Terms & Conditions
1.1. In these Conditions the following definitions apply:
|“Order”||the Customer’s written acceptance of Octolabs Limited’s Proposal;|
|“Business Day”||any day which is not a Saturday, Sunday or a bank or public holiday in England;|
|“Commencement Date”||has the meaning set out in clause 3.2;|
|“Conditions”||these terms and conditions as amended from time to time in accordance with clause 23;|
|“Confidential Information”||for each party the terms of this agreement and all information and/or data belonging to or relating to that party, its associates or their businesses, activities, affairs, products, services, suppliers, customers or prospective customers disclosed (whether in writing, verbally or by any other means and whether directly or indirectly) by that party, its representatives or advisers, to the other party, its representatives or advisers whether before, on or after the date of
|“Contract”||the contract between Octolabs Limited and the Customer for the supply of Services in accordance with these Conditions;|
|“Customer”||the individual, firm or company that purchases Services from Octolabs Limited;|
|“Deliverables”||the deliverables set out in the Proposal produced by Octolabs Limited for the Customer;|
|“Octolabs Limited”||Octolabs Limited, 7 Hollydene Hollydene, Kibblesworth, Gateshead, NE11 0NR;|
|“First Line Support”||initial support level responsible for basic customer issues;|
|“Intellectual Property Rights”||patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;|
|“Proposal”||The description or specification of the Services provided in writing by Octolabs Limited to the Customer|
|“Purchase Price”||the price for Services as detailed in the Proposal;|
|“Services”||the services, including Deliverables, to be supplied by Octolabs Limited to the Customer as set out in the Proposal;|
|“Supplier Materials”||all materials, equipment, documents and other property of Octolabs Limited at the Customer’s premises.|
1.2. In these Conditions (except where the context otherwise requires):
1.2.1. the clause headings are included for convenience only and shall not affect the interpretation of these Conditions;
1.2.2. use of the singular includes the plural and visa versa;
1.2.3. use of any gender includes the other genders;
1.2.4. any reference to “persons” includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, foundations, and trusts (in each whether or not having separate legal personality);
1.2.5. a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.6. a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.7. any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.8. a reference to writing or written includes faxes and emails.
2.1. Any notice or other communication pursuant to this agreement must be in writing and signed by or on behalf of the party giving it and may be delivered by pre-paid first class post to the address of the relevant party as set out in these Conditions, or subject to the provisions of clause 2.2 by email. All such notices or demands shall be deemed to have been received:
2.1.1. in the case of pre-paid first class post two Business Days after posting; and
2.1.2. in the case of email, at the time of transmission, provided that if receipt occurs before 9am on a Business Day the notice shall be deemed to have been received at 9am on that day, and if receipt occurs after 5pm on a Business Day, or on a day which is not a Business Day, the notice or demand shall be deemed to have been received at 9am on the next Business Day.
2.2. A communication sent by email shall not be effective unless the addressee acknowledges receipt of such communication, such acknowledgement to take the form of a reply email to include the communication being acknowledged.
- Basis of Contract
3.1. The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
3.2. The Order shall only be deemed to be accepted when Octolabs Limited issues written acceptance of the Order at which point and on which date the Contract shall come in to existence (Commencement Date).
3.3. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty given by or on behalf of Octolabs Limited which is not set out in the Contract.
3.4. Any samples, drawings, descriptive matter or advertising issued by Octolabs Limited, and any descriptions or illustrations contained within Octolabs Limited’s catalogues, brochures or website are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
3.5. These Conditions apply to the contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.6. Any Proposal given by Octolabs Limited shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue
- Supply of Services
4.1. Octolabs Limited shall supply the Services to the Customer in accordance with the Proposal in all material respects.
4.2. Octolabs Limited shall use all reasonable endeavours to meet any performance date if specified in the Proposal, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4.3. Octolabs Limited has the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and Octolabs Limited shall notify the Customer in any such event.
4.4. Octolabs Limited warrants to the Customer that the Services will be provided using reasonable care and skill.
- Customer’s Obligations
5.1. The Customer:
5.1.1. acknowledges that the Proposal accurately reflects the Customer’s instructions;
5.1.2. shall co-operate with Octolabs Limited in all matters relating to the Services;
5.1.3. shall provide Octolabs Limited with such information and materials as Octolabs Limited may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects; and
5.1.4. shall obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start.
5.2. If Octolabs Limited’s performance of its obligations under the Contract is prevented or delayed by any act or omission by the Customer of failure by the Customer to perform any relevant obligation (Customer Default):
5.2.1. Octolabs Limited shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Octolabs Limited’s performance of its obligations;
5.2.2. Octolabs Limited shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Octolabs Limited’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
5.2.3. The Customer shall reimburse Octolabs Limited on written demand for any costs or losses sustained of incurred by Octolabs Limited arising directly or indirectly from the Customer Default.
- Payment Terms
6.1. The Customer shall pay Octolabs Limited the Purchase Price for the Deliverables payable by such sums and at such times as specified in the Proposal.
6.2. Prior to any payment, Octolabs Limited shall issue an invoice to the Customer. Unless otherwise stated in the Proposal, each invoice is payable:
- Within 14 days of the invoice; and
- in full and in cleared funds to a bank account nominated in writing by Octolabs Limited, and time for payment shall be of the essence of the Contract.
6.3. Octolabs Limited may, at its own discretion and upon the issuing of an invoice, require that the Purchase Price is paid prior to the delivery of the Services.
6.4. The Customer shall pay all amounts due under the Contract in full without a set-off, counterclaim, deduction or withholding (except of any deduction or withholding required by law. Octolabs Limited may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
- Variations to Pricing
7.1. The Customer may request changes on no more than two occasions to each Deliverable. Any subsequent changes requested by the Customer will be charged at Octolabs Limited’s hourly rate from time to time. Octolabs Limited will notify the Customer in writing off the hourly rate and an estimate of the total additional cost and require the Customer to accept in writing any such estimate before additional changes are made.
7.2. The charge for carriage of goods is at additional cost to the Customer, unless otherwise stated in the Proposal.
7.3. Octolabs Limited reserves the right to vary the Purchase Price according to further requirements made by the Customer. Any such variation shall be advised by Octolabs Limited in writing and confirmed by the Customer in writing before either the work proceeds further or any charges are incurred.
- Variations in quantity
8.1. Every endeavour will be made to deliver the correct quantity of printed material ordered, but estimates are conditional upon margins of up to 10 percent being allowed for overs or shortage.
9.1. Neither party may cancel the Contract following acceptance of the Order by Octolabs Limited subject to contrary agreement contained within the Proposal.
9.2. For work billed monthly and where no contract period has been explicitly stated in the Proposal, the contract may be terminated by the Customer giving 1 months’ notice in writing according to clause 2.
9.3. Unless otherwise stated in the Proposal or subject to clause 9.1 and clause 9.2, the contract may not be cancelled except by agreement in writing of both parties and upon payment to Octolabs Limited of such amount as may be necessary to meet the costs incurred by Octolabs Limited up to the date of cancellation. The Customer shall in any event indemnify Octolabs Limited against all loss resulting from the said cancellation.
9.5. Octolabs Limited shall not be liable for any loss, damage or delay which arises as a result of the termination of the contract, or for our compliance with relevant statutory or regulatory requirements.
10.1. Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
10.1.1. the other party commits a material breach of any term of the Contract (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
10.1.2. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 (or being a partnership) has any partner to whom any of the foregoing apply;
10.1.3. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
10.1.4. a petition is files, a notice is given, a resolution passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party which one or more other companies or the solvent reconstruction of that other party;
10.1.5. the other party (being an individual) is the subject of a bankruptcy petition or order;
10.1.6. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
10.1.7. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint and administrator is given or if an administrator is appointed over the other party (being a company);
10.1.8. the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
10.1.9. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the other party;
10.1.10 any event occurs or proceeding is taken with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.1.2 to clause 10.1.10 (inclusive);
10.1.11 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
10.1.12 the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
10.1.13 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
10.2. Without limiting its other rights or remedies, Octolabs Limited may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 14 days after being notified in writing to do so.
10.3. Without limiting its other rights or remedies, Octolabs Limited may suspend provision of the Services under the Contract or any other contract between the Customer and Octolabs Limited if the Customer becomes subject to any of the events listed in clause10.1.2 to clause10.1.13, or Octolabs Limited 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.
- Consequences of termination
11.1. On termination of the Contract for any reason:
11.1.1 the Customer shall immediately pay to Octolabs Limited all of Octolabs Limited’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Octolabs Limited shall submit an invoice, which shall be payable by the Customer immediately on receipt;
11.1.2 the Customer shall return all of the Supplier Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then Octolabs Limited may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
11.1.3 the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
11.1.4 clauses which expressly or by implication survive termination shall continue in full force and effect.
- Compliance and Intellectual Property Rights
12.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Octolabs Limited until full payment has been made by the Customer to Octolabs Limited at which point the ownership of the Intellectual Property rights to the artwork and any imagery created will pass to the Customer in accordance with clause 10.2.
12.2. Octolabs Limited shall, promptly at the Customer’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as the Customer may from time to time require for the purpose of securing for the Customer the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to the Customer in accordance with 10.1.
12.3. Octolabs Limited shall be under no obligation to print or produce any matter which in its opinion is or may be of an illegal or libellous nature or an infringement of the proprietary or other rights of any third party.
12.4. Octolabs Limited shall be indemnified by the Customer in respect of any claims, costs and expenses arising out of any libellous matter or any infringement of copyright, patent, design or of any other proprietary or personal rights of third parties contained in any material printed or produced for the Customer. The indemnity shall extend to any amounts paid in respect of legal costs in settlement of any claim.
13.1. For the avoidance of doubt, Octolabs Limited does not have control over the content of the Customer’s website and shall not be liable in relation to any action made relating to inaccurate or incorrect information and shall not be liable in relation to any other action brought in relation to the content of the website.
- Third Party Software/Services
14.1. Where the Proposal includes any third party software and/or services as part of the Proposal, Octolabs Limited will provide First Line Support only. Where the fault is caused by the third party software and Octolabs Limited is unable to correct the fault Octolabs Limited will use its reasonable endeavours to ensure that the problem is reported to the relevant third party for resolution.
15.1. Octolabs Limited may appoint subcontractors to perform any of the Services. Octolabs Limited acknowledges that such sub-contracting shall not release Octolabs Limited from any of its contractual obligations under this Agreement and Octolabs Limited shall remain fully responsible for the performance of such Services.
15.2. Octolabs Limited shall use reasonable care and skill in the selection and appointment of subcontractors and the agreement of the terms and conditions of such appointment. Should the Customer request, Octolabs Limited will obtain more than one quote for a particular supply and discuss these with the Customer before placing an order.
15.3. Octolabs Limited shall obtain the Customer’s consent before commissioning services from any company in which Octolabs Limited has a financial interest, such consent not to be unreasonably withheld or delayed.
16.1. During the period of this agreement and for a period of 3 years after both parties undertake:
16.1.1. to keep the Confidential Information confidential;
16.1.2. not to use the Confidential Information for any purpose except the performance of its obligations under this agreement; and
16.1.3. not to use the Confidential Information so as to procure any commercial advantage over the other party.
16.2. The obligations contained in clause 16.1 above shall not apply to any Confidential Information which:
16.2.1. is already in the possession of the disclosing party other than as a result of a breach of this agreement;
16.2.2. is at the date of this agreement or at any time after the date of this agreement comes into the public domain other than through breach of this agreement; or
16.2.3. is required to be disclosed by any applicable law or regulation or by any governmental or administrative authority or by an order of any court of competent jurisdiction.
16.3. Each party undertakes to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of clause 16 by its employees, agents and sub-contractors.
16.5. This clause 18 shall survive the termination of this agreement for whatever reason.
- Limitation of Liability
17.1. The following provisions set out the entire financial liability of Octolabs Limited (including any liability for the acts or omissions of its employees, agents or subcontractors) to the Customer in respect of:
17.1.1. any breach of this agreement; and
17.1.2. any representation, statement or tortious act or omission including negligence arising under or in connection with the contract.
17.2. Subject as expressly provided in these conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
17.3. Nothing in these conditions excludes or limits the liability of Octolabs Limited for death or personal injury caused by negligence or for fraudulent misrepresentation.
17.4. Subject to clauses 17.2 and 17.3:
17.4.1. Octolabs Limited shall not be liable to the Customer for any loss or damage, costs or expenses (whether direct, indirect or consequential and whether relating to loss of profit, loss of business, business interruption, loss of data, depletion of goodwill or other such losses), suffered by the Customer which arise out of or in connection with the supply of the Service or their use by the Customer;
17.4.2. the Customer assumes all risks as to the suitability, quality, and performance of the Service; and
17.4.3. Octolabs Limited’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise arising in connection with the performance or contemplated performance of this contract shall be limited to, and in no event shall exceed, the amount originally paid to Octolabs Limited for the Service.
17.5. No verbal or written information or advice given by Octolabs Limited or its dealers, distributors, employees or agents shall in any way extend, modify or add to the foregoing warranty.
17.6. Where a Deliverable includes goods to be received by the Customer:
17.6.1. the passing of risk shall occur on the day of the delivery to the Customer;
17.6.2. if goods are received by the Customer in any way damaged upon delivery, the Customer must advise Octolabs Limited within 24 hours of delivery of the nature of the damage and must retain the goods as delivered;
17.6.3. the maximum extent of Octolabs Limited’s liability for damaged goods will be, at its sole discretion depending on the circumstances: a return of the Purchase Price related to the goods or replacement of the goods; and
17.6.4. goods remain the property of Octolabs Limited and title remains with Octolabs Limited until payment has been made in full.
17.7. All times or dates given for delivery of the Service are given in good faith and shall not be of the essence of the Contract.
17.8. Octolabs Limited shall make every effort to achieve any quoted delivery dates and execute any obligations set out in the Proposal but will not be under any liability if delivery is delayed or prevented by events beyond its control or as a result of delays by the Customer.
- Force Majeure
18.1. For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of Octolabs Limited including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Octolabs Limited or any other party), failure of a utility service or transport network, act of god, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers of subcontractors.
18.2. Octolabs Limited shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
18.3. If the Force Majeure Event prevents Octolabs Limited from providing any of the Services for more than [ ] weeks, Octolabs Limited shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
- 1. 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 o or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
19.2. if one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision to that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
20.1. A waiver of any right under the Contract of law is only effective if it is in writing and shall not be deemed to be a waiver is any subsequent breach or default, No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
21.1. Octolabs Limited reserves the right to assign or transfer this Agreement to any other party, without the express written permission of the Customer. The Customer does not have the right to assign its rights or obligations under this agreement without the express written consent of Octolabs Limited. The Contract shall be binding upon each party’s successors.
22.1. If the Customer ceases to pay his debts in the ordinary course of business or cannot pay his debts as they become due or being a company deemed to be unable to pay its debts or has a winding-up petition issued against it or being a person commits an act of bankruptcy or has a bankruptcy petition issued against him, Octolabs Limited without prejudice to other remedies shall:
22.1.1. have the right not to proceed further with the work for the Customer and be entitled to charge for the work already carried out (whether completed or not) and materials purchased for the Customer, such charge to be an immediate debt due to him; and
22.1.2. in respect of all unpaid debts due from the Customer have a general lien on all goods and property in possession (whether worked on or not) and shall be entitled on the expiration of 14 days’ notice to dispose of such goods or property in such manner and at such price as he thinks fit and to apply the proceeds towards such debts.
- Changes to Terms and Conditions
23.1. Octolabs Limited reserves the right to change these Terms and Conditions at any time. The most current version of these Terms and Conditions may be found on our website.
23.2. The Customer shall be deemed to have accepted such changes if they have not notified any objections to such changes within one calendar month of the change.
23.3. The most current version of the Terms and Conditions shall supersede all previous versions.
- Third Party Rights
24.1. Unless expressly provided in this agreement, no term of this agreement is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
25.1. If any dispute arises in connection with this agreement, the parties will first attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of notice of the dispute, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (ADR notice) to the other party to the dispute requesting a mediation. A copy of the request should be sent to CEDR.
25.2. The mediation will start not later than 28 days after the date of the ADR notice.
- Governing Law and Jurisdiction
26.1. This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales
26.2. Subject to clause 25.1 each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).