Terms and Conditions
The following Terms and Conditions constitute the entire agreement between
the parties and supersede any previous agreements, warranties, representations,
undertakings or understandings between the parties and may not be varied except
in writing.
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1. Definitions
- “Seller” means the party providing the goods or services under these terms and conditions.
- “Buyer” means the party contracting with the Seller to acquire the good and services supplied under these terms and conditions.
- “Work” means all goods (by way of intermediate or finished
product) and services supplied by the Seller to the Buyer.
- “Intermediates” means all products produced during the
manufacturing process including non-exhaustively discs, film, plate,
intellectual property.
- “Preliminary Work” means all work done in the concept and
preparatory stages (including non-exhaustively design, artwork, colour
matching).
- “Electronic File” means any text, illustration or other
matter supplied or produced by either Party in digitised form on disc, through
a modem, or by ISDN or any other communication link.
- “Periodical Publications” means publications produced at
(normally regular) intervals.
- “Insolvency” means the Buyer is in a position where it is
unable to pay its debts or has a winding up petition issued against it or has a
receiver, administrator or administrative receiver appointed to it or being a
person commits an act of bankruptcy or has a bankruptcy petition issued against
him.
2. Payment
- Estimates are based on the Seller’s current costs of
production and, unless otherwise agreed in writing, are subject to amendment to
meet any rise or fall in such costs that have taken place by the time of
delivery.
- Estimates are given exclusive of tax and the Seller
reserves the right to charge and the Buyer will pay any VAT or other tax
payable.
- All work carried out shall be charged. This includes all
Preliminary Work whether or not the Buyer agrees to that work being taken
forward to production.
- Any additional work required of the Seller by reason of the
Buyer supplying inadequate copy, incomplete or incorrect instructions or
insufficient materials; or late delivery of the same shall be charged.
- Payment shall become due before delivery of the Work. The
Seller, at his absolute discretion, may ask for part or full payment in advance
of starting the Work.
- If Credit Facilities have been granted, payment is due by
the end of the month following the month of Invoice. If any item(s) remain
unpaid by that due date charges will apply, in accordance with s5A and/or s6 of
the Late Payment Commercial Debt (Interest) Act 1998 or any subsequent
enactment. In addition, all invoices will become due and payable immediately
and will be treated as overdue items, with appropriate charges applied and all
costs reasonably incurred in collecting the debt payable by the Buyer.
- Unless otherwise agreed in writing, the price of the Work
will be “ex-works” and delivery shall be charged extra.
- Should the Work be suspended or delayed by the Buyer for
any reason the Seller shall be entitled to charge for storage and for loss of
or wastage of resources that cannot otherwise be used.
- Should the suspension or delay in 2(h) above extend beyond
30 days the Seller shall be entitled to immediate payment for work already
carried out, materials specially ordered and any other additional costs.
3. Credit Facilities
Credit facilities may be granted to applicants who complete the
Supplier’s Credit Account Application Form and who satisfy the Supplier’s
criteria as set out from time to time. Where facilities are granted the
Supplier reserves the right to withdraw them at any time, without having to
give their reasons and, in such a case, all outstanding invoices become due and
payable immediately.
4. Delivery
- Delivery of the Work shall be accepted when tendered.
- Unless otherwise agreed in writing completion and delivery
times are a guide only and, whilst the Seller will make every effort to adhere
to proposed timescales, time is not of the essence in any contract with the
Buyer.
- Unless otherwise agreed in writing, (in which case an extra
charge may be made) delivery will be to kerbside at the Buyer’s address and the
Buyer will make arrangements for off- loading and for any additional
transportation to its storage facility. d. Subject to any agreement as per 4(c)
above, delivery involving diff icult access and/or unreasonable distance from
vehicular access shall entitle the Seller to make an extra charge to reflect
its extra costs. e. Should expedited delivery be agreed the Seller shall be
entitled to make an extra charge to cover any overtime or any other additional
costs.
5. Materials supplied or specified by the Buyer
5.1 Electronic Files
- It is the Buyer’s responsibility to maintain a copy of any
original Electronic File provided by the Buyer.
- The Seller shall not be responsible for checking the
accuracy of supplied input from an electronic file unless otherwise agreed in
writing.
- Without prejudice to clause 5.2(b), if an electronic file
is not suitable for outputting on equipment normally adequate for such purposes
without adjustment or other corrective action the Seller may make a charge for
any resulting additional cost incurred or may reject the file without prejudice
to his rights to payment for work done/material purchased.
5.2 Other Materials
- Metal, film and other materials owned by the Buyer and
supplied to the Seller for the production of type, plates, film-setting,
negatives, positives, electronic files and the like shall remain the Buyer’s
exclusive property. However where the content is generated by the Seller, the
Seller may, in order to protect his intellectual property rights and at his
absolute discretion, replace such material with unused material of a similar or
better quality.
- The Seller may reject any film, discs, paper, plates,
electronic files or other materials supplied or specified by the Buyer which
appear to him to be unsuitable for the purpose intended. Additional cost
incurred if materials are found to be unsuitable during production may be
charged except that if the whole or any part of such additional cost could have
been avoided but for unreasonable delay by the Seller in as certaining the
unsuitability of the materials then that amount shall not be charged to the
Buyer.
- Without prejudice to clause 5.2.b, where materials are so
supplied or specified, and the Seller so advises the Buyer, and the Buyer
instructs the Seller in writing to proceed anyway, the Seller will use
reasonable endeavours to secure the best results, but shall have no liability
for the quality of the end- product(s).
- Quantities of materials supplied shall be adequate to cover
normal spoilage. Any costs incurred as a result of shortages, including re-
starting jobs, duplicating masters etc will be charged in addition to the
estimated price.
5.3 Risk and storage
- Buyer’s property and all property supplied to the Seller by or
on behalf of the Buyer shall while it is in the possession of the Seller or in
transit to or from the Buyer be deemed to be at Buyer’s risk unless otherwise
agreed in writing and the Buyer should insure accordingly.
- The Seller shall be entitled to make a reasonable charge
for the storage of any Buyer’s property left with the Seller before receipt of
the order or after notification to the Buyer of completion of the work.
5.4 Finished Goods
- The risk in the Work and all goods delivered in connection
with the Work shall pass to the Buyer on delivery and the Buyer should insure
accordingly.
- On completion of the Work, the Seller will store the
Buyer’s materials and Work for a maximum of one month, after which time they
will be destroyed without further notice.
6. Materials and equipment supplied by the Seller
- Metal, film and other materials owned by the Seller and
used in the production of intermediates, type, plates, film-setting, negatives,
positives, electronic files and other production processes, together with items
thereby produced, shall remain the Seller’s exclusive property.
- Film and plates, tapes, discs, electronic files or other
work destroyed immediately after the order is executed unless written
arrangements are made to the contrary. In the latter event, storage shall be
charged.
- The Seller shall not be obliged to download any digital
data from his equipment or supply the same to the Buyer on disc, tape or by any
communication link.
7. Retention of Title
- The Work remains the Seller’s property until the Buyer has
paid for it and discharged all other debts owing to the Seller.
- If the Buyer becomes subject to Insolvency and the Work has
not been paid for in full the Seller may take the goods back and, if necessary,
enter the Buyer’s premises to do so, or to inspect and/or label the goods so as
to identify them clearly.
- If the Buyer shall sell the goods before they have been
paid for in full he shall hold the proceeds of sale on trust for the Seller in
a separate account until any sum owing to the Seller has been discharged from
such proceeds.
- Where the Buyer is in breach of these Terms or performs any
act of Bankruptcy or Insolvency the Seller reserves the right to approach the
Buyer’s customer and to offer the Work directly to them, notwithstanding the
fact that this will involve advising the Buyer’s customer that the Buyer is in
breach or in default.
8. Proofs and variations
- The Seller shall incur no liability for any errors not
corrected by the Buyer where the Buyer has been provided with proofs. The
Buyer’s alterations and additional proofs necessitated thereby shall be charged
extra. When style, type or layout is left to the Seller’s judgement, changes
therefrom made by the Buyer shall be charged extra.
- Where the Buyer specifically waives any requirement to
examine proofs the Seller is indemnified by the Buyer against any and all
errors in the finished Work.
- Colour proofs Due to differences in equipment, paper, inks
and other conditions between colour proofing and production runs, a reasonable
variation in colour between colour proofs and the completed job will be deemed
acceptable unless otherwise agreed in writing.
- Variations in quantity Every endeavour will be made to
deliver the correct quantity ordered, but estimates are conditional upon
margins of 5 per cent for work being allowed for overs or unders the same to be
charged or deducted, unless otherwise agreed in writing.
9. Claims and Liability
9.1 Claims
- Advice of damage, delay or loss of goods in transit or of
non- delivery must be given in writing to the Seller and the carrier within
three clear days of delivery (or, in the case of non-delivery, within 3 days of
notification of despatch of the goods) and any claim in respect thereof must be
made in writing to the Seller and the carrier within seven clear days of
delivery (or, in the case of non-delivery, within 7 days of notification of
despatch). All other claims must be made in writing to the Seller within 14
days of delivery. The Seller shall not be liable in respect of any claim unless
the aforementioned requirements have been complied with except in any
particular case where the Buyer proves that (i) it was not possible to comply
with the requirements and (ii) the claim was made as soon as reasonably
possible.
- If the Work is defective so that the Buyer may in law
reject it, said rejection must take place within 7 days of delivery of the
goods, failing which the Buyer will be deemed to have accepted the Work.
- In the event of all or any claims or rejections the Seller
reserves the right to inspect the Work within seven days of the claim or
rejection being notified.
9.2 Liability
- Insofar as is permitted by law where Work is defective for
any reason, including negligence, the Seller’s liability (if any) shall be
limited to rectifying such defect, or crediting its value against any invoice
raised in respect of the Work.
- Where the Seller performs its obligations to rectify
defective Work under this condition the Seller shall not be liable for indirect
loss, consequential loss or third party claims occasioned by defective Work and
the Buyer shall not be entitled to any further claim in respect of the Work nor
shall the Buyer be entitled to repudiate the contract, refuse to pay for the
work or cancel further deliveries.
- Defective Work must be returned to the Seller before
replacement or credits can be issued. If the subject Work is not available to
the Seller the Seller will hold that the Buyer has accepted the Work and no
credits or replacement Work will be provided.
- The Seller shall not be liable for indirect loss,
consequential loss or third party claims occasioned by delay in completing the
work or for any loss to the Buyer arising from delay in transit, whether as a
result of the Seller’s negligence or otherwise.
- Where the Seller offers to replace defective Work the Buyer
must accept such an offer unless he can show clear cause for refusing so to do.
If the Buyer opts to have the work re- done by any third party without
reference to the Seller the Buyer automatically revokes his right to any remedy
from the Seller, including but not exclusively the right to a credit in respect
of Work done by the Seller.
- Where the Work will be forwarded by or on behalf of the
Buyer to a third party for further processing the Buyer will be deemed to have
inspected and approved the Work prior to forwarding and the Seller accepts no
liability for claims arising subsequent to the third party’s processing.
- The Seller reserves the right to reject any work forwarded
to him after initial processing by a third party as soon as is reasonably
practicable without processing the work any further. Should the Buyer require
the Seller notwithstanding to continue, then the Seller is only obliged to do
so after confirmation from the Buyer in writing.
- Nothing in these conditions shall exclude the Seller’s
liability for death or personal injury as a result of its negligence.
10. Insolvency
Without prejudice to other remedies, if the Buyer becomes insolvent, the Seller
shall have the right not to proceed further with the contract or any other work
for the Buyer and be entitled to charge for work already carried out (whether
completed or not) and materials purchased for the Buyer, such charge to be an
immediate debt due to him. Any unpaid invoices shall become immediately due for
payment.
11. General Lien
Without prejudice to other remedies, in respect of all unpaid debts
due from the Buyer the Seller shall have a general lien on all goods and
property of or provided by the Buyer in his possession (whether worked on or
not) and shall be entitled on the expiration of 14 days’ notice to dispose of
such goods or property as agent for the Buyer in such manner and at such price
as he thinks fit and to apply the proceeds towards such debts, and shall when
accounting to the Buyer for any balance remaining be discharged from all
liability in respect of such goods or property.
12. Illegal matter
- The Seller shall not be required to print any matter which
in his opinion is or may be of an illegal or libellous nature or an
infringement of the proprietary or other rights of any third party.
- The Seller shall be indemnified by the Buyer in respect of
any claims, costs and expenses arising out of the printing by the Seller for
the Buyer of any illegal or unlawful matter including matter which is libellous
or infringes copyright, patent, design or any other proprietary or personal
rights. The indemnity shall include (without limitation) any amounts paid on a
lawyer’s advice in settlement of any claim that any matter is libellous or such
an infringement.
13. Periodical publications
A contract for the printing of a periodical publication may not be terminated
by either party unless 13 weeks notice in writing is given in the case of
periodicals produced monthly or more frequently or 26 weeks notice in writing
is given in the case of other periodicals. Notice must be given after
completion of work on any one issue. Nevertheless the Seller may terminate any
such contract forthwith should any sum due thereunder remain unpaid.
14. Force majeure
The Seller shall be under no liability if he shall be unable to carry out any
provision of the contract for any reason beyond his reasonable control
including (without limiting the foregoing): Act of God; legislation; war; fire;
flood; drought; inadequacy or unsuitability of any instructions, electronic
file or other data or materials supplied by the Buyer; failure of power supply;
lock-out, strike or other action taken by employees in contemplation or
furtherance of a dispute; or owing to any inability to procure materials
required for the performance of the contract. During the continuance of such a
contingency the Buyer may by written notice to the Seller elect to terminate
the contract and pay for work done and materials used, but subject thereto
shall otherwise accept delivery when available.
15. Data Protection
The Buyer is hereby notified that the Seller may transfer personal information
about the Buyer to a Credit Agency pursuant to clause 2f above.
16. Law
These conditions and all other express and implied terms of the contract shall
be governed and construed in accordance with the laws of England and the
parties agree to submit to the jurisdiction of the courts of England and Wales.
17. Notices
All specifications and notices relied on by either party and all variations to
this agreement must be in writing and include a duly authorised signature.
18. Consumers
Nothing in these Terms shall affect the rights of Consumers.
19. Severability
All clauses and sub-clauses of this Agreement are severable and if any clause
or identifiable part thereof is held to be unenforceable by any court of
competent jurisdiction then such enforceability shall not affect the
enforceability of the remaining provisions or identifiable parts thereof in
these Terms and Conditions.
Issued 1st March 2005