1. Interpretation and Definitions
1.1 These conditions govern the provision of Goods and Services by the Company to the exclusion of all other representations, statements, understandings, negotiations, proposals or agreements. 1.2 In these Conditions:- ‘the Company’ means Financial Data Management plc; ‘the Customer’ means the customer named in the Contract; ‘the Contract’ means the contract made between the Company and the Customer incorporating these Conditions which have been annexed as a Schedule.
2. Content of Contract
2.1 No variation of the Conditions shall have effect unless agreed in writing by the company. These Conditions shall not be replaced by any contract terms proposed by the Customer. 2.2 No employee of the Company or its agents has authority to make any warranty statement or promise concerning the Services except in writing signed by a duly authorised employee of the company. 2.3 The contents of catalogues, price lists, sales literature and other advertisement material are for purposes of general description only and none of these shall form part of the contract.
3. Delivery and Payments
3.1 All prices and charges are those effective at the date of performance of Services or despatch of Goods sold under the contract. All such prices and charges are exclusive of value added tax or duty which is or may be levied or charged in the U.K. or in the country of destination which shall be paid by the customer. The Company reserve the right to increase standard charges for expedited delivery of Goods or performance of Service and to charge for collection, delivery and storage. 3.2 Delivery of work shall be accepted when tendered and thereupon or, if earlier, on notification that the work has been completed the ownership shall pass and payment shall become due. 3.3 The Company reserve the right to vary prices and charges to include any changes occurring and which are notified to the Customer prior to performance of Service or dispatch of Goods, in respect of those items whose price is increased by more than 15%, the Customer may cancel its order in respect thereof within seven days of notification by the company. Any increase in charges incurred by the Company on behalf of the customer to third parties will be charged to the Customer whether or not previously notified to the Customer. 3.4 Charges for Services and Goods will be submitted at the time of performance of Services or despatch of goods. The Customers shall pay all sums due in sterling without deduction or set off therefrom within fifteen days of the date of invoice. 3.5 Unless otherwise specified the price quoted is for delivery of the work to the Customer’s address as set out in the estimate. A charge may be made to cover any extra costs involved for delivery to a different address. 3.6 The Company may charge daily interest on late payments at a rate equal to 4% per annum above Bank of England Base Lending Rate, such interest to run from day to day and to accrue after as well as before any judgement. 3.7 Should work be suspended at a the request of or delayed through any default of the Customer for a period of 30 days the Company shall then be entitled to payment for work already carried out, materials specially ordered and other additional costs including storage. 3.8 Notwithstanding the foregoing provisions, the Company shall be entitled to maintain an action for outstanding sums at any time after payment becomes due, and to withhold the performance of further Services or supply of Goods under any contract between the Company and the Customer without incurring any liability there under.
4. Lien and Disposal
4.1 The Company shall have a general lien on all property (including information and sources) of the Customer in the company’s possession until payments of all sums owed by the Customer to the company (including storage charges incurred prior to release of such property). 4.2 If the customer shall fail to pay sums due to the Company within thirty days of the end of the credit period specified in sub clause 3.4, then the Company shall have the right forthwith, without further notice required to be given, to sell or otherwise dispose of such property referred to in sub clause 4.1, and to apply the proceeds of sale or other disposal in settlement of sums due to the Company and the Customer irrevocably approach the Company to be its agent and attorney for the purposes of completing such sale or disposal. The right of disposal herein shall be without prejudice to the provisions of clause 3 hereof.
5. Warranties and indemnities by Customer
5.1 The Customer undertakes to the Company that the Customer’s data and information will not contain anything obscene, offensive or defamatory, and will indemnify and keep indemnified the Company against all actions, proceedings, claims demands, damages and costs incurred by the company as a result of any of this undertaking. 5.2 The Company shall not be required to print or produce any matter, which in its opinion is or may be of an illegal or libelous nature or an infringement of the proprietary or other rights of any third party. 5.3 The Customer warrants to the Company that the Company’s use of the Customer’s information and data pursuant of the Contract will not infringe any intellectual Property Rights of any third party. The Customer will indemnify and keep indemnified the Company against any liability for any claim, proceeding or judgement or costs relating thereto and expenses (including any settlement made by the Company) for infringement or alleged infringement of intellectual Property Rights enforceable by third parties in respect of the Company’s storage, processing or other use of the Customer’s information. 5.4 In the event that any of the Customer’s information or data contains ‘Personal Data’ as that term is defined by Section 1(3) of the Data Protection Act 1998 (‘the Act’) then the Customer warrants to the Company that:- a) the Customer is registered under the Act in respect of the Personal Data; and b) the Customer has obtained the Personal Data lawfully and that the Services to be provided by the company are in accordance with the purposes specified in the Customer’s registration under the Act; and c) the Personal Data is accurate and will be updated during the course of the provision of the Services by the Company; and d) the Customer will not disclose the Personal Data to any third party nor sue the same for any purpose other than the registered purpose. 5.5 The Customer will keep the Company fully indemnified against any loss or damage which the Company may sustain as a result of any breach by the Customer of the provisions of this clause or of its obligations under the Act in respect of any Personal Data supplied to the Company. 5.6 The Customer shall, if requested by the Company, supply to the Company copies of all advertising and other material to be posted or supplied by the Company pursuant to the Contract. If, in the opinion of the Company, the content of the information or data so supplied breaches any of the provisions of this clause, then the Company may require the Customer to rectify such default, and failure by the Customer to do so within a reasonable time specified by the Company shall enable the Company to terminate the Contract without incurring any liability to the Customer in so doing.
6. Preliminary Work
6.1 All work carried out, whether experimentally or otherwise, at customer’s request shall be charged.
7. Copy and Data
7.1 A charge may be made to cover any additional work involved where copy supplied is not clear and legible, or data does not conform to our specification as issued with the estimate or proposal.
8.1 Proofs of all work may be submitted for customer’s approval and the Company shall incur no liability for any errors not corrected by the Customer in proofs so submitted. Customer’s alterations and additional proofs necessitated thereby shall be charged extra. When style, type or layout is left to the Company judgement, changes therefrom made by the customer shall be charged extra.
9. Standing Material
9.1 Metal, film, glass, typesetting, programmes, print layout, software, and other material produced by the Company and used by them in the production of type, plates, film-setting, negatives, positives, print and data images, and like shall remain its exclusive property. Such items when supplied by the customer shall remain the customer’s property. 9.2 Type may be distributed and lithographic, photogravure or other work effaced immediately after the order is executed unless written arrangements are made to the contrary. In the later event, rent may be charged. 9.3 The Company retain the ownership of all typesetting, and software, created or used in the production of lithographic, lasered, or electronic production of goods and services.
10. Specifications and Information
10.1 The Customer will supply the Company with all necessary information and specifications in respect of Services to be performed by the Company, and the Company will not be bound to accept any variation made to the specifications by the Customer. The acceptance of any item in the specification by the Company does not imply the Company’s approval or endorsement thereof. 10.2 The Company may reject any other materials supplied or specified by the Customer which appear to it to be unsuitable. Additional cost incurred if the materials are found to be unsuitable during production may be charged to the Customer, except that if the whole or part of such additional cost could have been avoided but for the unreasonable delay by the company in ascertaining the unsuitability of the material, then that amount should not be charged to the Customer. If unsuitable materials are replaced by the Customer with suitable materials then the Company reserves the right to reschedule the time for delivery or performance to such a later date as the company reasonably considers appropriate. 10.3 Where materials are supplied or specified the Company will take every care to secure the best result but responsibility will not be accepted for imperfect work caused by defects in or unsuitability of materials supplied or specified. 10.4 The Customer may request that the Company stores and maintains the relevant lists by giving notice in writing to the company at the commencement of the Contract and by making payment for all storage charges. Unless notice is given to the Company, it shall not be liable for the storage, maintenance, safekeeping or existence of any list on whatever medium. 10.5 All source documents provided by the Customer to the Company, will if specially requested, be returned by the Company with any Goods delivered at the completion of the performance of the Service, at the expense of the Customer. 10.6 The transportation of all data to the approved site is the responsibility of the customer (unless otherwise stated).
11. Performance by the Company
11.1 The Company will use its reasonable endeavours to achieve any estimates made by it regarding any timescales or results projected in connection with the Services. However, as such estimates are to some extent outside the Company’s control and much will depend on the accuracy and completeness of information supplied to the Company, time shall not be of the essence in relation thereto. Accordingly the Company does not guarantee that the Services will be completed within such timescales or achieve such results and shall not be responsible for the way in which the Customer sues any results of the Services. 11.2 The Company will use every endeavor to deliver the correct quantity ordered, but estimates are conditional upon margins of 10 per cent for all work being allowed, for overs or shortage the same to be charged or deducted. 11.3 The Company accepts no liability for the accuracy of postal or marketing information supplied by the Customer. Postal collection receipts supplied by the Company shall be conclusive evidence of posting. 11.4 The Company may delegate the performance of its obligations under the contract or any part thereof to any associated company, agent or sub contractor. 11.5 The Company will use its reasonable endeavours to achieve a reasonable standard of accuracy in respect of data capture. However, the company will not be liable for any inaccuracies in data capture if the Customer has only asked for the work to be unverified (i.e. keyed in once). If the customer requests that the work be verified (keyed twice by different staff) then the Company will use its reasonable endeavours to achieve accuracy within the industry norm rate of 0.02%. 11.6 If data processed by the Company produces irregularities or errors, the Company undertakes to replace the defective items, but is not responsible for consequential loss including additional postage costs.
12.1 Each party undertakes, unless otherwise agreed in writing, to keep in confidence and not to disclose to any person (except to such party’s own employees and then only to those employees who need to know the same) any information which is either marked to be kept in confidence or is by its nature confidential and which is received by one party from the other in connection with the Contract (including any reports or articles prepared by the Company or the contents of the Contract itself) provided that this obligation shall not extend to information which is or comes into the public domain otherwise than through the default of the receiving party, or is already in possession of or is shown to have been independently developed by the receiving party from a third party without obligation of confidentiality.
13.1 Advice of damage, delay or partial loss of goods in transit or of non-delivery must be given in writing to the company and the carrier within three clear days of delivery (or, in the case of non-delivery, within 28 days of despatch of the goods) and any claim in respect thereof must be made in writing to the Company and the carrier within seven clear days of delivery (or, in the case of non-delivery, within 42 days of dispatch). All other claims must be made in writing to the Company within 28 days of delivery. The Company shall not be liable in respect of any claim unless the aforementioned requirements have been complied with except in any particular case where the customer proves that (i) it was not possible to comply with the requirements and (ii) advice (where required) was given and the claim made as soon as reasonably possible. In the case of services, all claims must be notified in writing to the Company within 5 working days of the alleged failure to perform, or to perform properly, the services.
14. Intellectual Property Rights
14.1 Copyright and any other intellectual Property Rights in any reports, information, drawings, software, or other material produced by the company pursuant to the Contract shall be and remain vested in and the absolute property of the Company or its licence although the Customer shall have a anon-exclusive, non-transferable licence to use such material for its own internal purposes but for no other purpose. 14.2 Subject to Condition 9.1, nothing in the Contract shall be deemed to or require the Company to transfer, assign or license any Intellectual Property Rights to the Customer. 14.3 Copyright and any other Intellectual Property rights in any information or data supplied by the Customer to the Company shall remain the property of the Customer.
15.1 The Contract shall terminate as specified therein but if no expiry date is specified shall continue until all the obligations of the parties have been fulfilled subject as hereinafter provided. 15.2 Unless otherwise specified in the contract a contract may not be terminated by either party unless 26 weeks notice in writing is given in the case of services produced monthly or more frequently or 36 weeks notice in writing is given in the case of other services. Notice may be given at any time but wherever possible should be given after completion of work on any one service. Nevertheless and without prejudice to its other rights the Company may terminate any such contract forthwith if any sums due there under remain unpaid. 15.3 The contract may at the option of the Company be terminated without notice if there shall be any serious breach by the customer or if a liquidator or receiver shall be appointed for the Customer or if the Customer is an individual or a partnership the Customer or any partner of the Customer shall be adjudicated bankrupt or enter into an arrangement with creditors and in addition to its other remedies the Company shall; (a) be entitled to charge for work already carried out (whether completed or not) and for materials purchased for the Customer such charge to be an immediate debt due to the Company. (b) in respect of all unpaid debts due from the Customer have a general lien on all goods and property in the Company’s possession (whether worked on or not) and shall be entitled on the expiration of 14 days notice to dispose of such goods or property in such manner and such a price as the Company thinks fit and to apply the proceeds towards such debts. 15.4 Termination of the contract for whatever reason shall not affect the accrued rights of the parties arising in any way out of the contract as at the date of termination and all provisions, which are expressed to survive this agreement shall remain in full force and effect. Without prejudice to the generality of the foregoing all monies due to the Company under the terms of the contract shall forthwith become due and payable by the Customer and the Customer shall pay for all stock work and other material held for the Customer by or on behalf of the Company.
16. Limitation of Liability
16.1 The Company accepts liability for errors or omissions in the Service and its own negligence to the extent stated in Condition 11.2, 11.3 and 11.4 but not otherwise. Except where expressly contained in these Conditions, the Company has no obligation, duty or liability in contract, tort (including negligence or breach of statutory duty) or otherwise. 16.2 In any event the Company’s liability in contract, tort (including negligence or breach of statutory duty) or otherwise for errors or omission in any part of the Service or Goods which may arise from any failure by the Company to exercise its reasonable skill and care shall be limited to the provision of Services or Goods of the same nature as those originally provided in order to correct such errors or omissions free of charge to the Customer provided that the Company is notified of the errors or omissions within 4 weeks following completion of such part of the Services or delivery of Goods. 16.3 The Company does not exclude or restrict liability for death or personal injury resulting from its own negligence. 16.4 Under such circumstances where an error or omission has resulted in negligence by the company in carrying out the contract liability shall be limited to the costs, which directly relate to the production of the individual item or items that are subject to the error or omission. The company will not be liable for any other related charges whatsoever. 16.5 The customer shall be liable for additional charges directly caused by delivery later than that agreed by the schedule in the contact of information, materials or any such items that are to be supplied by the customer which are necessary in the perusal of the Company’s obligation under contract. 16.6 In any event the Company’s liability in contract, tort (including negligence or breach of statutory duty) or otherwise arising by reason of, or in connection with, the contract or howsoever otherwise shall be limited to the charges due under the Contract. 16.7 In any event in no circumstances shall the Company be liable in contract, tort (including negligence or breach of statutory duty) or otherwise for loss (whether direct or indirect) of profits, business or anticipated savings or for any indirect or consequential loss whatsoever. 16.8 The Customer shall indemnify the Company against any actions proceedings claims or demands in any way connected with the Services brought or threatened against the Company by a third party which are caused by or arise from any act of the Company carried out pursuant to the instructions of the Customer. 16.9 Each provision of this Condition is to be construed as a separate limitation applying and surviving even if for any reason one or other of the said provisions is inapplicable or held unreasonable in any circumstances and shall remain in force notwithstanding termination of the Contract.
17. Insurance and Risk
17.1 The Customer shall be responsible for effecting adequate insurance cover in respect of all property of the Customer while the same is in the possession of the Company or of any carrier delivery.
18. Force Majeur
18.1 The Company shall not be in breach of its obligations if there is any total or partial failure of performance by it of any of its duties and obligations occasioned by any act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, labour dispute of whatever nature and any other reason beyond its control or the control of its servant agents or subcontractors (any such events shall herein be known as ‘a force majeur’). 18.2 If the Company is unable to perform any of its duties and obligations to the Customer under the contract as a direct or indirect effect of a force majeur the Company may give written notice to the Customer of the inability stating the nature of the force majeur in question. The operation of the contract with the Customer shall be suspended during the period in which the force majeur continues. If the force majeur continues for a period of more than 2 months and substantially affects the commercial basis of the contract either party shall have the right to terminate the agreement upon giving one month’s written notice of such termination to the other.
19.1 The Customer may not assign its rights and obligations under the contract or any part thereof without the written consent of the Company. 19.2 The expiration or termination of the Contact shall not operate so as to affect the continuance of any obligations of either party which shall have accrued and be owing prior to such expiration or termination. 19.3 The Contract shall be subject to and construed and interpreted in accordance with the laws of England and shall be subject to the non-exclusive jurisdiction of the Courts of England. 19.4 Any notice required to be given, under these Conditions shall be deemed to have been given if sent by first class pre-paid post or delivered by hand. Any such notice shall be sent to the address to the party set out in the Contract or such other address as may be notified in writing by either party.