1.1 In these Conditions:
“CHARGES’ means the fees
‘CLIENT’ means the person named on the Order for whom the Flintriver has agreed to provide the Service in accordance with these Conditions ‘CONTRACT’ means the contract for the provision of the Service ‘SERVICE’ means the service and products to be provided by the Flintriver for the Client and referred to in the Order ‘ORDER’ means the sheet to which these Conditions are appended ‘FLINTRIVER’ means Flintriver Limited (registered in Scotland under number SC211127) and having their Registered Office at Kinburn Castle, St Andrews, Fife, KY16 9DR Scotland
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. THE SERVICE
2.1 Flintriver shall provide the Service to the Client subject to these Conditions. Any changes or additions to the Service or these Conditions must be agreed in writing by Flintriver and the Client.
2.2 The Client shall at its own expense supply Flintriver with all necessary information and other materials relating to the Service, within sufficient time to enable Flintriver to provide the Service in accordance with the Contract.
2.3 The Client shall at its own expense retain duplicate copies of all materials provided to Flintriver and insure against its accidental loss or damage. Flintriver shall have no liability for any such loss or damage, however caused.
2.4 The Service shall be provided in accordance with the Order subject to these Conditions.
2.5 Where the Client approves a final drawing or specification of the Service the Client is responsible for the contents thereof and for any error inherent therein.
3.1 If the Client fails to take delivery of the Service or to give Flintriver adequate delivery instructions then, without prejudice to any other right or remedy available to Flintriver, Flintriver shall store the Service until actual delivery and shall charge the Client for the reasonable costs of storage.
4.1 Risk of damage to or loss of the Service shall pass to the Buyer at the time of delivery thereof. Notwithstanding delivery and the passing of risk in the Service or other provision of the Contract , the property in the materials comprised in the Service shall not pass to the Client until Flintriver has received, in cash or cleared funds payment in full of the fee or price of the Service and the Client shall not be entitled to make use of the same until the fee or price is paid in full.
5.1 Subject to any special terms agreed, the Client shall pay the Charges and any additional sums which are agreed between Flintriver and the Client for the provision of the Service or which, in the Flintriver’s sole discretion, are required as a result of the Client’s instructions or lack of instructions, the inaccuracy of any information or materials supplied by the Client or any other cause attributable to the Client.
5.2 All charges quoted to the Client for the provision of the Service are exclusive of any Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.
5.3 Flintriver shall be entitled to invoice the Client following the end of each month in which the Service is provided, or at other times agreed with the Client.
5.4 Flintriver’s charges and any additional sums payable shall be paid by the Client together with any applicable Value Added Tax, and without any set-off or other deduction) within 14 days of the date of Flintriver’s invoice.
5.5 If payment is not made on the due date, Flintriver shall be entitled, without limiting any other rights it may have to
5.5.1 charge interest on the outstanding amount (both before and after any judgement) at the rate of 5 % above the base rate from time to time of Lloyds TSB Bank plc from the due date until the outstanding amount is paid in full;
5.5.2 Suspend or cancel further deliveries to the Client.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 All Intellectual Property rights are vested in Flintriver. Licences thereof by Flintriver to the Client may be made in writing on completion of any project and upon payment of all outstanding invoices.
6.2 Flintriver shall be entitled to use all items comprised in the Service for the purpose of advertising its own business.
6.3 The Client warrants that any information and materials and its use by Flintriver for the purpose of providing the Service will not infringe the copyright or other rights of any third party, and the Client shall indemnify Flintriver against any loss, damages, costs, expenses or other claims arising from any such infringement.
6.4 Subject to clause 6.3, Flintriver warrants that any Service will not, to the best of its knowledge and belief, infringe the copyright or other rights of any third party, and Flintriver shall indemnify the Client against any loss, damages, costs, expenses or other claims arising from any such infringement.
7. WARRANTIES AND LIABILITY
7.1 Flintriver warrants to the Client that the Service will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Order. Where Flintriver supplies in connection with the provision of the Service any goods supplied by a third party, Flintriver does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign to the Client the benefit of any warranty, guarantee or indemnity given by the person supplying the goods to Flintriver.
7.2 Flintriver shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any materials, information or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.
7.3 Except in respect of death or personal injury caused by Flintriver’s negligence, fraud or fraudulent misrepresentation, or as expressly provided in these Conditions, Flintriver shall not be liable to the Client, whether in contract, delict (including negligence), for breach of statutory duty, or otherwise, arising out of or in connection with the provision of the Service under the Contract for: loss of profits; loss of sales or business; any indirect, special or consequential loss; property damage; loss of contracts; loss of use or corruption of software, data or information; or other expenses. Subject to the remainder of the Contract, the entire aggregate liability of Flintriver to the Client, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall not exceed the amount of Flintriver’s charges for the provision of the Service.
7.4 Any claim by the Client in respect of the Service shall be notified to Flintriver within seven days from the date of delivery and the time shall be of the essence. If Flintriver is not notified by the Client accordingly, the Client shall not be entitled to reject the Service and Flintriver shall have no liability for any such claim and the Client shall be bound to pay the fee or price as if the Service had been delivered in accordance with the Contract.
7.5 Where any valid claim in respect of the warranties is notified to Flintriver in accordance with the Contract it shall be in the option of Flintriver either to replace or repair the Service free of charge, or to refund to the Client the fee or price of the Service but Flintriver shall have no further liability to the Client
7.6 Flintriver shall not be liable to the Client 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 Flintriver’s obligations in relation to the Service, if the delay or failure was due to any cause beyond the Flintriver’s reasonable control.
7.7 All time limits stipulated in the Contracts are estimates given by Flintriver in good faith. Any such estimates and any confirmation or variation of them shall not be deemed in any circumstances to be undertakings, warranties or contractual conditions.
8.1 The Client shall be entitled to terminate the Contract at any time by giving not less than one months’ written notice to the Flintriver. The Client will be responsible for costs and fees incurred by Flintriver to the date of notice being served.
8.2 Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if:
8.2.1 the other commits any breach of these Conditions and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so, or;
8.2.2 if the other goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed;
8.2.3 ceases or threatens to cease to carry on business; or
8.2.4 Flintriver reasonably apprehends that any of the foregoing events is about to happen and notifies the Client accordingly.
9.1 These Conditions (together with the terms, if any, set out in the Order) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
9.2 Any notice to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may appear on the Order.
9.3 No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
9.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforcable 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.
9.5 Scots law shall apply to the Contract, and the parties agree to submit to the nonexclusive jurisdiction of the Scottish courts.
Flintriver Ltd 2016
Registered in Scotland: No. SC211127
Registered Office: Kinburn Castle, St Andrews, Fife KY16 9DR