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):
188.8.131.52. colour proofs and finished Goods;
184.108.40.206. two or more Orders;
220.127.116.11. current and previous Orders;
18.104.22.168. the single sheets of one Order; or
22.214.171.124. 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:
126.96.36.199. four (4) mm for magazines, brochures, books with saddle stitching or ring eyelet sewing as well as pochettas (cutlery pouches);
188.8.131.52. two (2) mm for all other brochures and books;
184.108.40.206. one point five (1.5) mm for napkins;
220.127.116.11. two (2) per cent for advertising products; or
18.104.22.168. 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:
22.214.171.124. 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
126.96.36.199. 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