Terms & Conditions of Trading
A. Application of Conditions
These are the terms and conditions of supply (the ‘Conditions’) of Sabre Software Development Ltd (the ‘Company’) in relation to the provision of printing and ancillary services and the supply of any associated goods, including but not limited to any Supplies (the ‘Services’). The Conditions shall be deemed accepted by any person, firm or company who places an order with the Company (the ‘Customer’) upon the Customer’s placing of an order with the Company and shall govern any contract (the ‘Contract’) entered into between the Company and the Customer to the exclusion of any other terms and conditions. No order placed by the Customer shall be accepted by the Company other than: (a) by a written acknowledgment issued and executed by the Company; or (b) (if earlier) by the Company starting to perform the Services and any quotation supplied by the Company to the Customer shall not bind the Company unless such quotation is confirmed in a written acknowledgment of order issued and executed by the Company as aforesaid. ‘Supplies’ means all CD's, CD-R's, disks and other materials the Company provides to the Customer but does not include Materials. ‘Materials’ means the films, CD's, CD-R's, disks and other materials that the Customer is to provide to the Company in order for the Company to perform the Services.
1.1 The Services the Company shall provide to the Customer, the price(s) to be paid for the Services, the dates for delivery or performance and other relevant details shall be as stated in the Company’s written acknowledgment of the Customer’s order. Where any alterations to the Services are proposed following the Company’s written acknowledgment of the Customer’s order any such alterations shall be agreed in writing with the Company before any work may proceed.
1.2 Unless otherwise agreed in writing, full payment to the Company for the work to be undertaken shall be due upon receipt of order and any and all applicable fees shall be similarly payable at such time together with value added tax at prevailing rates. Where the Company agrees to accept payment or part-payment at any time after receipt of order, payment shall be due within 30 days of the date of the relevant invoice, time for payment shall be of the essence and: i. Failure by the Customer to make any payment by its due date shall entitle the Company to: a) at its option, to charge interest at the rate of four percent (4%) per annum above National Westminster Bank’s base lending rate from time to time calculated on a daily basis, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest); b) to charge the Customer with any costs incurred by the Company in the course of collecting outstanding monies due to the Company from the Customer; c) suspend any warranty for the Services, whether or not they have been paid for; and d) set off any amount owed by the Company to the Customer against any amount owed by the Customer to the Company on any account whatsoever. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; ii. No payment shall be deemed to have been received until the Company has received cleared funds. In the event that the Customer tenders payment by cheque and said cheque is returned unpaid to the Company, the Customer shall reimburse the Company for any bank charges incurred by the Company. iii. All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision; and iv. The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
1.3 In addition to the price/fees for the Services, the Customer agrees to pay any and all of the Company’s reasonable out of pocket expenses, including, without limitation, postage and packing.
1.4 The Company will use its reasonable endeavours to abide by any dates agreed for delivery of Supplies but shall not be liable for any failure to do so and time for delivery shall not be of the essence of the Contract. The Customer agrees to supply the Materials to the Company at the Customer’s sole cost and risk and in sufficient time for the Company to process the Customer’s order and without limitation, the Company will not be liable where any failure to deliver as agreed is caused by the Customers' delay.
1.5 Without limiting the generality of Condition 1.4 above, the Company shall not be responsible for any delay or failure to deliver any materials to the Customer if any such delay or failure is caused by circumstances beyond the Company’s control, such as Acts of God, fire, strikes, or any failure of subcontractors or suppliers to supply material required. Where any such delay or failure occurs, the Company’s obligations to the Customer shall be suspended for the period of the delay or failure.
1.6 Where the Customer does not confirm in writing acceptance of the Supplies within 7 days of delivery, the Supplies shall be deemed to be accepted at the earlier of the expiration of that 7 day period or the Customer's first use of the Supplies. Where the Supplies are properly rejected by the Customer within the earlier of (a) 7 days from delivery or (b) first use, as aforesaid, whether in whole or in part, the Company shall use its reasonable endeavours to deliver conforming Supplies to the Customer in compliance with these Conditions, subject always to the requirements of Condition 3.2. For the avoidance of doubt, unless otherwise agreed in writing with the Company, delivery shall take place at the Customer’s place of business.
1.7 Risk of damage to or loss of the Supplies shall pass to the Customer at the time of delivery or, if the Customer wrongfully fails to take delivery of the Supplies, the time when the Company has tendered delivery of the Supplies.
1.8 Notwithstanding delivery of and the passing of risk in the Supplies and notwithstanding any other provisions of these Conditions, the Company reserves the right of disposal of the Supplies, and the property therein shall not pass to the Customer, until the Company has received in cash or cleared funds payment in full for such items and all other Supplies supplied by the Company to the Customer and default interest and all other monies on any account whatsoever owed by the Customer to the Company.
1.9 The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Supplies are or may be stored or otherwise located, but in any event, and without limitation, hereby undertakes to secure access at any time to any such premises for the Company, its agents and employees in order to inspect the Supplies, or, where the Customer's right to possession has terminated, to recover them.
2. Customer Warranty.
The Customer warrants that performance of the Services by the Company will not infringe any law or regulation, including, without limitation any law of copyright or similar law, or any contract (including, without limitation, any licensing agreement) to which the Customer is a party or to which the Customer is bound or to which the Materials are subject, and that the Materials are not obscene, blasphemous or defamatory and will not adversely affect the Company’s public perception or image. Without limitation, any breach of this warranty will be indemnified by the Customer pursuant to the provisions of Condition 3.10.
3. Warranties, Limitation of Liability and Indemnity.
3.1 The Company warrants that (subject to the other provisions of these Conditions): (a)on delivery, the Supplies shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and (b)if the Customer has made it expressly known to the Company in the Customer’s order that the Supplies shall be suitable for a particular purpose and the Company has expressly stated in its acceptance of order issued pursuant to Condition A that it will supply Supplies suitable for that purpose, then the Supplies shall, on delivery, be reasonably fit for the purpose so stated; and (c)any services will be performed with reasonable skill and care.
3.2 The Company shall not be liable for a breach of any of the warranties in Condition 3.1 unless: (a)the Customer gives written notice of the defect to the Company within the time period stipulated in Condition 1.6; and (b)the Company is given a reasonable opportunity after receiving the notice, of examining any Supplies which the Customer has alleged to be defective and the Customer (if asked to do so by the Company) returns such Supplies to the Company's place of business at the Company's cost for the examination to take place there.
3.3 The Company shall not be liable for a breach of any of the warranties in Condition 3.1 if: (a)the Customer makes any further use of any Supplies which the Customer has alleged to be defective after giving notice of any such defect; or (b)the defect arises from any specification supplied by the Customer, or from fair wear and tear, wilful damage, negligence, or from any misuse of the Supplies; or (c)the full price for the Supplies has not been paid by the time for payment stipulated in Condition 1.2; or (d)the defect is of a type specifically excluded by the Company by notice in writing.
3.4 Subject to Condition 3.2 and Condition 3.3, if any of the Supplies do not conform with any of the warranties in Condition 3.1: (a)the Company shall at its option repair or replace (but shall not, without limitation, install or re-install) any such Supplies (or the defective part), or shall issue a credit note to the value of the defective Supplies provided that, if the Company so requests, the Customer shall, at the Company's expense, return the Supplies or the part of such Supplies which are defective to the Company. The Company shall, if it opts to replace the defective Supplies, then deliver replacement Supplies to the Customer at the Customer’s premises (at the Company’s expense), and ownership of the defective Supplies shall, if it has vested in the Customer, re-vest in the Company; and (b)the Company shall re-perform any services which are proved to the reasonable satisfaction of the Company not to have been performed with reasonable skill and care, or at the Company’s option, shall issue a credit note to the value of the services.
3.5 If the Company complies with Condition 3.4 it shall have no further liability for a breach of any of the warranties in Condition 3.1.
3.6 The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of: any breach of these Conditions; any use made or resale by the Customer of any of the Services or Supplies, or of any product incorporating any of the Supplies; and any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
3.7 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979 and section 2 of the Supply of Goods and Services Act 1982 ) are, to the fullest extent permitted by law, excluded from the Contract.
3.8 Nothing in these Conditions excludes or limits the liability of the Company: (a)for death or personal injury caused by the Company's negligence; or (b)under section 2(3), Consumer Protection Act 1987; or (c)for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or (d)for fraud or fraudulent misrepresentation.
3.9 Subject to Condition 3.7 and Condition 3.8: (a)the Company'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 contract price; and (b)the Company shall not be liable to the Customer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
3.10 The Customer shall hold the Company harmless and keep the Company fully and promptly indemnified against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with any claim made by or against the Company in respect of any liability, loss, damage, injury, cost or expense whatsoever, howsoever and to whomsoever occurring, to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from any act or omission of or on behalf of the Customer, or from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.
3.11 The termination of this Contract shall not affect the provisions of this Condition 3 which shall continue thereafter.
4. Confidential Information and Intellectual Property Rights.
4.1 Any information about the Company or the Customer or about the Company’s procedures or the Customers' products or financial or business information shall be treated as confidential, used only for the purpose of performance of the parties’ respective obligations hereunder and not disclosed save as permitted hereunder, without limit as to time, provided that any such information which is in the public domain otherwise than through the default of the non-disclosing party shall not be deemed to be confidential under this Condition 4.
4.2 The termination of the Contract shall not affect any of the obligations contained in this Condition 4.
4.3 Notwithstanding any provision of this Condition 4 to the contrary, the Company shall be entitled to make reference to the Company’s relationship with the Customer in any of the Company’s publicity material.
4.4 As between the Customer and the Company, all intellectual property rights and all other rights in the Services and the Supplies shall be owned by the Company. The Company licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Services and the Supplies. If the Company terminates the Contract under Condition 6 this licence shall automatically terminate.
5. Customers' Obligations.
5.1 The Customer undertakes to supply Materials and other resources to the Company promptly, as agreed between the parties.
5.2 The Customer shall obtain and maintain, at its sole cost, all necessary licences and consents and comply with all relevant legislation in relation to the provision of the Services.
6. Term and Termination.
6.1 The Contract shall commence immediately upon the Customer’s receipt of the Company’s written acknowledgment of the Customer’s order and shall continue until performance of the Services has been completed subject to earlier termination on thirty days' notice from either party to the other which may be given at any time, save as otherwise provided in this Condition 6 below.
6.2 Where one party is in breach of any of these Conditions,(such breach to include, but not be limited to, any failure of the Customer to make any payment due under these Conditions by the due date), the non-breaching party may serve written notice on the other party to terminate the Contract forthwith, save that where the breach is capable of remedy, 7 days notice to remedy said breach shall first be given to the breaching party and where said breach is remedied as aforesaid, termination shall not take effect.
6.3 The Customer or the Company may terminate the Contract forthwith by written notice if the other becomes insolvent, or subject to a petition in bankruptcy filed by or against it, or is placed under the control of a receiver, liquidator or committee of creditors.
7.1 No variation or amendment of, or substitution to, these Conditions shall be valid unless first agreed in writing between the parties.
7.2 The Company may assign the Contract or any part of it to any person, firm or company; the Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company; the Company, but not the Customer, shall be entitled to subcontract any or all of its obligations under all or any part of the Contract.
7.3 This Contract constitutes the whole agreement between the Company and the Customer and supersedes all previous agreements between the parties relating to its subject matter.
7.4 All representations, warranties or other assurances made by or on behalf of the Company other than as set out herein, and whether on the Company’s website or otherwise, do not form part of the Conditions nor shall they be legally enforceable or actionable.
7.5 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
7.6 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
7.7 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
7.8 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
7.9 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
7.10 Nothing herein shall constitute or be deemed to constitute a partnership or joint venture or the relationship of partnership and agent or employer and employee.
7.11 All notices shall be in writing and sent to the Customer at its address notified to the Company, or to the Company at the Company’s address given in correspondence, or such other address as the recipient may designate by notice given in accordance with this provision. Any notice may be delivered personally by first class prepaid letter or facsimile transmission (confirmed by first class post) and shall be deemed to have been served if by personal delivery when delivered, if by post 48 hours after posting and if by facsimile transmission when despatched (with successful transmission report).
7.12 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts.
Sabre software's anti virus procedures are based upon the wider requirement to protect our client masters from any unauthorised "change and modification" while in our care.
In order to achieve this we 'Write Protect' masters as they arrive on the premises and do not 'load', 'run' or 'execute' any programs or data files from client duplication masters. ( Write protecting a disk prevents infection / modification ).
During the duplication process we compare copies against the master to ensure they are the same, and prior to despatch we conduct a virus check on a sample from the duplicated batch (PC disks and CDs only).
While we make every effort to ensure we do not 'infect' client disks, or ship duplicated disks with viruses, we do advise clients to satisfy themselves that disks are virus free prior to onward shipment or internal use.
Due to the ever changing nature of viruses, we can not guarantee absolutely that disks are virus free. We especially recommend that clients distributing disks and CDs in Macintosh format conduct their own virus checks prior to use. Mac viruses are becoming more prevalent.
We make every effort possible to ensure the quality, integrity, and performance of all disks & CDs duplicated by us. Only high quality media is used, and not only are quality controls applied at each stage of our duplication procedures, but a high proportion of completed disks are sampled and tested at the end of the duplication run.
Where we know that the disks or CDs may be used on a variety of different versions of a given computer (or example the games market) we do whatever possible to test the dupes on different machines. (We cannot guarantee to have conducted tests on all the possible variations however).
For these reasons we have every confidence that the disks and CDs supplied to you are of high performance and fault free However, because the performance of software and disks or CDs is a function of the interplay between the two; the machine they are applied to; and to the operator, we cannot accept responsibility for the performance of disks once they have been onwardly sold from yourselves.
It is incumbent upon you as our client therefore to satisfy yourselves before onward shipment that your own standards have been met.
If there is ANY quality shortfall, please contact us immediately and steps will be put in hand forthwith to ensure you get what you have paid for, and we have promised.