TERMS AND CONDITIONS FOR SUPPLY OF GOODS AND SERVICES TO CUSTOMERS
Project Agency Ltd T/A Project Merchandise, 161 Riverside Close, London, E5 9ST, Registered in England No. 12754975161
1. DEFINITIONS AND CONTRACT INFORMATION
“Acknowledgement of Order” means the acknowledgement of order provided by Project Merchandise confirming a contract of sale on the Conditions.
“Authorised Person” means a director of Project Merchandise or any person(s) authorised to the appropriate level.
“Conditions” means the standard terms and conditions set out in this document and/or any schedule to it and any special conditions agreed in writing and recorded on the Order and confirmed by Project Merchandise in the Acknowledgment of Order.
“Contract” means any contract between You and Project Merchandise on the Conditions for the sale of Goods and/or the supply of Services.
“Deposit” means any money payable by You as a deposit to Project Merchandise in respect of Goods and/or Services to be provided.
“Goods” means any products as specified in the Order.
“Order” means the order submitted by You in the form approved by project Merchandise for the sale of Goods and/or the supply of Services and confirmed by the Acknowledgement of Order.
“Project Merchandise” means the trading name of Project Agency Ltd (company no. 12754975).
“Services” means any service specified in the Order.
“Working Day” means any day excluding Saturday and Sunday and public holidays in the United Kingdom
“You” means the person, firm or company who contracts to purchase Goods and/or Services (and “Your” will be constructed accordingly).
1.1. All of the terms of the Contract entered into by Project Merchandise for the sale of Goods and/or Services are included in the Conditions to the exclusion of any other terms and conditions which You purport to apply under any purchase order, confirmation of order or other document. The Contract contains the entire Agreement between the Parties in relation to the sale of Goods and/or Services and You irrevocably and unconditionally waive any right that You might have to claim damages for, and/or to rescind this Contract because of breach of any warranty not contained in the Contract, unless such misrepresentation was made fraudulently.
1.2. No Order submitted by You will be accepted or deemed to be accepted or become a legally enforceable Contract with Project Merchandise unless and until Project Merchandise despatches an Acknowledgement of Order to You or until delivery of the Goods and/or Services, whichever is the earlier.
1.3. Quotations are made without commitment and are subject to Project Merchandise sending You an Acknowledgement of Order once You decide to proceed with Your Order. A price given in any quotation is valid for 30 days from the date of issue unless stated otherwise or until the quotation is withdrawn by Project Merchandise if earlier.
1.4. You are responsible to Project Merchandise for ensuring the accuracy of the terms of Your Order. The quantity and description of the Goods and/or Services shall be those set out in Your Order accepted by Project Merchandise.
1.5. You warrant that You are ordering the Goods and/or Services in the course of Your business.
1.6. Project Merchandise reserves the right without notice to You to make any changes in the specification of the Goods that are required to conform with any applicable statutory or EC requirement (or any other in any jurisdiction) or technical regulation (including without limitation governing body regulation).
1.7. No variation to the Conditions shall be binding unless agreed in writing and signed by an Authorised Person.
1.8. Project Merchandises’ employees or agents are not authorised to make any representations concerning the Goods and/or Services, and any specific requirements You have must be confirmed in writing by an Authorised Person. In entering into a Contract, You agree without affecting any liability for fraudulent misrepresentation that You do not rely on and waive any claim for breach of any such representations that are not so confirmed.
2. CANCELLATION AND AMENDMENT OF ORDER
2.1. No Order that has been accepted by Project Merchandise may be cancelled unless agreed in writing with an Authorised Person, and if Project Merchandise accept any cancellation then any Deposit will be forfeited to Project Merchandise and not refunded to You. In addition, You accept that You must indemnify Project Merchandise in full against all loss (including without limitation loss of profit), costs, damages, charges and expenses incurred by Project Merchandise as a result of the cancellation.
2.2. An Order placed by You may not be altered once the artwork has been approved.
3. DESCRIPTIONS
3.1. The descriptions and illustrations contained in any catalogues, websites, price lists and other leaflets or descriptive matter produced by Project Merchandise do not form part of the Contract and are not binding on Project Merchandise. Any description or sample given of any Goods and/or Services is by way of identification only. A description or sample of the Goods does not constitute a sale by description or sample. In entering into the Contract, You agree that You do not rely on and waive any claim for breach of any representations arising from such documentation.
3.2. Project Merchandise is entitled to correct at any time any typographical, clerical or other error or omission in any of its sales literature, website, price list, invoice or other document or information issued by it without any liability and any such documents do not constitute offers made by Project Merchandise.
4. DELIVERY
4.1. Any date or period quoted by Project Merchandise for delivery of the Goods and/or the performance of the Services is given in good faith by way of estimate only. Whilst Project Merchandise will endeavour to deliver/perform within the period stated, such date or period will only be of the Contract, whether such delivery dates are considered to be acceptable to all parties, and a degree of flexibility is allowed where any delay is cause outside the control of Project Merchandise. If no dates are specified, delivery and/or performance will be as soon as possible.
4.2. Project Merchandise shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in delivery of the Goods and/or performance of the Services. The sole exception being where late delivery charges are imposed upon You to a specific contract(s), by their customer and Project Merchandise has agreed by email within 14 days to indemnify You for all or a portion of such late delivery charges. In that event, the limitations on Project Merchandise’s liability in condition 11.3 shall not apply and Project Merchandise shall pay the agreed late delivery charges, subject to You providing Project Merchandise with written evidence that it has incurred such charges.
4.3. Where the Goods are to be delivered in instalments, each delivery will not constitute a seperate Contract, under these Conditions. This means that failure by Project Merchandise to deliver any one or more of the instalments in accordance with the Contract or any claim by You in respect of one or more instalments does not entitle You to treat the Contract as brough to an end as a whole.
4.4. If you refuse to accept delivery of the Goods or fail to collect the Goods when notified by Project Merchandise that they are available for collection or otherwise fail to give Project Merchandise adequate delivery instructions then:
(a) Project Merchandise may store the Goods until actual delivery and charge You for all related costs including but not limited to insurance, storage and administrative charges;
(b) After 2 weeks (in relation to any Goods) of any such request, refusal or failure, Project Merchandise may invoice You in full for Goods where delay exceeds 10 working day;
(c) If the Goods delivered fail to meet the agreed specification as stated on the relevant Acknowledgement of Order and subsequent purchase order, then Project Merchandise shall not be able to force you to accept deliver of the Goods (also refer to condition 7.1 for damaged parts).
4.5. Project Merchandise will have no liability for shortfall in the quantity of Goods or Services delivered unless notified by You in writing within 72 hours of goods delivered at the agreed place of delivery. If you do not notify Project Merchandise within the time limit specified in this clause You will be deemed to have received the Goods or Services and will be bound to pay the price as if the Goods and Services had been received by You.
4.6. No changes to the delivery address can be made once the Order has been confirmed in the Acknowledgement of Order unless otherwise agreed in writing by an Authorised Person.
4.7. Special express deliveries can usually be arranged but will be subject to additional charges (e.g. express print charges and express delivery charges) which will be charged to You at current quoted rates.
4.8. Project Merchandise will not be liable for Your failure to provide adequate delivery instructions or any other instructions that are relevant to the supply of the Goods or performance of Services.
5.PRICE
5.1. The price for the Goods and/or Services will be the price in pounds sterling specified in the Order and confirmed in the Acknowledgement of Order in accordance with these Conditions or as otherwise agreed in writing by an Authorised Person.
5.2. Project Merchandise reserves the right at any time prior to delivery of the Goods and /or performance of the Services to adjust the price to take account of any increase in the cost of third party products, labour or services or any currency fluctuations, increases of taxes or duties, any variation to the specification, or increase in the cost of Project Merchandise complying with the contract as a result of changes in legislation (including without limitation, governing body regulation). Any change in price will be notified in writing prior to the change being applied. Where the change results in an increase the higher price shall be due and payable in full in any event.
5.3. All quoted prices are subject to sight of finalised artwork and stock availability.
5.4. For the avoidance of doubt, any quotation or price which Project Merchandise gives in any currency other than pounds sterling is provided for the purpose of guidance only and is not binding on Project Merchandise unless otherwise agreed in writing by an Authorised Person pursuant to condition 5.1.
5.5. The Price is exclusive of any applicable VAT excise, sales or taxes or levies of a similar nature which are imposed or charges by any competent fiscal authority in respect of the Goods which You shall be additionally liable to pay Project Merchandise.
5.6. Unless otherwise stated, all prices include delivery cost to one single address in all mainland areas of England, Scotland and Wales, and apply only to the total quantities and delivery dates or rates specified. Additional costs incurred by Project Merchandise on account of any alterations made at Your request to quantities, delivery dates or rates or agreed changes in specifications shall be borne by You.
5.7. Samples may be sent to You on approval and will be charged for if not returned in good condition within 14 days, unless otherwise stated.
6.PAYMENT
6.1. Payment is required before any order is processed unless credit facilities have been approved with Project Merchandise in advance of the Order. Payment on pre-approved credit accounts shall be made in full within 30 days net in which Project Merchandise’s invoice is issued.
6.2. You are required to pay the full price of the Goods and/or Services together with VAT (which is chargeable unless You provide clear evidence it is not chargeable) and all other applicable duties and charges, and all other monies due pursuant to these Conditions on or before the due dates specified in condition 6.1. Time for payment is of the essence.
6.3. If you fail to make payment on the due date then, without prejudice to any other right or remedy available to Project Merchandise, Project Merchandise shall be entitled to exercise any or all of the following remedies with immediate effect:
(a) To cancel the Contract and forfeit any Deposit; and
(b) To appropriate any payment made by You for such Goods or Services (or the Goods or Services supplied under any other contract between Project Merchandise and You) as Project Merchandise may think fit (notwithstanding any purported allocation by You); and
(c) To charge You interest on any late payment (both before and after any judgment) on the amount unpaid under the Late Payment of Commercial Debts (Interest) Act 1998, until payment in full is made (interest to be payable on demand and to accrue daily at a rate of 8%) together with all costs and expenses incurred by Project Merchandise in the collection of overdue monies (third party, Court proceedings or otherwise); and
(d) (where Project Merchandise has not cancelled the Contract) Project Merchandise shall not be bound to deliver the Goods and/or Services within the previously agreed timescale.
6.4. If any payment to Project Merchandise requires the deduction of any national or local taxes or charges then all payments to Project Merchandise will be increased so that the payment actually received by Project Merchandise is the equivalent of the price.
6.5. You must pay all amounts in full. You have not right to set off or deduction, statutory equitable or otherwise.
6.6. Each Contract with You is subject to Project Merchandise being satisfied with your credit status both prior to and during the Contract. You agree that Project Merchandise may carry out enquires with a licensed credit reference agency before processing Your Order. If Project Merchandise in its absolute discretion becomes dissatisfied with Your credit status, Project Merchandise may require security of payment before continuing with or delivery of any Order.
7. RESPONSIBILITY FOR DAMAGE TO OR LOSS OF GOODS, AND OWNERSHIP OF GOODS
7.1. Risk of damage to or loss of the Goods shall pass to You either when the Goods are delivered to You or when Project Merchandise notifies you that the Goods are ready for collection.
7.2. If You wrongfully fail to take delivery of the Goods, risk shall pass to You at the time when Project Merchandise has tendered delivery of the Goods.
7.3. Legal and beneficial title in the Goods shall not pass to You until Project Merchandise has received, in cash or cleared funds, payment in full of:
(a) The Price of the Goods; and
(b) All other sums due to Project Merchandise by You.
7.4. Project Merchandise reserves the right to repossess any Goods in which Project Merchandise retains legal and beneficial title if full payment is not received in accordance with clause 6. In the event of such repossession, You shall deliver the Goods in which legal and beneficial title has not passed to Project Merchandise at Your own cost.
7.5. You are not entitled to pledge or in any way change by way of security of any bad debt any of the Goods which remain the property of Project Merchandise, but if You breach this condition and do so, all monies owning by You to Project Merchandise will (without prejudice to any other right or remedy of Project Merchandise) forthwith become due and payable.
7.6. Risk of damage or loss of any property belonging to You or anyone else whilst in the possession of Project Merchandise, remains with You or the owner (as the case may be) and Project Merchandise has no responsibility for damage or deterioration of such property whilst in its possession.
8. INSPECTION OF PRODUCTS
8.1. You are under a duty to inspect the Goods on delivery or collection.
8.2. If the Goods cannot be examined, the carriers note or such other note as appropriate must be marked “not examined”.
8.3. If You identify any damage or shortages (subject to clause 9.1), You must inform Project Merchandise in writing within 72 hours of delivery, providing details of the alleged damage or shortage. Project Merchandise shall be under no liability if You fail to provide such notice and the Goods shall be deemed to comply as to quality and quantity with the terms of the Contract.
8.4. Project Merchandise must be permitted to inspect the affected Goods before You use, alter or modify them in any way.
8.5. Subject to Your compliance with this clause 8 and Project Merchandise’s agreement with any alleged damage or shortages, Project Merchandise shall make good any and all damage and shortages within a reasonable time.
8.6. Project Merchandise will 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 Project Merchandise following any drawing, design or specification which You have supplied to Project Merchandise.
9. QUANTITY VARIATION
9.1. Project Merchandise shall be deemed to have fulfilled their Contract by delivery of a quantity within 10% plus or minus of the quantity of Goods ordered and You will be charged at the contract rate for the quantity delivered.
10. RETURNS
10.1. Goods may not be returned without the prior written agreement of Project Merchandise.
10.2. Subject to condition 8.4, Project Merchandise shall only accept returned Goods if it is satisfied that those Goods are defective.
10.3. Project Merchandise shall have the option of either replacing defective Goods as soon as is practicable upon receipt of them or shall refund to You the Price for those Goods which are defective. Defective Goods must be returned to Project Merchandise.
10.4. Project Merchandise shall not be liable for defects arising out of normal wear and tear, Your failure to follow any instructions given by Project Merchandise, misuse or alteration of the Goods, negligence, wilful damage or any other act by You, Your employees, agents or any other third party.
11. LIABILITY
11.1. Subject to clause 4 (delivery) the following provisions set out the entire financial liability of Project Merchandise to You in respect of:
(a) Any breach of these Conditions;
(b) Any use made by or resale by You of any of the Goods, or any product incorporating any of the Goods; and
(c) Any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2. All warranties, conditions and other terms implied by statue or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.3. Subject to condition 4.2 and condition 11.2:
The total liability of Project Merchandise in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance of contemplated performance of the Contract shall be limited to the total amount of the fee/charges paid or payable by You to Project Merchandise under the Contract.
12. FORCE MAJEURE
12.1 If either You or Project Merchandise is delayed or hindered in the performance of its obligations by circumstances of Force Majeure, then delivery of the Goods shall be suspended and if such delivery cannot be effected within 30 days after the due date for delivery then the Agreement may be cancelled by either Party by giving notice in writing to the other without liability on either side.
Force majeure means any circumstance not foreseen and not within the reasonable control of the Party affected by the same, including, without limitation, strikes/lockouts (unless they are solely in relation to the Project Merchandise’s own work force), civil commotion, riot, invasion, war, threat of or preparation for war, unavoidable accident, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural physical disaster or the effect of import or export regulation.
12.2. If the circumstances preventing delivery of Goods or providing Services are still continuing three months after you receive Project Merchandise’s notice then either Party may give written notice to the other cancelling the Contract with immediate effect.
12.3. If the Contract is cancelled in this way, Project Merchandise will refund any payment which You have already made on account of the price (subject to deduction of any amount Project Merchandise is entitled to claim from You under the Contract and deducting payment for any Goods which have been delivered and for any Services provided and calculated at a reasonable rate for work actually done) but Project Merchandise will not be liable to compensate You for any further loss or damage caused by the failure to deliver.
13. TERMINATION BY PROJECT MERCHANDISE OF CONTRACT IN THE EVENT OF YOUR INSOLVENCY
13.1. If:
(a) You make any voluntary arrangement with Your creditors or become bankrupt or appoint a receiver, administrative receiver or administrator, or a notice of intention to appoint an administrator is given by Your or Your directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986) or You appoint a manager or official receiver over Your affairs; or go into liquidation, unless for the purpose of solvent reconstruction or amalgamation; or have distress, execution, sequestration levied or issued against any part of Your assets or are otherwise unable to pay Your debts as they fall due within the meaning of section 123 Insolvency Act 1986; or
(b) You cease or threaten to cease to carry on Your business or a substantial part of it, or Project Merchandise reasonable apprehends you will do so; or
(c) You suffer any similar proceedings under foreign law;
Then, without prejudice to any other right or remedy available to Project Merchandise, Project Merchandise will be entitled to cancel the Contract by giving 14 days’ notice or to suspend any further deliveries under the Contract without any liability to You, and if the Goods have not been paid for then the Price shall become immediately due and payable notwithstanding any previous agreement or arrangements to the contrary and Project Merchandise shall be entitled to immediate possession of the Goods and exercise the rights included in condition 6.3.
14. CONFIDENTIALITY
14.1. You agree that You will:
(a) Regard as confidential the Contract and all information relating to the Contract and that You will not use or disclose such information to any third party without Project Merchandise’s prior written consent;
(b) Not use or authorise or permit any other person to use any name, trademark, house mark, emblem or symbol which Project Merchandise owns or is licensed to use;
(c) Use all reasonable endeavours to ensure compliance with this Condition by Your employees, servants and agents.
14.2. This Condition will remain in force after the Contract is completed.
15. ARTWORK, COLOUR VARIATION AND PRINTING
15.1. All artwork and printing charges will be levied where necessary unless previously stipulated by Project Merchandise.
15.2. Where applicable prices shown on the website include printing one colour, one position, from print ready artwork supplied.
15.3. You will be supplied a proof to approve before all printing takes place. Project Merchandise will not be liable for any loss, costs, damages, charges or expenses incurred by You as a result of errors in printed artwork where those errors were evident with the proof approved by You and the artwork was printed in accordance with that approved visual proof.
15.4. Printing can vary from product to product and print position may vary due to different print processes.
15.5. Due to the variety of materials and the imprinting processes utilised by Project Merchandise’s suppliers, no guarantee can be given to match exactly Pantone numbers or colour samples provided by You. Project Merchandise will endeavour to match as closely as possible to these colour references but cannot be held liable for any further costs that may arise.
15.6. In order to print efficiently from the artwork You supply Project Merchandise, it may be necessary to adjust or redraw Your artwork. You will be advised of the changes made and Project Merchandise will provide You an artwork approval form illustrating how Your artwork will look on your chosen product. You must review this and notify Project Merchandise of any discrepancy in the artwork at this time. No printing will commence until Project Merchandise has received Your written approval, which will be accepted as Your authority to proceed. Project Merchandise does not accept liability for any post-completion errors or omissions.
15.7. You remain fully responsible for ensuring that all measurements, logos and/or graphics are correct and accurate. Project Merchandise shall in no way be responsible for any such errors or inaccuracies. By submitting Your Order to Project Merchandise, You undertake that You have the right or full permission to use any logos which are contained in Your Order specification. Project Merchandise shall in no way be liable to any third party for Your unauthorised use of such logos or imagery and You hereby fully indemnify Project Merchandise against any such claim or liability.
16. NOTICES
Any notice to be given hereunder must be in writing and is deemed to have been properly served if sent or delivered to the Party concerned at its address specified in the Order or such other address as that Party may from time to time notify in writing. Any notice may be delivered personally, by first-class recorded delivery post or by email and shall be deemed to have been properly served at the time when in the ordinary course of post or transmission it would reach its destination.
17. GENERAL
17.1. Any waiver by Project Merchandise must be in writing from an Authorised Person to be effective and any waiver so given by Project Merchandise of any breach of the contract by You shall not be considered as a waiver of any subsequent breach of the same or any other provision.
17.2. Any failure by Project Merchandise to exercise or delay in exercising any right or remedy shall not constitute a waiver of that right or remedy.
17.3. You must obtain any written consent, confirmation, authorisation or notification required under these conditions from an Authorised Person.
17.4. A person who is not a Party to this Agreement has no right under this Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement but this does not affect and right or remedy of a third party which exists or is available apart from that Act.
17.5. Project Merchandise may assign the Contract to any person, firm or company.
17.6. You shall not assign, transfer or in any other manner make over to any third party the benefit and/or burden of the Contract or any part thereof without Project Merchandise’s prior written consent.
17.7. Headings are for convenience only and shall not affect interpretation.
17.8. Unless the context otherwise requires, words denoting singular shall include the plural and vice versa, references to any gender shall include all other genders and reference to persons shall include bodies corporate, unincorporated associations and partnerships, in each case whether or not having a separate legal personality. References to the word “include” or “including” are to be constructed without limitation.
17.9. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
17.10. The Parties agree that this Agreement shall be governed by and constructed in accordance with English Law and the Parties agree to submit to the exclusive jurisdiction of the English Courts in relation to any matter or dispute arising out of or in connection with this Agreement.
