D4P MediaD4P Media

terms of business

Let's Get Down to Business: Our Terms and Conditions

1 Interpretation

1.1 In these Conditions:

“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and D4P Media; “Contract” means the contract between the Customer and D4P Media for the supply of Goods and/or Services in accordance with these Conditions; “Customer” means the person whose order for Goods and/or Services is accepted by D4P Media; “Goods” means the goods which D4P Media sells to the Customer under these Conditions, as set out in the Quotation; “Order” means the Customer’s order for the supply of Goods and/or Services as accepted by D4P Media; “Order Confirmation” means D4P Media acceptance of the Order, provided by D4P Media to the Customer whether written or oral; “Quotation” means the quotation for the Goods and Services provided to the Customer by D4P Media whether written or oral; “Services” means any services provided to the Customer (including all of them or any part of them) under these Conditions, as set out in the Quotation; and “D4P Media” means the D4P Media business selling the Goods and/or Services, details of which are given in the Quotation and/or whose details have been provided to the Customer either in writing or orally.

1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended re-enacted or extended at the relevant time.

1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.

2 Making the Contract

2.1 Each Order will be deemed to be an offer by the Customer to buy the Goods and/or Services in accordance with these Conditions. The Contract is made when the Order is accepted by D4P Media by the issue to the Customer of an Order Confirmation. The Contract will not be made until an Order Confirmation has been issued by D4P Media or D4P Media commences provision of the Goods and/or Services.

2.2 D4P Media may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Goods or Services shall arise, until an Order Confirmation has been issued by D4P Media or D4P Media commences provision of the Goods and/or Services.

2.3 The Contract is subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions and all previous oral or written representations made by D4P Media, but subject to the provisions of Condition 2.4.

2.4 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and D4P Media.

2.5 The Customer must ensure that the terms of the Quotation and any applicable specification are complete and accurate. If the Customer wishes to amend any aspect of the information the Customer has given it must contact D4P Media immediately. Although D4P Media will use reasonable endeavours to implement any such amendment which the Customer requests, D4P Media cannot guarantee that it will be able to do so after the Order Confirmation has been issued. If such amendment changes any other aspect of the Quotation (for

example the price) and D4P Media is able and willing to amend it, then D4P Media will send the Customer a new Order Confirmation.

2.6 All Quotations are invitations to treat only. They are not an offer to supply Goods or Services and are incapable of being accepted by the Customer. All Quotations are, unless agreed otherwise in writing, valid for 30 days only or until earlier acceptance by the Customer after which time they may be altered by D4P Media without giving notice to the Customer.

2.7 Any advice or recommendation given by D4P Media or its employees or agents to the Customer or its employees or agents as to the storage, application, suitability or fitness for purpose for use of the Goods which is not confirmed in writing by D4P Media is followed or acted upon entirely at the Customer’s own risk, and accordingly D4P Media shall not be liable for any such advice or recommendations which is not so confirmed.

3 Provision of the Goods and Services

3.1 The quantity, quality, and description of and any specification for the Goods and Services shall be those set out in the Quotation. It is the obligation of the Customer to check the structure to which the Goods are to be affixed, and to prepare surfaces to which the Goods may be applied, so that in each case they are suitable for such affixing and application. The Customer acknowledges that following installation it is responsible for the inspection, maintenance and repair of Goods supplied under the Contract.

3.2 If the Goods are manufactured or any process is applied to the Goods by D4P Media in accordance with a specification submitted by the Customer whether in writing or otherwise the Customer shall indemnify D4P Media against all loss damages costs and expenses awarded against or incurred by D4P Media in connection with or paid or agreed to be paid by D4P Media in settlement of any claim for infringement of any patent, copyright, design, trademark (whether registered or not), or other industrial or intellectual property rights of

any third party which results from D4P Media use of any or all of the Customer’s specification.

3.3 D4P Media reserves the right to make any changes in the specification of the Goods and/or Services which are required to confirm with any applicable legal or regulatory requirements (including but not limited to safety requirements) or which do not materially affect their quality or performance.

3.4 No Order which has been accepted by D4P Media may be cancelled by the Customer except with the agreement in writing of D4P Media and on terms that the Customer shall indemnify D4P Media in full against all loss (including loss of profit) costs (including the cost of all labour and materials used) damage charges and expenses incurred by D4P Media as a result of cancellation.

3.5 Where a Quotation is based upon information supplied by the Customer, the Customer is responsible for its accuracy and any increased costs of supply resulting in any inaccuracy are the Customer’s responsibility.

3.6 All samples, drawings, descriptions, specifications, illustrations and advertising issued by D4P Media or contained in any of D4P Media catalogues or brochures or on any website connected with D4P Media (together “Samples”) are issued or published for the sole purpose of giving an approximate idea of the Goods represented by or described in them. Due to the bespoke nature of the Goods and the materials used to produce them the finished Goods will likely differ from the samples. Samples do not form part of the Contract and the Contract is not a sale by sample.

3.7 At the request of the Customer and at its cost, and at the sole discretion of D4P Media, D4P Media may remove materials (including but not limited to old signage) from the premises of the Customer.

3.8 D4P Media requires the Customer, prior to the provision of the Goods and/or Services, to obtain any necessary consents and approval to:

3.8.1 the installation and/or application of the Goods, including but not limited to any planning and/or landlord consents; and

3.8.2 the use of any logo, trade mark or design required for the Goods (included but not limited to the right to use the copyright and any other intellectual property rights in such logo, trade marks and design).

3.9 All intellectual property rights (including but not limited to copyright) arising from the creation of Goods by D4P Media shall remain the property of D4P Media and the Customer shall not copy or reproduce the Goods without the prior written consent of D4P Media.

4 Price of the Goods

4.1 The price of the Goods and Services shall be the price set out in the Quotation or (where no price has been quoted or a quoted price is no longer valid) the price calculated by D4P Media from its normal price list from time to time.

4.2 D4P Media reserves the right to increase the price of the Goods and/or Services to cover:

4.2.1 any increase in the cost to D4P Media which is due to any factor beyond the control of D4P Media (such as without limitation any foreign exchange fluctuation currency regulation, alteration of duties, significant increases in the costs of labour, materials, or other costs of manufacture);

4.2.2 any change in delivery dates, quantities or specification of the Goods and Services which are requested by the Customer;

4.2.3 any delay caused by any instruction of the Customer or failure of the Customer to give D4P Media adequate information or instructions;

4.2.4 the costs of additional work carried out by D4P Media to be able to perform the Services (including but not limited to the preparation of surfaces to which Goods are to be applied and the disposal of materials at the request of the Customer); or

4.2.5 to comply with any requirements referred to in Conditions 2.5, 3.5 and 3.7.

4.3 Except as otherwise expressly set out in the Contract all prices are given by D4P Media exclusive of:

4.3.1 packaging and delivery of the Goods to the Customer’s premises; and

4.3.2 any applicable value added tax or other applicable sales tax or duty and such sums shall be added to the price.

5 Terms of Payment

5.1 Subject to any special terms agreed in writing between the Customer and D4P Media, D4P Media shall be entitled to invoice the Customer for the price of the Goods and the Services on or at any time after delivery of the Goods and/or performance of the Services in accordance with Condition 6 unless the Customer fails to take delivery of the Goods and/or accept performance of the Services in which event D4P Media shall be entitled to invoice the Customer for the price at any time after such notification or (as the case may be) D4P Media has tendered delivery of the Goods and the Customer has failed to take delivery.

5.2 Subject to Condition 5.3 below the Customer shall pay the price of the Goods and/or the Services within no more than 30 days of the date of each invoice in full and clear funds to such bank account as nominated by D4P Media from time to time. The time of payment of the price shall be the essence of the Contract. Receipts for payment will only be issued on request by the Customer.

5.3 If the Customer fails to make any payment due to D4P Media under the Contract by the due date then, without prejudice to any other right or remedy available to D4P Media, D4P Media shall be entitled to:

5.3.1 cancel the Contract or suspend further deliveries of Goods and/or provision of Services to the Customer in accordance with clause

8.2;

5.3.2 appropriate any payment made by the Customer to such of the Goods (or the Goods supplied under any Contract between the Customer and D4P Media) as D4P Media think fit (not withstanding any purported appropriation by the Customer); and

5.3.3 charge the Customer interest on the amount unpaid from the due date until payment of the unpaid amount, whether before or after judgment. Interest under this clause 5.3.3 will accrue each day at four per cent per annum above Barclays Bank plc base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

5.4 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6 Delivery

6.1 Delivery of the Goods shall be made by the Customer collecting the Goods at D4P Media’ premises at any time after D4P Media has notified the Customer that the Goods are ready for collection or, if some other place for delivery is agreed by D4P Media (“Delivery Location”), by D4P Media delivering the Goods to that Delivery Location subject to the Customer having paid extra for delivery in accordance with Condition 4.3.

6.2 The Goods shall be deemed delivered:

6.2.1 if collected by the Customer, when D4P Media makes the Goods available for collection at D4P Media premises; or

6.2.2 if delivered by D4P Media, on delivery of the Goods at the Delivery Location.

6.3 Provision of the Services shall be made at the location notified by the Customer at any time after D4P Media has notified the Customer that the Services are ready to be provided.

6.4 Any dates quoted for delivery of the Goods and/or provision of the Services are approximate only and D4P Media shall not be liable for any delay in delivery of the Goods and/or provision of the Services howsoever caused. Time for delivery and/or provisions shall not be of the essence unless previously agreed in writing by D4P Media. The Goods may be delivered and/or the Services provided to the Customer in advance of the quoted date upon giving reasonable notice to the Customer.

6.5 D4P Media shall not be liable for any delay in or failure of delivery caused by:

6.5.1 the Customer’s failure to: (i) make the Delivery Location available, (ii) prepare the Delivery Location in accordance with D4P Media instructions or as required for delivery or (iii) provide D4P Media with adequate instructions for delivery or otherwise relating to the Goods;

6.5.2 the Customer’s failure to collect the Goods from D4P Media premises; or

6.5.3 an event which is beyond D4P Media reasonable control in accordance with Condition 8.9.

6.6 If the Customer fails to take delivery of the Goods or accept provision of the Services or fails to give D4P Media adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of D4P Media’ fault) than without prejudice to any other right or remedy available to D4P Media D4P Media may:

6.6.1 store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or

6.6.2 where reasonably possible, 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.

6.7 D4P Media may deliver the Goods by separate instalments and perform any Services in stages. Each separate instalment or stage will be invoiced and paid for in accordance with the provisions of the Contract.

6.8 Any delay in performance or defect in an instalment shall not entitle the Customer to cancel any other instalment.

7 Risk and Property

7.1 Risk of damage to or loss of the Goods shall pass to the Customer:

7.1.1 in the case of Goods to be delivered at D4P Media’ premises at the time when D4P Media notifies the Customer that the

Goods are available for collection; or

7.1.2 in the case of the Goods to be delivered otherwise than at D4P Media’ premises at the time of delivery to such premises or, if the

Customer fails to take delivery of the Goods, from the time when D4P Media has tendered delivery of the Goods.

7.2 Notwithstanding delivery and the passing of risk in the Goods or any other provision of these Conditions ownership of the Goods shall not

pass to the Customer until D4P Media has received in cash or cleared funds payment in full of the price of the Goods and all other Goods

and Services for which payment is due from D4P Media.

7.3 Until such time as ownership of the Goods passes to the Customer the Customer shall hold the Goods as D4P Media’ 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

identified as D4P Media’ property.

7.4 The Customer shall be entitled to resell or use the Goods in the ordinary course of its business but shall account to D4P Media for the

proceeds of sale or otherwise of the Goods whether tangible or intangible including insurance proceeds and shall keep all such proceeds

separate from any monies or property of the Customer and third parties and in the case of tangible proceeds properly stored protected and

insured.

7.5 Until such time as ownership in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold)

D4P Media shall be entitled at any time to require the Customer to deliver up the Goods to D4P Media 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.

7.6 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 D4P Media but if the Customer does so all monies owing by the Customer to D4P Media shall (without prejudice to any other right or remedy of D4P Media) forthwith become due and payable.

8 Termination

8.1 Without limiting its other rights or remedies, D4P Media may terminate this Contract with immediate effect by giving written notice to the

Customer if:

8.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 days of that party being notified in writing to do so;

8.1.2 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;

8.1.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or 8.1.4 the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

8.2 Without limiting its other rights or remedies, D4P Media may suspend provision of the Goods and/or Services under the Contract or any other contract between the Customer and D4P Media if the Customer becomes subject to any of the events listed in Clause 8.1.1 to Clause 8.1.4, or D4P Media reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

8.3 Without limiting its other rights or remedies, D4P Media may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

8.4 On termination of the Contract for any reason the Customer shall immediately pay to D4P Media all of D4P Media outstanding unpaid invoices and interest and, in respect of Goods produced and/or Services supplied but for which no invoice has been submitted, D4P Media shall submit an invoice, which shall be payable by the Customer immediately on receipt.

8.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

8.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

9 Warranties, Liabilities and Indemnity

9.1 D4P Media warrants that for a period of 6 months from the date of delivery of Goods and from the date of provision of Services, (“Warranty Period”), the Goods and Services shall:

9.1.1 conform in all material respects to the agreed specification;

9.1.2 be free from material defects in design, material and workmanship;

9.1.3 in relation to Goods only, be of satisfactory quality;

9.1.4 in relation to Services only, be supplied with reasonable care and skill; and

9.1.5 be fit for purpose and any specific purpose held out by D4P Media.

9.2 During the Warranty Period, D4P Media will, in respect of Goods and/or Services which are proved to not comply with Condition 9.1,

repair, or at its option replace, such Goods, and/or re-perform or at its option refund the price of such Services. This obligation will not apply where:

9.2.1 the Customer has improperly used the Goods in any way whatsoever, or the Goods have been subjected to wear and tear, misuse, unauthorised repair, damage, negligence, adverse weather conditions and/or alteration;

9.2.2 the Customer has not complied with any instructions provided by D4P Media, including instructions relating to preparation of the surfaces and areas to which the Goods are applied, and/or such surfaces or areas have been subjected to previous workmanship by third parties and/or contain latent defects;

9.2.3 damage, discolouration or failure to painted surfaces has occurred through no fault of D4P Media;

9.2.4 any failure of the Goods to comply with condition 9.1 is caused by D4P Media following any specification or requirement of the Customer;

9.2.5 the Customer has not complied with any instructions as to use and care of the Goods in all respects; or

9.2.6 the Customer has failed to notify D4P Media of any problem or suspected problem within 2 days of the provision of the Services and/or supply of the Goods.

9.3 Any repaired or replacement Goods or re-performed Services will be liable to repair or replacement (or re-provision or, at D4P Media option, refund) under the terms specified in Condition 9.2 for the unexpired portion of the 12 month period from the original date of delivery of the replaced Goods or from the original date of provision of the re-performed Services.

9.4 The above warranty does not extend to parts, materials or equipment not manufactured by D4P Media in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to D4P Media.

9.5 D4P Media accepts liability for personal injury or death caused by the negligence of D4P Media or its employees (acting within the course of their employment or duties and the scope of their authority) and for any other matter for which it would be illegal to exclude or attempt to limit or exclude its liability.

9.6 Except as provided in Condition 9.5, D4P Media will not be liable to the Customer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any damage or for any indirect or consequential loss (including, but not limited to, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in connection with:

9.6.1 any breach by D4P Media of any of the express or implied terms of the Contract;

9.6.2 any of the Goods and/or Services (including but not limited to any use made by the Customer of any Goods, or of any product incorporating any of the Goods), or the manufacture or sale or supply, or failure or delay in supply, of the Goods and/or Services by D4P Media or on the part of D4P Media employees, agents or sub-contractors; or

9.6.3 any non-fraudulent statement made or not made, or advice given or not given, by or on behalf of D4P Media.

9.7 Except as set out in Condition 9.5, D4P Media total liability shall not exceed a sum equal to the price paid by the Customer under the Contract.

9.8 The Customer acknowledges that the above provisions of this Condition 9 are reasonable and reflected in the price which may be higher without those provisions, and the Customer will accept such risk and/or insure accordingly.

9.9 D4P Media 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 D4P Media obligations in relation to the Goods and/or Services if the delay or failure was due to any cause beyond D4P Media reasonable control. Without prejudice to the generality of the foregoing, causes beyond D4P Media’ reasonable control shall include (but not be limited to) the following:

9.9.1 act of God, storm, explosion, flood, tempest, fire or accident;

9.9.2 war (or threat of war), riot, civil commotion or malicious damage;

9.9.3 compliance with any law or governmental order, rule, regulation or direction;

9.9.4 import or export regulations or embargoes;

9.9.5 strike, lock-out or other industrial actions or trade dispute (whether involving employees or D4P Media or a third party);

9.9.6 failure of a utility service or transport network;

9.9.7 difficulties in obtaining raw materials labour fuel parts or machinery;

9.9.8 power failure or breakdown of plant or machinery;

9.9.9 default of suppliers or sub-contractors; and

9.9.10 epidemic or pandemic.

9.10 The Customer agrees to indemnify, keep indemnified and hold harmless D4P Media from and against all direct, indirect or consequential

loss (all three of which terms include, but are not limited to, loss of profits, loss of business, depletion of goodwill and like loss), costs, expenses, liabilities, injuries, damages, claims, demands, proceedings or legal costs and judgements which D4P Media incurs or suffers as a consequence of direct or indirect breach or negligent performance or failure in performance by the Customer of any of the terms of the Contract, including in particular (but not limited to) the Customer’s ongoing obligations under Condition 3.1.

10 Data Protection

10.1 By placing an Order, the Customer allows D4P Media to use the Customer’s personal details for the purposes of supplying the Goods and performing the Services. Any personal information that the Customer provides to D4P Media will be dealt with in line with D4P Media’s Privacy Policy, which explains what personal information D4P Media collect, how and why D4P Media collect, store, use and share such information, the Customer’s rights in relation to its personal information and how to contact D4P Media and supervisory authorities if the Customer has a query or complaint about the use of its personal information.

11 General

11.1 Notice

11.1.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing and shall be:

a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or such other address may be at the relevant time have been notified pursuant to this provision giving the notice; or b) sent by email to the following addresses (or an address substituted in writing by the party to be served): D4P Media: sales@d4pmedia.co.uk and the email address that was used to issue/send the Quotation. Customer: to the email address where the Quote was sent.

11.1.2 Any notice shall be deemed to have been received:

a) if delivered by hand, at the time the notice is left at the proper address; or

b) if sent by first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

c) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

11.1.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

11.2 D4P Media may transfer, assign, hold on trust, licence or sub-contract all or any part of its rights or obligations under any Contract.

11.3 Each and every Contract is personal to the Customer and the Customer may not transfer all or any of its rights or obligations under any Contract without the prior written consent of D4P Media.

11.4 Neither party intends that any of the terms of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it, save that D4P Media Limited shall be entitled to enforce any provision of the Contract.

11.5 No waiver by D4P Media of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any provisions.

11.6 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.

11.7 Any dispute arising under or in connection with these Conditions and any Contract shall be governed by and construed in all respects in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English courts.