label films used for printing on disc and packaging, paper, parts and other components purchased or manufactured by the Company and used by the Company in relation to the Goods or Services shall remain the exclusive property of the Company components including any items subject to an extra charge . The Company shall not be obliged to preserve such components relating to the Goods or Services unless previously agreed in writing. The Company preserves the right to charge additional charges for any such components preserved.|
|16.||Customer Supplied Materials. The Company may without assigning any reasons reject any masters, paper parts, packaging, copy, film or other materials agreed to be supplied or specified by the Customer. Quantities of materials supplied by the Customer shall allow for normal spoilage. The Customer shall indemnify the Company against any loss, damage or expense howsoever arising which the Company may suffer or incur because any material supplied by the Customer, is defective or unsuitable in any way.|
(A) The company may refuse to manufacture, replicate, supply or otherwise deal with any matter which it considers may be illegal or unlawful or in circumstances in which the Company believes that any such manufacture or dealing by it may infringe the rights of any third party or involve it in any illegal or unlawful act or default.
|(B)||It is a condition of this Agreement (and the Customer undertakes) that:|
|(i)||The manufacture or supply of or other dealing with the Goods or the performance of the Services by the Company will not infringe the copyright or other rights of any third party and will not result in the Company engaging or being involved with any unlawful act and neither will it result in the Company incurring any liability whatsoever to any person, firm, company or other organisation.|
|(ii)||The Customer has complied with all obligations and has obtained all permissions and consents necessary for the manufacture, supply, distribution and other dealings with the Goods.|
|(iii)||The Goods will comply with all statutory and regulatory provisions applying to the Goods, including where applicable the Video Recordings Act 1984 (and the Regulations made under it).|
|(iv)||The Goods (and any dealing with them or Services performed in connection with them) will not be obscene, defamatory, blasphemous or in any other way illegal or unlawful.|
|(C) The Customer will indemnify the Company against all losses, damages, costs and expenses (including legal fees on an indemnity basis) which the Company incurs or becomes liable for as a result of any claim that the manufacture or supply of or other dealing with the Goods or any Services performed in connection with any Goods by the Company infringes the rights of any third party or is otherwise illegal or unlawful or as a result of any breach by the Customer of any term of this Agreement.|
(A) The Company warrants that the Goods will be free from material defects under normal conditions of use and when used in conjunction with the appropriate equipment . This warranty is given subject to the proviso that the Company shall be under no liability in respect of any defect in the Goods arising from or out of materials supplied by the Customer.
|(B) The Company warrants that the Services will be performed with reasonable skill and care.|
|(C) Subject as expressively provided in these conditions, all warranties, conditions or other terms of implied by statute or at common law are excluded to the fullest extent permitted by law.|
|19.||Exclusion of Liability. The liability of
the Company in respect of any Goods or Services proven to be defective
shall not exceed the invoiced price of those Goods or Services which are
defective and no liability shall accrue for any indirect or consequential
loss including (but not limited to) loss of profit howsoever arising
suffered by the Customer. The Company shall have the right in full
discharge of its
Liability for death or personal injury caused by the negligence of the Company, its servants and agents or for fraudulent misrepresentation is not hereby purported to be excluded.
|20.||Consumer Transactions. If the agreement is a Consumer Transaction within paragraph 2(i) Consumer, Transactions (Restrictions on Statements) Order 1976 (as amended) nothing in the two paragraphs aforementioned hereof affects or will affect the statutory rights of the Customer.|
|21.||Acceptance of the Goods. The Customer shall within fourteen days from the delivery of the Goods give written notice to the Company of any respect in which it is alleged that the Goods do not comply with the Agreement. Subject to any such notice, the Goods will be deemed to comply with the Agreement in all respects and the Customer shall be bound to accept and pay for the Goods under the terms hereof.|
|22||Risk. If the Customer
or its carrier collects the Goods the risk in them shall pass upon
commencement of loading onto the collecting transport or otherwise being
taken into the possession or control of the Customer its servants or
If the Goods are to be delivered by the Company or its carrier the risk shall pass when the Goods have been so delivered.
If the Customer does not take delivery of the Goods when duly tendered the risk shall pass when delivery should have been accepted.
The Company may at its option store or insure the Goods at the expense of the Customer. All other material (including but not limited to Customers supplied materials) in the possession of the Company or otherwise shall be held, worked on and carried at the Customer's risk in every respect.
|23.||Force Majeure. The Company shall not be liable for any failure to perform any or all of its obligations under the Agreement arising from any inability to secure or procure at reasonable cost, labour, materials or other supplies of any kind or any act of God, war, strike, lockout or other labour dispute, fire. flood, drought, air-pollution, equipment failure, legislation, order of public authority or any other cause whatsoever beyond its control.|
|24.||Severability. If and to the extent that any provision of the Agreement (including these Terms and Conditions) is wholly or partly illegal, void or unenforceable then such provision or offending part thereof shall be severable from the remaining provisions or parts of provisions which shall remain in full force and effect.|
|25.||Cancellation. The Agreement may be cancelled by the Customer only with the Company's written consent. In the event of such cancellation the Customer shall pay to the Company a cancellation charge, commensurate with the Company's costs incurred up to the date of cancellation plus the Company's loss of profit.|
|26.||Notices. All notices or other communications may be sent by first class post or facsimile transmission to the parties at their respective addresses set out in the Agreement or such other address as the party being served shall from time to time notify to the other. If served by post the date of service shall be the date in the normal course of posting upon which the same would be received and if served by facsimile transmission the notice shall be deemed served upon the date of despatch.|
|27.||Applicable Law. The Agreement shall in all respects be governed and construed in accordance with Isle of Man Law. The parties submit to the jurisdiction of the Isle of Man courts.|
|28.||Paragraph Headings shall be ignored in interpretation.|