BUSINESS CUSTOMER TERMS AND CONDITIONS FOR FLYERALARM LIMITED
Flyeralarm Limited (Flyeralarm) is a company registered in England and Wales under company number 07212523 whose registered office is at 12 Melcombe Place London NW12 6JJP.
Flyeralarm is member of the Flyeralarm group, including but not limited to, Flyeralarm GmbH (Germany).
Flyeralarm Limited’s VAT number is GB996238074.
1. Definitions and Interpretation
1.1. In these Business Terms, the following definitions shall apply:
1.1.1. “Agreement” means (i) these Business Terms in regard to a mere supply of Services or (ii) both, these Business Terms and the Contract, in regard to a supply of Goods and/or Services, as the case may be;
1.1.2. “Accessible File Format” means any processible file format for Goods Specification Data as may be defined on the Website and amended from time to time;
1.1.3. “Additional Costs and Charges” means any additional costs and charges (including, but not limited to packaging, storage, wastage, insurance and transport of the Goods) but in any event a minimum charge of GBP 8.50 (exclusive VAT) as set out on the Website and amended from time to time;
1.1.4. “Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
1.1.5. “Business Customer” means the person or firm who uses the Services and/or purchases Goods from Flyeralarm;
1.1.6. “Business Customer Data” means any data (including the company name, field of business, name, address, email address and telephone number) collected and used by Flyeralarm to perform its obligations under the Contract;
1.1.7. “Business Terms” means these business terms and conditions as amended from time to time in accordance with clause 22;
1.1.8. "Carrier" means any transport carrier appointed by Flyeralarm to deliver the Goods to the Delivery Location;
1.1.9. "CMYK" means a method of printing any colour by using up to four inks—cyan, magenta, yellow, and black;
1.1.10. “Collection Location” has the meaning set out in clause 5.2;
1.1.11. “Commencement Date” shall have the meaning set out in clause 3.2;
1.1.12. “Contract” means the contract between Flyeralarm and the Business Customer for the supply of Goods in accordance with these Business Terms;
1.1.13. "Conversion Charges" means any additional charges payable for Flyeralarm's attempt to convert a non-accessible file format for Goods Specification Data into an Accessible File Format as prior agreed by the parties in writing;
1.1.14. “Customer Account” means a Business Customer account registered with Flyeralarm through the Website;
1.1.15. “Delivery Information” means information provided by the Business Customer (including, but not limited to the delivery address and the Delivery Method) necessary for Flyeralarm to perform its obligations under the Contract; 1.1.16. “Delivery Location” has the meaning set out in clause 5.1;
1.1.17. “Delivery Method” means the delivery or collection of the Goods;
1.1.18. “Force Majeure Event” has the meaning set out in clause 17;
1.1.19. “Goods” means the print products (or any part of them, including Intermediate Goods) as set out in the Order;
1.1.20. “Goods Specification Data” any data for the specification of Goods, including any relevant text, fonts, plans, drawings, artworks and design, submitted by the Business Customer and agreed by the parties in writing;
1.1.21. “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;
1.1.22. “Intermediate Goods” means all goods produced during the manufacturing process, including, but not limited to disks, films and plates;
1.1.23. "Log In Information" shall have the meaning set out in clause 2.1;
1.1.24. “Order” means the Business Customer's order for the supply of Goods submitted in writing or online through the Website or by any other method agreed by Flyeralarm in writing;
1.1.25. “Services” the online design services for Goods supplied by Flyeralarm;
1.1.26. “Software” means the online software application provided by Flyeralarm which is part of the Services;
1.1.27. "Standard Fee" means Flyeralarm's standard fee for Preparatory Work, as set out in the Order, or shown in Flyeralarm’s brochures or on the Website as amended from time to time;
1.1.28. "Pantone Colours" means the use of special colours out of the Pantone Colour System;
1.1.29. "Preparatory Work" means any work before the actual production of the Goods, including, but not limited to, preparatory work on the Goods Specification Data;
1.1.30. “Price List” means the Flyeralarm price list shown in Flyeralarm’s brochures or on the Website as amended from time to time;
1.1.31. “Price” means the price for Goods set out in the Order (or, if no price for Goods is quoted in the Order, the price for Goods set out in the Price List as at the date of delivery) exclusive of all costs and charges of packaging, insurance and transport;
1.1.32. “Recovery Charges” means any additional charges for the recovery of archived data in the amount of GBP 14.40 (exclusive VAT) as set out on the Website and amended from time to time;
1.1.33. “Virus” means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and
1.1.34. “Website" means the Flyeralarm website www.flyeralarm.com/uk.
1.2. In these Business Terms, the following rules shall apply:
1.2.1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2. Headings are included for convenience only and shall not affect the interpretation of these Business Terms; 1.2.3. Use of the singular includes the plural and vice versa;
1.2.4. A reference to a party includes its personal representatives, successors or permitted assigns;
1.2.5. 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;
1.2.6. 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
1.2.7. A reference to writing or written includes faxes and e-mails.
2. Customer Account Registration
2.1. When registering a Customer Account with Flyeralarm, the Business Customer is required to provide Flyeralarm with certain information such as the company name, company’s field of business, personal name, address, email address and telephone number and to select a password (both, e-mail address and password together, are referred to hereunder as “Log In Information”).
2.2. The Business Customer is responsible for maintaining the confidentiality of the Log In Information, and the Business Customer will be responsible for all uses of the Log In Information whether or not authorised by the Business Customer.
2.3. In the event that the Business Customer provides its approval to allow an employee or any third party approved by the Business Customer (the “Approved Third Party”) to use the Customer Account the Business Customer hereby agrees to the Business Terms on behalf of the Business Customer itself and the selected employee or the Approved Third Party, and the Business Customer represents and warrants that the Business Customer will be responsible for all uses of the Customer Account by the employee and any Approved Third Party whether or not such uses were authorised by the Business Customer.
2.4. In the event the Business Customer becomes aware of or reasonably suspects any breach of security, including without limitation any loss, theft, or unauthorised disclosure or use of the Log In Information, the Business Customer must immediately notify Flyeralarm. Flyeralarm reserves the right to change the password without notice and if Flyeralarm has reason to believe the Business Customer is in breach of this clause 2.4 to invalidate such password, and/or to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Business Customer and Flyeralarm.
2.5. Flyeralarm will open and activate, or re-activate, any Customer Account at its sole discretion.
3. Basis of Contract
3.1. The Order constitutes an offer to purchase Goods in accordance with this Agreement.
3.2. Flyeralarm will acknowledge receipt of any Order by e-mail, but the Order shall only be deemed to be accepted when Flyeralarm issues a separate written acceptance within 14 days of receipt of the Order at which point and on which date the Contract shall come into existence (“Commencement Date”).
3.3. Any samples, drawings, descriptive matter or advertising issued by Flyeralarm and any descriptions of the Goods or illustrations or descriptions of the Services contained in Flyeralarm's catalogues, brochures or on the Website are issued or published for the sole purpose of giving an approximate idea of the services and/or Goods described. They shall not form part of the Contract, and shall not have any contractual force.
3.4. If the Business Customer orders Goods which shall be delivered to or collected from a customer, this customer ("Co-Obligor") shall be jointly and severally liable for the Business Customer's obligations under this Agreement. Flyeralarm may take action against, or release or compromise the liability of the Co-Obligor without prejudice of the liability of the Business Customer. The Business Customer warrants and represents that it has the power and capacity to enter into this Agreement for and on behalf of the Co-Obligor.
3.5. These Business Terms apply to the Contract to the exclusion of any other terms that the Business Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.6. The Business Customer acknowledges and agrees that Flyeralarm, unless Flyeralarm agrees otherwise in writing: 3.6.1. does not accept Orders from or delivery to addresses outside the United Kingdom;
3.6.2. may begin with chargeable Preparatory Work at any time after the Commencement Date; and
3.6.3. will not archive any digital material provided by the Business Customer, especially templates, data and record carriers, extending the time of delivery;
unless agreed otherwise by the parties in writing.
3.7. These Business Terms, and any Contract between Flyeralarm and the Business Customer, are only in the English language.
4.1. The Goods are described in Flyeralarm's catalogue and on its Website as modified by any applicable Goods Specification Data.
4.2. To the extent that the Goods are to be manufactured in accordance with Goods Specification Data supplied by the Business Customer, the Business Customer shall indemnify Flyeralarm 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 Flyeralarm in connection with any claim made against Flyeralarm for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with Flyeralarm's use of the Goods Specification. This clause 4.2 shall survive termination of the Contract.
4.3. Flyeralarm reserves the right to:
4.3.1. amend the Goods Specification Data if required by any applicable statutory or regulatory requirements;
4.3.2. suspend and/or delay the production of the Goods until the Business Customer provides Goods Specification Data in an Accessible File Format or pay any amounts requested in advance; and
4.3.3. refuse to print Goods if the production of the Goods to the Goods Specification Data would be in Flyeralarm’s reasonable opinion in breach of any obligation included in this Agreement and/or in breach of any applicable laws and regulations.
4.4. Flyeralarm may, at its sole discretion, accept any request to:
4.4.1. change the Goods Specification Data, Customer Data and/or Delivery Information (e.g. recipient, Delivery Location, Delivery Method, payment information);
4.4.2. convert a non-accessible file format for the Goods Specification Data into an Accessible File Format; and
4.4.3. recover archived data (e.g. search of files, decompression and preparation of data) for further processing; after acceptance of the Order but the acceptance of any of the requests specified in clause 4.4 is subject to a price increase as set out in clause 10.3.
5. Delivery of Goods
5.1. Flyeralarm shall deliver the Goods to the Carrier (“Delivery Location”) at any time after Flyeralarm notifies the Business Customer that the Goods are ready to deliver. The Carrier will transport the Goods to kerbside of the location set out in the Order or such other location (or a third party) as the parties may agree. Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
5.2. If agreed by the parties prior in writing, the Business Customer may also collect the Goods from Flyeralarm's premises at 12 Melcombe Place, London NW1 6JJ or such other location as may be advised by Flyeralarm before collection (“Collection Location”) within three (3) Business Days of Flyeralarm notifying the Business Customer that the Goods are ready. In this event completion shall take effect on collection at the Collection Location.
5.3. Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Flyeralarm shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Business Customer's failure to provide Flyeralarm with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods (including but not limited to Goods Specification Data in an Accessible File Format) or to pay any amounts requested by Flyeralarm in advance.
5.4. If Flyeralarm fails to deliver the Goods, its liability shall be limited to a refund of the amounts paid by the Business Customer in connection with the relevant Goods or the costs and expenses incurred by the Business Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the Price of the Goods, at Flyeralarm's sole discretion. Flyeralarm shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event the Business Customer's failure to provide Flyeralarm with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
5.5. If the Business Customer fails to accept or take delivery of the Goods within two (2) Business Days of Flyeralarm notifying the Business Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by Flyeralarm's failure to comply with its obligations under the Contract in respect of the Goods:
5.5.1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the third (3rd) Business Day following the day on which Flyeralarm notified the Business Customer that the Goods were ready; and
5.5.2. Flyeralarm shall store the Goods until delivery takes place, and charge the Business Customer for all storage and transport related costs and expenses (including insurance) but in any event a minimum charge of £34.75 (exclusive VAT).
5.6. If ten (10) Business Days after Flyeralarm notified the Business Customer that the Goods were ready for delivery the Business Customer has not taken or accepted delivery of them, Flyeralarm may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Business Customer for any excess over the Price of the Goods or charge the Business Customer for any shortfall below the Price of the Goods.
5.7. The Business Customer shall not be entitled to reject the Goods if Flyeralarm delivers up to and including five (5) per cent more or less than the quantity of Goods ordered for each delivery address, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from the Business Customer that the wrong quantity of Goods was delivered.
5.8. Flyeralarm may deliver the Goods by instalments, which shall be invoiced and paid for separately unless Flyeralarm states otherwise in writing. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Business Customer to terminate any other instalment.
6. Quality of Goods
6.1. Flyeralarm warrants that on delivery the Goods shall:
6.1.1. conform in all material respects with their description and any applicable Goods Specification;
6.1.2. be free from material defects in design, material and workmanship;
6.2. All other warranties or conditions (whether express or implied) as to quality, condition, description, compliance with sample or fitness for purpose (whether statutory or otherwise) other than those expressly set out in these Business Terms are excluded from these Business Terms to the fullest extent permitted by law.
6.3. Subject to clause 6.1, if:
6.3.1. the Business Customer notifies Flyeralarm within seven (7) days of the date of delivery or, if the defect would not be apparent on reasonable inspection, within three (3) months of the date of delivery that some or all of the Goods do not comply with the warranty set out in clause 6.1;
6.3.2. Flyeralarm is given a reasonable opportunity of examining such Goods; and
6.3.3. the Business Customer (if asked to do so by Flyeralarm) returns such Goods to Flyeralarm's place of business at the Business Customer’s cost,
6.3.4. Flyeralarm shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
6.4. Flyeralarm shall not be liable for the Goods' failure to comply with the warranty in clause 6.1 if: 6.4.1. the defect is not notified to Flyeralarm within seven (7) days of the date of delivery or, if the defect would not be apparent on reasonable inspection, within three (3) months of the date of delivery;
6.4.2. the Business Customer makes any further use of such Goods after giving a notice in accordance with clause 6.2;
6.4.3. the defect arises because the Business Customer failed to follow Flyeralarm's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
6.4.4. the defect arises because the Business Customer failed to inform Flyeralarm about the defect after having been provided with a proof of the Goods and some reasonable time for inspection prior to production of the Work;
6.4.5. the defect arises after the Business Customer waived in writing its right to inspect a proof of the Goods prior to production of the Goods;
6.4.6. the defect arises as a result of Flyeralarm following any Goods Specification Data supplied by the Business Customer;
6.4.7. the Business Customer (or a third party) alters or repairs such Goods without the written consent of Flyeralarm;
6.4.8. the defect arises as a result of fair wear and tear, wilful damage, the Business Customer's negligence, or that of its agents or employees, or abnormal working conditions; or
6.4.9. the Goods differ from their description or the Goods Specification Data as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
6.5. The Business Customer acknowledges and agrees that, due to the inherent nature of the printing process, Flyeralarm cannot warrant that:
6.5.1. the Business Customer’s Goods Specification Data and the finished Goods will be an exact match in colour; and
6.5.2. where the Goods are produced using full colour printing (also known as process colour or CMYK printing) that all or any Pantone Colours (also known as spot colours) will be accurately reproduced.
6.6. To the maximum extent permitted by law, Flyeralarm shall not be liable for the Goods' failure to comply with the warranty in clause 6.1 in the event of any:
6.6.1. variation to the running direction of the paper during the printing process, which might lead to minor markings and minor differences in paper strength and rigidity of the Goods;
6.6.2. minor deviation in colour between (including but not limited to):
18.104.22.168. colour proofs and finished Goods;
22.214.171.124. two or more Orders;
126.96.36.199. current and previous Orders;
188.8.131.52. the single sheets of one Order; or
184.108.40.206. the inside and the cover of a magazine or brochure;
6.6.3. minor deviations in cutting or folding from folded/unfolded finished formats up to:
220.127.116.11. four (4) mm for magazines, brochures, books with saddle stitching or ring eyelet sewing as well as pochettas (cutlery pouches);
18.104.22.168. two (2) mm for all other brochures and books;
22.214.171.124. one point five (1.5) mm for napkins;
126.96.36.199. two (2) per cent for advertising products; or
188.8.131.52. one (1) mm for all other products;
6.6.4. misalignment between a partial UV varnish and a printed motif - up to null point three (0.3) mm.
6.7. Except as provided in this clause 6, Flyeralarm shall have no liability to the Business Business Customer in respect of the Goods' failure to comply with the warranty set out in clause 6.1, to the maximum extent permitted by law.
6.8. The terms of these Business Terms shall apply to any repaired or replacement Goods supplied by Flyeralarm under clause 6.3.
7. Title and Risk
7.1. The risk in the Goods shall pass to the Business Customer on collection by the Business Customer or on completion of delivery.
7.2. Title to the Goods shall not pass to the Customer until:
7.2.1. Flyeralarm receives payment in full (in cash or cleared funds) for the Goods and any other goods that Flyeralarm has supplied to the Business Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
7.2.2. the Customer resells the Goods, in which case title to the Goods shall pass to the Business Customer at the time specified in clause 7.4.
7.3. Until title to the Goods has passed to the Business Customer, the Business Customer shall: 7.3.1. store the Goods separately from all other goods held by the Business Customer so that they remain readily identifiable as Flyeralarm's property;
7.3.2. notify Flyeralarm immediately (and indicate to the third party that Flyeralarm retains legal title to the Goods) if any third party makes a claim, or notifies an intention to make a claim, of rights in the Goods;
7.3.3. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.4. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Flyeralarm's behalf from the date of delivery;
7.3.5. notify Flyeralarm immediately if it becomes subject to any of the events listed in clause 16.1.2 to clause 16.1.14; and
7.3.6. give Flyeralarm such information relating to the Goods as Flyeralarm may require from time to time.
7.4. Subject to clause 7.4, the Business Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Flyeralarm receives payment for the Goods. However, if the Business Customer resells the Goods before that time:
7.4.1. it does so as principal and not as Flyeralarm’s agent; and
7.4.2. title to the Goods shall pass from Flyeralarm to the Business Customer immediately before the time at which resale by the Business Customer occurs.
7.5. If before title to the Goods passes to the Business Customer the Business Customer becomes subject to any of the events listed in clause 16.1.2 to clause 16.1.14, then, without limiting any other right or remedy Flyeralarm may have:
7.5.1. the Business Customer's right to resell Goods or use them in the ordinary course of its business ceases immediately; and
7.5.2. Flyeralarm may at any time:
184.108.40.206. require the Business Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product at Business Customer's cost; and
220.127.116.11. if the Business Customer fails to deliver the Goods to Flyeralarm, promptly in accordance with clause 7.5.1, enter any premises of the Business Customer or of any third party where the Goods are stored in order to recover them.
8. Supply of Services
8.1. Flyeralarm will provide the Services using reasonable care and skill.
8.2. The Business Customer acknowledges and accepts that Flyeralarm cannot guarantee that:
8.2.1. any data generated, stored, transmitted or used via or in connection with the Services will be complete, accurate, secure, up to date, received or delivered correctly or at all;
8.2.2. the Services (or the Website) will always be available or be uninterrupted. The Services are provided by Flyeralarm using broadband telephony and therefore may sometimes be unavailable for causes outside Flyeralarm's control, such as failure of the Business Customer's broadband connection or internet service provider, power disruptions, the weather, a Force Majeure Event etc. The Services may also not be available due to suspension of the Services by Flyeralarm in accordance with these Business Terms.
8.3. Subject to these Business Terms, Flyeralarm will grant the Business Customer a limited, revocable,
non-transferable, non-sublicensable and non-exclusive licence to use the Services (and the Website). 8.4. Flyeralarm may suspend, withdraw, discontinue or change all or any part of the Services without notice. To the maximum extent permitted by law, Flyeralarm will not be liable to the Business Customer if for any reason the Services are unavailable at any time or for any period.
8.5. The Business Customer is responsible for making all arrangements necessary for the Business Customer to have access to the Services.
8.6. Any use of the Website is governed by Flyeralarm’s Disclaimer, which includes important terms applicable to the Business Customer.
9. Business Customer's Obligations
9.1. The Business Customer warrants and represents that it is registering with Flyeralarm as a business (and not as a consumer) and that it has the corporate power and capacity to enter into and to perform its obligations under this Agreement.
9.2. The Business Customer shall:
9.2.1. use best endeavours to prevent any unauthorised access or use of the Customer Account;
9.2.2. ensure that the terms of the Order and the Goods Specification Data submitted by the Business Customer are complete and accurate;
9.2.3. provide Flyeralarm promptly with such information and materials (including, but not limited to, Goods Specification Data, Customer Data, and Delivery Information) as Flyeralarm may reasonably require to supply the Goods and/or Services, and ensure that such information is accurate in all material respects;
9.2.4. carry out all of the Business Customer’s responsibilities set out in this Agreement in a timely and efficient manner;
9.2.5. comply with all applicable laws and regulations with respect to its activities under this Agreement;
9.2.6. maintain a copy of any original Goods Specification Data file provided to Flyeralarm;
9.2.7. provide a current, valid email address and be aware that its email filter settings may treat Flyeralarm’s e-mails as spam or direct them to the Business Customer’s junk folder; and
9.2.8. co-operate with Flyeralarm in all matters relating to the supply of Goods and/or Services;
9.3. The Business Customer shall not:
9.3.1. access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services and/or the order of the Goods (manufactured to the Business Customer’s Goods Specification Data) that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; promotes unlawful violence; is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or in a manner that is otherwise illegal or causes damage or injury to any person or property;
9.3.2. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or access all or any part of the Services and/or the Website in order to build a product or service which competes with the Services and/or the Website; or set a link to the Website, unless otherwise agreed prior in writing.
9.4. If Flyeralarm's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Business Customer or failure by the Business Customer to perform any relevant obligation (“Business Customer Default”):
9.4.1. Flyeralarm shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Business Customer remedies the Business Customer Default, and to rely on the Business Customer Default to relieve it from the performance of any of its obligations to the extent the Business Customer Default prevents or delays Flyeralarm's performance of any of its obligations;
9.4.2. Flyeralarm shall not be liable for any costs or losses sustained or incurred by the Business Customer arising directly or indirectly from Flyeralarm's failure or delay to perform any of its obligations as set out in this clause 9.4; and
9.4.3. the Business Customer shall reimburse Flyeralarm on written demand for any costs or losses sustained or incurred by Flyeralarm arising directly or indirectly from the Business Customer Default.
10. Charges and Payment
10.1. The price for Goods shall be the price set out in the Order and shall be inclusive of all costs and charges of packaging, insurance and transport (other than deliveries on a Saturday) of the Goods which shall be advised to the Business Customer before the Business Customer confirms its Order. Or, if no price is quoted in the Order, the price for Goods set out in Flyeralarm's published Price List as at the date of delivery plus all costs and charges of packaging, insurance, transport of the Goods .
10.2. The charges for Preparatory Work, converting non-accessible file formats for Goods Specification Data into an Accessible File Format and Intermediate Goods or any other works not included in the price shall be calculated on a time and materials basis in accordance with Flyeralarm's Standard Fee.
10.3. Flyeralarm reserves the right to increase the Price of the Goods, by giving notice to the Business Customer at any time before delivery, to reflect any increase in the cost of the Goods to Flyeralarm that is due to:
10.3.1. any factor beyond the control of Flyeralarm (including increases in labour, materials and other manufacturing costs);
10.3.2. any request by the Business Customer to change the Goods Specification Data, Customer Data and/or Delivery Information (e.g. recipient, Delivery Location, Delivery Method, payment information) (“Additional Costs and Charges”);
10.3.3. any request by the Business Customer to convert a non-accessible file format for Goods Specification Data into an Accessible File Format (whether or not Flyeralarm’s attempt is successful) ("Conversion Charges");
10.3.4. any request to recover archived data (e.g. search of files, decompression and preparation of data) for further processing (“Recovery Charges”); or
10.3.5. any delay caused by any instructions of the Business Customer in respect of the Goods or failure of the Business Customer to give Flyeralarm adequate or accurate information or instructions in respect of the Goods.
10.4. The Price List contains a large number of Goods. It is always possible that, despite Flyeralarm’s reasonable efforts, some of the Goods may be incorrectly priced. If Flyeralarm discovers an error in the Price of the Goods the Business Customer has ordered Flyeralarm will contact the Business Customer in writing to inform the Business Customer of this error and Flyeralarm will give the Business Customer the option of continuing to purchase the Goods at the correct Price or cancelling the Order. Flyeralarm will not process the Business Customer’s order until Flyeralarm has the Business Customer’s instructions. If Flyeralarm is unable to contact the Business Customer using the contact details the Business Customer provided during the order process, Flyeralarm will treat the Order as cancelled and notify the Business Customer in writing. If the pricing error is obvious and unmistakeable and could have reasonably been recognised by the Business Customer as a mispricing, Flyeralarm does not have to provide the Goods to the Business Customer at the incorrect (lower) price.
10.5. Subject to any amounts requested in advance by Flyeralarm, Flyeralarm shall invoice the Business Customer in writing on or at any time after completion of delivery or collection.
10.6. The Business Customer shall pay for the Goods and for any other amounts due under the Contract in full and in cash or cleared funds (to a bank account nominated in writing by Flyeralarm) at completion on delivery or collection, or, if agreed so by the parties in writing, immediately on receipt of Flyeralarm’s invoice. Time for payment shall be of the essence of the Contract.
10.7. The Business Customer agrees and accepts the following handling fees:
10.7.1. GBP 7.56 (exclusive VAT) for any cash payment; or
10.7.2. two (2) per cent of the Price with a minimum of GBP 3.50 (exclusive VAT) for any credit card.
10.8. The Business Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. Flyeralarm may, without limiting its other rights or remedies, set off any amount owing to it by the Business Customer against any amount payable by Flyeralarm to the Business Customer.
10.9. If the Business Customer fails to make any payment due to Flyeralarm under the Contract by the due date for payment, then the Business Customer shall pay Flyeralarm on demand GBP £20 as liquidated damages. The parties confirm that this sum represents a genuine pre-estimate of Flyeralarm's loss. The Business Customer shall pay the liquidated damages together with the overdue amount.
10.10. All amounts payable by the Business 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 Flyeralarm to the Business Customer, the Business Customer shall, on receipt of a valid VAT invoice from Flyeralarm, pay to Flyeralarm such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
11. Proprietary Rights
11.1. The Business Customer acknowledges and agrees that
11.1.1. all Intermediate Goods are the exclusive property of Flyeralarm;
11.1.2. Flyeralarm and/or its licensors own all Intellectual Property Rights in the manufactured Goods (including, but not limited to, the graphical layout, images and text marks), the Services and the Website (“Flyeralarm Intellectual Property Rights”); and
11.1.3. nothing in this Agreement shall be construed as conferring any licence or granting any rights in favour of the Business Customer in relation to the Flyeralarm Intellectual Property Rights.
11.2. Flyeralarm confirms that it has all the rights in relation to the Goods, the Services and the Website that are necessary to grant all the rights it purports to grant under, and in accordance with this Agreement.
11.3. In the event that the Business Customer wishes to purchase the assignment of the Flyeralarm Intellectual Property Rights in the Goods or any Intermediate Goods, the Business Customer may contact Flyeralarm to agree any terms and payment provisions in relation to this assignment under a separate agreement.
11.4. The Business Customer confirms that it has and will maintain all necessary licences, consents, and permissions necessary to use the Goods Specification Data that are necessary to grant all the rights it purports to grant under, and in accordance with this Agreement.
11.5. For the avoidance of doubt, the Business Customer will grant Flyeralarm a licence to use copy, transmit, store, and back-up the Goods Specification Data to perform its obligations under this Agreement.
12. Data Protection
13.1. Unless otherwise agreed by the parties in writing, the Business Customer 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 Business Customer by Flyeralarm, its employees, agents or subcontractors, and any other confidential information concerning Flyeralarm's business, its products and services which the Business Customer may obtain. The Business Customer 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 Business Customer'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 Business Customer may also disclose such of the Flyeralarm'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. Limitation of Liability
14.1. Nothing in these Business Terms shall limit or exclude Flyeralarm's liability for:
14.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; 14.1.2. fraud or fraudulent misrepresentation;
14.1.3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
14.1.4. breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
14.1.5. defective products under the Consumer Protection Act 1987.
14.2. Subject to clause 14.1 Flyeralarm shall under no circumstances whatever be liable to the Business Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise for:
14.2.1. any loss of profit, any indirect, special or consequential loss, loss of data or other equipment or property, economic loss or damage, incurring of liability for loss or damage of any nature whatsoever suffered by third parties (including in each case incidental and punitive damages), any loss of actual or anticipated profit, interest, revenue, anticipated savings or business or damage to goodwill arising under or in connection with the Contract even if Flyeralarm is advised in advance of the possibility of any such losses or damages; or
14.2.2. non-delivery, unless the Business Customer notifies Flyeralarm of the claim within 7 days of the date of Flyeralarm's invoice; or
14.2.3. shortages in the quantity of Goods delivered in excess of those permitted by clause 5.7, unless the Customer notifies Flyeralarm of a claim within 7 days of receipt of the Goods; or
14.2.4. for damage to or loss of all or part of the Goods in transit (where the Goods are to be delivered by a Carrier).
14.3. Flyeralarm's total liability to the Business Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), misrepresentation, breach of statutory duty, or otherwise, shall in no circumstances exceed the Price of the Goods to which the claim relates.
14.4. 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.
14.5. This clause 14 shall survive termination of the Contract.
15. Business Customer Cancellation Right
15.1. The Business Customer may request (using its Customer Account), and Flyeralarm shall accept a cancellation of the Contract until the complete Goods Specification Data has been received by Flyeralarm in an Accessible File Format. 15.2. Upon successful cancellation, the Business Customer shall pay for any Preparatory Work done and, if no
Preparatory Work has been done but the Business Customer used a credit card to order the Goods a handling fee of GBP £8 (exclusive VAT)
16. Electronic invoicing, changing invoices
16.1 The customer agrees to receiving an invoice via electronic means.
16.2 Errors are excepted for the invoices generated by us. We will be able to generate a new, corrected invoice for up to six weeks after the customer received the original invoice. The customer must request any changes to the invoice in writing, detailing the invoice line items to be amended, within the six week deadline period. The invoice will count as accepted six weeks after receipt by the customer. No more changes to the invoice are possible after this period. This also applies to any desired changes to the invoice recipient or invoicing address. The six week period does not affect the obligation to pay or the obligation to notify of defects within the shorter period defined within these General Terms and Conditions.
17.1. 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:
17.1.1. 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 30 days after receipt of notice in writing to do so;
17.1.2. the other party commits the same or substantially similar breaches of its obligations under this agreement more than two (2) times within any period of twelve (12) consecutive months;
17.1.3. 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;
17.1.4. 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;
17.1.5. 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;
17.1.6. the other party (being an individual) is the subject of a bankruptcy petition or order;
17.1.7. 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;
17.1.8. 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);
17.1.9. 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;
17.1.10. 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;
17.1.11. 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 16.1.10 (inclusive);
17.1.12. the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
17.1.13. the other party's financial position deteriorates to such an extent that in party's opinion the other partie's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
17.1.14. 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, Flyeralarm may
17.2.1. terminate the Contract with immediate effect by giving written notice to the Business Customer if the Business Customer fails to pay any amount due under this Agreement on the due date for payment; and
17.2.2. suspend the supply of all further deliveries of Goods under the Contract or any other contract between the Business Customer and Flyeralarm if the Business Customer fails to pay any amount due under this Agreement on the due date for payment, the Business Customer becomes subject to any of the events listed in clause 16.1.2 to clause 16.1.14, or Flyeralarm reasonably believes that the Business Customer is about to become subject to any of them.
17.3. On termination of the Contract for any reason:
17.3.1. the Business Customer shall immediately pay to Flyeralarm all of Flyeralarm's outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has yet been submitted (including, but not limited to, Preparatory Works and Intermediate Goods), Flyeralarm shall submit an invoice, which shall be payable by the Business Customer immediately on receipt;
17.3.2. the Business Customer shall return all of the Goods which have not been fully paid for. If the Business Customer fails to do so, then Flyeralarm may enter the Business Customer's premises and take possession of them. Until they have been returned, the Business Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract;
17.3.3. 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;
17.3.4. any licences granted under the Contract shall be revoked; and
17.3.5. clauses which expressly or by implication have effect after termination shall continue in full force and effect.
17.4. For the avoidance of doubt, a termination of the Contract for any reason shall not affect the supply of Services under the Business Terms.
18. Force Majeure
18.1. Flyeralarm shall not be liable to the Business Customer as a result of any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event. 17.2. For the purposes of this Agreement, Force Majeure Event means an event beyond Flyeralarm’s reasonable control including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Flyeralarm or any other party), failure of a utility service or transport network, failure of public or private telecommunications networks 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, draught, storm or default of suppliers, subcontractors, or the Business Customer (including inadequacy or unsuitability of any instructions, electronic file or other data or materials such as the Goods Specification Data, Customer Data or Delivery Information supplied by the Business Customer).
19.1. Flyeralarm may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under this Agreement and may subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party.
19.2. The Business Customer shall not, without the prior written consent of Flyeralarm, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under this Agreement.
20.1. Any notice or other communication given to a party under or in connection with this Agreement 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.
20.2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 19.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second (2nd) 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 by fax or e-mail, one (1) Business Day after transmission.
20.3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
21.1. If any provision or part-provision of this Agreement 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 this Agreement.
21.2. If any provision or part-provision of this Agreement 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.
22.1. A waiver of any right under this Agreement 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 this Agreement 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.
23.1. Flyeralarm may amend this Agreement from time to time in accordance with this clause 22.
23.2. Flyeralarm will give the Business Customer reasonable notice of any proposed variation (“Variation”) and of the date on which this variation shall take effect (“Variation Date”). If by the Variation Date the Business Customer:
23.2.1. accepts in writing the Variation then the Variation shall take effect at the Variation Date; or
23.2.2. opposes in writing the Variation then the Business Customer may without further notice terminate the Agreement in respect of all the affected Goods on or after the Variation Date.
23.3. In the event that the Business Customer neither accepts nor opposes the Variation under clause 23.2 then:
23.3.1. Flyeralarm may without further notice and at its absolute discretion terminate this Agreement on or after the Variation Date; or
23.3.2. the Variation shall take effect at the Variation Date.
23.4. Every time the Business Customer orders Goods from Flyeralarm, the Business Terms in force at the time of the Order will apply to the Contract.
23.5. Except as set out in this Agreement, no variation of this Agreement, including the introduction of any additional terms and conditions shall be effective unless it is agreed by the parties in writing.
24. Entire Agreement
24.1. This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
24.2. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
25. Other Important Business Terms
25.1. All of these Business Terms shall apply to the supply of both Goods and Services except where application to one or the other is specified.
25.2. Nothing in this Agreement 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.
25.3. A person who is not a party to this Agreement shall not have any rights to enforce its terms.
26. Governing Law and Jurisdiction
26.1. 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. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.
26.2. 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 Agreement or its subject matter or formation (including non-contractual disputes or claims).