Last modified: 3rd March 2020
In these Conditions, the following terms shall have the following meanings: “Buyer” means the person who accepts a quotation of the Seller for the sale of the Digital Products or whose order for the Digital Products is accepted by the Seller; “Digital Products” means the digital products (including any instalment of the digital products or any parts for them) which the Seller is to supply in accordance with these Conditions and any digital products supplied in substitution for or in replacement of or in addition to such digital products; “Seller” means Porcupine Collective (registered in England under Companies House registration number 11825350); “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 Buyer and the Seller; “Contract” means the contract for the purchase and sale of the Digital Products; “Writing” includes letter, cable, facsimile transmission, email and comparable means of communication.
2. Basis of the sale
2.1 The Seller shall sell and the Buyer shall purchase the Digital Products in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Digital Products unless confirmed by the Seller in Writing. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations that are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the application or use of the Digital Products which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. Orders and specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed by the Seller’s authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Digital Products within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Digital Products shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
3.4 If any process is to be applied to the Digital Products by the Seller in accordance with a specification submitted by the Buyer the Buyer shall indemnify the Seller against all loss damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim of infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.5 The Seller reserves the right to make any changes in the specification of the Digital Products which are required to conform with any applicable safety or other statutory requirements or, where the Digital Products are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.6 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and the Buyer shall indemnify the Seller in full against all loss (including loss of profit) costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of any cancellation. Without prejudice to the generality of the foregoing, should the Buyer purport without the agreement in Writing of the Seller to cancel any order which has been accepted by the Seller or refuse to accept delivery of any of the Digital Products such action shall constitute a breach of the agreement and, at the option of the Seller, the Seller shall be entitled to require the Buyer to pay to the Seller by way of liquidated damages an amount equivalent to 50% of the invoice value of the order so purported to be cancelled. In the event of the Seller so requiring the Buyer shall pay such amount to the Seller (without any deduction) within 7 days of receiving from the Seller written notification of the amount required to be paid. The Seller and the Buyer hereby agree that such amount represents a genuine pre-estimate of the monetary value of the loss and damage likely to be suffered by the Seller as a result of such breach of agreement on the part of the Buyer. For the avoidance of doubt, in the event that the Seller opts to require the Buyer to pay liquidated damages as set out above, and the Buyer duly pays such liquidated damages, neither party shall have any further liability to the other in relation to the Digital Products in respect of which such liquidated damages are paid.
4. Price of the Digital Products
4.1 The price of the Digital Products shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only or such lesser period as shall be stated by the Seller on the face of the relevant quotation or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Digital Products to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour or materials) or to any change in delivery dates, quantities or specifications for the Digital Products which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller are exclusive of carriage charges.
4.4 The price is exclusive of any applicable value added tax that the Buyer shall be additionally liable to pay to the Seller.
5. Terms of payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller the Seller shall be entitled to invoice the Buyer for the price of the Digital Products at any time before or after delivery of the Digital Products.
5.2 All Invoices are payable net by credit card or on a pro-forma basis, unless credit facilities have been approved, in which case Invoices are payable net by the end of the month following the date of the invoice. The Buyer shall pay all invoices without any other deductions notwithstanding that delivery may not have taken place and the property in the Digital Products has not been passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to.
5.3.1 cancel the contract or suspend any further deliveries of the Digital Products to the Buyer;
5.3.2 appropriate any payment made by the Buyer to such of the Digital Products (or the Digital Products supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer) and
5.3.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent per annum above HSBC base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
5.4 In the event that the Seller shall cancel the contract under the provisions of Clause 5.3.1 above the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation. Without prejudice to the generality of the foregoing, at the option of the Seller, the Seller shall be entitled to require the Buyer to pay to the Seller by way of liquidated damages an amount equivalent to 50% of the invoice value of the contract so cancelled. In the event of the Seller so requiring, the Buyer shall pay such amount to the Seller (without any deduction) within seven days of receiving from the Seller written notification of the amount required to be paid. The Seller and the Buyer hereby agree that such amount represents a genuine pre-estimate of the monetary value of the loss and damage likely to be suffered by the Seller as a result of such cancellation.
6.1 Any dates quoted for delivery of the Digital Products are approximate only and the Seller shall not be liable for any delay in delivery of the Digital Products howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Digital Products may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer. The Seller shall be entitled to make part delivery of the Digital Products at any time.
6.2 Where the Digital Products are delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
7. Warranties and liability
7.1 Subject to the conditions set out below the Seller warrants that the Digital Products will correspond with their specification subject to such tolerances as are reasonable and as are normally accepted in the trade and will be free from defects in material at the time of delivery.
7.2 The above warranty is given by the Seller subject to the following conditions:
7.2.1 the Seller shall be under no liability in respect of any defect in the Digital Products arising from any drawing, design or specification supplied by the Buyer:
7.2.2 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Digital Products has not been paid by the due date for payment.
7.3 Subject as expressly provided in these Conditions, and except where the Digital Products are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
7.4 Where the Digital Products are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976 the statutory rights of the Buyer are not affected by these Conditions.
7.5 Any claim by the Buyer which is based on any defect in the quality or condition of the Digital Products or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 30 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Digital Products and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Digital Products had been delivered In accordance with the Contract.
7.6 Where any valid claim in respect of any of the Digital Products which is based on any defect in the quality or condition of the Digital Products or their failure to meet specification is notified to the Seller in accordance with these Conditions the Seller shall be entitled to replace the Digital Products or (refund to the Buyer the price of the Digital Products) (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
7.7 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Digital Products or their use or resale by the Buyer, except as expressly provided in these Conditions.
7.8 The Seller shall not be liable to the Buyer 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 Seller’s obligations in relation to the Digital Products if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
7.8.1 Act of God, explosion, flood, tempest, fire or accident;
7.8.2 war or threat of war, sabotage, insurrection, civil disturbance, or requisition;
7.8.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
7.8.4 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8. Insolvency of buyer
8.1 This clause applies if:
8.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
8.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
8.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
8.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
8.2 If this clause applies, then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Digital Products have been delivered, but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
9. Data Protection Act 1998
9.1 We may transfer information about you to our financiers, who:
9.2 may use, analyse and assess information about you, including the nature of your transactions, and exchange such information with other members of their group of companies and others for credit or financial assessment, market research, statistical analysis, insurance claim, underwriting and training purposes and in making payments and servicing their agreement with us;
9.3 from time to time, may make searches of your record at credit reference agencies where your record with such agencies may include searches made and information given by other businesses; details of their searches will be kept by such agencies but will not be seen by other organisations that may make searches;
9.4 may give information about you and your indebtedness to the following:
9.4.1 our or their insurers for underwriting and claims purposes;
9.4.2 any guarantor or indemnifier of your or our obligations to enable them to assess such obligations;
9.4.3 their bankers or any advisers acting on their behalf;
9.4.4 any business to which your indebtedness or our arrangements with our financiers may be transferred – to facilitate such transfer;
9.5 may monitor and/or record any phone calls you may have with them, for training and/or security purposes;
9.6 in the event that they transfer all or any of their rights and obligations under their agreement with us to a third party, may transfer information about you to enable the third part to enforce their rights or comply with the obligations.
9.7 We will provide you with details of our financiers on request, including a contact telephone number if you want to have details of the credit reference agencies and other third parties referred to above from whom they obtain and to whom they may give information about you. You also have a right to receive a copy of certain information they hold about you if you apply to them in writing, however, a fee will be payable.
10.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party given the notice
10.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.3 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.
10.4 The contract shall be governed by the laws of England.