In these Conditions:
“Agreement” means an agreement for the supply or acquisition of Products or Services, which agreement shall incorporate these Conditions and any terms set out in any applicable Order or Letter;
“Client” means the purchaser or any Product(s) or recipient of any Services under this Agreement;
“Client IPRs” means any Intellectual Property Rights owned by the Client prior to the date of this Agreement or acquired, created or developed by or on behalf of the Client outside of this Agreement;
“Conditions” means these standard terms and conditions;
“Fee” means the charge for the Products or Services as set out in the applicable Order;
“Intellectual Property Rights” means all intellectual property and rights including (without limitation) trade marks or trade names, all patents, designs and design rights, database rights, copyright, letters patent, service marks, business names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in computer software and know-how in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist in any part of the world;
“Letter” means a letter from Thomas Lyte to which these Conditions are annexed;
“Order(s)” means a confirmed agreement for the supply of specified Products.
“Order Confirmation” means the document in which the Client’s Product requirements and the terms of delivery and payment are contained;
“Personalising” means individualising a Client’s Products by engraving, etching or embossing with a logo and/or copy, or creating unique packaging for the Client.
“Product(s)” means any goods sold by Thomas Lyte under this Agreement;
“Product-wrapped” means the packaging of Products in Thomas Lyte, client or other -branded Product boxes.
“Services” means the provision of Products and any other services provided by Thomas Lyte under this Agreement.
“Third Party IPRs” means any Intellectual Property Rights owned by a third party.
“Thomas Lyte ” means The Phoenix Luxury Co Ltd trading as Thomas Lyte of 9 Hurlingham Business Park, Sulivan Road, London SW6 3DU;
“Thomas Lyte Brand” means any logo or proprietorial mark owned by either The Phoenix Luxury Co Ltdor Thomas Lyte Ltd;
“Thomas Lyte IPRs” means any Intellectual Property Rights owned, created or developed by or on behalf of Thomas Lyte, including all Intellectual Property Rights in the Product(s) and/or any Intellectual Property Rights generated or developed in providing the Services and the Thomas Lyte Brand;
2. Placing an Order
Upon receiving a supply request, Thomas Lyte will refer to its stock levels, production and delivery schedule, and will, if it is capable of doing so, accept the request, and require an Order Confirmation from the Client. The Client must inspect, and confirm their acceptance to this. The Order will be confirmed when Thomas Lyte receives the Order Confirmation from the client, authorised either electronically or by signature.
3. Altering an Order
(a) It is understood that Thomas Lyte will prepare each Order in reliance upon the information contained in the Order Confirmation. Should the Client subsequently wish to change its order, Thomas Lyte will endeavour to amend the Order to take this into account, and, if possible, will not charge for the alteration to the Order.
(b) Should the Client wish to amend its Order, and it is not possible to do so without the incurrence of extra costs, Thomas Lyte shall be entitled to adjust the Fee to take into account any change made to an Order (unless the Client decides to forego the change, in which case the original Fee will apply). Examples of situations where further costs will be unavoidable include, without limitation, where Products have been Personalised and the Client subsequently wishes to alter either the Personalising or the choice of Product; or where Products have been Product-wrapped and the Client wishes to amend its Order in a way that requires the Products to be opened, and Product-wrapped again.
(c) Should the Client wish to amend its Order and it is not possible for Thomas Lyte to accommodate the change for any reason, Thomas Lyte will, subject to clause 4 below, supply the Client’s original Order.
4. Cancelling an Order
(a) In the case of an Order for Products that have not been personalised, cancellations are accepted if confirmed in writing within 48 hours of placing the order.
(b) In the case of an Order for Bespoke Products or Personalised Products, the Client may cancel its order if confirmed in writing within 48 hours of placing the order provided this is prior to personalising and /or commencement of production. Following the Personalising of Products or commencement of production, however, the Client may not cancel its Order. Once the Client has signed off the artwork and/or copy (either in writing, electronically or verbally) , Thomas Lyte is not responsible for informing the Client when Personalising will take place.
(c) Outside of these timescales Thomas Lyte will make its best endeavours to satisfy cancellation requests provided no personalisation has taken place and no goods / packaging have been purchased. Any such cancellations will be subject to a 25% cancellation charge.
(d) Notwithstanding the above, in the case of any Order or part of an Order for Products not in stock, which are ordered by Thomas Lyte specifically for the Client, the Client may not cancel the Order once the Products have been ordered by Thomas Lyte .
(a) The Client shall pay Thomas Lyte the Fee for the Products, which shall comprise the cost of the Products and any Personalising.
(b) In addition the Client shall pay for delivery, which shall be charged at cost plus a mark-up to cover administrative expenditure.
(c) Product-wrapping will be provided free of charge, except where the Client commissions customised packaging for its Products (in which case Product-wrapping shall be considered to be Personalising), or where the client returns Products.
(d) If the Client asks Thomas Lyte to purchase goods or commission services from a third party where the cost is likely to be substantial, Thomas Lyte will be entitled to require that all or some of that third party expense is paid in advance by the Client before confirming the purchase or commission.
(a) The Fees, all Expenses and all other sums payable under this Agreement are exclusive of value added tax (VAT) or other applicable sales tax or import duties and taxes where applicable which shall be payable at the prevailing rate.
(b) Where any sum payable by the Client under this Agreement is to be paid in a currency other than pounds sterling the sum in question will be converted into the currency of payment by reference to the relevant exchange rate as set out by the Financial Times on the day the invoice is sent.
(c) For web orders unless stated differently, payment for the Fee and delivery will be taken at the point of Order Confirmation. Invoices / receipts will be issued once the Products have been dispatched.
(d) For others orders you can pay us by company cheque, BACS, or credit/debit card (Visa, Mastercard, and American Express). Unfortunately, we must ask that payments under £150.00 are settled by credit/debit card only. Our settlement terms for invoiced items are 30 days from the date of the invoice . A full set of our terms and conditions are available on request.
(e) Without prejudice to Thomas Lyte ‘s other rights and remedies, interest at the rate of 6% (six per cent) per annum above the base rate of National Westminster Bank plc from time to time may be charged on any overdue amount from the due date until the date payment is received.
(f) Ownership of Products shall remain with Thomas Lyte until the Fee in respect of those Products has been paid in full.
(g) Proforma invoices are issued under the following circumstances:
(i) orders over £5,000, 50% proforma;
(ii) bespoke orders, 50% proforma;
(iii) overseas orders, 100% proforma;
(iv) new client orders, 100% proforma.
Proforma payments are required to be settled prior to the commencement of manufacture / personalisation as relevant.
This Agreement shall continue until terminated in accordance with the provisions of clause 13.
8. The Client’s Obligations
(a) The Client will provide at its own expense information that Thomas Lyte shall reasonably require to provide the Services.
(b) The Client shall be responsible for signing-off any artwork and/or copy prior to the Personalising of Products.
(c) The Client will indemnify Thomas Lyte against all damages, losses, expenses or liability (including reasonable legal fees and costs) incurred by Thomas Lyte as a result of, or in connection with, Thomas Lyte’s use of the Client IPRs in accordance with this Agreement.
9. Thomas Lyte ‘s obligations
(a) Thomas Lyte will use its best endeavours to complete the Client’s Order on time.
(b) Once the Order is confirmed, Thomas Lyte will obtain the Client’s written approval prior to Personalising any Products either in writing, electronically or verbally.
(c) If Thomas Lyte incorrectly deviates from approved artwork or copy, Thomas Lyte will, subject to stock levels, redo the affected part of the Client’s Order at no extra charge, and will pay any excess on the delivery charge caused by having to use an expedited delivery service. If Thomas Lyte cannot supply the same Products owing to depleted stock levels, it will offer the Client the choice of choosing alternative Products of equal value, or cancelling the Order.
(d) If Thomas Lyte supplies incorrect Products to the Client, it will, subject to stock levels, rectify the mistake at no extra charge to the Client.
10. Client and third-party errors
Thomas Lyte cannot be held responsible for:
(a) Errors caused by false or ambiguous information supplied by the Client or incorporated in artwork that the Client has supplied or approved;
(b) Errors or delays caused by Personalising services, provided that Thomas Lyte has supplied correct and timely information to such;
(c) Delays caused by couriers or the postal service, provided that Thomas Lyte has correctly addressed the Client’s Products.
11. Copyright and Other Intellectual Property Rights
(a) Nothing in this Agreement shall affect the ownership of the Client IPRs or the Thomas Lyte IPRs.
(b) The Client shall retain ownership of all Client IPRs. Upon placing an Order the Client grants to Thomas Lyte a non-exclusive, worldwide, royalty-free licence to use and modify the Client IPRs (i) for the purpose of supplying Products and/or Services and (ii) for use in its sales and marketing materials.
(c) Thomas Lyte shall retain ownership of all Thomas Lyte IPRs. The Client expressly acknowledges that all Intellectual Property Rights in the Product(s) and/or any Intellectual Property Rights generated or developed in providing the Services shall be the property of Thomas Lyte.
(d) Unless expressly agreed in an applicable Order or Letter, the Client shall not have any right of ownership, licence or right to use any Thomas Lyte IPRs or the Thomas Lyte Brand.
(e) The Client agrees and acknowledges that Thomas Lyte may incorporate Third Party IPRs into the Products and/or use Third Party IPRs in providing the Services. Unless expressly agreed in an applicable Order or Letter, the Client shall not have any right of ownership, licence or right to use any such Third Party IPRs.
(f) Nothing in this Agreement shall entitle the Client to use the Thomas Lyte Brand or any Thomas Lyte IPRs. The Client may not (i) repackage the Products or alter the Products in any way without Thomas Lyte’s prior written approval; or (ii) use the Thomas Lyte Brand in any context without Thomas Lyte’s prior written approval.
(a) For any claim under this Agreement, Thomas Lyte ‘s maximum liability shall be limited to the actual cost of the Products for which the claim is made.
(b) In no circumstances shall Thomas Lyte be liable in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof, for any loss of profit, business, contracts, revenues or anticipated savings; or for any special, indirect, incidental or consequential damage of any nature whatsoever.
(a) Notice of termination of this Agreement may be given by either party at any time. Upon either party providing notice, Thomas Lyte will, subject to Clause 4, complete any Orders then in existence, following which this Agreement will terminate.
(b) On termination for whatever reason, the Client will be responsible for all Fees incurred up to the date when termination takes effect.
(c) Either party may at any time terminate this Agreement (without limiting any other remedy) with immediate effect by giving written notice of its election to do so to the other party, should the other party:
(i) have an Administrator or Receiver appointed over the whole or any part of its assets or any order made or resolution passed for its administration or winding up (unless as part of a reconstruction or amalgamation) or compounds with or convenes a meeting of its creditors or suffers anything analogous to any of the foregoing under the law of any jurisdiction; or
(ii) materially breach any provision of this Agreement and fail to remedy such breach within 30 days after receipt of notice detailing the breach.
Any notice to be given under this Agreement will be in writing and sent to the registered or usual business address of the appropriate party or to such other address as such party may have specified by prior written notice to the other party. Such notice shall be deemed given upon personal delivery; when sent by confirmed facsimile; on the next working day following posting by special delivery; or 3 (three) days after posting if sent by ordinary first class post.
15. Failures, Delay
Notwithstanding clause 10, neither party will be liable for its failure or delay in performance of its obligations under this Agreement due to any circumstances beyond its reasonable control (including, without limitation, any form of industrial action).
Save as provided herein, this Agreement cannot be assigned by either party without the prior written agreement of the other party.
Failure by either party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision.
18. Offer of Employment
Each party hereby agrees not to induce any employee of the other to leave the other’s employment or contract for services of any kind to such persons at any time during the period of this Agreement or within 12 (twelve) months after its termination howsoever arising. Should either party recruit a member of staff from the other party, the recruiting party shall pay to the other party the cost of recruiting a replacement of the same level.
If any provision of this Agreement is declared by any judicial or other competent authority to be unenforceable the remaining provisions of this Agreement shall remain in full force and effect.
20. Entire Agreement
(a) These Conditions together with the Letter and any Orders constitute the entire Agreement between Thomas Lyte and the Client with respect to the Services and supersede all previous oral or written undertakings and agreements which may have subsisted. All other terms and conditions, express or implied, by statute or otherwise are excluded to the fullest extent permitted by law. Where there is a conflict between the terms of this Agreement and the terms of an Order Form, the terms of the Order Form shall prevail. Additions to or modifications of this Agreement will only be effective if in writing and signed by a duly authorised representative of the parties.
(b) Thomas Lyte shall, if requested by the Client, endeavour to quote any purchase order number provided by the Client on its invoices. However, the absence of such does not affect the Client’s obligation to pay sums due under this Agreement. Any terms and conditions contained in any purchase order are specifically excluded from this Agreement.
21. Rights of Third Parties
For the avoidance of doubt nothing in this Agreement shall confer on any third party any benefit or the right to enforce any term of this Agreement.
The Client warrants that the person signing this Agreement on its behalf is duly authorised to do so.
23. Privacy and Security Statement
We do not lease, sell or trade any private or corporate lists of our customers. Personal and company details are collected solely for the use of providing our Products and we work in full accordance with data protection legislation.
Card payments through the Thomas Lyte site are made through our secure server. Encryption technology is used which converts your data into code so it cannot be read except by the secure server. Authentication ensures that data is sent to the correct secure server and data integrity ensures it is sent accurately.
24. Governing Law
This Agreement will be governed by and construed in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts.