Terms and Conditions of Purchase

1. THESE TERMS AND CONDITIONS

1.1 What these terms cover

These are the terms and conditions of purchase on which we purchase goods and services.

1.2 The importance of these terms and why you should read them

Please read these terms carefully as they outline the agreement between us and you in relation to the purchase of goods and services.

1.3 The incorporation of these terms into our contract with you

These terms shall be incorporated into any contract we enter into with you to the exclusion of any terms or conditions stipulated or referred to by you. Any dealings with us following notification to you of these terms shall automatically be deemed acceptance of these terms by you notwithstanding the absence of formal acknowledgement by you.

1.4 The application of these terms to goods and services

All of these terms shall apply to the purchase of both goods and services except where application to one or the other is specified.

2. INFORMATION ABOUT US AND CONTACT INFORMATION

2.1 Who we are

We are Engine Creative Agency Limited, registered in England and Wales (the Company). Our company registration number is 03608666 and our registered office is at The Church Rooms, Agnes Road, Semilong, Northampton, Northamptonshire, NN2 6EU. Our VAT number is GB 694483879.

2.2 How to contact us

You can contact the Company by telephoning 01604 453177 or in writing to Enquiries@EngineCreative.co.uk or The Church Rooms, Agnes Road, Semilong, Northampton, Northamptonshire, NN2 6EU.

2.3 How we may contact you

If the Company has to contact you for any reason it will do so by telephone or writing to you at the e-mail address or postal address you provided to the Company in the most recent correspondence.

2.4 Receipt of communications

Communications shall be deemed to have been received: 2.4.1 if sent by prepaid first class post, 5 days after posting (exclusive of day of posting); 2.4.2 if delivered by hand, on the day of delivery; and 2.4.3 if sent by e-mail transmission prior to 2pm UK time on any day, at the time of transmission and if sent after 2pm UK time, on the next day.

2.5 Reference to “day”

For the purposes of clause 2.4, any reference to a “day” shall not include Saturdays, Sundays and bank or public holidays in England.

2.6. “Writing” includes e-mail

When using the words “writing” or “written” in these terms, this includes e-mails.

3. OUR CONTRACT WITH YOU

3.1 Orders

Any order is an offer by the Company to purchase the goods or services detailed therein on these terms from you. You should assign each order an individual order number.

3.2 Valid order

No order shall be valid unless it is signed by a duly authorised representative of the Company.

3.3 Acceptance of orders

An order shall be deemed to be accepted at the earlier of: 3.3.1 you issuing a written acceptance of the order; and 3.3.2 you doing any act consistent with fulfilling the order, at this point, a contract will come into existence between you and the Company.

3.4 Unaccepted orders

You should inform the Company, in writing, of any orders which are not accepted by you. You should inform the Company in such notice of the reason(s) for the order not being accepted.

3.5 Withdrawing an order

The Company may withdraw an order at any time before it is aware that it has been accepted by you.

3.6 Lapsing of orders

An order shall lapse unless accepted by you within 72 hours of its receipt in accordance with clause 3.3.

3.7 Variation of orders

No variation to an order, or these terms, shall be binding unless it has been agreed in writing and signed by the Company.

4. PURCHASE OF GOODS AND SERVICES

4.1 Quantity and quality of the goods and services

You are to ensure that the quantity, quality and description of the goods and performance of the services shall be as specified in the relevant order and/or in any specification supplied by the Company to you or referred to by the Company or agreed in writing by you.

4.2 Specifications

Any specification supplied by the Company to you or specifically produced by you for the Company in connection with the contract shall be the property of the Company.

4.3 Compliance

You will comply with all relevant regulations or other legal requirements concerning the design, manufacture, packaging, packing and delivery of the goods and the performance
of the services.

4.4 Inspection and testing of the goods

You will not unreasonably refuse any request made by the Company to inspect and test the goods during manufacture, processing or storage either at your premises or the premises belonging to any third party prior to dispatch, and you will provide the Company or its agent with all facilities reasonably required by the Company for inspection and testing.

4.5 Unsatisfactory inspections

If, as a result of any inspection or testing carried out in accordance with clause 4.4, the Company is not satisfied that the goods will comply in all respects with the contract, and the Company informs you within 48 hours of such inspection or testing of that fact, then you will take such steps as are reasonably necessary to ensure compliance as soon as possible.

4.6 Marking and packing goods

The goods shall be marked in accordance with the Company’s instructions and any applicable regulations or requirements of the carrier, and the goods shall be properly packed and secured so as to reach their destination in an undamaged condition.

4.7 Company property and materials

If the Company provides any items to you in order for you to be able to manufacture the goods, you will clearly mark such items and identify them as being the Company’s property. All property, materials, equipment and tools, drawings, specifications and data provided to you by the Company shall remain the property of the Company. You are to keep the items in safe custody at your own risk and will be responsible for all risk of loss of or damage to or deterioration of the Company’s property and materials while such items are in your possession. You should insure the items at your own cost against all risks which would normally be covered by a prudent business person to at least their replacement value. All items will, upon the provision of reasonable notice,be returned to the Company. No item is to be used or disposed of other than in accordance with the Company’s written instructions or authorisation.

4.8 The Company’s rights to make changes

The Company has the right to contact you should it wish to make a change(s) to its order. You will then advise the Company as to whether such a change(s) is possible. If you cannot make the change(s) or the consequences of making the change(s) are unacceptable to the Company then the Company may end the contract as per clause 11.

4.9 Your rights to make changes

The Company accepts that you may make changes to the goods and services to: 4.9.1 reflect changes in relevant laws and regulatory requirements; and 4.9.2 to implement minor technical adjustments and improvements.

5. PRICE AND PAYMENT

5.1 Price of the goods and services

The price of the goods and services will be as stipulated in the relevant order and, unless otherwise specified, the price shall be: 5.1.1 exclusive of any applicable VAT (the Company shall pay at the rate required by law after receipt of your valid VAT invoice); and 5.1.2 inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the goods to the Company and any duties, imposts or levies other than VAT.

5.2 Payment by the Company

All sums payable by the Company will be paid in pounds sterling unless otherwise agreed in writing. Unless otherwise stated on the order, the Company will pay the price of the goods and/or services within 60 days of the later of: 5.2.1 the end of the month of receipt by the Company of a VAT invoice; or 5.2.2 acceptance of the goods and/or services in question by the Company.

5.3 Price increase

The price may not be increased by you (whether as a result of increased material, labour or transport costs, any fluctuation in rates of exchange or for any other reason) without the prior written consent of the Company.

5.4 Discount for prompt payment

The Company shall be entitled to benefit from any discount for prompt payment or bulk purchase discount customarily granted by you, and the price shall be adjusted accordingly.

5.5 Interest chargeable for late payments

If the Company fails to make any payment due to you under the contract by the due date for payment, then the Company shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the actual payment of the overdue amount, whether before or after judgment. The Company shall pay the interest together with the overdue amount. This clause 5.5 shall not apply to payments the Company disputes in good faith.

5.6 Set-off payments

The Company may at any time, without limiting any of its other rights or remedies, set-off any liability of yours to the Company against any liability of the Company to you.

5.7 Recovery of legal costs

Should the Company be required to enforce these terms against you then you shall indemnify the Company against all costs and expenses (including professional and legal costs and expenses on a full indemnity basis) suffered or incurred by the Company arising out of or in connection with the Company enforcing these terms.

6. DELIVERY AND PERFORMANCE

6.1 Delivery of goods and services

The goods shall be delivered to the Company on the date or within the period stated in the relevant order, in either case during the Company’s usual business hours, or as instructed by the Company. The services shall be performed on the date or within the period stated in the relevant order, in either case during the Company’s usual business hours, or as instructed by the Company. The Company reserves the right to request to collect the goods.

6.2 Packing note

A packing note quoting the number of the order should accompany each delivery or consignment of the goods.

6.3 Date of delivery

Where the date of delivery of the goods and/or performance of the services is to be specified after the placing of the order, you will give the Company reasonable written notice of the relevant date.

6.4 Time is of the essence

The time of delivery of the goods and/or completion of the services is of the essence of the contract.

6.5 No goods delivered in instalments without consent

You will not deliver the goods in instalments without the Company’s prior written consent. If the goods are to be delivered by instalments, the contract shall be treated as a single contract and not as a series of separate contracts. They may, however, be invoiced and paid for separately. Should you fail to deliver any one instalment on time or at all or should there be any defect in an instalment then this shall entitle the Company to the remedies set out in clause 13.

6.6 Rejecting goods

The Company shall be entitled to reject any goods delivered which do not comply with the terms of the contract, and the Company shall not be deemed to have accepted any goods until it has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the goods has become apparent.

6.7 Supply of information for delivery

As soon as practicable after the order is accepted, you will supply the Company with any instructions or other information that the Company may need to enable it to accept delivery of the goods.

6.8 Packaging will not be returned

The Company shall not be obliged to return to you any packaging or packing materials for the goods, whether or not any goods are accepted by the Company.

6.9 Where goods are delivered late

If the goods are not delivered on the due date then, without prejudice to any other remedy, the Company shall be entitled to deduct from the price of the order or (if the Company has paid the price of the order) to claim from you (in which case you will promptly upon request comply) by way of liquidated damages for delay such percentage of the price as is set out in the order (if any) for every week’s delay as a genuine pre-estimate of the Company’s loss. The Company is able to stipulate a new deadline for delivery, so long as this is reasonable. If this new deadline is not met, then clause 6.10 will apply.

6.10 The Company’s legal rights where goods are delivered late

Where delivery of goods by you to the Company is late, the Company may exercise its legal rights. The Company may also treat the contract to have come to an immediate end where: 6.10.1 you have refused to deliver the goods to the Company; 6.10.2 in the circumstances, the goods being delivered within the delivery time was essential; or 6.10.3 the Company specified, before acceptance of the order, that the goods being delivered within the delivery time was essential.

7. RISK AND TITLE IN THE GOODS

7.1 Upon delivery of the goods to the Company, as in accordance with the contract, risk of damage to or loss of the goods shall pass to the Company. 7.2 Upon the earlier of delivery or payment by the Company for the goods, title to the goods shall pass to the Company.

8. WARRANTIES AND LIABILITY

8.1 Warranties regarding goods

You warrant to the Company that the goods:

8.1.1 will be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for their normal purpose, any purpose made known to you in writing on or before the time the order was placed, and any purpose that you have represented to the Company that the goods are fit for purpose; 8.1.2 will be free from defects in design, material and workmanship; 8.1.3 will correspond with any relevant specification or sample; and 8.1.4 will comply with all statutory requirements and regulations relating to them.

8.2 Warranties regarding services

You warrant to the Company that, in providing the services, you will: 8.2.1 perform the services with the best care, skill and diligence in accordance with best practice in your industry, profession or trade; and 8.2.2 use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that your obligations are fulfilled in accordance with the contract.

8.3 Liability

You will indemnify the Company in full against all liability, loss, damages, costs and all other reasonable expenses (including legal expenses) awarded against or incurred or paid by the Company as a result of or in connection with: 8.3.1 breach of any warranty given by you in relation to the goods and/or the services; 8.3.2 any claim made against the Company by a third party for death, personal injury or damage to property arising out of or in connection with defects in goods, to the extent that the defects are attributable to your acts or omissions or those of your employees, agents or sub-contractors; 8.3.3 any claim that the goods infringe, or their importation, use or resale infringes, the patent, copyright, design right, trademark or other intellectual property rights of any other person, except to the extent that the claim necessarily arises from compliance with any specification supplied by the Company; 8.3.4 any liability under the Consumer Protection Act 1987 in respect of the goods; and 8.3.5 any act or omission you or your employees, agents or sub- contractors make in supplying, delivering and installing the goods and/or services, as the case may be.

9. RETURNING REJECTED GOODS

The Company agrees that upon exercising its legal rights to reject the goods, it will either return them to you in person to where they were bought from, post them back to you, or (where the goods are not suitable for posting) allow you to collect the goods from the Company. You are to pay the cost of postage or collection, the price of which will be agreed at the time of arranging the return.

10. INTELLECTUAL PROPERTY

The Company reserves all intellectual property rights in any drawings, documents and other information supplied by the Company to you, or specifically produced for the Company by you. Without the prior consent of the Company, you are not to disclose, reproduce, sell, loan, exhibit, publish or give away any such drawings, documents or other information. You will not use the drawings, documents or other information in any way except in relation to the goods and/or services in respect of which they are issued.

11. HOW TO END THE CONTRACT

11.1 Cancelling the contract

The Company shall be entitled to cancel the contract in full or in part by providing you with notice at any time in which case the Company’s only liability shall be to pay the price for the
goods and/or services to you in respect of which the Company has cancelled the contract, less your net saving of cost arising from cancellation.

11.2 Terminating the contract because of something you have done or are going to do

The Company may end the contract, in full or part, by notifying you if at any time: 11.2.1 you make any voluntary arrangement with your creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) become bankrupt or (being a company) become subject to an administration order or go into liquidation (otherwise than for the purpose of solvent amalgamation or reconstruction); 11.2.2 an encumbrancer takes possession of, or a receiver is appointed over, any of your assets or property; 11.2.3 you cease, or threaten to cease, to carry on business; or 11.2.4 the Company reasonably believes that any of the events mentioned above are about to occur in relation to you and the Company notifies you of this belief.11.3 If the Company ends the contract in accordance with clause 11.2, then the Company shall be entitled to any one or more of the following remedies at its discretion, whether or not any part of the goods and/or services has been accepted by it: 11.3.1 to reject either all or part of the goods and/or services and return the rejected goods to you at your risk and at your expense and you will promptly pay the Company a full refund for the returned goods and/or the rejected services; and 11.3.2 to claim from you any damages that may have been incurred in consequence of your breach of the contract.

12. CONFIDENTIALITY

12.1 Your obligations regarding confidentiality

You are to keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed by the Company or its employees, agents or sub-contractors to you. This also applies to any other confidential information concerning the Company’s business or products which you may obtain and you will restrict disclosure of such confidential material to only those of your employees, agents or sub-contractors who need to know the same for the purpose of complying with your obligations to the Company. You will ensure that your employees, agents or sub-contractors are subject to the same obligations of confidentiality as are included in these terms and you will ensure that they comply with such obligations.

12.2 Clause 12 will survive termination

This clause 12 shall survive termination of the contract.

13. REMEDIES

13.1 Remedies available to the Company

Without prejudice to any other right or remedy which the Company may have, if any goods are not supplied in accordance with, or if you fail to comply with, any of the terms of the contract then the Company shall be entitled to any one or more of the following remedies at its discretion, whether or not the goods, or any part, have been accepted by the Company: 13.1.1 to cancel the contract; 13.1.2 to reject either all or just some of the goods and return the rejected goods to you at your risk and expense on the basis that a full refund for the returned goods shall be paid to the Company by you forthwith; 13.1.3 at the Company’s option, to give you the opportunity at your own expense either to correct any defect in the goods or to supply replacement goods and carry out any other work that may be necessary to ensure that the terms of the contract are fulfilled; 13.1.4 to refuse to accept any further deliveries of the goods but without any liability to you; 13.1.5 to carry out, at your expense, any work which is necessary to make the goods comply with the contract; and 13.1.6 to claim from you any damages that may have been incurred in consequence of your breach of the contract.

13.2 Without prejudice to any other right or remedy which the Company may have,

if any services are not supplied in accordance with, or if you fail to comply with, any of the terms of the contract then the Company shall be entitled to any one or more of the following remedies at its discretion, whether or not the services, or any part, have been accepted by the Company: 13.2.1 to cancel the contract; 13.2.2 to reject either all or just some of the services on the basis that a full refund for the rejected services shall be paid to the Company by you forthwith; 13.2.3 at the Company’s option, to give you the opportunity at your own expense either to correct any defect in the services or to re-perform the services and carry out any other work that may be necessary to ensure that the terms of the contract are fulfilled; 13.2.4 to refuse to accept any further performance of the services but without any liability to you; 13.2.5 to carry out, at your expense, any work which is necessary to make the services comply with the contract; and 13.2.6 to claim from you any damages that may have been incurred in consequence of your breach of the contract.

14. GENERAL

14.1 You cannot transfer the contract

The contract is personal to you and your rights or obligations under the contract may not be assigned, transferred, subrogated or delegated without the Company’s prior written consent.

14.2 No waiver of the Company’s rights

Failure or delay by the Company to enforce or partially enforce any provision of the contract shall not be construed as a waiver of any of the Company’s rights under the contract.

14.3 No waiver will be deemed a subsequent waiver

Any waiver by the Company of any breach of, or default under, any provision of the contract by you will not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the contract.

14.4 If a court finds part of the contract illegal, the rest will continue in force

If any provision or part provision of the contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part- provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 14.4 shall not affect the validity and enforceability of the rest of the contract.

14.5 Modification or deletion of provisions

If any provision or part-provision of the contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

14.6 Nobody else has rights under the contract

Nothing in the contract is intended to confer any benefit on any third party, whether pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise, and no third party shall have the right to enforce any rights under the contract, except where otherwise agreed in writing.

14.7 Which laws apply to the contract and where you may bring legal proceedings

The contract shall be governed by the laws of England and Wales and, subject as provided hereafter, both parties agree to submit to the exclusive jurisdiction of the courts of England and Wales in respect of any dispute or claim arising out of or relating to the contract or the relationship between you and the Company. Nothing in this clause 14.7 shall limit the right of the Company to take proceedings against you in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such jurisdiction.

14.8 Language

These terms were originally written in the English language and the English language version shall control over any translations.

14.9 Further assurance

You shall promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to the contract and you shall use all reasonable endeavours to procure that any necessary third party shall do the same.