Terms & Conditions

SPRAY CHROMA LIMITED TERMS & CONDITIONS

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).

1. Interpretation

The following definitions and rules of interpretation apply in these Conditions.

1. 1.1  Definitions:

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Change Order: has the meaning given in clause 5.1. Charges: the charges payable by the Customer for the supply

of the Services in accordance with clause 6.

Conditions: these terms and conditions as amended from time to time in accordance with clause 12.4.

Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.

Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Customer: the person or firm who purchases Services from the Supplier.

Customer Default: has the meaning set out in clause 4.2. Deliverables: the deliverables, if any, set out in the Order,

produced by the Supplier for the Customer.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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.

Order: the Customer’s order for Services as set out in the Customer’s purchase order form or the Customer’s written acceptance of a quotation by the Supplier, as the case may be.

Premises: the premises at which the Services are to be supplied by the Supplier to the Customer as set out in the Order.

Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification.

Specification: the description or specification of the Services provided in writing by the Supplier to the Customer.

Supplier: Spray Chroma Limited registered in England and Wales with company number 14164452.

Supplier Materials: has the meaning set out in clause 4.1(h).

1.2  Interpretation:

(a) Unless expressly provided otherwise in the Contract, a reference to legislation or a legislative provision:

(i)  is a reference to it as amended, extended or re-enacted from time to

time; and

(ii)  shall include all subordinate legislation made from time to time under that legislation or legislative

provision.

(b)  Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

(c)  A reference to writing or written excludes fax but not email.

2. Basis of contract

2.1  The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

2.2  The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence.

2.3  Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, 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.

2.4  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 law, trade custom, practice or course of dealing.

2.5  Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue.

3. Supply of Services

3.1  The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.

3.2  The Supplier shall use reasonable endeavours when matching existing colours, using a standard match from standardised colour ranges, where applicable, and otherwise from a face on distance of three metres with CIE Standard Illuminant D65 lighting conditions.

3.3  The Supplier shall use all reasonable endeavours to meet any performance dates agreed in writing, or specified in a quotation or in the Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

3.4  The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

3.5  The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

3.6  Unless expressly provided otherwise in the Contract, the Supplier warrants that the Services supplied to the Customer by the Supplier under the Contract will be free from defects in material and workmanship and remain so for 12 months after the Supplier notifies the Customer of completion of the performance of the Services.

4. Customer’s obligations

4.1 The Customer shall:

(a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate, including (without limitation);

(i) the Customer’s name, address and contact information;

(ii) the Customer’s authorised representatives;

(iii)  site details for the Premises, including parking availability and

site operating hours; and

(iv)  any other requirements of the Customer in relation to the supply of

the Services;

(b)  co-operate with the Supplier in all matters relating to the Services;

(c)  ensure that the Supplier, its employees, agents, consultants and subcontractors are provided with access to the Premises and other facilities, as reasonably required by the Supplier;

(d)  provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that any such information is complete and accurate in all material respects;

(e)  ensure that the Premises are prepared for the supply of the Services;

(f)  unless expressly provided otherwise in the Contract, provide the Supplier with a power supply of 240v/110v and such lighting, ventilation, equipment (including, without limitation, fume extraction equipment and air quality monitors) and fuel as the Supplier may reasonably require at the Premises in order for the Supplier to supply the Services and ensure that any such equipment is in good working order and suitable for the purposes for which it is used in relation to the Services and conforms to all relevant United Kingdom standards or requirements;

(g)  obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

(h)  keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Premises in safe custody at its own risk, and ensure that the Supplier Materials are maintained in good condition until returned to the Supplier, and not disposed of or used other than in accordance with the Supplier’s written instructions or authorisation;

(i)  ensure that an authorised representative of the Customer is present to sign off on completion of the Services; and

(j)  comply with any additional obligations as set out in the Specification.

4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a)  without limiting or affecting any other right or remedy available to it, the Supplier shall 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 in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;

(b)  the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 4.2; and

(c) the Customer shall reimburse the Supplier on written demand for any additional time, costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

5. Change control

5.1  Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:

(a) the Services;
(b) the Supplier’s existing charges; (c) the timetable of the Services; and (d) any of the terms of the Contract.

5.2  If the Supplier wishes to make a change to the Services it shall provide a draft Change Order to the Customer.

5.3  If the Customer wishes to make a change to the Services:

(a)  it shall notify the Supplier and provide as much detail as the Supplier reasonably requires of the proposed changes, including the timing of the proposed changes; and

(b)  the Supplier shall, as soon as reasonably practicable after receiving the information at clause 5.3(a), provide a draft Change Order to the Customer.

5.4  If the parties:

(a)  agree to a Change Order, they shall sign it and that Change Order shall amend the Contract accordingly; or

(b)  are unable to agree a Change Order, then either party may terminate the Contract with immediate effect by giving written notice to the other party.

5.5  The Supplier may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to clause 5.3 on a time and materials basis at the Supplier’s daily rates specified in clause 6.1.

6. Charges and payment

6.1 The Charges for the Services shall be calculated on a time and materials basis:

(a)  the Charges shall be calculated in accordance with the Supplier’s daily fee rates, the Supplier’s bespoke colour match fee rates (if applicable) and the cost to the Supplier of any materials or services procured by the Supplier from third parties for the provision of the Services, as such items and their cost are set out in the Order;

(b)  the Supplier’s daily fee rates for each individual are calculated on the basis of a day from 8.00 am to 4.00 pm, including breaks of 15 minutes in the morning and 30 minutes for lunch, worked on Business Days;

(c)  the Supplier shall be entitled to charge an overtime rate of an additional 60% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 6.1(b); and

(d) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses.

6.2  The Supplier shall invoice the Customer on completion of the Services, unless otherwise agreed in writing.

6.3  The Customer shall pay each invoice submitted by the Supplier:

(a)  within 30 days of the date of the invoice; and

(b)  in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.

6.4  All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

6.5  If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 6.5 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.

6.6  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).

7. Intellectual property rights

7.1  All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.

7.2  The Customer grants the Supplier a fully paid-up, non- exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.

8. Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

8.1  References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

8.2  Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

8.3  Nothing in this clause 8 shall limit the Customer’s payment obligations under the Contract.

8.4  Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a)  death or personal injury caused by negligence;

(b)  fraud or fraudulent misrepresentation; and

(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

8.5  Subject to clause 8.2 (No limitation in respect of deliberate default), and clause 8.4 (Liabilities which cannot legally be limited), the Supplier’s total liability to the Customer for all loss or damage shall not exceed an amount equal to the sums paid under the Contract.

8.6  The caps on the Supplier’s liabilities shall be reduced by:

(a)  payment of an uncapped liability; and

(b)  amounts awarded by a court or arbitrator, using their procedural or statutory powers in respect of costs of proceedings or interest for late payment.

8.7  Subject to clause 8.2 (No limitation in respect of deliberate default), clause 8.3 (No limitation of customer’s payment obligations) and clause 8.4 (Liabilities which cannot legally be limited), this clause 8.7 sets out the types of loss that are wholly excluded:

(a)  loss of profits.

(b)  loss of sales or business.

(c)  loss of agreements or contracts.

(d)  loss of anticipated savings.

(e)  loss of use or corruption of software, data or information.

(f)  loss of or damage to goodwill; and

(g)  indirect or consequential loss.

8.8 Subject to clause 8.2 (No limitation in respect to deliberate default) and clause 8.4 (Liabilities which cannot legally be limited), the Supplier shall not be liable to the Customer for any damage to property caused by the use of masking tape on adjacent surfaces in connection with the supply of the Services under the Contract.

8.9  The Supplier has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

8.10  Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of its having grounds to make a claim in respect of the event and shall expire 10 Business Days from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

8.11  The Supplier shall not be liable for any claims in relation to the Supplier’s performance of the Services unless notice in writing summarising the nature of the claim and, as far as is reasonably practicable, the amount claimed, has been given by or on behalf of the Customer to the Supplier on or before the first anniversary of the Supplier notifying the Customer of completion of the performance of the Services or the termination of the Contract, as the case may be.

8.12  This clause 8 shall survive termination of the Contract.

9. Termination

9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party 2 Business Days’ written notice.

9.2  Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a)  the other party 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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;

(b)  the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(c)  the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

9.3  Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:

(a)  the Customer fails to pay any amount due under the Contract on the due date for payment; or

(b)  there is a change of control of the Customer.

9.4  Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if:

(a) the Customer fails to pay any amount due under the Contract on the due date for payment;

(b) the Customer becomes subject to any of the events listed in clause 9.2(b) or clause 9.2(c), or the Supplier reasonably believes that the Customer is about to become subject to any of them; and

(c) the Supplier reasonably believes that the Customer is about to become subject to any of the events listed in clause 9.2(a).

10. Consequences of termination

10.1  On termination of the Contract:

(a)  the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied, including the cost to the Supplier of any materials or services procured by the Supplier from third parties for the provision of the Services, for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b)  the Customer shall procure the return all of the Supplier Materials. If the Customer fails to do so, then the Supplier may enter any of the Customer’s premises on which any Supplier Materials are kept and take possession of them. Until they have been returned, the Supplier Materials shall be at the Customer’s risk and the Customer shall be solely responsible for their safe keeping and will ensure that they are not used for any purpose not connected with the Contract.

10.2  Without affecting any other right or remedy available to the Supplier, if the Customer terminates the Contract in accordance with clause 9.1 on or after the date which is 2 Business Days prior to the date on which the Services are due to start, the Customer shall pay to the Supplier the sum which is equal to the greater of:

(a) 30% of the Charges which would have been payable under the Contract if the Services had been performed in full; and

(b) £750 plus VAT.

10.3  Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

10.4  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.

11. Force majeure

11.1  Force Majeure Event means any circumstance not within a

party’s reasonable control including, without limitation:

(a)  acts of God, flood, drought, earthquake or other natural disaster;

(b)  epidemic or pandemic;

(c)  terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

(d)  nuclear, chemical or biological contamination or sonic boom;

(e)  any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;

(f)  collapse of buildings, fire, explosion or accident;

(g)  any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);

(h)  non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause);

(i)  adverse weather conditions; and

(j)  interruption or failure of utility service.

11.2  Provided it has complied with clause 11.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.

11.3  The Affected Party shall:

(a)  as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and

(b)  use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

12. General
    12.1 Assignment and other dealings.

Neither party may assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the other party.

12.2 Confidentiality.

(a)  Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2(b).

(b)  Each party may disclose the other party’s confidential information:

(i) to its employees, officers, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12.2; and

(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c) Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

12.3  Entire agreement.

(a)  The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b)  Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

(c)  Nothing in this clause shall limit or exclude any liability for fraud.

12.4  Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

12.5  Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

12.6  Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this Contract deleted under this clause 12.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

12.7  Notices.

(a)  Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be 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 sent by email to the relevant party’s email address as notified by that party from time to time.

(b)  Any notice or communication shall be deemed to have been received:

(i)  if delivered by hand, at the time the notice is left at the proper address;

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

(iii)  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. In this clause 12.7(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the

place of receipt.

(c)  This clause 12.7 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

12.8  Third party rights.

(a)  Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

(b)  The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

12.9  Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

12.10  Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.