- “the Company” means Fairfield Labels Limited;
- “the Customer” means the person, firm, company or association whose order for the sale or supply of Goods is accepted by the Company;
- “the Goods” means the goods (and any parts for or replacement of them) which the Company is to supply as described in the Company’s quotation or acceptance of an order from the Customer.
- “the Products” means the products or services produced and manufactured by the Company
- “the Order” means an order which incorporates these terms and conditions of contract by a Customer and accepted by the Company
- “the Territory” means the designated country or area in which the contract is relevant to or in which the Company and Customer agree to conduct business in
- “the Collection Date” means the date in which the products will be readily available for collection from the Company
2. Acceptance of Terms and Conditions
- These terms and conditions shall be deemed to be incorporated into contracts arising from orders for the Products or Goods supplied by Company, to the Customer.
- No terms and conditions other than these or any variation thereof shall be binding on the Company unless in writing but nothing in these terms and conditions shall preclude the Company or the Customer from varying any of such terms and conditions if they mutually agree to do so.
3. Basis of the Sale
- No contract shall arise between the parties unless and until the Company has accepted an offer by the Customer, the Company shall or have accepted an order from the Customer (made in the absence of a prior quotation of the Company) and any contract arising between the parties shall in either case be subject to these conditions which shall govern contract to the exclusion of any other terms and conditions subject to which any offer or order is made or purported to be made by the Customer.
- The Customer acknowledges that it does not rely on, and waives any claim for the breach of, any oral representations or recommendations, which are not confirmed in writing by the Company.
- Any typographical, clerical or other error or omission in any document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
- All descriptions, illustrations, dimensions or colours in respect of the Goods specified in any of the Company’s sales literature or brochures are not stated or shown as a general guide or description only and the Company does not contract or represent that the Goods will comply with any particular detail contained in such sales literature or brochures.
- The Company reserves and has the right at any time prior to delivery of the Goods to make any changes in the design or specification of the Goods which are required to conform with:-
- any applicable safety or other statutory requirement (in which event the Company shall be entitled to increase the price to be paid by the Customer for the Goods); or
- which the Company deems to be desirable provided that (i) such changes do not materially affect that performance or quality of the Goods; and (ii) delivery of the Goods is not unreasonably delayed by such changes; and (iii) no price variation under the contract is made as a result of such changes unless the Customer shall have agreed in writing to a variation in the contract price.
- The Company shall at the request of the Customer carry out artwork origination.
- The Company will accept no responsibility for any errors in any artwork or printing which has been accepted or which shall be deemed to have been accepted by the Customer.
- The copyright in all or any artwork or printing produced by the Company shall be the property of the Company.
4. Software Licence
- All Company standard software (including firmware), vision tool software libraries and application software provided hereunder (collectively, the “Software”) is provided to the Customer under licence only and not on by sale.
- The Company grants to the Customer a non-exclusive, non-transferable license to use and sub-licence the Software, object code version only, for use or in conjunction with a single Company vision processor or other single hardware module capable of operating the Software.
- The Customer acknowledges that the reverse-engineering, decompilation, copying, modifying, adapting varying, or disassembling of any portion or version of the Software, or the attempting of any of the foregoing, or the aiding or abetting of others to do so, is strictly prohibited and THE CUSTOMER HEREBY WAIVES ANY RIGHTS UNDER ANY APPLICABLE LAW WITH RESPECT THERETO.
- The Customer further acknowledges that the Software qualifies as original works and constitutes copyrighted material, and that the Customer and/or its sub-licensees shall neither (i) make or distribute unauthorized copies of the Software, nor (ii) acquire any ownership rights in the Software.
- Except as expressly licensed to the Customer hereunder, all rights, title and interests to and in the Software and all extensions, enhancements and modifications thereof shall remain at all the times with the Company and any third party holding a valid interest in the Software.
- The license grant and other terms and conditions governing the Company designed or developed custom software (“CS”) are, for CS resulting from:
- Services, pursuant to “Terms & Conditions of Fairfield Labels Custom Level-of- Effort ”,or
- Development, pursuant to “Terms and Conditions of Fairfield Labels Custom Software Development- Completed Effort”, as specified in the applicable Fairfield Labels proposal.
- In case of any sub- license the Customer shall ensure that any sub- licensee shall be bound by the terms and conditions of these licence terms as though it were party hereto.
- No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss or profit), costs (including the cost of all labour and material used), damages, charges and expenses incurred by the Company as a result of cancellation.
6. Indemnity in Respect of Customer’s Designs etc
- If the Goods are to be manufactured or any process is to be applied to the Goods by the Company in accordance with a specification or requirement submitted by the Customer and agreed by the Company, the Customer shall indemnify the Company, against all loss, damages, costs and expenses awarded against, or incurred by the Company in connection with, or paid, or agreed to be paid by the Company in settlement of any claim for infringement of any patent, copyright, design trade mark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Customer’s specification.
- The Company shall not be liable for loss or damage to any of the artwork supplied by the Customer except in the case of fire, lightening, explosion of boilers, storms and tempest, flood bursting or overflowing of water tanks apparatus or pipes when the Company’s liability shall not exceed the original cost to the Customer of the destroyed or damaged artwork in the Company’s hands against a current order.
- The price of the Goods shall be subject to the Company’s quoted price or, where no price has been quoted, the price listed in the Company’s published price list current at the date of acceptance by the Company of the offer or order of the Customer. In addition, unless otherwise agreed in writing, transportation charges and VAT are payable by the Customer.
- The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company, any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
- All price quotation for the Company products (each the “Product” and collectively, the “Products”) or services (“Services”) provided hereunder are valid for 30 days unless otherwise noted. Published list prices are subject to change without the notice.
8. Terms of Payment
- The Company will invoice the Customer for all sums due under the contract either on delivery or on the date quoted for delivery (whichever shall be the earlier) and the Customer shall pay the amount of such invoice (together with any taxes, duties or levies thereon) prior to the end of the month following that in which the invoice is dated, by means of cleared sterling funds or in such manner as the Company may have previously specified in writing.
- If the Customer fails to make any payment by the due date as set out in sub-clause 8.a above then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:-
- cancel the contract or suspend any further deliveries to the Customer;
- appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Customer and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Customer); and
- charge the Customer interest (both before and after any judgement) on the amount unpaid, at the rate of four per cent per annum above Natwest Bank plc’s base rate from time to time, until payment is full made, such interest being deemed to accrue on a daily basis.
- The Customer shall have no right of set-off, statutory or otherwise.
- Credit applications are subject to approval by the Company. In the event that such approval is not granted the Company reserves the right at any time, at its discretion, to demand security for payment before continuing with the contract or delivering the Goods.
- The Company reserves the right to exercise a lien over all or any goods of the Customer in the possession of the Company whether or not due payment has been made for such goods (or work carried out on them) in respect of the unpaid price (together with VAT thereon) of any Goods or any other monies owing to the Company.
- Delivery of the Goods shall be made by the Company to the address shown on the order with delivery dates being approximate only. The Company shall not be liable for any delay in delivery of the Goods. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer.
- Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract.
- Where delivery of the Goods is to be made by the Company in bulk, the Company reserves the right to deliver up to 10 per cent more or 10 per cent less than the quantity ordered and to adjust the price accordingly.
- Unless the Company has otherwise agreed in writing if the Customer fails to take delivery of the Goods or if the Customer fails to give the Company adequate delivery instructions at the time stated for delivery then, without prejudice to any other right or remedy available to the Company, the Company may:
- Raise an invoice payable immediately by the Customer for the price of the Goods, including VAT and any packing charges incurred by the Company. Store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
- Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the contract or charge the Customer for any shortfall below the price under the contract.
- Pallets on, or in which the Goods are despatched remain the property of the Company and must be returned to the company within 28 days of the date of delivery of the Goods. The Company reserves the right to charge the Customer full market price for the replacement of pallets not so returned.
10. Risk and Property
- Risk of damage to or loss of the Goods shall pass to the Customer at the time of delivery of the Goods but the property in the Goods shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the price of the Goods (and any interest thereon due under Clause 7 above) and of all others debts owed to the Company by the Customer.
- Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Company’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured, and clearly marked and identified as the Company’s property.
- Until such time as the property in the Goods passes to the Company, the Customer shall be entitled to resell or use the Goods in the ordinary course of its business but shall hold in a separate account as fiduciary for the Company the proceeds of sale or otherwise of the Goods, where tangible or intangible, including any insurance proceeds.
- The Company (and provided the Goods are still in existence and have not been resold) shall be entitled at any time to require the Customer to deliver up the Goods to the Company and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods and, if necessary, to sever any such Goods from any products, land or vessel into or onto which they may have been incorporated or have become affixed but nothing in this sub- condition shall confer any right upon the Customer to return the Goods or refuse or delay payment thereof.
- The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Customer does so all monies owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
11. Warranties and Liability
- Subject to the conditions set out below the Company warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from the date of delivery or for the period specified in the Company’s literature at the date the contract is made, whichever is the shorter.
- The above warranty is given by the Company subject to the following conditions:
- The Company shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Customer;
- The Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, mechanical damage, negligence, abnormal working conditions, abnormal storage conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse of the Goods without the Company’s approval;
- The Company shall be under no liability under the warranty if the Goods cease to be owned by and in the possession and control of the Customer.
- Subject as expressly provided in these conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statue or common law are excluded to the fullest extent permitted by law.
- Unless otherwise agreed to in writing or expressly stated on the face of this document the Company warrants hardware Products of its manufacture to be free from defects in material and workmanship for a period of 6 months post delivery. If a hardware Product until fails during the warranty period, the original Customer (not other parties which may have physical possession of the hardware) shall notify the Company and request a return authorization. The defective unit shall then be returned to Company’s repair center by the Customer or its designate, freight prepaid, together with a failure report. It will either be repaired or replaced, at Company’s option, and returned to the Customer or its designate, freight prepaid. The Company is not responsible for providing replacement hardware during the repair period. The foregoing warranty shall not apply to defects resulting from (i) improper or inadequate maintenance by the Customer; (ii) the Customer-supplied equipment, hardware, software or interfacing; (iii) unauthorized modifications, misuse or accidents; (iv) operation outside of the environmental specifications of the Product; or (v) improper site preparation and maintenance. All Services shall be performed in professional matter, in conformity with industry standards. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SOFTWARE IS PROVIDED “AS IS”.
- Any claim by the Customer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to the Company within 48 hours from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within 7 days after discovery of the defect or failure, providing that the notification is given to the Company in writing within 3 months after delivery of the Goods. If the Customer does not notify the Company accordingly, the Customer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the contract.
- Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company in accordance these conditions, the Company shall be entitled to replace the Goods free of charge (save the cost of returning the Goods to the Company which shall be borne by the Customer) or, at the Company’s sole discretion, refund to the Customer the price of the Goods (or a appropriate part of the price), but the Company shall have no further liability to the Customer.
- Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Customer or any other third party for any direct or indirect loss whatsoever arising out of or in connection with the supply or installation of the Goods or their use by the Customer, except as expressly provided in these conditions PROVIDED ALWAYS that if the Customer notifies in writing the Company (prior to the making of the contract) that the Customer wishes the Company to accept liability for consequential loss or damage and the Company accept such liability the Company shall have the right to increase any quoted price to reflect the increased risk and / or the cost of insuring against such risk.
- The Company shall not be liable to the customer or be deemed to be in breach of the contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the company’s reasonable control:
Act of God, explosion, fold, tempest, fire or accident; War or threat of war, sabotage, insurrection, civil disturbance or requisition;
Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
Import or export regulations or embargoes; Strikes, lock-outs or other industrial action or trade disputes (whether involving employees of the Company or of third party); Difficulties in obtaining raw materials, labour, fuel, parts or machinery; Power failure or breakdown in machinery;
- The Company shall be under no liability in respect of any items owned by the Customer and left at the Company’s premises or handed to an employee of the Company.
12. Insolvency of Customer
- This clause applies if:
- the Customer makes any voluntary arrangement with its creditors; or
- the Customer becomes subject to an administration order; or
- (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
- the Customer takes possession of, or a receiver or an administrative receiver is appointed over any of the property or assets of the Customer; or
- the Customer ceases, or threatens to cease, to carry on business; or
- the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
- If this clause applies then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. The right to sell unpaid-for Goods stops immediately.
13. Export Terms
- Where the Goods are supplied for export from the United Kingdom the Customer shall be responsible for:
- complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon;
- for arranging for testing and inspection of the Goods at the Company’s premises before delivery. The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which claim is made after delivery.
- Where the Goods are exported within the EEC, failure by the Customer to provide a current valid VAT registration number with the order will result in the Goods being subject to VAT at the standard rate.
14. Work to Customer’s Material
- Where the Company is engaged to place a verified 2D code onto surgical instruments at the instruction of the Customer. Fairfield accepts no responsibility implied or inferred for the future integrity of the instrumentation and the affect of applying the mark to the instrument or medical device other than where it can be proved that any damage to the instrumentation is caused by a negligent act by Fairfield. The Customer is advised to seek advice from the instrument supplier as to the affect on warranty of the device with regard to the application of a low temperature laser etched mark
- If the Customer delivers material to the Company for machining, repair, modification or other work by the Company, the Company undertakes:
- to take reasonable care of the material;
- subject to clause 10 above to use reasonable skill in any printing or other work carried out by the Company.
- The Company shall notify the Customer of the date on which the material is ready for collection (the “Collection Date”) and if the Customer fails to collect the material within 3 calendar months of the Collection Date the Company shall be entitled to sell the material and retain the amount of the outstanding charges from any proceeds of sale and pay the balance to the Customer.
- The Company reserves the right to sub-contract any or all work carried out to the Customer’s material.
- Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to (in case of the Company) its registered office (in case of the Customer) its registered office or principal place of business or the address stated for delivery of the Goods.
- No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
- 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 thereby.
- Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration by a single arbitrator appointed by agreement or (if not agreed within 14 days) by the President for the time being of the [ICAEW] in accordance with its rules, provided that this sub-clause shall not apply to disputes or claims arising out of non-payment of monies due from the Customer to the Company in which event the Customer submits to the non-exclusive jurisdiction of the courts of England and Wales.
- The construction validity and performance of the contract and all matters pertaining thereto shall be governed in all respects by English Law and the Customer shall accept service of any writ of summons or other process in any such action at any place where it carries on business notwithstanding that it may be outside the jurisdiction of the English Courts.