NDlon

Terms and Conditions of Sale

Terms and Conditions of Sale

Version 1.7

Last updated 1st March 2023

1. Definitions

In this document the following words shall have the following meanings:

1.1 “Buyer” means the organisation or person who buys Goods from the Seller;

1.2 “Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;

1.3 “Delivery date” means the date specified by the Seller when the Goods are to be delivered;

1.4 “Goods” means the intellectual articles, professional services or other resources supplied to the Buyer by the Seller;

1.5 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;

1.6 “Price” means the price set out in the list of prices of the Goods maintained by the Seller as amended from time to time or such other price as the parties may agree in writing plus such carriage, packing, insurance or other charges or interest on such as may be quoted by the Seller or as may apply in accordance with these conditions;

1.7 “Seller” means Newton Day Limited, 3rd Floor 86-90 Paul Street, London EC2A NE.

2. General

2.1 The essence of this agreement is that Newton Day Ltd shall provision marketing and consulting services billed monthly in arrears, providing advice, program management, and activities in support of business growth to Buyer. Program documentation shall include an indicative Statement of Work guideline (updated quarterly) that Seller will collaborate and advise on.  The SOW shall be suggestive of the type and nature of activities to be performed. Given there shall always be changes (i.e., additions and omissions discussed/requested by Buyer, etc.) during the 90-day period, these activities are taken as a guide to the nature of services being delivered.  For the avoidance of doubt, our fees are billed on the monthly provisioning of expertise and resources used to deliver programs according to these Terms and Conditions of Sale, and not specific items stated in SOW guidelines.

2.2 These conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may seek to apply under any purchase order, order confirmation or similar document.

2.3 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.

2.4 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.

2.5 Any variation to these Conditions (including any special terms and conditions agreed between the parties including without limitation as to discounts) shall be inapplicable unless agreed in writing by the Seller.

3. Price and Payment

3.1 The work specifications to determine the Price as outlined in our Proposal or Statement-of-Work shall apply.

3.2 Payment of the Price is paid in arrears of any work done and is due no later than15-days following the date of invoice.

3.3 The Seller shall be entitled to charge interest on overdue invoices from the date when payment becomes due interest to accrue from day to day until the date of payment at a rate of 2% per annum above the base rate of the Bank of England from time to time.

3.4 The Seller reserves the right to grant, refuse restrict, cancel, or alter credit terms at its sole discretion at any time.

3.5 If payment of the Price or any part thereof is not made by the due date, the Seller shall be entitled to:

3.5.1 require payment in advance of delivery in relation to any Goods not previously delivered;

3.5.2 refuse to make delivery of any undelivered Goods whether ordered under the contract or not and without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery;

3.5.3 appropriate any payment made by the Buyer to such of the Goods (or Goods supplied under any other contract) as the Seller may think fit;

3.5.4 terminate the contract;

3.5.5 charge a compound monthly interest equivalent to 5% on the monthly anniversary of any payment that falls beyond its due date, and every month thereafter, until such time as the invoice is paid in full;

3.5.5 charge a re-invoicing fee of £85, in addition to any other incremental charges to cover related administration costs.

4. Description

Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract.

5. Sample

Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the value of the Product, and not so far as to constitute a sale by sample or transfer of any associated Intellectual Property.

6. Delivery

6.1 Unless otherwise agreed in writing, delivery of the Goods shall be seen to have happened as and when materials are published in their Facebook Workplace account.

6.2 The date of delivery specified by the Seller is an estimate only. Time for delivery shall not be of the essence of the contract and while every reasonable effort will be made to comply with such dates compliance is not guaranteed and the Buyer shall have no right to damages or to cancel the order for failure for any cause to meet any delivery date stated.

6.3 If the Seller is unable to deliver the Goods for reasons beyond its control, then the Seller shall notify the Buyer accordingly, and shall be entitled to claim any outstanding fees for any work done prior to the date of this notice.

6.4 Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within 1 month of the delivery date.

7. Acceptance

7.1 The Seller is a producer of Goods and the Buyer is exclusively responsible for detailing the specification of the Goods, for ascertaining the use to which they will be put and for determining their ability to function for that purpose.

7.2 The Buyer shall be deemed to have accepted the Goods upon 5 working days of receipt. Accordingly, no claim for defect, damage, or quality will be entertained (without prejudice to the Seller’s other rights pursuant to these Conditions) unless written notice together with all supporting evidence is received by the Seller within 5 working days of delivery. After acceptance, the Buyer shall not be entitled to reject Goods that are not in accordance with the contract.

7.3 The Buyer shall not remove or otherwise interfere with the marks or numbers on the Goods.

7.4 The Buyer shall accept delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that any such discrepancy shall not exceed 5%, the Price to be adjusted pro-rata to the discrepancy.

8. Revisions and Reworking

8.1 The Seller shall agree to make one round of content revisions to Goods at no charge to the Buyer, and subsequent changes at an hourly rate of £50/hour, provided a request is received in writing by the Seller within 5 working days of delivery.

8.2 The Buyer shall agree to pay for subsequent rounds of changes to Goods at an hourly rate of £50/hour.

9. Risk and Title

9.1 Risk of damage or loss of the Goods shall pass to the Buyer in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available.

9.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the Price of the Goods and of all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due.

10. Insolvency of Buyer

10.1 If the Buyer fails to make payment for the Goods in accordance with the contract of sale or commits any other breach of this contract of sale or if any distress or execution shall be levied upon any of the Buyer’s property or the Goods or if the Buyer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented of if a receiver, administrator administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or assets or if the Buyer shall suffer any analogous proceedings under foreign law or if any such matter as provided for in this clause is reasonably apprehended by the Seller all sums outstanding in respect of the Goods shall become payable immediately.

10.2 The Seller may in the circumstances set out in clause 9.1 above also in its absolute discretion, and without prejudice to any other rights which it may have, exercise any of its rights pursuant to clause 8 above.

11. Warranty

11.1 Where the Goods are found to be defective, the Seller shall replace defective Goods free of charge.

11.1.1. the Buyer notifying the Seller in writing immediately upon the defect becoming apparent;

11.1.2. the defect being due to faulty design, materials, or workmanship;

11.2 The Seller shall be entitled in its absolute discretion to refund the Price of the defective Goods in the event that the Price has already been paid.

11.4 The remedies contained in this Clause are without prejudice and subject to the other Conditions herein, including, but without limitation, to conditions 11 and 12 below.

12. Liability

12.1 No liability of any nature shall be incurred or accepted by the Seller in respect of any representation made by the Seller, or on its behalf, to the Buyer, or to any party acting on its behalf, prior to the making of this contract where such representations were made or given in relation to:-

12.1.1. the correspondence of the Goods with any description or sample;

12.1.2. the quality of the Goods; or

12.1.3. the fitness of the Goods for any purpose whatsoever.

12.2 No liability of any nature shall be accepted by the Seller to the Buyer in respect of any express term of this contract where such term relates in any way to:

12.2.1. the correspondence of the Goods with any description;

12.2.2. the quality of the Goods; or

12.2.3. the fitness of the Goods for any purpose whatsoever.

12.3 Except where the Buyer deals as a consumer all other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or otherwise are hereby excluded from the contract to the fullest extent permitted by law.

12.4 For the avoidance of doubt the Seller will not accept any claim for consequential or financial loss of any kind however caused.

13. Limitation of Liability

13.1 Where any court or arbitrator determines that any part of Clause 11 above is, for whatever reason, unenforceable, the Seller shall be liable for all loss or damage suffered by the Buyer but in an amount not exceeding the Price.

13.2 Nothing contained in these Conditions shall be construed so as to limit or exclude the liability of the Seller for death or personal injury as a result of the Seller’s negligence or that of its employees or agents.

14. Intellectual Property Rights

14.1 Where any Goods supplied by us embody, include or contain computer program(s) and/or related documentation the copyright in which is owned by a third party, all rights and liabilities associated with the use and/or reproduction thereof will be subject to the terms of the applicable end user license, to the exclusion of all liabilities and obligations on our part.

14.2 The Buyer will indemnify us against all liabilities for infringement of third party intellectual property rights arising from our compliance with the Buyer’s specific requirements regarding design or specification for the Goods or arising from the use of the Goods in combination with other products.

14.3 In the event that all the Goods or the use thereof (subject as aforesaid) are held to constitute an infringement of any intellectual property rights and the use is thereby prevented, the will at its own expense and option either procure for the Buyer the right to continue using the Goods or replace the same with a non-infringing product or modify the Goods so that they become non-infringing or may elect to retake possession of the Goods and refund the Price. Subject to the foregoing, the Seller shall be under no liability to the Buyer for any loss, damage or enquiry, whether direct or indirect, resulting from any intellectual property right infringement of the Goods.

14.4 All Intellectual Property Rights produced from or arising as a result of the performance of any contract shall, so far as not already vested, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties.

15. Force Majeure

The Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lockouts, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may without liability on its part, terminate the contract or any part of it.

16. Relationship of Parties

Nothing contained in these Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Conditions shall be deemed to construe either of the parties as the agent of the other.

17. Assignment and Sub-Contracting

The contract between the Buyer and Seller for the sale of Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Buyer, without the prior written consent of the Seller.

18. Waiver

The failure by either party to enforce at any time or for any period any one or more of the Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Conditions of this Agreement.

19. Severability

If any term or provision of these Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.

20. No Set Off

The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have for any reason whatsoever.

21. Term and Termination

21.1 The initial term of this Agreement shall be 3 calendar months from the point of commencement, after such time either Party may choose to cancel this Agreement without redress, giving one calendar month’s notice.   Buyer must give written notice to a representative of the Seller before the current billing month comes to an end.

21.2 Either party may terminate this Agreement with immediate effect should a breach of this Agreement occur including but not limited to misrepresentation or illegal action. 

22. Entire Agreement

These Conditions and any documents incorporating them or incorporated by them constitute the entire agreement and understanding between the parties.

23. Governing Law and Jurisdiction

This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusion jurisdiction of the English courts.