Terms of service
Pigment Productions Limited – Terms and Conditions for Online Sales
1 Definitions and Interpretation
1.1 The following definitions and rules of interpretation apply in these terms and conditions:
“Business Day” a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
“Conditions” the terms and conditions set out in this document as amended from time to time in accordance with clause 11.9;
“Contract” the contract between Pigment and the Customer for the sale and purchase of the Goods in accordance with these Conditions;
“Customer” the person or firm who purchases the Goods from Pigment;
“Delivery Location” has the meaning given in clause 4.2;
“Force Majeure Event” an event, circumstance or cause beyond a party’s reasonable control;
“Goods” the goods (or any part of them) set out in the Order;
“Insolvency Event” the other party: (a) enters into liquidation or a winding up petition is presented against the company or a resolution is passed for the voluntary winding up of the company; (b) enters into administration or any steps are taken to place the company into administration such as the filing at court of an administration application or a notice of intention to place the company into administration; (c) proposes to make any voluntary arrangements with its creditors; (d) has a receiver, liquidator, administrator, nominee, supervisor, trustee or an individual with a similar role appointed over any of its assets; or (e) suffers an event which, under the law of a different country, is equivalent to any of the previously specified acts or events;
“Order” the order placed by the Customer via Pigment’s website;
“Pigment” Pigment Productions Limited, a company registered in England and Wales (company number 05968987) whose registered address is at Chadwick House, Off Grange Avenue, Harrogate, North Yorkshire, HG1 2AN; and
“Website” https://www.pigmentproductions.com/
1.2 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
1.3 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.
1.4 A reference to “writing” or “written” includes email but not fax.
2 Basis of Contract
2.1 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.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when Pigment either takes payment for the Goods or makes the Goods available for Delivery, at which point and on which date the Contract shall come into existence.
2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.5 Any samples, drawings, descriptive matter or advertising produced by Pigment and any descriptions or illustrations contained in Pigment’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
3 Goods
3.1 The description of the Goods will be as specified on the Website as agreed at the time of the Order.
3.2 The Customer acknowledges that Pigment will make every effort to accurately display colours on the Website, however, the colours on the Website may be affected by the settings of the electronic device on which they are viewed.
3.3 Pigment reserves the right to amend the Good’s description if required by any applicable statutory or regulatory requirement.
3.4 The Customer agrees that it shall not:
3.4.1 copy or reproduce the Goods or produce goods which are similar to, or substantially based on the Goods for sale to its customers;
3.4.2 modify or amend the Goods or authorise any other act which may infringe the Intellectual Property Rights in the Goods; or
3.4.3 bring the reputation of Pigment into disrepute or harm when re-selling the Goods to its customers.
4 Delivery
4.1 Pigment shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods.
4.2 Pigment shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”).
4.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Pigment shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Pigment with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If Pigment fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Pigment shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Pigment with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to accept delivery of the Goods, Pigment shall be entitled to redeliver the Goods or resell or otherwise dispose of part or all of the Goods.
5 Quality
5.1 Pigment warrants that on delivery, the Goods shall conform in all material respects with their description and be free from material defects in design, material and workmanship.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to Pigment within 7 days of Delivery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 Pigment is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by Pigment) returns such Goods to Pigment’s place of business at Pigment’s cost,
Pigment shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 Pigment shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 if:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.3.2 the Customer alters or repairs such Goods without the written consent of Pigment;
5.3.3 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.4 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, Pigment shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by Pigment.
6 Intellectual Property Rights
6.1 All Intellectual Property Rights in the Goods or in connection with the Goods shall belong to Pigment or its third party licensors (as the case may be).
6.2 No right or licence is granted to the Customer in respect of the Intellectual Property Rights of Pigment, except the right to re-sell the Goods in the Customer’s ordinary course of business.
7 Title and Risk
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the earlier of:
7.2.1 Pigment receives payment in full (in cash or cleared funds) for the Goods; or
7.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 7.3.
7.3 Subject to clause 7.4, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Pigment receives payment for the Goods. However, if the Customer resells the Goods before that time:
7.3.1 it does so as principal and not as Pigment’s agent; and
7.3.2 title to the Goods shall pass from Pigment to the Customer immediately before the time at which resale by the Customer occurs.
7.4 At any time before title to the Goods passes to the Customer, Pigment may:
7.4.1 by notice in writing, terminate the Customer’s right under clause 7.3 to resell the Goods or use them in the ordinary course of its business; and
7.4.2 require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
8 Price and Payment
8.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Pigment’s published price list in force as at the date of delivery.
8.2 The price of the Goods:
8.2.1 excludes amounts in respect of value added tax (“VAT”), which the Customer shall additionally be liable to pay to Pigment at the prevailing rate, subject to the receipt of a valid VAT invoice; and
8.2.2 excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
8.3 Pigment may invoice the Customer for the Goods on or at any time after the completion of delivery.
8.4 The Customer shall pay each invoice submitted by Pigment by the date specified in the Order, in full and in cleared funds to a bank account nominated in writing by Pigment. Time for payment shall be of the essence of the Contract.
8.5 If the Customer fails to make a payment due to Pigment under the Contract by the due date, then, without limiting Pigment’s remedies under clause 10, 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 8.5 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
8.6 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).
9 Limitation of Liability
9.1 Nothing in the Contract limits any liability for:
9.1.1 death or personal injury caused by negligence;
9.1.2 fraud or fraudulent misrepresentation; or
9.1.3 any liability that legally cannot be limited.
9.2 Subject to clause 9.1, Pigment’s total liability to the Customer howsoever arising, whether under contract, breach of statutory duty, restitution, indemnity or tort (including negligence) shall not exceed the value of the Order.
9.3 Subject to clause 9.1, Pigment shall not be liable for the following: loss of profits; loss of sales or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill; and indirect or consequential loss.
10 Termination
10.1 Without limiting its other rights or remedies, either party may terminate this Contract with immediate effect by giving written notice to the Customer if:
10.1.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so; or
10.1.2 the other party is subject to an Insolvency Event.
10.2 Without limiting its other rights or remedies, Pigment may terminate the Contract, or suspend an Order, with immediate effect if the Customer fails to pay any amount due under the Contract on the due date for payment.
10.3 On termination of the Contract for any reason the Customer shall immediately pay to Pigment all of Pigment’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Pigment shall submit an invoice, which shall be payable by the Customer immediately on receipt.
10.4 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
10.5 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 General
11.1 Force Majeure. Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly.
11.2 Bribery Act 2010, Modern Slavery Act 2015 and Criminal Finances Act 2017. The parties shall comply with the Bribery Act 2010, Modern Slavery Act 2015 and the Criminal Finances Act 2017.
11.3 Assignment and Transfer. The Customer may not subcontract, assign, delegate, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under the Contract without Pigment’s prior written consent.
11.4 Further Assurance. The Customer shall and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to the Contract.
11.5 Entire Agreement. The Contract (and the documents referred to within it) contains all the terms which the parties have agreed with respect to its subject matter and supersedes all previous agreements and understandings between the parties (whether oral or in writing) relating to such subject matter. Each party acknowledges and agrees that it has not been induced to enter into the Contract by a statement or promise which it does not contain or is not contained in a document referenced within it. All warranties, conditions and other terms (whether express or implied) that are not set out in the Contract are (to the fullest extent permitted by law) excluded from the Contract.
11.6 No Partnership/Agency. The Contract constitutes a contract for the provision of services and not a contract of employment. Nothing in the Contract is intended to, or will be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
11.7 Third Party Rights. A person who is not a party to the Contract shall not have any rights to enforce any term of the Contract.
11.8 Variation. No variation of the Contract shall be effective unless it is in writing and signed by each of the parties (or their authorised representatives).
11.9 Waiver. A waiver of any rights or remedies under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
11.10 Severability. If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction then it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible that provision shall be deemed to be omitted from the Contract in so far as the Contract relates to that jurisdiction and the validity and enforceability of that provision in other jurisdictions and the other provisions of the Contract shall not be affected or impaired.
11.11 Governing Law and Jurisdiction. 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 English law. Save that claims may be brought in any competent jurisdiction for (i) injunctive relief and (ii) claims relating to intellectual property or for breaches of confidentiality obligations, 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.