Standard Terms & Conditions & General Trading Information
'We', 'Us', 'Our', ‘Fluid’: Fluid Branding Limited (CRN: 05867605) of ESAM - The Enterprise Space for Advanced Manufacturing Carluddon Technology Park, Saint Austell, PL26 8WE
'You', Your', ‘Customer’: the person, company or firm who purchases the goods and/or services from us
'Contract': the contract between you and us for the sale and purchase of goods and/or services as more particularly defined below in clause 1.1.
1. General & Contract Information
1.1: An order by you shall constitute your offer to purchase the goods and/or services from us in accordance with these terms and conditions. The contract between us shall not come into existence until the date that we provide you with written confirmation of our acceptance of your order (the “Contract”).
1.2: These terms and conditions apply to the Contract to the exclusion of any other terms that you may put forward, seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.3: Any variation of these terms need to be approved in writing by us prior to the commencement of the Contract.
2. Payment Terms
Payment is required before any order is processed unless credit facilities have been approved with us in advance of the order. Payment on pre-approved credit accounts shall be made in full within 30 days of invoice. Credit facilities may be withdrawn without notice.
Any discounts are offered on the strict understanding that accounts are paid by the due date. We reserve the right to invoice any such discounts to accounts, which become overdue.
4. Passing of title and risk
4.1: The risk in the goods shall pass to you on delivery.
4.2: All goods, delivered or not, remain our property until payment is received in full.
4.3: Pursuant to clause 4.2, until such time as payment in full is made you shall retain such goods separately from other goods and clearly mark them in such a way that they can be readily identified as being our property and any payment received by you for any sale of such goods must be held in a separate account on trust for us. In the event of non-payment by you for such goods we will, without loss of any rights or remedy, remove from your possession those goods belonging to us in accordance with these conditions and we shall be entitled to enter upon the property where the goods are stored and repossess and remove the same. You hereby grant us an irrevocable licence to enter your premises for the said purposes.
5. Bill and Hold
5.1 Any stock held at our premises which has been invoiced by us to Customer and is to be called off by Customer at a later date will be paid for in full in accordance with the terms of our invoice.
5.2 Whilst we hold these goods on Customer behalf, title for these goods will pass to Customer on payment of the invoice and therefore once paid we will hold said goods at the
Customers own risk. All payments made in relation to the stock held at our premises which is called off by Customer at a later date will be made without any deduction for contra or other off-set not previously advised.
6. Product specification & prices
6.1: We reserve the right to alter any prices or detail or design of products illustrated without notice.
6.2: Any drawings, descriptions or illustrations contained in our catalogues or on our website are produced for the sole purpose of giving an approximate idea of the goods referred to in them and while every effort is made to describe goods accurately in the catalogues and website no warranty is given as to accuracy and no responsibility will be accepted for error or mis-description and any resulting loss.
6.3: You remain fully responsible for ensuring that all measurements, logos and/or graphics are correct and accurate. We shall in no way be responsible for any such errors or inaccuracies. By submitting your order to us, you undertake to us that you have the right or full permission to use any logos which are contained in your order specification. We shall in no way be liable to any third party for your unauthorised use of such logos or imagery and you hereby fully indemnify us against any such claim or liability
6.4: Where applicable all prices quoted are subject to V.A.T at the current rate.
7. Quotations & Contracts
Orders are accepted subject to our right to adjust prices quoted to take account of any charges in the law or government regulations requiring us to increase prices by way of direct taxation, import duties, customs and excise duties or otherwise. The prices are based on today's current costs of production and in the event of any increase in wages or costs of materials to us occurring after the confirmation or accepted contract, we shall be entitled to charge such increases to you. All quoted prices are subject to site of artwork and stock availability. E & OE.
8.1: Every effort will be made to deliver on time, but any delivery date specified is approximate only. Time is not of the essence and no liability is accepted for any loss arising from delay or error in the delivery of the goods.
8.2: All deliveries will be charged at the prevailing rates applying at the dates of such delivery.
8.3: Special express deliveries can usually be arranged but will usually be subject to additional charges (e.g. Express print charges and Express delivery charges) which will be charged to you at current quoted rates.
8.4: We shall not be liable for any delay in delivery of the goods or performance of any services that is caused by a Force Majeure Event (see clause 16 below) or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the goods or performance of services.
9. Quantity Variation
We shall be deemed to have fulfilled our contract by delivery of a quantity within 10% plus or minus of the quantity of printed goods ordered and you will be charged at the contract rate for the quantity delivered.
10. Acceptance of the Goods
10.1: You must examine all goods delivered at the time of delivery and notify us as soon as practicable after delivery of any goods that have been damaged in transit or where there has been a partial loss of goods. We shall not be liable for any loss arising from damage caused to the goods in transit unless loss or damage is noted in the delivery note at the time of delivery.
10.2: You must notify us as soon as practicable after delivery (and no later than 7 days after delivery) of any goods which you believe do not confirm with the Contract. You agree to give us a reasonable opportunity to examine such goods shall and agree that we may at our option, replace any defective goods, or refund the price of the defective goods. We shall not be liable for goods' failure to comply with the Contract where:
(a) the defect arises because you have failed to follow any oral or written instructions as to the storage of the goods or (if there are none) good trade practice regarding the same;
(b) the defect arises as a result of your wilful damage, negligence, or abnormal storage or working conditions by you; or
(c) the defect arises as a result of our following any drawing, design or specification which you have supplied to us.
10.3: The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
10.4: Divisibility. All Purchase Orders sent by you and accepted by Fluid Branding are divisible. If the goods and/or services are delivered/completed in instalments, each instalment completed thereunder:
i) shall be deemed to arise from a separate contract, and
ii) shall be invoiced separately and any invoices for an instalment shall be payable in full in accordance with the Payment Terms provided for therein without reference to and notwithstanding any defect or default in the delivery of any other instalment or of any other instalment under any contract.
11.1: Nothing in these terms shall limit or exclude our liability for death; personal injury; fraud or fraudulent misrepresentation.
11.2: Subject to clause 9 and this clause 10 we shall under no circumstances whatsoever be liable to you, 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.
11.3: Subject to clause 9 and this clause 10 our total liability to you shall, in respect of all other losses arising under or in connection with the Contract, be limited to the value of the Contract.
11.2: If you fail to give notice of rejection of any goods in accordance with clause 9 you shall be deemed to have accepted the goods and we can accept no responsibility unless you have fully complied with the notification procedure set out in clause 9.
11.3: Nothing in these terms and conditions shall affect the statutory rights of the consumer.
12. Cancellation Charges
Once the Contract has been formed between us pursuant to clause 1.1, we reserve the right to levy an administration charge on any cancelled orders, together with a charge in respect of all work carried out up to the date of written cancellation.
Random samples will be submitted on approval and will be charged if not returned in good condition within 14 days from receipt.
14. Overdue Accounts
14.1: No goods will be delivered on accounts which remain unpaid 14 days after payment is due. Invoices not paid by the due date may be charged interest at 2% per month calculated on a daily basis until payment has been received and cleared into our bank account. This does not prevent us from pursuing payment of overdue accounts at any time after payment becomes due and shall be in addition to and without prejudice to any other rights we may have against you.
14.2: We reserve the right to charge you for any legal collection charges where it is necessary to obtain payment from you of an overdue account through a third party or Court proceedings.
15. Quantity Changes to Order
Any change in the quantity of an order must be made in writing to us prior to commencement of processing. Any increase in the order must be regarded as a separate contract unless written notification is received before work commences on the original order.
16. Artwork & Printing
16.1: All artwork and printing charges will be levied where necessary unless previously stipulated by us.
16.2: Where applicable the prices shown include printing one colour one position from camera ready artwork supplied. For additional positions or colours of printing please phone to obtain an exact quotation. The standard printing colours are detailed in the current brochure.
17. Force Majeure
17.1: We will not be held responsible for failure or delay in the carrying out of our obligations under the Contract arising out of or in connection with an event or circumstance which is outside or beyond our reasonable control or by inability to procure materials or articles except at higher prices due to any such circumstances.
17.2: Where we are unable to perform our obligations under the Contract pursuant to clause 16.1 for more than 6 weeks we shall be entitled by notice to terminate the Contract in whole or in part without incurring any liability whatsoever to you.
18. Monitoring of telephone calls
For security and training purposes telephone calls may be recorded.
19. Data Protection
19.1 The Customer is hereby notified that Fluid may transfer personal information about the Customer to a Credit Agency. Otherwise, with respect to all applicable legislation in any jurisdiction protecting the fundamental rights and freedoms of individuals, in respect of their right to privacy and the processing of their personal data, as amended from time to time, including (without limitation) Regulation (EU)2016/679, ‘the General Data Protection Regulation’ (“GDPR“), the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003, together with all decisions, guidelines, guidance notes and codes of practice issued from time to time by courts, data protection authorities and other applicable Government authorities (the “Data Protection Laws“), Fluid undertakes, where it processes personal data (as such term is defined under the Data Protection Laws (“Personal Data“)) under this Agreement:
a. to do so only as strictly necessary to perform its obligations under (and in accordance with the terms of) this Agreement and the Customer’s instructions from time to time, or in accordance with all applicable laws (subject to informing the Customer in advance, unless prohibited from doing so by such laws).
b. to notify the Customer if it considers that any of the Customer’s instructions infringe the Data Protection Laws.
c. not to disclose the Personal Data to a third party in any circumstances other than at the specific request of the Customer or if otherwise compelled by law to make such disclosure.
d. to ensure that only those of the Staff who may be required by Fluid to assist in meeting its obligations under this Agreement shall have access to the Personal Data and that such Staff have received training and/or instruction in the care and handling of Personal Data and are required to keep it confidential.
e. to notify the Customer promptly following receipt of, and to provide all necessary information and assistance to the Customer in responding to, any request or notification from a data subject and/or any regulator under the Data Protection Legislation, including (without limitation) with respect to security, impact assessments and consultations with regulators, together also with providing full support and assistance regarding all data subject access, correction, objection, erasure and portability requests, as applicable, and otherwise in order to enable the Customer to comply with its obligations under the Data Protection Laws;
f. to notify the Customer within 24 hours of becoming aware of a Personal Data Breach (being any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data), providing the Customer with all information to meet its reporting obligations under the Data Protection Laws, including (as a minimum): describing its nature, the categories and numbers of Data Subjects concerned, identifying the data protection officer from whom more information may be obtained; describing its likely consequences and the measures taken or proposed to be taken to address it; and taking such steps required by the Customer to assist in its investigation, mitigation and remediation;
g. at the written direction of the Customer, to delete, provide a complete copy, or return all Personal Data and all copies thereof under its control to the Customer on termination of the Agreement unless required by Data Protection Laws to store the Personal Data; and
h. to maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Customer, any regulator or by their designated auditors.
i. not to transfer any Personal Data outside of the European Economic Area without prior written consent of the Customer.
j. not to appoint (or replace) any third-party sub-processor of any Personal Data under this Agreement without the prior written consent of the Customer. In all cases where a sub-processor is appointed, to execute a written contract between the Fluid and the sub-processor including terms which are equivalent to those set out in this Clause 18, and Fluid shall remain fully liable to the Customer for any breach of such terms and/or the Data Protection Laws by such sub-processor.
k. to allow its data processing facilities, procedures and documentation which relate to the processing of Personal Data to be scrutinised by the auditors of the Customer to ascertain compliance with the Data Protection Laws; and
l. to have in place such technical and organisational measures as are reasonably necessary and appropriate to safeguard against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.
m. The parties acknowledge that the Customer is the “controller” of the Personal Data and Fluid is acting as “processor” on behalf of the Customer (as such terms are defined in the Data Protection Laws) provided however that it is also acknowledged that the Controller could be the Customer and/or other parties and therefore all references to the Customer in this clause 18 shall be interpreted to extend to any other controller as if they were a party to this Agreement. Fluid acknowledges that all right, title and interest in the Personal Data is vested solely in the Customer.
n. Either party may, at any time on not less than 30 days’ notice, revise this clause 18 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
o. On termination of the Agreement, for whatever reason, Fluid shall cease to use the Personal Data and shall arrange for the prompt and safe return to the Customer of all Personal Data together with all copies in its possession or control.
20.1: We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
20.2: If any provision or part-provision of these terms 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 terms.
20.3: A person who is not a party to the Contract shall not have any rights to enforce its terms.
20.4: 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 issued in writing by us.
20.5: The Contract, 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. 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).