A: INTERPRETATION & AUTHORITY TO VARY
In these conditions:-
“The Company” means the subsidiary or associated company of Beamreach (UK) Ltd., requested by the Customer to supply goods.
“Goods” means goods or any part to be supplied by the Company including but not limited to printed materials, film, and CRC produced in the course of fulfilling an order from the Customer; final forms of output (whether tapes, discs, film or CRC), technical and other services, specified to be supplied as such to the Customer in the original order, but excluding, lithographic plates, tapes, discs and other media used for storing digital data in the course of setting.
“The Customer” means the person, organisation, corporation or other legal entity who has requested the goods, and with whom this contract is made.
“This Contract” means each contract or number of contracts (as the case may be) to provide services and supply goods, made between the Customer and the Company.
The masculine includes the feminine and the singular includes the plural and vice versa (in each case).
In the case of dispute as to the construction of any clause or condition, such clause or condition shall be construed in favour of the Company.
No term, condition or clause contained herein shall be waived or varied save as authorised in writing by a Director, Officer, General Manager, or Legal Representative of the Company. Any waiver or variation other than that so authorised shall be void, and the original term, condition or clause contained herein shall prevail. (See also 15.1).
1: PRICE AND ADDITIONAL CHARGES
1.1 Estimates are based on costs of production at the time given and are valid for no more than 30 days. Prices will be those stated in estimates or such other price as shall be agreed between the Customer and the Company at the date of acceptance of order. Material prices will only become firm on acknowledgement of a receipt of order.
1.2: Prices arc exclusive of value added tax (VAT) unless otherwise specifically stated. VAT will be charged in accordance with prevailing legislation.
1.3: All work done (whether or not on an experimental basis), shall be chargeable at agreed rates.
1.4: Additional charges may be made to cover the cost of additional work where copy supplied is late or not clear and legible; if scheduled delivery requires overtime or additional cost; where Customer alterations require additional proofs; where the Customer changes or specifies style, type or layout previously left to our judgment or left unspecified; where materials supplied by the Customer are found to be unsuitable, defective or are delivered to the Company late or in a form which cannot be accessed without adjusting or supplementing our equipment; in delivering to an address other than that notified in the estimate (see condition 4.3); for storage (see condition 1.6 and 3.3); and for administration (see condition 7.2).
1.5: In the event of any increase howsoever arising in the cost to the Company of supplying and/or producing the goods the price quoted shall be adjusted to compensate the Company in respect of such increased costs.
1.6: Any storage’ charges incurred by the Company in relation to the goods shall be added to, and form part of, the price.
2.1: The Customer shall bear total responsibility for notifying the Company of any error or inaccuracy in proofs (whether ozalid or other) or other work submitted for the Customer’s approval. 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 specifically agreed. (See also 1.4).
3.1: Subject as provided below the Company will invoice when it renders delivery of the work. Invoices are payable immediately on presentation unless otherwise agreed in writing and goods remain the property of the Company until payment is received in full.
3.2: Composition is invoiced on completion; printing and binding are invoiced on completion of binding; the Company may invoice for work done over three months on any continuing work.
3.3: In the event of suspension of work, delay, or default by, or of, the Customer for a period of 30 days, the Company may invoice for work done, materials ordered and incidental costs incurred or chargeable including storage charges at rates for the time being in force.
3.4: Time for payment is of the essence. If payment is not made when due the Company may cancel this contract and any other contract between the Customer and the Company, suspend any further deliveries and/or charge interest accruing on a daily basis (both before and after any judgment) on any amount unpaid by the Customer at a rate of 0.067% per cent per day or part thereof that payment remains outstanding.
3.5: Credit notes will be invoice specific.
3.6: Where goods are delivered in instalments, the Company shall be entitled to invoice the Customer in respect of each instalment and payment therefore shall be made in accordance with the terms hereof.
3.7: Any settlement discount stated on an invoice of the Company will be deemed to have been withdrawn if payment is not received by the Company within the stipulated discount period.
3.8: Without prejudice to any other rights and remedies (including any statutory or other implied rights of lien), the Company shall in respect of all unpaid debts due from the Customer have a specific lien (including a right of sale) over the goods and a general lien on all other goods and property of the Customer in its possession (whether worked on or not) and shall be entitled on the expiration of 14 days’ notice to the Customer, to dispose of such goods or property as it thinks fit and to apply all proceeds towards such debts; the Company shall be under no duty of care towards the Customer in exercising its rights.
4: DELIVERY AND RISK
4.1: Delivery of work is deemed to take place when tendered by the Company: delivery is tendered when the Company indicates to the Customer that work is ready for collection from the Company or its agents.
4.2: Unless otherwise agreed, delivery shall be to the Customer’s address as set out in the estimate. A charge will be made to cover any additional costs involved in delivery to a different address.
4.3: Delivery dates are given by way of guidance only and time, in relation to delivery dates, shall not be of the essence of any contract unless specifically agreed in writing.
4.4: Risk in goods shall pass to the Customer, and payment shall become due, upon delivery (see 4.1) and the Customer should insure accordingly.
4.5: Should expedited delivery be agreed an extra charge may be levied to cover overtime or any other additional costs involved (see 1.4).
4.6: The Company shall be entitled to postpone the date or dates for delivery of the goods and shall be under no liability if unable to carry out any provision of this contract for any reason beyond its control including but not limited to Act of God, legislation, war, fire, flood, drought; inadequacy or unsuitability of any instructions, electronic file, or other data or materials supplied by the Customer; failure of power supply; lockout, strike or other action taken by employees in contemplation or furtherance of a dispute; any inability to procure materials required for the performance of the contract, interruption of transport, or any other cause whatsoever outside the Company’s control which affects the Company’s business whether or not of like nature to those specified above. During the continuance of such a contingency the Customer may by written notice to the Company elect to terminate this contract subject to having paid for work done and materials used.
4.7: Without prejudice to paragraph 4.6, in the event of the carrying out of any part of the contract being hindered, impaired or ceasing for any reason whatsoever or if the Company has reason to believe that payment of the price for any goods may be delayed beyond the time stipulated in Condition 5 then and in such case the Company may notify the Customer that it is unable to fulfill the contract to which these Conditions apply and shall be entitled (but such entitlement may not be exercised unreasonably) to cancel such contract.
5.1: Damage and defects to goods must be advised in writing to the Company within three days and any claim must be made within seven clear days following receipt of goods by the Customer or its agent or other person nominated by the Customer to receive such goods. All other claims must be made, in writing to the Company within 28 days of receipt of goods by the Customer, agent or such nominated person.
5.2: Advice of damage, delay or partial loss of goods in transit or of non delivery must be given in writing, in the case of non-delivery, within 28 days of despatch of goods.
6: TRANSFER OF TITLE
6.1: Title to the goods shall pass to the Customer only when payment for the goods has been received by the Company, and upon receipt of said payment by the Company, the Customer shall stand possessed of the goods absolutely. Before title has passed, the Customer holds the goods as a mere bailee, and the Company has the right at any time to recover and sell the goods or any part of them, and to enter the premises of the Customer, its staff or agents for this purpose.
6.2: Until title to the goods has passed to the Customer, the Customer may not resell any goods in its possession, other than with the express permission of the Company. Where permission is given, and has not been withdrawn or return of the goods demanded, the Customer (acting on, its own account and not as agent of the Company) may agree to re-sell any goods in its possession in the ordinary course of trading notwithstanding that the property in the goods has not then passed to it. The part of the proceeds of any such re-sale (“the Company’s part of the proceeds”) which is equivalent to the price at which the same were invoiced by the Company to the Customer shall belong to the Company until the Customer has made full payment for the goods, and until such time the Company’s part of the proceeds shall be held by the Customer in a fiduciary capacity on behalf of the Company and shall be kept in a separate account without prejudice to the Company’s rights to trace the same if the Customer fails to keep such proceeds separate as aforesaid.
6.3: The Customer’s licence to sell in Condition 6.2 is immediately revoked upon an adminstrator, administrative receiver or liquidator being appointed in respect of the Customer.
6.4: Until the title passes, the Customer: must keep the goods free from any charge, lien, or other encumbrance, and store the goods in such a way that they are easily identifiable as belonging to the Company.
6.5: The Company may while the owner of the goods (and without prejudice to any other rights it may have under or by virtue of this contract) demand immediate return of the goods at any time and the Customer shall forthwith comply with such demand and bear the expenses for such return. The Company will not exercise such a right without giving three days prior written notice unless the Customer fails to pay for the goods in whole or in part on the due date.
6.6: If the Customer fails forthwith to return the goods so demanded by the Company, the Company or its successors in title to the goods and their respective employees and agents may enter onto the Customer’s premises during normal business hours for the purposes of removing the goods (the cost of doing which shall be borne by the Customer) or may sell or otherwise deal with the goods.
7: CUSTOMERS PROPERTY, INSURANCE
7.1: All property owned or supplied by the Customer and all property stored by the Company on behalf of the Customer will be held, worked on, and carried entirely at the Customers risk and the Customer should insure accordingly.
7.2: The Company may make an administration charge for retrieving, stripping down, and delivering any film which the Company agrees to forward to the Customer.
7.3: Metal, film glass and other materials owned and used by the Company and in the production of type, plates, moulds, stereotypes, electrotypes, film-setting, negatives, positives and the like shall remain the exclusive property of the Company. Such items when supplied by the Customer shall remain the Customer’s property.
7.4: Type may be distributed and lithographic, photogravure or other work effaced immediately after the order is executed unless the contrary is agreed in writing, in which event charges may be levied for storage.
8: VARIATIONS IN QUANTITY
8.1: Every endeavour will be made to deliver the correct quantity ordered, but the Customer may not reject any goods where the quantity delivered is within a margin of 5 percent of order for work in one colour only and 10 percent of order for other work. The price of the goods due shall be adjusted to take into account the quantity actually delivered.
9.1: Except for liability in respect of death or personal injury arising out of the Company’s negligence, the Company’s liability (if any) to the Customer shall be limited to either (a) rectification by the Company of the defect to the reasonable satisfaction of the Customer or (at the Customer’s discretion), (b) refund of any payment which the Customer has already made on account of the price (subject to deduction of any amount which the Company is entitled to claim from the Customer).
9.2: The Company shall not be liable for indirect or consequential loss of any kind whatsoever occasioned by delay in completing the work or otherwise, and the Customer will indemnify the Company against any third party claim arising out of such delay.
9.3: The Company shall not be liable for any loss to the Customer arising from delay in transit.
9.4: Except where this contract is made with a Customer dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977 or any statutory modification thereof) all warranties and conditions implied by statute or common law are excluded. Where goods are sold under a consumer transaction the statutory rights of the Customer are not affected.
10: MATERIALS SUPPLIED BY THE CUSTOMER
10.1: The Customer warrants that any paper, plate, film, disc or other material supplied by the Customer is of a good condition and suitable for the purpose for which it is supplied. The Company may reject any such materials if they are considered to be unsuitable. The Customer further warrants that all computer software or other media upon which any information materials or instructions are stored which is supplied by the Customer is free from all computer viruses or other instructions or sequences which may adversely affect the operation of any computer or software program or access to any electronically held information and shall indemnify the Company against any loss arising therefrom.
10.2: Where materials are so supplied or specified, the Company will take every care to secure the best results, but responsibility will not be accepted for imperfect work caused by defects in or unsuitability of materials so supplied or specified.
10.3: No responsibility is accepted by the Company for any loss, cost or claim caused by defect in or unsuitability of materials so supplied or specified or failure or delay in supply.
10.4: The Customer will supply the quantities of materials advised in our estimates as and when advised by the Company. The Company may revise such quantities advised at any time as work proceeds by agreement with the Customer.
10.5: The Customer will maintain a copy of any original electronic files and the Company will not be liable for any cost arising from loss or damage to any electronic file supplied by the Customer.
10.6: Unless the contrary is agreed in writing, the Company shall not be responsible for checking the content of any electronic file supplied by the Customer, and the Customer will indemnify the Company against any liability arising from the publication of such files.
10.7: The Company shall not be required to download any digital data from our equipment or supply the same to the Customer unless otherwise agreed in writing. Such download or supply will be chargeable.
10.8: Additional costs incurred as a result of materials found to be unsuitable during production will be charged, and form part of the price.
11: INSOLVENCY AND LIEN
11.1: If the Customer is unable to pay its debts as they fall due or (being a company) has a winding-up petition issued against it or receiver administrator or liquidator appointed in respect of it or (being an individual) has a bankruptcy petition issued against him or interim order made against him without prejudice to other remedies the Company will have the right not to proceed further with this contract or any other work for the Customer and be entitled to immediate payment for work already carried out (whether completed or not) and materials purchased pursuant to this contract.
11.2: In respect of all unpaid debts due or becoming due from the Customer, the Company has a general lien on all the Customer’s goods and property in our possession (whether worked on or not) and shall be entitled on the expiration of 14 days notice to the Customer advising of our intention to exercise the powers in this Condition 11.2 to dispose of such goods or property in such manner to such person and at such price as the Company thinks fit and to apply the proceeds in or towards such debts.
12: ILLEGAL MATTER & INDEMINITY
12.1: The Company reserves the right not to print any matter which in the opinion of the Company is or may be libelous, an infringement of the proprietary or other rights of any third party, or in other any way illegal.
12.2: The Customer shall indemnify the Company in respect of any claims, costs and expenses (including unlimited legal costs) arising out of any libelous matter or any infringement of copyright, patent, design or of any other proprietary or personal rights contained in any material printed for the Customer, said indemnity extending to any amounts paid, on legal advice, in settlement of any claim.
13: PERIODICAL PUBLICATIONS
13.1: A contract for the printing of a periodical publication may only be terminated by either party on 13 weeks’ notice in writing in case of periodicals produced monthly or more frequently or 16 weeks in writing in the case of other periodicals. Notice may only be given after completion of work on any one issue. Nevertheless the Company may terminate any contract forthwith should any sum due thereunder remain unpaid or pursuant to clause 11.1.
14: GENERAL PROVISIONS
14.1: These terms and conditions shall apply to all contracts made between the Company and the Customer unless otherwise agreed in writing (see Introduction clause B) to the exclusion of any other terms, conditions and warranties (except warranties made in writing and attached to or confirmed in our estimates.).
14.2: The Company may carry out its obligations under this agreement through any agents or sub-contractors (including other subsidiary and/or associated companies of Beamreach (UK) Ltd.) appointed by the Company at its absolute discretion for that purpose, provided that any act or omission of such agents or sub-contractors will be deemed to be the Company’s act or omission.
14.3: Where the Customer comprises two or more persons the liability of such persons under this contract is joint and several and the events described in condition 11.1 shall be deemed to have occurred in relation to the Customer if they occur in relation to either or any of such persons.
14.4: The giving by the Customer of any delivery instruction for the goods or the acceptance by the Customer of delivery of the goods or any conduct by the Customer in confirmation of the transaction set out on the face hereof shall constitute unqualified acceptance by the Customer of these Conditions and any order placed by the Customer for goods shall, notwithstanding that it may be expressed to be subject to certain terms and conditions, be deemed to have been placed subject to these Conditions and any acceptance by the Company of such an order shall be on and subject to these Conditions.
14.5: All specifications, technical data and other information in the Company’s catalogues, trade literature and other published matter are of a generally informative nature only and none of them form part of or are intended to form part of any contract or give rise to any independent or collateral liability of whatsoever nature on the part of the Company.
14.6: The placing of any order for goods following an estimate given by the Company shall not be binding on the Company unless and until accepted by the Company in writing.
14.7: No contract to which these Conditions apply shall be a sale by sample unless the Company expressly agrees in writing (see Introduction clause B).
15.1: The Customer shall not assign or transfer or purport to assign or transfer any contract to which these Conditions apply or the benefit thereof to any other person whatsoever.
16.1: If any provision of these conditions is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable the remaining provisions shall remain in full force and effect unless the Company at its absolute discretion decides that the effect of such declaration is to defeat the original intention of the parties in which event the Company shall be entitled to terminate any contract with the Customer forthwith.
16.2: These terms and conditions set out the entire agreement between the parties and supersede all prior discussions between them and all statements, representations, warranties, guarantees, proposals, communications and understandings whenever given and whether orally or in writing.
17: GOVERNING LAW
17.1: 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 all parties hereto agree to submit to the jurisdiction of the English courts. In the case of export contracts the Uniform Laws on International Sales Act 1967 shall not apply.