Firethought refers to Firethought LTD of Hammonds Farm, Castle Hill, Berrynabor, EX34 9SX 2.2 These conditions shall be incorporated into any contract between Firethought and the Customer to the exclusion of any terms or conditions stipulated or referred to by the Customer. Any dealings with The Firethought following receipt by the Customer of notice of these conditions shall automatically be deemed acceptance thereof notwithstanding the absence of formal acknowledgement. 2.3 Unless otherwise expressly stated in writing, all quotations and estimates supplied by Firethought are invitations to treat. The Customer’s order is an offer and shall become binding upon acceptance by Firethought.
3.1 All prices are quoted exclusive of VAT. Firethought reserves the rights to alter the quoted price in event that; 3.1.1 Addition costs are incurred through insufficient supplies provided by the client or a third party operating on their behalf. Any product / supply that is deemed by Firethought, unsuitable or defective; or 3.1.2 Through information supplied by the Client or any third party in connection is insufficient and an inaccurate indication of the work involved; or 3.1.3 Alterations made by Firethought on client request; or 3.1.4 Costs that are a result of an exceptional circumstance out of the control of Firethought.
Performance and Delivery
4.1 Unless otherwise agreed in writing, all times quoted for performance or delivery or availability for collection are given in good faith but are not guaranteed. Notwithstanding that Firethought and the Client may have agreed that time is of the essence, the time for performance or delivery or availability for collection shall in every case be dependent upon prompt receipt of all necessary information, final instructions or approvals from the Customer. Alteration by the Customer of its requirements may result in delay in performance, delivery or availability for collection. 4.2 If Firethought and the Customer shall agree that any goods shall be delivered electronically or via any form of telephony (“Direct Delivery”) the following provisions shall as applicable apply: 4.2.1 the Customer acknowledges that Direct Delivery is not or may not be a completely secure medium of communication and that an unauthorised third party may intercept, tamper with or delete goods delivered by Direct Delivery and that Direct Delivery may involve reliance upon third party data carriers over which Firethought has no control; and 4.3.2 Firethought shall not be responsible for and shall have no liability to the Customer or any third party for: 22.214.171.124 any delay to any Direct Delivery or any non-receipt of any goods delivered by Direct Delivery; 126.96.36.199 any loss or damage that results from any person gaining unauthorised access to any Direct Delivery of any goods; 188.8.131.52 use or disclosure of any data obtained by any third party as a result of the same having gained unauthorised access to any Direct Delivery; and 184.108.40.206 any loss or damage resulting from any malfunction of or the introduction of any viruses, or malicious software used to effect and/or receive any Direct Delivery.
Terms of Payment
5.1 Subject to condition 5.2 and unless otherwise agreed by Firethought in writing, all invoices rendered by Firethought are payable within 28 days of the dates thereof. 5.2 Firethought expressly reserves the right at its sole option to require payment by installments during the performance of the contract and/or payment of all amounts owing to Firethought immediately prior to delivery. 5.3 Firethought reserves the right to request a 15% deposit on the formation of a contract. 35% when half of the work specified has been fulfilled. And finally the remaining 50% once the contract has been completed. 5.4 The Customer shall pay all amounts owing to Firethought in full and shall not exercise any rights of set off or counterclaim against invoices submitted. 5.5 In the event of default in payment by the Customer, Firethought shall be entitled to exercise any right or remedy available to it under any applicable law, including, without limitation, to suspend any further performance of or deliveries under any contract or contracts between Firethought and the Client without notice and to charge interest on any amount outstanding at the rate calculated at the rate of four percent (4%) above the current Bank of England base rate, but not less than ten percent (10%), from the due date of payment to the actual date of payment. Under no circumstances, however, shall interest exceed the highest legal rate. If such rate shall involve the payment of interest in excess of that authorized by law, the obligation to be fulfilled shall be reduced to the limit so authorized by law, and if from any circumstances, Firethought shall ever receive as interest any amount which would exceed the highest lawful rate applicable to the Cilent, such amount which would be excessive interest shall be applied to the reduction of the unpaid principal balance of the obligation evidenced hereby and not to the payment of interest.
6.1 Any contract between Firethought and the Customer may only be cancelled or varied with the written consent of Firethought and upon the terms of these terms and conditions. The giving of Firethought’s consent shall not in any way prejudice Firethought’s right to recover from the Customer full compensation for any loss or expense arising from such cancellation or variation. 6.2 Without prejudice to any other rights or remedies available to Firethought, if notice of cancellation of a booking is received by Firethought less than 24 hours prior to the date for performance of the contract, Firethought shall be entitled to charge such booking in full under Firethought’s rate card current at the date of such cancellation. If such a notice of cancellation is received less than five working days but more than 24 hours prior to the date for performance of the contract, Firethought shall be entitled, without prejudice to any other rights or remedies available to it, to charge such booking at one half of the full rate under Firethought’s rate card current at the date of such cancellation. The Customer acknowledges that if it cancels a booking within the foregoing time frames, Firethought’s costs and damages will be difficult to ascertain. The Customer agrees that the charges outlined above represent a fair and reasonable estimate of the costs and damages that Firethought will incur by reason of any such cancellation.
7.1 To the maximum extent permitted by law, Firethought’s entire liability for breach of any express warranty or condition of this contract, or any implied warranties or conditions implied in this contract (if any), including but not limited to Firethought’s liability for negligence shall (subject to the terms of conditions 9.1 below) be limited to the amount actually paid by the Client in accordance with this contract and under no circumstances, therefore, shall Firethought be liable for any damages whatsoever (including but not limited to damages for consequential loss, loss of business profits, business interruption or other pecuniary loss). The Client hereby agrees with Firethought that this condition 7.1 is reasonable and necessary in the circumstances and that having regard to that fact the condition does not work harshly or unreasonably against the Client. 7.2 The Customer shall indemnify, defend and hold harmless Firethought from and against, with counsel reasonably acceptable to Firethought:- 7.2.1 all claims, suits, actions, damages, costs, expenses or proceedings against Firethought by any person, including but not limited to the client, customers of clients, Firethought employees, the Customer’s employees or the employees of any contractor employed by the Customer or Firethought or the personal representatives or dependants of any such employee or other third party arising out of any act or omission of Firethought in connec-tion with any Customer contract (including, in the course of carrying out the specific instructions of the Customer); 7.2.2 all claims, suits, actions, damages, costs, expenses or proceedings against Firethought arising out of the acts and/or omissions of the Client, its officers, directors, employees, agents or sub-contractors, whether negligent or otherwise. 7.3 The Customer expressly agrees that it will at all times maintain and keep effective insurance policies with reputable insurers and for adequate levels of cover which protect the Customer against any loss or liability which it may incur or suffer arising out of this contract. This includes, but is not limited to, insurance for any damage or loss for which Firethought is not liable pursuant to the conditions hereof, insurance which protects the Client against any accidental loss, damage or destruction to any master tapes, film negative prints, sound tapes, video tapes or visual images or sound held in any media whilst in the possession or control of Firethought. Firethought shall have no liability for any liability or loss which arises from any failure by the Client to maintain and keep effective such insurances. Firethought shall not be required to carry any insurance covering the Customer or its property. 7.4 In the case of goods or component parts of goods supplied by Firethought but not of Firethought’s manufacture, Firethought shall be entitled to assign to the Client its rights against its supplier and such rights shall be taken in extinction of and in substitution for any rights which the Customer would otherwise have had against Firethought. 7.5 Firethought shall not be liable for any loss or damage whatsoever caused directly or indirectly by any software, hardware or equipment used by Firethought or any third party rendering services to Firethought.
8. The Customer shall indemnify, defend and hold harmless Firethought from and against, with counsel reasonably acceptable to Firethought, all claims, suits, actions, damages, costs, expenses or proceedings against Firethought arising from or incurred by reason of any defamatory or libellous matter or any infringement or alleged infringement of any patent, trademark, copyright, registered design or design copyright or other exclusive right, including without limitation, any moral right claim or any other title of any third party in respect of any work carried out for the Customer by Firethought.
Performance and Delivery
11.1 The Clients shall be solely responsible for ensuring that all information, advice and recommendations given to Firethought either directly or indirectly by Firethought or by the Client’s agents, servants, consultants or advisers are accurate, correct and suitable. Examination or consideration by Firethought of such information advice or recommendations shall in no way limit the Client’s responsibility hereunder unless Firethought specifically agrees in writing to accept responsibility. 11.2 The Customer hereby undertakes to Firethought to ensure that all of its personnel (to include all employees and agents of the Clients) that shall at any time have access to any premises occupied by Firethought or at which any of Firethought’s equipment shall be kept all such persons shall at all times: 11.2.1 observe all rules and regulations in force at the applicable premises to include health and safety regulations and any rules governing the use of equipment and/or facilities at the applicable premises; 11.2.2 keep confidential and not divulge or communicate or make any use of any confidential information (being any and all information which relates to and/or concerns the business or activities of Firethought and/or any client of Firethought) which the applicable person shall become aware of as a result of being present at the applicable premises. 11.3 The Client shall indemnify Firethought from and against all actions, claims, costs, charges, expenses and proceedings arising from or incurred by reason of any breach or non observance of any provision of condition 11.2 by any of the Client’s personnel.
9.1 Where the Customer supplies any materials to Firethought or where any materials or goods which are the property of the Customer are otherwise left in Firethought’s possession:- 9.1.1 notwithstanding the terms of condition 7.1. above, Firethought shall be under no liability in respect of any loss or damage or otherwise arising as a result of damage to or the loss or destruction of such materials or goods; 9.1.2 without limiting the terms of condition 7.3 above, the Client shall insure all such materials or goods to their full value against all risks; and 9.2 Where materials are supplied or specific instructions are given by the Client, Firethought accepts no liability for any reduction in the quality of Firethought’s services caused by defects in or the unsuitability of such materials so supplied or by Firethought’s adherence to such specific instructions.
12. If the Client shall become bankrupt or under the provisions of Section 123 of the Insolvency Act 1986 shall be deemed to be unable to pay its debts or compounds with its creditors or in the event of a resolution being passed or proceedings commenced for the administration or liquidation of the Client (other than for a voluntary winding up for the purpose of reconstruction or amalgamation) or if a Receiver or Manager or Administrative Receiver is appointed of all or any part of its assets or undertaking, Firethought shall be entitled to cancel the contract in whole or in part by notice in writing without prejudice to any right or remedy accrued or accruing to Firethought.
13. In the event of the performance of any obligation accepted by Firethought being prevented, delayed, or in any way interfered with by any act of government, war, industrial dispute, natural disaster, breakdown of machinery or equipment, accident, fire or by any other cause beyond The Firethought’s control, The Firethought may at its option suspend performance or cancel its obligations under the contract without liability for any damage or consequential loss resulting there from, such suspension or cancellation being without prejudice to Firethought’s right to recover all sums owing to it in respect of goods delivered and costs incurred up to the date of the suspension or cancellation.
14. Firethought shall be entitled to appoint one or more sub-contractors to carry out all or any of its obligations under any contract between Firethought and the Client.
15. The contract shall be governed and interpreted exclusively according to the Law of England and shall be subject to the jurisdiction of the English Courts only
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