CONDITIONS OF TRADING
While we endeavour to provide a service of the highest competitive standards, even the best of enterprises must take account of the possibility however remote, of error, omission or wrongdoing. We therefore draw your attention to the following standard conditions (and in particular Conditions 10, 20, 21, 22, 23 and 26 thereof) which contain provisions defining and limiting our liability in respect of any potential default. Copying, whether of words, images, printed music or other material is likely to comprise a breach of copyright unless it is authorised. Customers should not request copying services unless they are sure that they comply with the warranty contained in Condition 27.
In these Conditions:-
means the legal entity ‘Colin Davenport Limited’ who operates under the trading name ‘Imagaprint’ “the Commissioned Work” means the physical design work, copying, printing ,scanning, archiving or other work howsoever described including where the context so admits, each edition of a periodical publication ordered by the Customer from the Owner “the Customer” means the person, firm, company or organisation who orders the Commissioned Work pursuant to these Conditions “the Customer’s Materials” means all materials delivered to the Owner by or on behalf of the Customer “Intellectual Property Rights” means any copyright, design right, registered design, trade mark whether registered or not, right of confidentiality or any other similar right whether arising in the United Kingdom or elsewhere in the world.
as defined in Condition 21(b)
The Owner and the Customer shall contract subject to these Conditions which shall govern their relationship to the exclusion of any other terms and conditions contained or referred to in the Customer’s order or in correspondence or elsewhere or implied by trade custom, practice or course of dealing and any purported provisions to the contrary are hereby excluded. No variation of these Conditions shall be binding upon the Owner unless made in writing and signed by a duly authorised representative of the Owner.
(a) Unless expressly stated to the contrary all costs and fees are exclusive of any applicable value added or any other sales tax and any applicable delivery charges, for which the Customer shall be additionally liable.
(b) The Owner reserves the right to increase any part of the costs or fees payable:-
(i) in respect of design work where the Customer’s requirements are not clear, necessitating the production of additional proofs
(ii) where poor quality artwork is provided by the Customer necessitating the use of metal plates;
(iii) where the Commissioned Work is ordered more than ten working days prior to delivery, to reflect any increase in the cost to the Owner such as, without limitation, increases in the costs of labour, materials or other costs
(iv) any change in delivery dates, quantities or specifications requested by the Customer
(v) any delay caused by any changes in instructions from the Customer, failure of the Customer to give the Owner adequate information or failure of the Customer to supply clear or legible copy
(vi) failure or delay of the Customer to take delivery instructions. The Owner shall seek to notify the Customer of the amount of any increase as soon as reasonably practicable. The customer shall have the right to cancel the order if the reason for the price increase is as set out in paragraph (iii) above and the price has increased by more than 10% provided notice of cancellation is given by the Customer as soon as reasonably practicable on receiving notification of such increase but the Customer shall pay the Owner on a pro rata basis calculated from the costs and fees originally agreed for any part of the Commissioned Work which had been completed at the time of cancellation of the order. If the reason for the increase is as set out in paragraphs (1)(i), (ii), (iv) (v) or (vi) above the Customer may cancel if the price increase is more than 20% and in such circumstances the pro rata costs payable by the Customer shall be calculated on the increased costs.
(c) Without prejudice to the above, the Owner will not be bound by any estimate or quotation given until it has received complete instructions and has accepted the Order.
(d) Unless otherwise agreed in writing by the Owner, payment of the Owner’s invoices shall be made at the time of delivery of the Commissioned Work.
(e) Customers may apply to become credit account Customers which application may be accepted at the Owner’s sole discretion. Credit account Customers shall pay the Owner within 30 days of the date of the Owner’s invoice.
(f) If the Customer fails to make payment on the due date, the Owner shall be entitled to charge the Customer interest under the Late Payment of Commercial Debt Act 1998 as amended.
(g) The Owner may require the Customer to pay a deposit at the time the order is placed. Furthermore, if in the opinion of the Owner, the creditworthiness of the Customer shall have deteriorated prior to delivery, the Owner may require full or partial payment of the price prior to delivery.
4. Preliminary Work
The Owner shall charge and the Customer shall pay the Owner for all preliminary work carried out, whether experimental or otherwise, at the Customer’s request. In the event that the Owner accepts early termination by the Customer of any preliminary work, the Customer shall pay the Owner for the preliminary work, if any, carried out prior to such termination on a pro rata basis.
It shall be the responsibility of the Customer to inspect all proofs submitted for approval and the Owner shall not be liable to the Customer for any errors not corrected by the Customer in proofs so submitted. The Customer’s alterations, except typographical or other errors made by the Owner, and any additional proofs necessitated thereby shall be charged extra to the Customer.
6. Full Colour Printing
(a) Due to the nature of the processes involved, the Owner does not guarantee that the Commissioned Work will match the Customer’s Materials in colour, saturation or texture.
(b) Customers who require colour reproduction to a specific standard must state this requirement in writing in their order and request a set of wet proofs for each item to be printed. An additional charge shall be made to the Customer for this service which shall be agreed with the Customer prior to commencement of the Commissioned Work.
(c) The Customer shall be responsible for ensuring that the Customer’s Materials supplied are suitable for full colour printing and the Customer’s attention is brought to Condition 20(b) in this respect.
7. Variations in Quantity
The Owner shall endeavour to deliver the correct quantity of the Commissioned Work but orders for the Commissioned Work are accepted on the condition that the Customer accepts a margin of 5% (or 10% for colour copies) for over supply or shortfalls in quantity.
Delivery of the Commissioned Work shall be made by the Customer collecting the Commissioned Work at the Owner’s premises at any time after the Owner has notified the Customer that the Commissioned Work is ready for collection or, if some other place for delivery is agreed by the Owner, by the Owner delivering the Commissioned Work to that place.
9. Free delivery is provided within the local area on a discretionary basis. The Owner reserves the right to charge carriage for orders under £100 and on orders for delivery outside our scheduled delivery area. The cost for delivery and insurance will be at rates ruling on the date of delivery.
10. The Owner shall endeavour to fulfil all orders which may from time to time be placed with it by the Customer and shall endeavour to comply with delivery dates quoted but the time for delivery shallnot be of the essence. THE OWNER SHALL NOT BE LIABLE FOR ANY LOSS DIRECTLY OR INDIRECTLY ATTRIBUTABLE TO ANY DELAY BEYOND THE STATED DELIVERY DATE. UNLESS SUCH DELAY HAS BEEN CAUSED BY THE OWNER’S FAILURE TO USE ITS ENDEAVOURS TO COMPLY WITH DELIVERY DATES.
11. Where the order is to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Owner to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more of the instalments shall not entitle the Customer to treat the order as a whole as repudiated or cancelled.
12. Risk & Title
The risk in the Commissioned Work shall pass to the Customer on delivery and the Customer should therefore be insured accordingly.
13. Notwithstanding delivery and passing of risk, the legal property in and beneficial ownership of the Commissioned Work shall remain with the Owner until the Customer has paid all money owed by it to the Owner.
14. The Owner may for the purpose of checking that these Conditions are being complied with or recovering the Commissioned Work enter upon any premises where it is stored or where the Owner reasonably believes it to be stored.
15. Until payment is made the Customer shall possess the Commissioned Work as fiduciary agent and bailee only and shall store each item of the Commissioned Work securely and separately from the Customer’s own goods or those of any other person or previously Commissioned Work and in a manner which makes them readily identifiable by reference to the Owner’s invoices.
16. The Customer’s right to possession of the Commissioned Work shall cease if any of the events described in Condition 29 occurs.
17. The Customer grants the Owner an irrevocable licence to enter at any time any vehicle or premises owned or occupied by the Customer or in its possession for the purpose of repossessing and removing any of the Commissioned Work the property in which has remained in the Owner under Condition 13. The Owner shall not be responsible for and the Customer will indemnify the Owner against liability in respect of damage caused to such vehicles or premises in such repossession and removal being damage it was not reasonably practicable to avoid.
18. Conditions 12, 13, 14, 15, 16 and 17 are without prejudice to the Owner’s rights and remedies if the Customer fails to make payment on the due date
or is otherwise in breach of the terms of these Conditions.
19. Standing Material
All materials used by the Owner in fulfilling an Order belong to the Owner absolutely subject to Condition
21 below regarding origination items.
20. Customer’s Materials
(a) Whilst the Owner shall endeavour to preserve the Customer’s Materials in good order (subject to such wear and tear as may be incurred in the course of printing or carrying out the design work), they remain at the Customer’s risk and liability for damage to, destruction or loss of such materials is excluded save where such damage, destruction or loss is caused by the Owner’s negligence. The Customer shall supply adequate quantities of such materials to cover spoilage.
(b) Whilst the Owner shall endeavour to maintain its usual quality standards where the Customer’s Materials are used, the Owner shall not be liable for imperfect work caused by defects in or unsuitability of the Customer’s Materials and the Customer shall not be entitled to reject such work for such reason.
(c) The Owner shall have a lien over the Customer’s Materials against payment of all costs or fees due to it by the Customer from time to time and shall be entitled (if any payment is not made on the due date) to dispose of the Customer’s Materials for such sums (if any) as the Owner may in its discretion think appropriate towards settlement of the amount due.
21. Design Work
(a) Subject as provided in this Condition, ALL DESIGN WORK ORIGINATED BY THE OWNER SHALL, AS TO ITS MATERIAL ELEMENTS AND AS TO THE COPYRIGHT OR DESIGN RIGHT IN RELATION TO IT, BELONG TO THE OWNER, and the Customer shall not have any right to reproduce or authorise any other person to reproduce any such design work in whole or in part or to do any act which would, in the absence of authorisation by the Owner, infringe any copyright or design right which may subsist in relation to any such design work.
(b) In the course of the design work the Owner may originate physical material (including without limitation artwork, photographic negatives,transparencies and printing plates, together with all other intermediate material including film work, stereotypes, proofs and progressives). This is referred to in these Conditions as “Origination Items”. Subject as provided in this Condition all Origination Items belong to the Owner absolutely.
(c) On payment by the Customer of all sums due to the Owner, the Owner will:
(i) return to the Customer the Customer’s Materials;
(ii) deliver and transfer to the Customer the Origination Items; and (iii) at the Customer’s request assign to the Customer the Owner’s copyright and design right in relation to the design work subject to payment by the Customer of all additional expenses relating to such assignment.
22. Scanning and Archiving
The customer having been advised to retain hard copies of all documents and seek advice from its appropriate professional advisors prior to the destruction of any original documentation , the Owner shall not be liable for any loss suffered by the Customer by virtue of any item supplied by the Owner being inaccurate, containing defects or being erased unless such loss arises by virtue of the Owner’s negligence and/or breach of contract.
Subject always to Condition 23 below:-
(a) the Owner shall not be liable to the Customer in respect of a claim relating to the Commissioned Work unless the Customer shall notify the Owner in writing of such claim such notice to be received by the Owner within the following time limits depending upon the nature of the claim:
Nature of the Claim Time Limit
Damage, loss or partial loss in transit within 7 days of delivery Non-delivery within 7 days of despatch. Any other claim within 28 days of delivery Provided that the above time limits shall not apply where the Customer can show that compliance with the time limits was not possible and that notice of the Customer’s claim had been given to the Owner as soon as reasonably practicable.
(b) any liability incurred by the Owner in respect of any of the Commissioned Work supplied pursuant to these Conditions howsoever arising shall be limited at the Customer’s option to reprinting the Commissioned Work, refunding the costs or fees paid or replacing or refunding the cost of the Customer’s Materials, save that nothing in this Condition shall operate to exclude any liability on the part of the Owner for personal injury or death.
24. These Conditions do not and will not affect the statutory rights of the Customer as a consumer. No provision in these Conditions which would be void by virtue of Section 6 or Section 20 of the Unfair Contract Terms Act 1977 (as amended) shall apply to any consumer transaction governed by these Conditions.
25. For the purposes of the foregoing the expressions “consumer” and “consumer transaction” shall have the respective meanings given thereto in paragraph 2 of the Consumer Transactions (Restrictions on Statements) Order 1976 (as amended).
26. Force Majeure
The Owner shall not be liable to the Customer or be deemed to be in breach of any order for the Commissioned Work by reason of any delay in performing or failure to perform any of the Owner’s obligations in relation to the order placed by the
Customer if the delay or failure was due to any cause beyond the Owner’s reasonable commercial control.
27. Customer’s Warranty and Indemnity
(a) The Owner may refuse to print any material which in its opinion contains any defamatory or obscene matter or may infringe any intellectual Property Rights of any third party.
(b) The Customer warrants to the Owner that it owns the Customer’s Materials and all Intellectual Property Rights in them and that the Customer’s Materials do not infringe any Intellectual Property Rights of any third party and would not if used in or in relation to the sale of any Commissioned Work or the provisionof any services infringe any Intellectual Property
Rights of any third party.
(c) The Customer warrants that it has complied fully with the Data Protection Act 1998 and all other relevant legislation, that it has obtained all necessary consents from data subjects for the use of such data subjects personal data which it requires the Owner to process.
(d) The Customer shall indemnify the Owner and keep it indemnified in respect of all costs, claims, liabilities and expenses to which the Owner may be subject as a result of a breach of clause 27(a) and (b) above. The indemnity shall extend (without limitation) to any amount paid on a lawyer’s advice in settlement of any such claim and to the Owner’s legal costs.
28. Periodical Publications
Where the Customer places an order with the Owner for the printing of periodical publications such a contract may only be terminated by one party giving the other party written notice. The minimum period of such notice shall be as follows:-
Nature of Publication Length of Notice
Weekly 1 month
Fortnightly 2 months
Monthly 3 months
Quarterly 6 months
This Condition is without prejudice to the Owner’s right to terminate the contract with immediate effect if the Customer fails to make payment on the due date or is otherwise in breach of the terms of these Conditions.
29. Insolvency and Breach
(a) Any Order may be terminated by either party at any time by notice in writing if the other party, being an ind ividual or partnership, has a statutory demand or bankruptcy petition issued against him or any partner or applies to the court for an interim order under the Insolvency Act 1986 or makes a proposal for an individual voluntary arrangement under that legislation or, being incorporated:-
- goes into compulsory or members voluntary liquidation or passes a resolution for voluntary winding up or its directors convene a meeting of shareholders for that purpose; or
- has an administrative receiver or receiver appointed over all or any part of its assets or undertaking; or
- is the subject of any judgment or order made against it which is not complied with within seven days or is the subject of any execution, distress, sequestration or other process levied upon or enforced against any of its assets; or - has any action, step, legal proceedings or other procedure taken in respect of it by its directors, shareholders, bankers, creditors or any person seeking to appoint a liquidator or an administrator or takes any such act or step itself; or
- has proposed in respect of it a company voluntary arrangement pursuant to the Insolvency Act 1986 has amended from time to time; or
- ceases or threatens to cease to carry on business;
- gives the terminating party reasonable grounds for believing that it (the other party) is unable to meet its debts as they fall due within the meaning of Section 123 of the Insolvency Act 1986 as amended.
(b) If the Customer is in breach of any of its obligations under these Conditions or the Conditions are terminated by the Owner under (a) above, then the Owner without prejudice to any of its other rights may immediately suspend the performance of any order placed by the Customer and shall be entitled to charge the Customer, and the Customer shall immediately become liable to pay, for any Commissioned Work already carried out (whether completed or not) including the cost of any materials purchased on behalf of the Customer.
In the event of any provision of these Conditions being or becoming legally ineffective or unenforceable either in its entirety or in part this shall be without prejudice to the validity of and shall not invalidate the remaining provisions of these Conditions which shall remain in full force and effect.
31. Entire Agreement
(a) These conditions constitute the entire agreement of the parties as to the subject matter hereof and supersede all previous agreements and understandings (if any) between the parties and all representations made with respect thereto, unless agreed in writing and signed and dated by both parties as a variation to these conditions.
(b) The Customer acknowledges that he has not relied on any representation or warranty not contained in these Conditions.
(c) It is expressly provided that nothing in these Terms and Conditions shall exclude any liability of the Owner for fraudulent misrepresentations.
32. Third Party Rights
No person who is not a Customer shall have any rights pursuant to the Contracts (Rights and Third Parties) Act 1999.
33. Governing Law
These Conditions shall be governed by English law and the parties hereby submit to the non-exclusive jurisdiction of the English Courts