In these Conditions, unless the Contract requires otherwise, “the Contract” means the Contract between the Buyer and the Seller consisting of the ‘Order’, these conditions and any other documents (or parts thereof) specified in the ‘Order’.
a) “Buyer” means the person, firm or company or any other organisation from whom the ‘Order’ is issued
b) “Seller” means Once Upon a Time Marketing Limited (3406501) and its subsidiaries, hereinafter referred to as the Seller.
Where the contents so admits, the term ‘The Buyer’ will include the Buyer’s agents and its subsidiaries that are authorised by the Buyer to issue orders and accept delivery of the goods in accordance with these terms and conditions.
c) The “Goods” means all articles or things or services, covered by the “Order”.
d)“Specification” means the technical description (if any) of the goods contained or referred to in the Contract or in any Order.
e) “Order” means the purchase order (or instruction received from the Buyer verbally or in writing) placed by the Buyer for the supply of the goods.
f) “Contract” means each agreement between the Buyer and the Seller for the supply of goods.
All quotations are given, orders accepted and goods supplied subject to the following terms and conditions and no addition thereto or variation thereof shall be effective unless expressly agreed in writing by the Company.
The Buyer Acknowledges and agrees that the Seller shall be entitled, at its discretion to sub contract the performance of the services (in whole or in part) to a third party.
Buyer’s property and all property supplied to the seller by or on behalf of the Buyers, including master tapes, artwork/CAD files and printing films will be held by the Seller or its agents entirely at the Buyers risk. The Seller recommends that the Buyer should insure such property against any damage or loss and retain safety and or duplicate copies of all property supplied. This should be inclusive of all goods or origination previously supplied by the Seller.
Buyer’s property including all printed material or other materials worked on and supplied by the Seller and held by the Seller or by one or more of the Seller agents shall be held entirely at the Buyer’s risk. The Seller recommends that the Buyer should insure such property against any damage or loss.
Unless otherwise agreed in writing by the Seller these conditions shall govern any contract made between the Seller and the Buyer (whether made on the basis of the quotation or not) and these conditions shall comprise the entire bargain made between the Seller and the Buyer. In the case of any inconsistency between these conditions and any form of contract signed by the Buyer or any terms put forward by the Buyer these present conditions shall prevail.
If the Seller shall believe the Buyer to be insolvent the Seller may suspend deliveries without incurring liability of any kind and need not resume such deliveries until special terms for payment have been agreed.
All quotations are made subject to the availability of raw materials and goods will be invoiced at the price ruling at the date of despatch and accordingly the price quoted is not binding on the Seller but is an indication of the price ruling at the date of the quotation only.
No responsibility is accepted by the Seller for any loss or damage of any kind where arising directly or indirectly from the goods supplied by the Seller.
All specifications, creative, artwork, drawings, pressing tools, plates, tools, dies or blocks, process information, film or designs supplied remain the property of the Seller unless paid for by the Buyer.
In the case of printed materials alterations from the original copy and after the first proof, including alterations in style, will be charged to the Buyer in addition to the contract price. No responsibility will be accepted for any errors in proofs which have been approved by the Buyer.
While every effort will be made by the Seller to supply material in accordance with any sample submitted the Seller gives no guarantee, condition, warranty or representation (whether express or implied) that the goods ordered and delivered will correspond with the sample.
The Seller shall be indemnified by the Buyer against any loss incurred in respect of any demands, claims, costs or expenses of whatever kind arising out of any legal, libellous or other matter manufactured or printed for the Buyer or any infringement of copyright, patent or design.
The Buyer assumes full responsibility for the fulfilment of all copyright obligations stated or otherwise, arising from the manufacture and supply of the product under contract. The Buyer confirms that, in respect recordings held the necessary licences from the copyright holders and that the recording of the performance of any dramatic or musical work from which the master tape was derived was made lawfully with the consent in writing of the performers concerned.
The Buyer grants to the Seller irrespective of any non-disclosure agreements, all necessary authorities and consent to enable the Seller from time to time to consult with and provide details of any orders placed by the Buyer to third party organisations, including The British Phonographic Society (BPI), Mechanical Copyright Protection Society (MCPS) Performing Right Society (PRS) and the international federation of the Phonographic Industry (IFPI), Content Delivery, Storage Association and any other appropriate party.
3. CONDITIONS AND WARRANTIES.
This contract is subject to the terms implied by the Sale of Goods Act 1979 and the Seller offers no further condition or warranty beyond that provided for in the act.
Unless previously withdrawn, quotations are open for acceptance within the period stated in them. Where no period is stated, the quotation shall be open for acceptance within Thirty (30) days from the date it is given, unless withdrawn by the Seller during that time.
All specifications and particulars of weights, quantities and dimensions submitted with the Seller’s quotations are approximate only and the descriptions and illustrations contained in the Seller’s catalogues and other advertising material are intended merely for illustration and do not form part of any contract.
6. PRICES AND CHARGES.
(a) All orders are subject to prices prevailing on the date the order is despatched and are subject to amendment on or after acceptance without notice unless otherwise agreed in writing by the Seller
(b) Unless otherwise stated all prices and charges are exclusive of Value Added Tax, delivery, packing and insurance charges.
(c) Unless otherwise stated all prices and charges are for goods available for collection at the Seller’s premises.
(d) Any extra costs incurred by the Seller on account of delays, interruptions or suspension of work due to the Buyer’s instructions or absence of instructions will be added to the contract price and paid accordingly.
7. TERMS OF PAYMENT.
(a) Unless expressly agreed full payment is due from the buyer upon placement of the order and the company will not proceed in any way with the order until the payment is received. Where credit facilities have been agreed all accounts are strictly nett and payable in full within Thirty (30) days from the date of the invoice and no deductions or cash discounts will be allowed.
(b) In the event of non-payment of any invoice within the prescribed period, interest and late payment compensation will accrue in accordance with the provisions of the Late Payment of Commercial Debts (Interest) Act 1998.
The Buyer shall also be liable for any costs or expenses, legal or otherwise, incurred by the Seller as a result of non-payment or delayed payment of an invoice.
If the Buyer shall fail to pay all sums due to the seller on the due date the Seller may:
(a) Without incurring liability of any kind suspend deliveries under any or all contracts with the Buyer while payments remain in arrears and/or
(c) give notice in writing that if any such sum or sums outstanding be not paid in seven days any or all such contracts may be cancelled and if all such claims are not paid within such time may by further notice determine any or all such contracts and claim damages for repudiation.
(a) Any time or date for delivery named by the Seller is an estimate only and the Seller shall not be liable for the consequences of any delay.
(b) Unless otherwise agreed delivery of the goods will occur when the goods are made available for collection at the Seller’s selected production site.
(c) Where requested by the Buyer the Sellers will, at the Buyer’s expense and risk, make such carriage insurance and freight arrangements as the Seller regards as appropriate and the cost of such insurance and freight shall be added to the invoice.
(d) The seller may deliver by instalments; such instalments shall be separate obligations and no breach in respect of one or more of them shall entitle the Buyer to cancel any subsequent instalments or repudiate this contract as a whole.
While the seller will endeavour to make delivery on the date stated overleaf any delivery date so specified is an estimate only and time for delivery shall not be deemed to be of the essence of the contract, nor shall the Seller be deemed to have waived the benefit of this condition by reason of agreeing to delivery by a specified date
The Seller shall in no circumstances be liable to the Buyer neither for the late delivery of the goods nor for any damages incurred by the Buyer as a result of or consequent upon such late delivery.
The Seller shall be entitled to deliver up to 10% more or less of the quantity ordered by the buyer, for each element that makes up the total order. The buyer’s order shall be considered to be completed by the buyer and the company when a delivery of up to 10% more or less of the quantity ordered by the customer has been made.
If the contract provides for delivery by instalments each instalment shall be deemed to be the subject of a separate contract and any complaint raised by the Buyer in respect of the state, quality or condition of the goods comprised in any instalment or in respect of non-delivery or delay in delivery of any instalment or any other complaint shall not affect the balance of the contract or entitle the Buyer to cancel the same.
9. LOSS OR DAMAGE IN TRANSIT.
No claim for damage in transit, shortage of delivery or loss of goods will be accepted by the Seller unless such damage shortage or loss is endorsed on the carrier’s delivery note or, if the goods have been delivered and the delivery note endorsed as “not examined”, a separate notice in writing is given to the carrier concerned and to the Seller within seven days of receipt of the goods. In the event of any claim for damage in transit, shortage of delivery or loss of goods properly made as aforesaid, the Seller shall replace free of charge the goods damaged or lost or make up the shortage of goods supplied. Save as aforesaid the Seller shall not be liable for any loss, damage liability or expense whatsoever and howsoever arising from any loss or damage in transit or shortage of delivery.
10. DELAY IN DELIVERY.
Deliveries may be wholly or partially suspended and the time of such suspension added to the original contract in the event of a stoppage, delay or interruption of work in the premises of the Seller or its partners during the delivery period as a result of any act of God, war, strikes, lockouts or other trade disputes, riot or civil commotion, fire, flood, legislation, breakdown, accident or any other cause whatsoever beyond the control of the Seller.
Non deliveries must be reported within seven days of invoice.
If by reason of instruction or lack of instructions from the Seller despatch of the goods is delayed for seven (7) days after the Seller has notified the Buyer that the goods are ready for delivery, or in the event of the Buyer failing to collect the goods within seven days after the Buyer has been notified that the goods are ready for collection, the goods ordered shall be stored by the Seller at the Buyer’s risk and the Buyer shall repay the Seller the cost of storing and insuring the goods. For the purposes of Condition 7 (Terms of Payment) the goods shall be invoiced to the Buyer upon the expiry of the said 7 day period.
The Seller reserves the right to charge the Buyer a reasonable storage charge to be fixed by the seller in any case where goods are stored by the seller at the Buyer’s request, but the time for payment in any such case shall be 28 days from the date on which the goods are placed in storage by the Seller.
The Buyer must inspect the goods immediately on delivery thereof or on collection as the case may be and unless within seven (7) days from such inspection written notice is given to the Seller of any matter by reason of which the buyer alleges that the goods are not in accordance with the contract, the goods shall be deemed to be in all respects in accordance with the contract and the buyer shall be bound to accept and pay for the same accordingly.
The Buyer is advised in its own interest to examine goods before further manufacture as the Seller accepts no responsibility for material which has been cut, printed or otherwise fabricated or processed.
13. DEFECTIVE GOODS.
(a) Defective goods in respect of which a claim is made pursuant to Condition 12 hereof will be replaced by the Seller or if replacement is not practicable the Seller will credit the value of the goods at the invoice price PROVIDED ALWAYS that the defective goods are promptly returned to the Seller carriage paid, unless otherwise agreed.
(b) In the case of goods supplied but not manufactured by the Seller the Seller’s sole responsibility shall be to give the buyer the same warranty in respect thereof as is given to the Seller by the supplier PROVIDED ALWAYS that the Seller shall not be under any obligation to pay any liability or expense greater than the amount the Seller shall recover from the supplier in respect thereof.
(c) The Seller shall not be liable for any loss damage liability or expense whatsoever and howsoever arising from any defect of the goods supplied save as detailed in Condition 13 (a) and (b) above.
14. FORCE MAJEURE.
Every effort will be made by the Company to carry out its contract with the customer. The performance of the contract is subject to cancellation by the Company or of such reasonable variation as the Company may consider appropriate as a result of inability to secure labour, materials or supplies or as a result of any act of God, war, strike, lock-out or other labour disputes, riot or civil commotion, fire, flood, legislation, breakdown, accident or any other cause whatsoever beyond the Company’s control.
In the event of the Seller being prevented from delivering part of any order or instalment by reason of any of the clauses mentioned in Clause 14 whereof the Seller shall deliver and the Buyer shall take such part of the said order or instalment as the Seller shall be able to deliver and the Buyer shall pay for the part delivered the same proportion of the purchase price as the part delivered bears to the whole of the order or instalment.
15. RETENTION OF TITLE ON THE SALE OF GOODS.
All goods are supplied to Buyer on the following terms:
(a) The ownership of goods delivered by the Seller shall be transferred to the Buyer only when all sums owed by the Buyer to the Seller have been paid. Without prejudice to the foregoing, however, the Buyer shall assume the risk of loss or damage to the goods from the date of delivery.
(b) Should the Buyer fail to make any payment to the Seller for goods supplied, the Seller reserves the right to refuse to make any further deliveries irrespective of which contract to which such further deliveries may relate and to rescind the contract or contracts with the Buyer but without prejudice to the Sellers rights and remedies in respect of such non-payment including the Seller’s right to recover goods delivered but unpaid for in accordance with this Condition 15.
(c) Pending payment of the full price in respect thereof, the Buyer acknowledges that he is in possession of the goods solely as Bailee for the Seller until such time as the full price thereof is paid.
(d) If the Buyer shall sell any of the goods delivered by the Seller (whether converted into or incorporated in new products or otherwise) in such a manner as to pass to a third party a valid title therein, the Buyer shall hold the proceeds of the sale on trust for the Seller, ALWAYS PROVIDED that nothing herein contained shall constitute the Buyer as an agent of the Seller for the purpose of any such sub-sale and also provided that the Buyer shall not be entitled to sell such goods after the appointment of a Receiver to its property or after it has been placed in liquidation or, not being a company, has committed an act of bankruptcy.
No contract shall be completed on the basis of this quotation until an offer has been made by the Buyer and the Seller confirms acceptance thereof in writing.
We reserve the right of ownership to goods listed above until payment has been received in full. The Buyer grants the seller, it’s agents and employees irrevocable right to enter any premises where the goods are or may be stored in order to inspect them and where the title to the goods remain vested in the Seller after the time for payment is due, the right to recover them without further formality or notice to the Buyer.
If the Buyer cancels, extends or delays or purports to cancel, extend or delay the relevant contract or part thereof, or fails to take delivery of any goods at the time agreed (if any) or if no time is agreed, within a reasonable time, then the Buyer will be liable (without prejudice to any other rights of the Seller to claim damages) to indemnify the Seller against any resulting loss, damage or expense incurred by the Seller in connection with the supply or non-supply of the goods including the cost of any material, plant or tools used or intended to be used therefore and the cost of labour and other overheads including a percentage in respect of profit.
If at any time any question, dispute or difference whatsoever shall arise between the Seller and the Buyer upon or in connection with any contract between them which the parties shall have failed to resolve then either of them may refer such question, dispute or difference to arbitration by a person to be mutually agreed upon or failing agreement within fourteen days to some person appointed by the President for the time being of the Law Society of England and Wales.
18. LEGAL CONSTRUCTION.
Unless otherwise agreed in writing any contract between the Seller and the Buyer will in all respects be governed by and construed in accordance with English law.
19. ACCEPTANCE OF TERMS AND CONDITIONS.
The acceptance of the Seller’s quotation, verbally or written (or any part thereof) or the acceptance of goods delivered by the Seller shall be deemed to be acceptance of these Terms and Conditions of Sale.