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Terms & Conditions Richard McLaughlin t/a 'the Seller'
Conditions of Business – Design & Printing Amended March 2006 Your statutory rights are not affected by these terms and conditions. 1. Introduction In these Conditions, the following terms and abbreviations are used from time to time, and they shall have the meanings given to them here. "the Seller" Digimacmarketing / Richard McLaughlin "Client" Company or individual ordering the work “Delivery” Physical or electronic (internet) delivery of Goods or Design “Collection” Physical receipt of Goods or physical/electronic receipt of Design “Design” An arrangement of pictures and/or shapes and/or text, combined in a viewable and usable format, be it physical (printed picture or layout), or electronic/magnetic (a viewable, printable and editable computer data file). “Goods” are as specified on the order form “Deposit ” means either 10%, 25% or 50% of the Price (at the discretion of 'the Seller') payable by the Client to 'the Seller' in advance or during the manufacture of the Goods "the Premises" means the property at which the Goods are to be delivered, either by 'the Seller', 'the Seller'’s affiliate, or by or on behalf of the Client
"the Price" means the price for the Goods/Design set out in 'the Seller'’s quotation/estimate for the Goods/Design, together with any revisions made to the Price in accordance with these conditions and shall not include delivery of the Goods to the Premises. The Price is exclusive of VAT unless stated.
“Run on” Additional Goods order which uses the same Plates.
“Plates” Metal Plates made from the Design to print the Goods.
2. Sale 2.1 Subject to condition 6 below, 'the Seller' shall sell and the Client shall purchase the Goods in accordance with any written order of the Client which is accepted by 'the Seller', thereby forming the contract subject to these conditions. 2.2 No variation to these conditions shall be binding unless agreed in writing between the authorised representatives of 'the Seller' and the Client. 2.3 Any representations made by 'the Seller' through its employees or agents shall not be binding on 'the Seller', unless confirmed in writing. In entering into the contract the Client acknowledges that it does not rely on, and waives any claim for breach of, any representations which are not so confirmed. 2.4 Any advice or recommendation given by 'the Seller' or its employees or agents to the Client or its employees or agents as to the storage, application or use of the Design or Goods which is not confirmed in writing by 'the Seller', is followed or acted upon entirely at the Client's own risk. 2.5 Any manifest 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 'the Seller' shall be subject to correction without any liability on the part of 'the Seller'. 3. Cancellation of the Contract 3.1 The contract may be terminated in the following circumstances:
3.1.1 by either party giving written notice to the
other within seven days from the date on which the contract is made
provided that no order which has been accepted by 'the Seller' may
be cancelled by the Client except with the agreement in writing of
'the Seller' and on terms that the Client shall be responsible for
all loss (including loss of profit), costs (including the costs of
3.1.2 by 'the Seller' giving written notice to the Client following either:
3.1.2.1 unsatisfactory credit references obtained in respect of the Client;
3.1.2.2 any right arising on the part of 'the Seller' under these conditions to terminate the contract
3.1.3 by 'the Seller' giving immediate written notice, if in the opinion of 'the Seller', either the Client’s requirements for the Goods, or 'the Seller'’s ability to supply the goods cannot be met. 3.2 If termination is by the Client giving notice within seven days of the date of the contract, the Deposit shall be returned less any The Client shall also be responsible for any costs incurred by 'the Seller', in connection with, or paid, or agreed to be paid, by 'the Seller' in settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property right of any other person which results from 'the Seller''s use of the Client's specification, or any item, phrase, logo or picture, or other relevant item supplied by the Client for use in the Goods. 4. Specification 4.1 Subject to what it said elsewhere in these conditions about such matters, the quantity, quality and, description of any specification for the Goods are those set out on the front of these conditions. 'the Seller' shall be entitled to sub-contract any service it agrees to perform. Whether or not so stated, the Goods shall be produced to ‘acceptable tolerances’ in accordance with the British Printing Industries Federation standards, which standards are incorporated into these conditions by this reference. The quantity of goods to be supplied is subject to a variance of between plus 10% or minus 10% of the quantity stated on the Print Quotation/Order. 4.2 If the Goods are to be printed, or any process is to be applied to the Goods by 'the Seller' in accordance with a specification submitted by the Client, the Client shall be responsible for any increased costs incurred by 'the Seller' in complying with any Client’s specification over and above the costs 'the Seller' would have incurred in manufacturing the Goods to its own previously submitted specification. The Client shall also be responsible for any costs incurred by 'the Seller', in connection with, or paid, or agreed to be paid, by 'the Seller' in settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property right of any other person which results from 'the Seller''s use of the Client's specification, or any item, phrase, logo or picture, or other relevant item supplied by the Client for use in the Goods. 4.3 'the Seller' reserves the right to make any changes in the specification in the Goods which are required to conform them with any applicable safety or other statutory requirement or, where the Goods are to be supplied to the Client's specification, which do not materially affect their quality or performance. 4.4 All Goods are supplied strictly on the understanding that no guarantee can be given to the accuracy of colour reproduction, within industry tolerances. If the Client requires that a particular colour be accurately reproduced according to an industry standard colour chart, then the Client must specify which colour (by reference to a Pantone color chart) and where in the Goods it is to be used. Unless the use of specific Pantone colours appears in the Specification all Goods will be subject to colour variations. 4.5 Where Goods are reprinted 'the Seller' cannot guarantee that the same printer, print process or print machinery will be used. Variations in colour may occur between print runs of the same document, even when the time interval between printing is a matter a few days. All stated print and trim sizes are approximate and 'the Seller' will accept no liability for minor variations in size. 4.6 The Client shall be responsible for paying, or instructing 'the Seller' to pay for all patent, copyright, design, trademark or other industrial or intellectual property right licences and fees relating to material used in the production of the Goods, except where the material has been incorporated in the Goods by 'the Seller' in accordance with the specification. The Client shall also be responsible for any costs/fines incurred by 'the Seller', in connection with the infringement of any patent, copyright, design, trademark or other industrial or intellectual property right of any other person which results from 'the Seller''s use of material supplied by the Client. 4.7 The Client shall be wholly responsible and liable for all content produced in the Goods as agreed by them in the final pre-print proof. Corrections, including alterations in style, and the cost of additional proofs necessitated by such corrections will be charged extra. Proofs of all work may be submitted for the Clients approval and in that event no responsibility will be accepted for any errors in them not corrected by him. 4.8 'the Seller' reserves the right to delay printing until the Client has agreed in writing to the final proof, whether supplied in printed form or as an electronic document e.g. Adobe Acrobat .pdf file. 'the Seller' also reserves the right to delay printing the Goods if in its opinion alterations to the layout or production process must be made in order for the Goods to meet the written specification. 5. Variation to Contract 5.1 If any sub contractor engaged by 'the Seller' in respect of the production of the Goods reveals any matter which may necessitate a revision of the Price or if following submission of the finished Design to the Printer or Reprographic bureau any matter is revealed which may necessitate a revision of the Price or if 'the Seller' has to increase the Price due to any factor beyond its control (such as increase in the cost of labour, materials or other costs of manufacture), then the Client shall in writing within seven days of receiving notification of such revision either accept the revised Price or cancel the contract. If the Client does neither within the seven day period, then 'the Seller' shall have the right to cancel the contract by giving written notice to the Client and the Client shall be responsible for all loss (including loss of profit), costs (including the costs of all labour and materials used), damages, charges and expenses incurred by 'the Seller' as a result of cancellation. 5.2 Any additions or variation to the Goods requested by the Client shall not be binding on 'the Seller' unless the same have been notified to 'the Seller' in writing within seven working days of the date of the contract and the Client has signed 'the Seller''s variation document formally agreeing to accept such variations or additions including any revision to the Price. 5.3 'the Seller' reserves the right, by giving notice to the Client at any time before delivery, to increase the Price to account for any increase in the cost to 'the Seller' which is due to any factor beyond the control of 'the Seller' (such as, and without limitation, any significant increase in the cost of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specification for the Goods which is requested by the Client, or any delay caused by any instructions of the Client, or failure of the Client to give 'the Seller' adequate information or instructions. 5.4 Every endeavour will be made to deliver the quantity ordered, but quotations are conditional upon margins of five per cent for work in one colour only and up to ten per cent for other work. This allows for overs and/or shortage. Over supply will not be charged, shortages (of up to 10% of order) will be deducted. 6. Deposits Prior to the planned commencement of the Design and/or printing of the Goods, 'the Seller' may advise the Client of the requirement to pay the Deposit. 'the Seller' must be in receipt of cleared funds of 50% of the quotation price by way of Deposit at least three days prior to 'the Seller'’s planned date for it to commence production of the Design or Goods before it can accept a written order from the Client, thereby forming the contract between 'the Seller' and the Client for the sale and purchase of the Design or Goods. 7. Payment and Fees We reserve the right to add the Statutory Interest for Late Payment of Commercial Debts, as stated in the Late Payment Legislation, 7th August 2003.Should work be suspended at the request of, or delayed through any default of, the Client for a period of 30 days or more 'the Seller' will be entitled to payment for work already carried out and materials specially ordered. 'the Seller' shall be entitled to charge the amount of value added tax payable whether or not included on the quotation or invoice. Any duty/taxes associated with Export orders are the responsibility of the Client. It is considered vital that Clients who are not VAT registered, or who are exempt from VAT, assume that they will have to pay the VAT, or an additional amount equivalent to its value, unless otherwise agreed by 'the Seller' in writing. 7.1 Design Fees.
7.1.1 Design fees are charged by the hour, at the rate agreed in the specification and are payable (within 30 days of the invoice date) or on completion of the design work (within 30 days of completion), which ever occurs first.
7.1.2 If the Client fails to make payment then, without prejudice to any other right or remedy available to 'the Seller', 'the Seller' shall be entitled to:
7.1.2.1 cancel any contract and suspend any deliveries to the Client;
7.2.3.2 appropriate any payment made by the Client to such of the Design (or the Design supplied under any other contract between 'the Seller' and the Client) as 'the Seller' may think fit (notwithstanding any purported appropriation by the Client); and
7.2.4 charge the Client interest (both before and after any judgment) on the amount unpaid, at a rate of 8% per annum above the base lending rate of National Westminster Bank Plc for the time being, from the due date for payment until the actual date of payment.
7.2.5 Until such time as the Design Fees have been paid to 'the Seller' in full, the Client, or his agent/s must cease using the Design and, if the Client or his agent/s fail so to do 'the Seller' shall be entitled to seize, from any location, any material which incorporates the Design and to request any Publisher to desist from using the Design in any way, shape or form.
7.1.3 All copyright and intellectual property and other rights in the Design remain with 'the Seller', until the Design fees are paid in full.
7.2 Printing Price.
7.2.1 The Printing Price (less any amounts of the Deposit previously paid, either prior to commencement of, or during the process of printing of the Goods) shall be payable upon delivery to or collection by the Client of the Goods. The time of payment of the Printing Price is a vital term of the Agreement. Payment shall be in cash or by way of cheque or money order made payable to 'the Seller' and, if by cheque, is not paid until cleared in full.
7.2.2 The Client shall pay to 'the Seller' interest at the rate of 8% above base rate from time to time of National Westminster Bank Plc on any part of the Price remaining unpaid.
7.2.3 If the Client fails to make payment on receipt of the Goods then, without prejudice to any other right or remedy available to 'the Seller', 'the Seller' shall be entitled to:
7.2.3.1 cancel any contract and suspend any deliveries to the Client;
7.2.3.2 appropriate any payment made by the Client to such of the Goods (or the Goods supplied under any other contract between 'the Seller' and the Client) as 'the Seller' may think fit (notwithstanding any purported appropriation by the Client); and
7.2.4 charge the Client interest (both before and after any judgment) on the amount unpaid, at a rate of 8% per annum above the base lending rate of National Westminster Bank Plc for the time being, from the due date for payment until the actual date of payment.
7.2.5 Until such time as the Printing Price has been paid to 'the Seller' in full, 'the Seller' shall be entitled at any time to require the Client to deliver up the Goods to 'the Seller' and, if the Client fails to do so immediately, to enter upon the Premises where the Goods are situated and repossess the Goods.
8. Acceptance and Delivery
8.1 The Design or Goods are accepted by the Client:
8.1.1 on receipt of balance by 'the Seller' of payment due to it in accordance with condition 7; or
8.1.2 either on their Collection by the Client from 'the Seller', or on Delivery by 'the Seller' to the Client; or
8.1.3 by any act of the Client in relation to the Design or Goods which is inconsistent with 'the Seller'’s title to the Design or Goods until it passes to the Client in accordance with condition 9, whichever is the later.
8.2 Any dates stated for delivery of the Design or Goods by 'the Seller' are approximate only and 'the Seller' shall not be liable for any delay in delivery of the same howsoever caused. Time for Delivery shall not be vital unless previously agreed by 'the Seller' in writing. 'the Seller' shall not be liable for indirect loss or third party claims occasioned by delay in completing the work or for any loss arising from delay in transit. Where work carried out by us is defective for any reason, including negligence, our liability (if any) shall be limited to rectifying such defect.
8.3 'the Seller' shall not be liable to the Client or be deemed to be in breach of the contract by reason of any delay in performing or any failure to perform any of 'the Seller''s obligations in relation to the Goods if the delay or failure was due to force majeure or any cause beyond 'the Seller''s reasonable control, including but not limited to nationalisation, expropriation, labour disturbances including action of any sort, boycotts, power or transmission failures, malfunctions or breakdowns of any sort, including (without limitation) in electronic and all other communication links or equipment of the Company and/or the Manager or of agents or third parties whose services are used by 'the Seller' and/or their sub-contractors, unauthorised access, theft, operator error, delay in the receipt of information from any party whether or not mentioned in these conditions, international conflicts, violent or armed actions, acts of terrorism, insurrection, revolution, nuclear fusion, fission or radiation, staff sickness or holidays, power failure or breakdown in machinery or any other causes commonly known as acts of God whether or not any such cause was reasonably foreseeable
8.4 If, despite conditions 8.2 and 8.3, 'the Seller' incurs any liability for late or non delivery, 'the Seller''s liability shall be limited, in the case of non delivery, to the excess (if any) of the cost to the Client (from the cheapest available supplier) of similar Design or Goods to replace those not delivered over the Price of the Goods, and in any event of late delivery shall not exceed [one half of 1 % of the Price of the late delivery concerned per [week] of delay up to, in either case, a maximum of [10%] of the Price.
9. Risk and Title in the Design and Goods
9.1 Risk of damage to or loss of the Design or Goods shall pass to the Client on delivery.
9.2 Notwithstanding delivery and the passing of risk in the Design or Goods, title to the Design or Goods shall not pass to the Client until 'the Seller' has received in cash or cleared funds payment in full.
10. Insolvency of Client
If the Client ceases to pay his debts in the ordinary course of business or cannot pay his debts as they become due or being a company is deemed to be unable to pay his debts or has a winding up petition issued against it or being a person commits an act of bankruptcy, 'the Seller' without prejudice to other remedies shall. (i) have the right not to proceed further with the contract or any other work for the Client and be entitled to charge for work already carried out (whether completed or not) and materials purchased for the Client, such charge to be an immediate debt due to him, and (ii) in respect of all unpaid debts due from the Client have a general lien on all goods and property in their possession (whether worked on or not) and shall be entitled on the expiration of 14 days notice to dispose of such goods or property in such manner and at such price as they think fit and to apply the proceeds towards such debts.
11. Archiving
11.1 Software upgrades and/or changes to software may render some Design files useless beyond a period of six months.
12 Standing Matter
Metal, film, disks and other materials used by 'the Seller' or its sub contractors in the production of documents, plates, moulds, stereotypes, electrotypes, film-setting, negatives, positives, and the like shall remain its exclusive property; Disks, lithographic plates, photogravure, or other work may be effaced immediately after the order is executed unless written arrangements are made to the contrary. In the latter event rent may be charged. Under normal circumstances standing material, will be retained on file for one year after which time 'the Seller' reserve the right to dispose of it. Duplicate copies can be supplied for an additional charge should the Client request them.
12. Run-on
12.1 'the Seller' cannot guarantee that there will not be a need for updating the Design should the Client order a Run on. System software upgrades and/or changes to software may render the Design files useless. It may be necessary to rebuild the Design in new software.
12.2 Where possible 'the Seller' strives to match a reprint to the original print but due to factors beyond its control 'the Seller' cannot guarantee that a Run-on of Goods will exactly match the original Goods in either colour matching and/or paper quality.
13. Clients Property Client’s property and all property supplied to us by or on behalf of the Client will be held, worked on, and carried at the Client’s risk.
14. Illegal Matter
15. Storage Quotations do not allow for extended storage of clients’ materials or the finished product. We are prepared to negotiate separate arrangements should they be necessary.
16. Claims 17. General 16.1 Any notice shall be sufficiently given if sent by first class post or delivered by hand to the addresses shown on the front of this form. 16.2 If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected thereby. 16.3 'the Seller' may at any time disclose to its agents, sub contractors or other companies within its group and any credit reference agency or any other third party such information regarding the contract as may be necessary for the proper conduct of 'the Seller''s business.
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