1. General

1.1 In these Terms of Business “TRIANGLE” means TRIANGLE Design Limited “the Client” means any individual, firm, company or other party with whom TRIANGLE contracts. “the Services” means any design consultancy services including but not limited to the graphic design and preparation of two dimensional and three dimensional point of sale and other promotional material provided under the Contract, “the Contract” means any contract for the provision of the Services and/or the supply of Goods howsoever made between TRIANGLE and the Client. “the Goods” means any goods including but not limited to printed material and manufactured items and goods supplied by TRIANGLE to the Client pursuant to a Contract.

2. Formation of Contract

2.1 Any Contract shall incorporate and be subject to these Terms of Business and any further terms specified by TRIANGLE to the Client in writing. In the event of the Client seeking to incorporate special terms into the Contract, such special terms shall not apply unless they are expressly accepted and agreed by a partner of TRIANGLE in writing.

2.2 No Contract shall come into existence until the Client’s order has been accepted in writing by TRIANGLE.

2.3 Any quotation given by TRIANGLE is an invitation to the Client to appoint within 28 days of the quotation date TRIANGLE to provide the Services and/or the Goods in accordance with these Terms of Business and any other special terms referred to in the quotation or accepted and agreed by TRIANGLE in accordance with Paragraph 2.1 above. TRIANGLE reserves the right to withdraw or amend quoted prices at any time prior to its written acceptance of those prices as part of the Client’s order. Unless otherwise expressly agreed or earlier withdrawn, all quotations expire automatically after 28 days.

2.4 If the Client submits an instruction containing terms inconsistent with or purporting to override these Terms, TRIANGLE’s acknowledgement or acceptance of such instruction shall constitute a counter-offer on these Terms.

2.5 Any waiver of any breach of these Terms shall not prejudice TRIANGLE’s rights in respect of any subsequent breach.

2.6 The Client shall be responsible for ensuring the accuracy of the terms of each order.

2.7 The Client may not cancel any order for Goods or Services which has been accepted by TRIANGLE except with the written agreement of TRIANGLE and on terms that the Client shall indemnify TRIANGLE in full against all loss (including loss of profit) costs (including the cost of all labour and materials used), damages, charges and expenses incurred by TRIANGLE as a result of cancellation.

2.8 No variation to the Contract shall be binding unless agreed in writing between the authorised representatives of TRIANGLE and the Client. TRIANGLE’s employees or agents are not authorised to make any representations concerning the Goods or the Services unless confirmed by TRIANGLE in writing. In entering into the Contract the Client acknowledges that it does not rely on and waives any claim for breach of any such representations (including representations in brochures, catalogues and other marketing materials) which are not so confirmed.

2.9 TRIANGLE reserves the right to cancel the Contract without liability to the Client at any time before the Goods are delivered or the Services are performed if TRIANGLE becomes aware that the sale of the Goods or the supply of the Services infringes the laws or regulations of any applicable jurisdiction.

2.10 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by TRIANGLE shall be subject to correction without liability on the part of TRIANGLE.

3. Capacity of Company

TRIANGLE acts as a principal at law in all contracts entered into by TRIANGLE in the usual course of its business.

4. Prices

4.1 Subject to any alternative basis for charging specified by TRIANGLE, the Client shall pay TRIANGLE for the Services and the Goods such sum as shall be calculated in accordance with TRIANGLE’s current standard hourly or other rates of remuneration (whichever is applicable) in addition to the costs incurred by TRIANGLE in the provision of such Goods and Services.

4.2 The Client shall be deemed to have authorised TRIANGLE to purchase all such additional Goods and Services and provide such additional Goods and Services as shall be referred to (directly or indirectly) in any Contact Report issued by TRIANGLE save insofar as the Client shall have notified TRIANGLE of its disagreement with any such matter in any Contact Report within two days of its receipt of the relevant Contact Report.

4.3 TRIANGLE reserves the right by giving notice to the Client at any time to increase the price of the Goods or the Services to reflect any increase in the cost to TRIANGLE which is due to any factor beyond the control of TRIANGLE.

4.4 Except as may be otherwise agreed in writing by TRIANGLE, orders for Goods are accepted on the basis the price quoted is quoted ex works Bristol and is exclusive of any value added tax, special packing materials, carriers charges, insurance or customs duties and all other taxes, duties and expenses which the Client shall pay to TRIANGLE where applicable.

4.5 Unless otherwise agreed in writing, all costs are quoted in sterling and all invoices are for payment in sterling as set out in paragraph 5 below. Where, because payments have been made by the Client on dates and in amounts different to those agreed at the commencement of TRIANGLE’s work without TRIANGLE’s prior consent, TRIANGLE has suffered exchange rate losses in excess of 2% of the due amounts, TRIANGLE reserves the right to charge additional amounts to make up that shortfall.

5. Payment and Invoicing Procedure

5.1 In respect of Services TRIANGLE will invoice the Client at such times as it shall in its discretion think fit and the Client will unless otherwise specified by TRIANGLE pay each invoice within thirty days from the date of such invoice failing which TRIANGLE shall be entitled to cease all further work on behalf of the Client without liability in respect of any loss or damage sustained by the Client as a result.

5.2 In Respect of Goods

5.2.1 TRIANGLE will, subject to sub-paragraph 5.2.2 below, invoice the Goods as at the date of delivery of the relevant Goods (whether or not such delivery constitutes part only of a contract for the sale of Goods to the Client) unless the Goods are to be collected by or on behalf of the Client or the Client wrongfully fails to take delivery of the Goods in which event TRIANGLE shall be entitled to invoice the Client at any time after TRIANGLE has notified the Client that the Goods are ready for collection or (as the case may be) TRIANGLE has tendered delivery of the Goods.

5.2.2 TRIANGLE shall be entitled to invoice the Client as to 50 percent of the order value prior to TRIANGLE incurring any liability in respect thereof and as to the remaining 50 percent in accordance with sub paragraphs 5.2.1 above.

5.3 Unless otherwise agreed in writing by TRIANGLE, payment of all invoices will be due and payable, (without any deduction or withholding) in cash or cleared funds thirty days from the date of invoice.

5.4 If the Client shall fail to make payment in full in accordance with the provisions of this paragraph 5 then (without prejudice to any other rights of TRIANGLE) the Client shall without any need for TRIANGLE to give notice become liable to pay to TRIANGLE compound interest on the amount for the time being unpaid at the rate which is thirty percent per anum calculated from the date of due payment until the date of actual payment as well after as before any judgement and TRIANGLE shall be entitled at its option either:

5.4.1 to suspended all or any other supplies or deliveries to be made under that or any other Contract with the Client PROVIDED ALWAYS THAT in any event the Client shall not in any respect be released from its obligations to TRIANGLE under that or any such other Contract: or

5.4.2 to terminate the relevant Contract and/or other contract with the Client and to claim damages from the Client.

5.5 Time for payment is of the essence of the Contract.

6. Costs of Purchases and Client Approval

Subject to paragraph 4.2 above TRIANGLE undertakes not to purchase production materials or to incur costs chargeable to the Client without the Client’s prior agreement PROVIDED ALWAYS THAT the Client’s approval of copy, layouts, proofs, scripts, Contact Reports or schedules will constitute the authority to TRIANGLE to incur such costs. The Client shall not in any event unreasonably withhold or delay its approval of copy, layouts, proofs, scripts, Contact Reports or schedules PROVIDED ALWAYS THAT the Client shall be deemed to approve the same if it has not notified TRIANGLE of its non-approval within a period following receipt of the same which shall be reasonable having regard to the need for any changes which the Client may require and any requirements for publication, distribution for delivery which may exist.

7. Despatch and Delivery

7.1 Delivery dates are approximate only and, subject to paragraph 15.1 below, the time of delivery shall not be of the essence of the Contract.

7.2 Delivery of the Goods will take place at the premises of the Client or if some other place for delivery is agreed by TRIANGLE delivering the Goods to that place.

7.3 In cases where TRIANGLE expressly agrees to conclude the contract of carriage and/or arranges for the insurance of the Goods during transit TRIANGLE shall be deemed to be acting solely as agent of the Client and sub sections 2 and 3 of Section 32 of the Sale of Goods Act 1979 shall not apply.

7.4 The Client undertakes to inspect or to procure the inspection of the Goods at the earliest opportunity after delivery and in any event within 48 hours of delivery. Any claim for shortfall in a delivery of the Goods or claim that the Goods do not comply with the order confirmed by TRIANGLE must be notified in writing within five days of delivery. Failure to make any such claim within such period shall constitute unqualified acceptance of the Goods and waiver by the Client of all claims relating to non-delivery of the Goods, non-compliance of the Goods with the order or delivery of the wrong Goods or errors on TRIANGLE’s invoice as the case may be.

8. Risk

8.1 Subject to paragraph 8.3 below risk in the Goods sold shall pass to the Client on delivery.

8.2 The Client shall keep the Goods fully insured against all risks throughout the period between the risk therein passing to the Client and the property therein ceasing to remain with TRIANGLE and shall if required in writing by TRIANGLE produce evidence of such insurance to TRIANGLE.

8.3 If for any reason the Client is unable to accept or procure the acceptance of delivery of Goods at the time, when the Goods are due and ready for delivery, TRIANGLE shall (subject to TRIANGLE’s storage facilities permitting the same) store the Goods and take all reasonable steps to safeguard them until their actual delivery and the Client shall be liable to TRIANGLE for the reasonable cost (including insurance) of so doing.

9. Property

9.1 Notwithstanding delivery of the Goods (or of any documents representing the Goods) the property in the Goods shall remain with TRIANGLE until the Client has paid TRIANGLE in full in cash or cleared funds for the Goods and all other goods agreed to be sold by TRIANGLE to the Client for which payment is then due and the Client shall hold such Goods, in a fiduciary capacity as TRIANGLE’s bailee until such payment.

9.2 Until property in the Goods has passed to the Client in accordance with paragraph 9.1 above and without prejudice to TRIANGLE’s other rights:-

9.2.1 the Client shall (unless otherwise agreed by TRIANGLE in writing) take all reasonable steps to ensure that all Goods which are in the possession or control of the Client or the Client’s agent or customer are labelled or otherwise marked and kept apart from all other goods so that they may be readily identified and separated from other goods of the Client and third parties.

9.2.2 TRIANGLE shall have the right to require the Client to deliver up the Goods and if the Client fails to do so to repossess the Goods and for that purpose to go upon any premises, or the Client of any third party where the Goods are stored.

9.2.3 TRIANGLE shall have the right to bring an action against the Client for the price of the Goods at any time notwithstanding that property in the Goods has not passed to the Client.

9.2.4 the Client shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of TRIANGLE, but if the Client does so all monies owing by the Client to TRIANGLE shall forthwith become due and payable.

10. Alternations of Ancillary Contracts

Subject to paragraph 2.8 above, alterations of contracts can be made only when agreed by TRIANGLE and permitted by the terms of the contract entered into by TRIANGLE with suppliers of goods or service.

11. Copyright and Title

11.1 The copyright, design right and all other intellectual property rights in the Goods, all artwork, copy, promotion and publicity materials and all other work created or commissioned by TRIANGLE will vest in TRIANGLE and the Client will promptly assign such rights to TRIANGLE if called upon to do so. The Client may use such Goods or other material only directly for the purposes authorised by TRIANGLE. The Client may not create or have created copies of the Goods or other materials without TRIANGLE’s express prior written consent.

11.2 Such property other than copyright as shall subsist in the promotional and other material supplied by TRIANGLE to the Client, shall remain the property of TRIANGLE and the Client shall hold such material as bailee until TRIANGLE has been paid in full for any such material, and TRIANGLE shall have the right without prejudice to the obligation of the Client to pay for such material and for that purpose to go upon any premises occupied by the Client or any third party.

12. Specifications by the Client

12.1 The Client warrants that it has notified TRIANGLE in writing of all facts and circumstances and has provided all information necessary to enable TRIANGLE to carry out any work in the preparation, manufacture or modification of the Goods or the supply of the Services in accordance with requirements and specifications of the Client and that the Client will indemnify TRIANGLE in respect of all loss, damage or injury of any kind whatsoever by reason of any defect in any materials, containers, documents, equipment or specification of the Client or by reason of any failure on the part of the Client to disclose fully to TRIANGLE any information or circumstances which might lead to such claim; and

12.2 The Client shall further indemnify TRIANGLE against any claims made against TRIANGLE arising out of the infringement of any patent copyright or industrial or intellectual property right attributable to any goods, labels, packages or designs supplied or approved by the Client.

13. Warranty

13.1 TRIANGLE warrants that:  

13.1.1 all Goods manufactured by it are, at the date of delivery, free of defects in materials and workmanship; and  

13.1.2 all Services provided by TRIANGLE will be performed using reasonable skill and care.

13.2 In respect of Goods manufactured by TRIANGLE, provided that the Client notifies any defects within seven days of delivery TRIANGLE will free of charge, at its option:

(a) supply parts for the repair of proven defective Goods; or

(b) replace proven defective Goods; or

(c) repair proved defective Goods at its offices in Bristol, England, provided that the Goods shall be returned at the Client’s expense; or

(d) repair proven defective Goods at the Client’s premises, provided that TRIANGLE may charge the Client at TRIANGLE’s standard rates for on-site delays outside the control of the TRIANGLE’s engineers and for travelling time.    

13.3 In respect of Services supplied by TRIANGLE, provided the Client notifies any defects in the Services within seven days after completion of the Services, TRIANGLE will re-perform proven defective Services.

13.4 The Client shall not return Goods to TRIANGLE, whether under this warranty or otherwise, unless expressly instructed to do so by TRIANGLE and all Goods returned to TRIANGLE must be suitably packaged and all standard accessory equipment must be included with the returned Goods.

13.5 TRIANGLE makes no representations or warranties as to the benefit to the Client arising out of the provisions of the Goods or the Services.

14. Liability

14.1 TRIANGLE shall not be liable for non-delivery, short delivery or damage to the Goods occurring prior to delivery nor for failure to supply the Services in whole or in part unless claims in writing to that effect are received by TRIANGLE within five days of delivery (in the case of short delivery or damage), within five days of the date of performance (in the case of Services) and within five days of receipt of TRIANGLE’s invoice (in the case of non-delivery).

14.2 TRIANGLE shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow TRIANGLE’s instructions (whether oral or in writing) misuse or alteration or repair of the Goods without TRIANGLE’s approval in writing.

14.3 TRIANGLE shall be under no liability unless the total price for the Goods and the Services has been paid.

14.4 No warranty is given and TRIANGLE shall be under no liability in respect of parts, materials or equipment not manufactured by TRIANGLE, in respect of which the Client shall only be entitled to the benefit of any warranty or guarantee given by the manufacturer to TRIANGLE.

14.5 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

14.6 Nothing in these Conditions shall exclude or limit TRIANGLE’s liability under Part 1 of the Consumer Protection Act 1987 for death or personal injury caused by its negligence (in the case of contracts which are not international supply contracts as defined in Section 26 of the Unfair Contract Terms Act 1977).

14.7 TRIANGLE shall not be under any liability to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of profit or any consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of TRIANGLE, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or the Services or their use or resale by the Client except as expressly provided in these Conditions.

14.8 TRIANGLE’s liability for damage to property caused by the negligence of TRIANGLE or its employees shall in no circumstances exceed in respect of any single event or series or related events the sum of £250,000.

14.9 TRIANGLE’s liability in respect of any other claim whether in contract, tort (including negligence and breach of statutory duty), for misrepresentation (unless fraudulent) or howsoever otherwise arising shall in no circumstances exceed the net invoice price of the Contract in relation to which the claim is made.

14.10 TRIANGLE shall have no liability to the Client under the Contract or otherwise in respect of any advice or opinion given by TRIANGLE, its employees or agents unless such advise or opinion is in writing and is used by the Client in connection with Goods actually supplied by TRIANGLE to the Client and in any event such liability shall not exceed the applicable limit under clause 14.9 above.

14.11 The Client acknowledges that he is buying the Goods and the Services on the basis of this clause and that TRIANGLE’s price takes account of the limitations of liability contained herein.

15. Lien

Without prejudice to any other remedies which TRIANGLE may have TRIANGLE shall in respect of all debits due and payable by the Client to TRIANGLE have a general lien on all goods and property belonging to the Client in its possession and shall be entitled upon the expiration of fourteen days notice to the Client to dispose of such goods or property as it thinks fit and to apply any proceeds of sale thereof to the payment of such debts.

16. Insolvency and Breach of Contract

In the event that:

16.1 The Client shall commit any breach of the Contract and shall fail to remedy such breach (if capable of remedy) within a period of 30 days from receipt of notice in writing from TRIANGLE requesting such remedy; or

16.2 Any distress or execution is levied upon any of the goods or property of the Client; or

16.3 The Client offers to make any arrangements with or for the benefit of its creditors or commits any act of bankruptcy or being a limited company, has a Receiver or an Administrator or an Administrative Receiver appointed over the whole or any part of its undertaking, property or assets; or

16.4 Any order is made or a resolution is passed or analogous proceedings are taken for the winding up of the Client (save for the purpose of reconstruction or amalgamation without insolvency and previously approved in writing by TRIANGLE) then and in any such case TRIANGLE shall be entitled without prejudice to its other rights hereunder, forthwith to suspend all further supplies of the Services or the Goods until the default has been made good or determine at any time the Contract or any unfulfilled part thereof or at TRIANGLE’s option to make partial supplies or the Services or the Goods. Notwithstanding any such termination the Client shall pay to TRIANGLE at the rates specified above for all Services supplied and work done and materials used by TRIANGLE up to and including the date of termination.

17. Severance

If at any time all or any part of one or more of the provisions of these terms is held by any competent authority to be invalid, illegal or unenforceable in any respect under any law, the validity and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.

18. Law

These terms and each and every contract made pursuant thereto shall be governed in all respects by and in accordance with the laws of England and the Client hereby submits to the non-exclusive jurisdiction of the English Courts.