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1 Interpretation
1.1 In these Conditions:
"Client" - means Kumon Europe and Africa Limited, incorporated and registered in England and Wales as a limited company, with company number 02559971, with registered office at 11 Raven Wharf, Lafone Street, London, SE1 2LR (“Kumon UK”, “you”, “your”)
"Contract" - means the contract between the Client and inteli.marketing for the provision of the Service
"Contract Price" - means the monies payable to inteli.marketing by the Client in respect of each Contract, being the prices shown on the Price List unless otherwise agreed in writing between the parties.
"Credit Application" - means the application to which these Conditions are appended.
"Input Material" - means any document in writing, any map, plan, graph, drawing or photograph, any film, negative, disc, digital disc tape or other device embodying visual images any disc, tape or other device embodying any other data and any other materials, or data or other information provided by the Client relating to the Service.
"Output Material" - means any document in writing, any map, plan, graph, drawing or photograph, any film, negative, disc, digital disc tape or other device embodying visual images any disc, tape or other device embodying any other data and any other materials, or data or other information provided by inteli.marketing relating to the Service.
"Price List" - means the list of services provided by inteli.marketing together with the corresponding prices payable by the Client for these services such list being issued to the Client and amended from time to time by inteli.marketing with written notice being given to the Client of the amendments. "inteli.marketing" - means Pre-press Digital Limited whose registered office is situated at 3a Whitehouse Industrial Estate, Whitehouse Road, Newcastle upon Tyne, NE15 6LN (registered under number 03275702).
"Service" - means the services set out in The Kumon Proposal, and such other ad-hoc services which inteli.marketing agrees to supply to the Client in respect of each request made by the Client for the provision of services selected by the Client from those outlined in the Price List.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation
2 Supply of the Service
2.1 inteli.marketing shall provide the Service to the Client subject to these Conditions. Any changes or additions to the Service or these Conditions must be agreed in writing by the inteli.marketing and the Client.
2.2 The Client shall, at its own expense, supply inteli.marketing with all necessary Input Material, within sufficient time to enable inteli.marketing to provide the Service in accordance with the Contract. The Client shall ensure the accuracy of all Input Material.
2.3 The Service shall be provided in accordance with; The Kumon Proposal, the terms of the Contract, inteli.marketing’s current brochure and other published literature relating to the Service from time to time, subject to these Conditions.
2.4 inteli.marketing may correct by written notice to the Client any typographical or other errors or omissions in any brochure, promotional literature, quotation or other document relating to the provision of the Service or the Price List.
2.5 inteli.marketing may at any time without notifying the Client make any changes to the Service which are necessary to comply with any applicable safety or other statutory requirements, or which do not materially affect the nature or quality of the Service.
3 Delivery
3.1 Delivery shall be made by inteli.marketing or its agent delivering the Output Material to the Client’s premises, or to its order to such other place for delivery as is agreed by inteli.marketing and the Client.
3.2 Time shall be of the essence. Inteli.marketing shall adhere strictly to any dates quoted for delivery of the Output Material and shall be liable for any delay in delivery of the Output Material caused by its own doing, or any of it’s employees, agents, subcontractors or third parties that it may use to provide the Service.
3.3 All Output Material shall be at the sole risk of the Client from the time of delivery to the Client.
4 Charges
4.1 Subject to any special terms agreed, the Client shall pay the Contract Price for the provision of the Service and any additional sums which, with the prior written agreement of the Client, are reasonably required as a result of the Client’s instructions or lack of instructions, the inaccuracy of any Input Material or any other cause attributable to the Client.
4.2 All charges quoted to the Client for the provision of the Service are exclusive of any Value Added Tax, for which the Client shall be additionally liable at the applicable rate from time to time.
4.3 inteli.marketing shall be entitled to invoice the Client following the end of each month in which the Service is provided, or at other times agreed, in writing, with the Client.
4.4 The Contract Price and any undisputed additional sums payable shall be paid by the Client (together with any applicable Value Added Tax) within 30 days of the date of the inteli.marketing’s invoice, unless otherwise agreed by the Client and inteli.marketing.
4.5 If payment is not made on the due date, inteli.marketing shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount (both before and after any judgment) at the rate of 4% per annum above the base rate from time to time of Yorkshire Bank plc from the due date until the outstanding amount is paid in full. Such interest to accrue on a daily basis with monthly rests.
4.6 Each request for Services made by the Client and agreed to by inteli.marketing shall be a separate contract. The Client shall not be entitled to withhold payment or purport to exercise any right of set off in respect of any claim for breach of any other Contract with inteli.marketing or an accrual of any other monies alleged to be due from inteli.marketing.
4.7 Notwithstanding the provisions of clause 4.6, inteli.marketing shall be entitled without prejudice to any other rights which it may have to:-
4.7.1 retain any Output Material in inteli.marketing's possession which relate to any Contract between inteli.marketing and the Client until all undisputed monies owing to inteli.marketing howsoever arising are paid by the Client;
4.7.2 suspend work on any Contract that is in existence between the Client and inteli.marketing until all undisputed monies due and owing to inteli.marketing under all Contracts are paid by the Client and the retention of goods or the suspension of work by inteli.marketing shall not constitute a breach of contract on the part of inteli.marketing in such circumstances.
5 Rights in Input Material and Output Material
5.1 Any Input Material or other information provided by the Client which is so designated by the Client and any Output Material shall be kept confidential by inteli.marketing but the foregoing shall not apply to any Input Material or Output Material which is in the public domain at the time when it is so provided by either party, and shall cease to apply if at any future time it becomes public knowledge through no fault of the other party.
5.2 The Client warrants that any Input Material and its use by inteli.marketing for the purpose of providing the Service will not infringe the copyright or other rights, intellectual property or otherwise, of any third party, and the Client shall indemnify and hold harmless inteli.marketing against any loss, damages, costs, expenses or other claims directly arising from any such infringement.
5.3 Any intellectual property rights which inteli.marketing may have in the Output Material shall not be retained by inteli.marketing but are assigned to the Client.
5.4 All intellectual property in the Input and Output materials and shall, belong to the Client.
5.5 Inteli.marketing shall comply with its obligations under the Data Protection Act and ensure that, in relation to our processing of the relevant personal data, we shall;
a) Ensure that we have in place appropriate technical and organizational measures to guard against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, the personal data;
b) Only process such personal data in accordance with these Conditions.
5.6 Inteli.marketing hereby agrees to indemnify and keep indemnified and defend at its own expense the Client against all costs, claims, damages or expenses incurred by the Client or for which the Client may become liable due to any failure by the Client or its employees or agents to comply with any of its obligations under Clause 5.5 of this Agreement.
6 Warranties and Liability
6.1 inteli.marketing warrants to the Client that the Service will be provided using reasonable care and skill and, in accordance with the Contract. Where inteli.marketing supplies in connection with the provision of the Service any goods (including Output Material) supplied by a third party, inteli.marketing shall accept liability for the acts and omissions of those Third Party’s.
6.2 At the Client’s request, inteli.marketing shall provide to the Client as soon as practicable and for a fee to be agreed between the Client and inteli.marketing a Proof.
6.3 The Client shall endeavor to confirm within 30 days of receipt of any Proof whether or not the Output Material is free from defects.
6.4 If within the period referred to in clause 6.3 the Client reports to inteli.marketing that the Output Material contains defects inteli.marketing will remedy these to the reasonable satisfaction of the Client as soon as practicable, free of charge.
6.5 inteli.marketing shall have no liability to the Client for any loss, damage, costs, expenses or other claims for compensation arising from any Input Material or instructions supplied by the Client which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Client.
6.6 Except in respect of death or personal injury caused by inteli.marketing’s negligence, or as expressly provided in these Conditions, inteli.marketing shall not be liable to the Client for any loss of profit or any indirect, special or consequential loss, damage, costs or expenses which arise out of or in connection with the provision of the Service or its use by the Client.
6.7 In respect of any loss or damage to the Input Material or to the Output Material or loss or damage resulting from the Input Material or Output Material’s loss or damage not caused by inteli.marketing’s negligence caused whilst the Input Material or the Output Material is in transit inteli.marketing will reprint and resupply at no cost to the Client.
6.8 inteli.marketing shall be liable for any and all losses suffered by the Client arising under, or in connection with the Contract whether in contract, tort, breach of statutory duty, or otherwise.
7 Force Majeure
7.1 inteli.marketing reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Output Material delivered to the Client (without liability to the Client) if, for a period longer than 30 days, it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of inteli.marketing including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil, commotion, fire explosion, flood, epidemic, lock-outs, strikes or other labor disputes , or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials Provided that, if the event in question continues for a continuous period in excess of 30 days, either party shall be entitled to give notice in writing to the other to terminate the Contract.
7.2 Where the Contract is terminated under clause 7.1, inteli.marketing shall be entitled to be paid the proportion of Contract Price that represents the work done by inteli.marketing on the Contract prior to its termination. This shall be determined
by agreement between the parties. The terms governing the payment of the Contract Price shall be those outlined in clause 4.
7.3 On payment of the sums under clause 7.2 all Input and Output Material relating to the Contract shall be returned to the Client by inteli.marketing
8 Termination
8.1 Either party may (without limiting any other remedy which it may have) at any time terminate the Contract by giving written notice to the other if the other commits any breach of these Conditions and (if capable of remedy) fails to remedy the breach within 7 days after being required by written notice given by the other to do so, or if the other goes into liquidation, or (in the case of an individual or firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors or has a receiver or administrator appointed.
9 Dispute Resolution
9.1 If any dispute arises in connection with these services, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation procedure.
9.2 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[ies] to the dispute, referring the dispute to mediation. A copy of the request should be sent to CEDR. Unless otherwise agreed, the mediation will start not later than [28] days after the date of the ADR notice.
9.3 No party may commence any court proceedings/arbitration in relation to any dispute arising out of this agreement until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
10 General
10.1 These Conditions (together with the terms, if any, set out in the Contract) constitute the entire agreement between the parties, supersede any previous agreement or understanding and may not be varied except in writing between the parties. All other terms and conditions, express or implied by statute or otherwise, are excluded to the fullest extent permitted by law.
10.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
10.3 No failure or delay by either party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.4 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.
10.5 The Agreement shall not be assigned or transferred without the prior written notice of the other party. No one, other than a party to this agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
10.6 Nothing in this agreement is intended to, or shall, create a partnership between the parties, or authorise either party to act as an agent for the other.
10.7 The laws of England and Wales shall apply to the Contract, and the parties agree to submit to the exclusive jurisdiction of the English courts.