Agreed terms and conditions of sale

1. Application of conditions

1.1 These terms and conditions (the “Conditions”) shall apply to and be incorporated into the contract between you (“the Customer”) and Costello Ltd (“the Supplier”); and shall prevail over any inconsistent terms or conditions contained, or referred to, in the Customer's purchase order, confirmation of order, acceptance of a quotation, or specification or other document supplied by the Customer, or implied by law, trade custom, practice or course of dealing.
1.2 The Customer's purchase order, or the Customer's acceptance (whether oral or written) of a quotation for services by the Supplier (whether written or oral), constitutes an offer by the Customer to purchase the services specified in it (“the Services”) on these Conditions. No offer placed by the Customer shall be accepted by the Supplier other than by a written acknowledgement issued by the Supplier (“the Acknowledgment”), when a contract for the supply and purchase of the Services on these Conditions will be established (“the Contract”). The Customer's standard terms and conditions (if any) attached to, enclosed with or referred to in any purchase order or other document shall not govern the Contract.
1.3 These Conditions apply to all the Supplier's sales and any variation to these Conditions shall have no effect unless expressly agreed in writing and signed by James Dale of the Supplier. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. Nothing in this condition shall exclude or limit the Supplier's liability for fraudulent misrepresentation.
1.4 The Customer acknowledges that the Supplier may record telephone calls between the parties and may rely on such records in any dispute between the parties over the existence, construction or otherwise of the Contract.

2. Preparation of the advertisement

2.1 The Supplier shall submit within 7 days of the Acknowledgment a sample advertisement to the Customer for approval.
2.2 It is the Customer’s obligation to inform the Supplier of any alterations required to the sample advertisement within 7 days of the date on which the sample was sent by the Supplier, or any earlier date specified by the Supplier, failing which the Customer will be deemed to have accepted the sample and the Supplier shall be entitled to proceed with publication.
2.3 Subject to any alterations required under 2.2 above, the Supplier shall procure that the advertisement is published and distributed in accordance with the Contract within 30 days of receipt of payment in full from the Customer under the Contract, provided always that the Supplier is entitled to procure such publication and distribution even where payment in full has not been made and this shall not affect the liability of the Customer to pay.
2.4 It is the responsibility of the Customer to check the accuracy and appropriateness of the sample advertisement, and the Customer indemnifies the Supplier against any and all liabilities arising in respect of the inaccuracy, illegality or inappropriateness of the same (save where the Supplier has made unauthorised alterations to such artwork or proofs after the Customer has given approval).
2.5 Any dates specified by the Supplier for distribution of the advertisement are intended to be an estimate and time for distribution shall not be made of the essence by notice. If no dates are so specified, distribution shall be within a reasonable time.
2.6 Subject to the other provisions of these Conditions the Supplier shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the distribution of the advertisement (even if caused by the Supplier's negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 60 days.

3. Charges and payment

3.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the charges as set out in the Supplier’s quotation, such charges to be paid within 7, 14 or 30 days (as confirmed by the Supplier’s invoice) of receipt by the Customer of the Acknowledgement (without deduction, with-holding or set-off).
3.2 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:
(a) charge interest on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of the Bank of England, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and the Customer shall pay the interest immediately on demand. The Supplier may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b) suspend all Services until payment has been made in full.
3.3 Time for payment shall be of the essence of the Contract.
3.4 No payment shall be deemed to have been received until the Company has received cleared funds.
3.5 All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision. This condition 3.5 is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
3.6 The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.

4. Intellectual property rights

4.1 Unless otherwise agreed in writing, copyright, design rights and any other intellectual property rights in any and all advertising material produced for the Customer by or on behalf of the Supplier remains with the Supplier but the Customer will be entitled, subject always to payment of all sums due on or before their due dates, to a licence to use the same.
4.2 The Customer, in producing any material or information of any kind for the Supplier to use in any advertisement, warrants that he is entitled to use that material, and agrees to fully indemnify the Supplier in all respects in the event of a claim by anyone else arising out of the Supplier’s use of that material. This includes but is not limited to claims arising out of alleged infringements of copyrights, patents and passing-off, defamation, trade marks and confidential information.

5. Limitation of liability - THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION

5.1 This condition 5 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
(a) any breach of the Contract;
(b) any use made by the Customer of the Services or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
5.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
5.3 Nothing in these Conditions limits or excludes the liability of the Supplier:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or
5.4 Subject to condition 5.2 and condition 5.3
(a) the Supplier shall not be liable for:
(i) loss of profits; or
(ii) loss of business; or
(iii) depletion of goodwill and/or similar losses; or
(iv) loss of anticipated savings; or
(v) loss of goods; or
(vi) loss of contract; or
(vii) loss of use; or
(viii) loss of corruption of data or information; or
(ix) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) the Supplier's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance, or contemplated performance, of the Contract shall be limited to the price paid for the Services.

6. Termination

6.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other immediately on giving notice to the other if:
(a) the other party fails to pay any amount due under the Contract on the due date for payment and remains in default not less than seven days after being notified in writing to make such payment; or
(b) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(c) 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) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) 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; or
(d) 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; or
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party;
(f) 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 an administrator is given or if an administrator is appointed over the other party; or
(g) a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
(h) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party; or
(i) 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; or
(j) 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 condition 6.1(c) to condition 6.1(i) (inclusive); or
(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
6.2 On termination of the Contract (however arising), the following conditions shall survive and continue in full force and effect:
(a) condition 4;
(b) condition 5;
(c) condition 6; and
(d) condition 7.15.

7. Miscellaneous

7.1 The Supplier shall have no liability to the Customer under the Contract if it is prevented from, or delayed in performing, its obligations under the Contract or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including (without limitation) strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier 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 or subcontractors.
7.2 The Supplier may, from time to time and without notice, change the Services in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the nature, scope of, or the charges for the Services.
7.3 Subject to condition 7.2, no variation of the Contract or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.
7.4 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the circumstances for which it is given. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that (or any other) right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that (or any other) right or remedy.
7.5 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
7.6 If any provision of the Contract (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.
7.7 If a provision of the Contract (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
7.8 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
7.9 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) (other than for breach of contract), save as expressly provided in the Contract.
7.10 Nothing in this condition shall limit or exclude any liability for fraud.
7.11 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
7.12 The Supplier may at any time assign, transfer, charge, mortgage, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
7.13 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
7.14 A person who is not a party to the Contract shall not have any rights under or in connection with it.
7.15 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.

8. Notices

8.1 Any notice or other communication required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party.
8.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address provided, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
8.3 This condition 8 shall not apply to the service of any proceedings or other documents in any legal action.
8.4 A notice or other communication required to be given under or in connection with the Contract shall not be validly served if sent by e-mail.