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Terms & Conditions
Standard Terms and Conditions of Business
Summary of Standard Terms and Conditions of Business:
› Quotations are valid for 30 days from the date of quotation document.
› Proposals become an effective contract from the date of written confirmation by post or via e-mail.
› Unless otherwise agreed, quotations include “ONE” set of client amendments. Additional amendments will be charged at the standard hourly rate.
› Payment terms are 30 days on invoice via either an online BACS transfer or Cheque.
› The contract is subject to English law.
Standard Terms and Conditions of Business in Full
1. SALE OF GOODS AND/OR PROVISION OF SERVICES IS MADE ACCORDING TO THE FOLLOWING TERMS AND CONDITIONS.
In these conditions:
“Company” & “Seller” shall mean Orca Creative.
“Customer” shall mean the company entering this Agreement.
“Licence(s)” shall mean the legal right to install and/or use the software to which the “Licence” is purported to relate.
“Buyer” means the person who accepts, on behalf of the Customer, a quotation from the Seller for the sale of the Goods and/or Services or whose order for the Goods and/or Services is accepted by the seller:
“Goods” means the goods, (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these terms and conditions and/or the provision of Services.
“Services” shall mean the supply of labour for the purpose of installing, maintaining, repair of the Goods or any other items as so agreed between the Company and Customer.
“Agreement” shall mean the terms and conditions contained herein.
2. WARRANTY DISCLAIMER OR WARRANTIES LIMITATION OF LIABILITY.
2.(a) Seller warrants that the Goods sold hereunder shall remain free from defects in workmanship and material, if installed, operated and maintained in accordance with Seller’s instructions and specifications and under normal conditions of use for such Goods, for a period of twelve months from date of sale. Subject to the next sentence hereof, it is expressly agreed and understood that Seller’s sole obligation and Buyer’s exclusive remedy under this warranty, under any other warranty, express or implied, or otherwise is Seller’s replacing defective Goods at Seller’s office or, at Seller’s sole election, repairing defective Goods without charge. Seller’s liability shall in no event exceed the purchase price for such Goods, and in the event that, for whatever reason., Seller cannot effect repair or replacement as aforesaid, then Seller’s sole obligation and Buyer’s exclusive remedy shall be Seller’s returning the purchase price of such Goods, to the extent the same has been paid to the Seller by Buyer. Upon the return of such Goods by Buyer, Seller shall in no event be responsible for any incidental or consequential damage, whether foreseeable or not, caused by defects in the Goods sold hereunder, whether before or after repair or replacement.
Claims under this warranty must be made in writing within 30 days after the defect is discovered, which period of time is expressly agreed to be reasonable and all such claims are subject to substantiation by Seller’s inspection department, Seller may require the return of alleged detective goods, transportation prepaid, to establish a claim under this warranty. Seller shall in no event be responsible for repairs made other than by Seller without Seller’s prior written consent. All alleged defective goods must be held by Buyer pending instructions from Seller as to their disposition. Seller will not accept Goods returned to it without its prior consent and any returned goods must be accompanied by packing slips showing Seller invoice numbers. The period of limitations for any cause or action arising out of, based upon or relative to this warranty is hereby reduced to and shall be a period of one year after such cause of action has accrued.
2.(b) SELLER HEREBY EXCLUDES ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PURPOSE, AND ALL OTHER WARRANTIES EXPRESS OR IMPLIED, ON SELLER’S GOODS, OTHER THAN THE WARRANTY STATED IN SUBPARAGRAPH (a), ABOVE. Consumer’s statutory rights will not be affected.
2.(c) If Buyer makes any warranty or representation inconsistent with or in addition to the warranty stated in Subparagraph (a) above, Buyer shall, at its own expense, defend and hold the Sellers Goods harmless from any claim thereon of any nature whatsoever.
3. PROOFING AND APPROVAL.
It is the Customer’s responsibility to ensure that all content is present and correct before approval and prior to either print of go-live of digital media.
4. PAYMENT TERMS.
Unless otherwise agreed in writing, given that credit has been granted, payment in total (inc. VAT) shall become due 30 days from date of invoice.
5. LATE PAYMENT INTEREST, COMPENSATION AND REASONABLE COSTS INTEREST
5.(a) Orca Creative reserve the right to claim interest, compensation and reasonable costs under the Late Payment of Commercial Debts (Interest) Act 1998 and it is agreed that the term implied by that Act shall apply after any judgment as well as before. Any reference to the Late Payment of Commercial Debts (Interest) Act 1998 is also a reference to any amendment, modification or re-enactment of it. If for any reason the Late Payment of Commercial Debts (Interest) Act 1998 does not apply interest shall be payable on overdue amounts at 8% over the Bank of England Base Rate from time to time.
In addition, we are entitled to claim compensation for unpaid invoices. The compensation we can claim is:
Up to £999.99 = £40 compensation per invoice
£1000 – £9,999.99 = £70 compensation per invoice
Over £10,000.00 = £100 compensation per invoice
5.(c) Without prejudice to our right to claim costs under the Late Payment of Commercial Debts (Interest) Act 1998, if for any reason any payment is not made when due we reserve the right to be paid on an indemnity basis any costs we incur in recovering any money due under this contract (and the costs of recovering such costs) including our administrative costs and any costs incurred with lawyers or debt collection agencies. Our administrative costs may include the cost of employing the staff concerned and the overheads attributable to them for the time spent. In calculating our administrative costs credit will be given for any compensation due under the Late Payment of Commercial Debts (Interest) Act 1998.
5.(d) If proceedings are issued a minimum contribution of £250 (in addition to the fixed costs of issue) will be claimed towards any costs incurred with lawyers.
6. SHIPMENT – RISK OF LOSS.
Delivery dates quoted are approximations only and Seller shall incur no liability for failure to deliver on such dates. Seller reserves the right to deliver the Goods sold hereunder in instalments or separate lots.
7. NONCONFORMITY OF GOODS.
Buyer may reject or revoke its acceptance of the Goods sold hereunder only if the nonconformity in such Goods is substantial. No nonconformity or defect in any lot, instalment or commercial unit shall constitute grounds for claiming breach of the whole agreement and any lots instalments or commercial units not in dispute shall be paid for separately regardless of dispute as to other deliveries or undelivered goods. Seller reserves the right to cure, either by repair or replacement, any defects within a reasonable time after receipt of written notification from Buyer of such defects. If Buyer does not notify Seller in writing within 14 days after receipt of Goods hereunder, which period of time is expressly agreed to be reasonable of any claimed defect the Buyer shall be deemed to have irrevocably accepted such Goods and shall be barred from any remedy therefor.
8. RETENTION OF TITLE.
8.(a) The risk in the Goods shall pass to the Buyer on delivery, but notwithstanding delivery property in the Goods shall not pass to Buyer until payment in full shall have been made therefor, and until such time the Buyer shall insure goods to the full value.
8.(b) The Buyer shall hold the Goods until such time as payment is made or until resale or conversion into or incorporation with other Goods as bailee of the Goods for the Seller and shall if required by the Seller store the Goods separately from other goods in such a way as to be identifiable as the property of the Seller.
8.(c) In the event of resale of the Goods by the Buyer before such payment is made the Buyer shall hold such part of the proceeds of resale as represents the sale price of the Goods on trust for the Seller and shall place such sum in a separate bank account so as to be identifiable as being in the beneficial ownership of the Seller.
8.(d) In the event that the Goods are processed into or incorporated in, used as materials for, or mixed with other goods or materials before such payment is made then such mixed or processed goods shall be held by Buyer on trust for sale for the benefit of Seller and the Buyer shall forthwith upon sale account to Seller for part of the proceeds of sale as represents the sale. Price of the Goods and until such payment shall place such part of the proceeds of sale in a separate bank account so as to be identifiable as being in the beneficial ownership of Seller.
9.(a) SOFTWARE LICENCE(s): It is the responsibility of the Customer to ensure that all software currently installed or being requested to be installed has a legal Licence. The Company will not install any software without sight of a current legal licence. The Company shall not be responsible for any misinterpretation with regard whether a Licence is legal or otherwise. It is the Customers sole responsibility to ensure the Licence(s) is legal and relates to the software to which is being or is installed. The Customer shall indemnify the Company against any claim that may arise as a result of the Licence(s) being deemed illegal.
9.(b) Image Licence(s): It is the responsibility of the Customer to ensure that they adhere to the image usage restrictions and associated terms and conditions as stated within the licence agreements made available. This extends to the supply of such images to third parties i.e. the Customers own Customers.
9.(c) Unless otherwise agreed, Orca Creative reserves the right to feature any design work created by ourselves for self-promotion purposes in our portfolio, on our website and our social media pages.
9.(d) Unless otherwise agreed, Orca Creative reserves the right to retain all original artwork source files, but will always happily provide print ready artwork in PDF format.
A basic assumption of this Agreement, is the non-occurrence of the following: fire, flood, explosion, riot, strike or other difference with workmen, shortage of utility, facility, material or labour, freight embargo, transportation delay, breakdown or accident, act of God or the public enemy, compliance with or other action taken to carry out the intent or purpose of any law or regulation, or any other cause beyond Seller’s reasonable control which prevents or delays the Seller’s performance hereunder, and delay in delivery or non-delivery, in whole or in part, by the Seller shall be excused if delivery is made impracticable by the occurrence of any of the above.
In the event of the Buyer’s insolvency, the Seller is entitled to cancel all contracts and recover Goods, for which full payment has not been received, in accordance with these Terms and Conditions.
12. GENERAL PROVISIONS.
12.(a) This Agreement may not be assigned or otherwise transferred by Buyer without the prior written consent of Seller, and any such assignment or transfer without such prior written consent shall be null and void and of no force or effect whatsoever.
12.(b) The paragraph headings in this Agreement are used for convenience only. They form no part of this Agreement and are in no way intended to alter or affect the meaning of this Agreement.
12.(c) The invalidity in whole or in part, of any provision of this Agreement shall not effect the validity or enforceability of any other of its provisions.
12.(d) Any notice or other communication required or permitted hereunder shall be sufficiently given if sent in writing by registered mail, return receipt requested, postage prepaid, and addressed to the other party hereto at its respective address as set forth on the face hereof. Any such notice if so mailed, shall be deemed to have been received on the third business day following such mailing, regardless of when or whether received. Either party hereto may change its address for notice purposes by written notice to the other party.
Orca Creative, 15 Magnus Drive, Basingstoke, RG22 4TX
12.(e) Seller’s failure to insist, in one or more instances, upon the performance of any terms of this Agreement shall not be construed as a waiver or relinquishment of Seller’s right to such performance or the future performance of such term or terms, and Buyer’s obligation with respect thereto shall continue to full force and effect.
12.(f) These conditions of sale and all contracts for the sale of Goods to which they apply shall be construed in accordance with and in all respects governed by English law and shall be exclusively justifiable in England.
13. ORDER ACCEPTANCE AND CANCELLATION.
All orders, verbal or written, given to the Seller, are based on the Seller’s quotation or offer and the above Terms and Conditions, and unless otherwise stated by the Seller, are accepted in good faith and processed accordingly. Cancellations after 3 days from placement of the order, in whole or in part, are at the discretion of the seller subject to a minimum 10% cancellation processing charge provided the Goods are resaleable. On products which have been specially designed or built to customer’s specifications, or on services of any kind, a pro-rata cost will be added to the minimum 10% cancellation processing charge. On placing an order with the Seller the Buyer accepts these terms and conditions as integral to a purchase contract and no other terms and conditions will apply unless specifically noted in writing by the Seller as superseding these terms and conditions.