Terms and Conditions of Sale
1. Definitions
1.1 “The Company’’ shall mean the companies of TEPE Holdings Group, either, Clarkeprint Limited, Waveney Publishing Limited (t/a WavePrint) or Clarkeprint FM Limited.
1.2 “The Goods” means any Goods (Printed, non-printed and consumables), electronic origination, web site or web service or services forming the subject of this Contract.
1.3 “Supply” shall mean the sale of the Goods notwithstanding any credit offered or any retention of title to the Goods.
1.4 “The Customer” shall mean the person, partnership, company or party with whom any Contract to supply the Goods is made by the Company.
1.5 “Contract” shall mean any Contract for the sale of Goods or services by the Company to the Customer.
2. The Contract
2.1 These conditions shall be incorporated in the Contract to the exclusion of any terms and conditions stipulated or referred to by the Customer.
2.2 No variations or amendments of this Contract shall be binding on the Company unless such variations or amendments are confirmed and accepted by the Company, in writing, prior to the commencement of the contract.
2.3 Any concession made or latitude allowed by the Company to the Customer shall not affect the rights of the Company under the Contract.
2.4 The Customer from whom the Company receives instructions shall be liable to the Company as a principal for all costs due for the supply of goods and services under the contract and will be subject to these conditions whether or not such a Customer purports to contract as an agent.
2.5 Only these terms and conditions shall apply to any contract between the Company and the Customer. Any conditions from the Customers documents are sent by the Customer and received by the Company on the understanding that they have no legal affect whatsoever unless agreed to in writing by the Company prior to the commencement of the Contract.
3. Orders
3.1 No order shall be binding on the Company unless and until it has been acknowledged and accepted in writing in the form of a written order acknowledgment by the Company or the Company’s invoice.
3.2 The Company will make every endeavour to deliver the correct quantity ordered, but it is hereby agreed that The Supply will be conditional upon five per cent margins being allowed for overs or shortage (eight per cent for quantities exceeding 50,000) the same to be charged or deducted.
4. Prices and payments
4.1 The Company shall be entitled to adjust its prices for any increase in the price of materials, parts, delivery costs, labour costs or for costs of any other kind arising for any reason beyond the Company’s control after the date of the Contract. The Company shall also be entitled to adjust prices, without entitling the Customer to cancel the order, to take account of:-
4.1.1 Any costs to the Company resulting from a delay by the Customer in giving to the Company sufficient information to enable it to supply all or any of the Goods, including but not limited to suitable print ready artwork (of a standard needed to produce commercially acceptable print,) graphics, copy, proof approvals, delivery instructions or payment. This is to include matters which are not specified by the Customer or where left to the Company’s discretion and then found to be unacceptable to the Customer.
4.1.2 Any costs associated with changes in instructions by the Customer including but not limited to changes in delivery instructions, delivery dates or product specification.
4.1.3 Any costs associated with the failure of the Customer to take or accept delivery of the Goods.
4.1.4 Any costs incurred through the storage by the Company of the Customer’s property received before or not collected after the Contract
4.2 All prices are for sale ex-works of the Company unless specified otherwise by the Company.
4.3 All prices are exclusive of VAT and if chargeable this will be charged at the appropriate rate ruling at the date of delivery of the Goods.
4.4 The Contract Price shall be due and required to be paid by the Customer without any deduction or set off before the date of Delivery or such earlier date if demanded by the Company, unless the Company has, at its own discretion, offered the Customer a credit account, in which case the Contract price will be due on or before the last day of the calendar month following the month of invoice.
4.5 Any amount not paid by the Customer on the due date shall incur interest at the rate of Bank of England Base Rate + 5% (plus five per cent) per month from the date it falls due, interest will be charged daily until it is paid.
4.5.1 If the company and the client should enter into dispute for whatever reason, all existing agreements in respect of any extended payment credit terms shall be withdrawn. The total outstanding amount becomes due and must be paid in full forthwith. Any failure of immediate payment shall be levied at a rate of five percent monthly or part thereof.
4.6 In the event of the Customer failing to make payment in accordance with condition 4.4 above; or the Customer fails to take delivery of the Goods or any part of them on the date of Delivery; or the Customer fails to provide any instructions or materials or fails to provide any other prerequisite required by the Company to enable the Services to be performed on the due date or within a reasonable time of the Company’s request; the Company shall have the right at its sole discretion and without prejudice to its other rights or remedies to either suspend or cancel any outstanding Contracts with the Customer; summarily by notice in writing without compensation to the Customer but with the right to be paid in respect of all work done for Services performed or Goods supplied to the Customer and to be reimbursed the amount of all monies paid out on account of the Customer up to the date of such suspension or cancellation.
4.7 In the event of suspension of the Contract envisaged by clauses 4.6 above or in the event of cancellation the Company may on giving written notice to the Customer store or arrange for the storage of the Goods and on the service of the notice:-
4.7.1 risk in the Goods shall pass to the Customer;
4.7.2 the Customer shall pay to the Company costs and expenses including storage and insurance charges arising from its failure.
5. Delivery
5.1 All times or dates given for Delivery of the Goods shall be in good faith but shall not be the essence of any Contract nor shall the Company be under any liability for delay in Delivery occasioned by any circumstances whatsoever beyond the control of the Company.
5.2 Where the Goods are handed to a carrier for carriage to the Customer any such carrier shall be deemed to be the Agent of the Customer and not of the Company for all purposes.
5.3 The Customer shall inspect the Goods supplied immediately upon receipt and no liability for non-delivery, partial loss or damage to the Goods occurring prior to delivery or where the Goods are not in accordance with the Contract will attach to the Company unless claims to that effect are notified in writing by the Customer to the Company within five days of delivery.
5.4 If the Customer shall fail to give notice in accordance with Condition 5.3 above the Goods shall be deemed to be in all respects in accordance with the Contract and the Customer shall be bound to accept and pay for the same accordingly.
5.5 Without prejudice to any other rights it may have the Company may withhold delivery of any of the Goods or any instalment thereof if it has reasonable grounds for doubting the Customer’s ability to pay the price thereof.
5.6 The Customer cannot refuse to accept delivery of part consignments in partial satisfaction of any Contract for sale or supply and no default or failure by the Company in respect of one or more consignments shall vitiate the Contract.
6. Passing of title and risk
6.1 The Customer hereby purchases only such title in the Goods as the Company may have but not further or otherwise.
6.2 Notwithstanding the earlier passing of risk, title in the Goods shall not pass to the Customer until all sums due from the Customer to the Company have been paid for in full.
6.3 Title in the Goods shall remain with the Company and shall not pass to the Customer until the amount due under the contract for them has been paid in full. Until title passes the Customer shall :-
6.3.1 Be bailee of the Goods for the Company and shall hold the Goods for and on behalf of the Company.
6.3.2 The Customer shall store the Goods separately from any other Goods so that they are identifiable as Property of the Company;
6.3.3 the Customer shall take good care of the Goods and is liable to fully insure the same for loss, damage or destruction and benefit of any insurance claim in respect of the Goods shall be held in trust on behalf of the Company;
6.3.4 In the event of the Customer selling the Goods the entire proceeds of sale of the Goods shell be held in trust in a separate designated account and shall at all times be identifiable as the Company’s money.
6.3.5 Without prejudice to the generality of Clause 6.3.2 above the Customer shall have the right to sell the Goods subject as herein after mentioned and subject to the Company not withdrawing such right to sell on written notice to the Customer.
6.3.6 At any time after the Customer is in default of payment on the due date of any sum due by the Customer to the Company or if the Company upon notice withdraws the Customer’s right to sell the Goods or if the Customer shall commit an act of bankruptcy or suffer any execution to be levied upon his property or if being a Company it suffers a Receiver to be appointed of its undertaking or is placed in liquidation or is the subject of an Administration Order (such eventualities or any one of them as the context shall demand herein after called “Such Event”) then in any Such Event the Company may forthwith enter the premises of or occupied by the Customer for the purposes of repossessing the Goods and the Customer hereby grants to the Company a License for that purpose.
7. Conditions, warranties and exclusions
7.1 Representations of the appearance of Goods vary in every case according to the nature and circumstances of production and the treatment of the Goods after leaving the Company’s premises. All representations furnished by the Company in respect of the Goods whether or not in writing are furnished only on the basis that they will not form part of the Contract or be relied upon by the Customer for any purpose unless and to the extent that they are expressly warranted or guaranteed in writing by the Company and are as such expressly stated by the Company to form part of the Contract.
7.2 Any condition or warranties (whether expressed or implied by statute common law or arising from conduct or a previous course of dealing or trade customer or usage) as to the quality of fitness of the Services for any particular purpose even if that purpose is made known expressly or by implication to the Company are hereby expressly negative.
7.2.1 Nothing herein shall impose any liability upon the Company in respect of any defect in the Goods arising out of acts omission negligence or default of the Customer its servants or agents including in particular without prejudice to the generality of the foregoing any failure by the Customer to adequately correct proofs submitted by the Company or where imperfect work is caused by defects in or unsuitability of materials supplied or specified by the Customer.
Where any text, illustrations or other matter is supplied to the Company in a digitised form, or on a disc or through a modem and the data so received is not suitable for outputting on the Company’s equipment the Company will take every care to secure the best results but shall not be responsible for any imperfect work caused by the unsuitability of such data; and any delay in delivery occasioned by the additional work;
7.3 Save as herein provided a Contract or order may not be cancelled by the Customer except by agreement in writing of both parties and upon payment to the Company of such amount as may be necessary to indemnify the Company against all losses resulting from the said cancellations.
7.4 The Company shall not be required to print any matter which in the Company’s opinion is or may be of an illegal or libellous nature or an infringement of the proprietary or other rights of any third party, or if in the Company’s opinion the artwork contains images or content of an obscene or inappropriate nature.
7.5 The Customer shall indemnify and keep indemnified the Company against any and all proceedings claims damages losses expenses or liabilities (on a full indemnity basis) which the Company may incur or sustain as a direct or indirect result of or in connection with any infringement of any patent copyright design trademark or other industrial or proprietary or personal rights (including libel) contained in any material printed by the Company for the Customer or relating to any of the Services hereby provided to the Customer or based upon any work prepared by the Company for the Customer and approved by the Customer either orally or in writing prior to publication.
7.6 Metal, film, glass and other materials owned and used by the Company in the production of type, plates, moulds, stereotypes, electrotypes, film setting, negatives, positives and the like shall remain the Company’s exclusive property.
7.7 Notwithstanding any provision contained in these Conditions of Contract the Company shall have a lien on all products and property in its possession including the Goods (whether worked on or not and whether the exclusive property of the Customer or not) in respect of all unpaid debts due from the Customer and shall be entitled on the expiration of fourteen day notice (unless all sums due to the Company have been paid) to sell the products and property at the best price readily obtainable and after deducting the selling and other costs and expenses shall charge the Customer for any shortfall below the amounts owing to the Company or shall account to the Customer for any surplus.
7.8 A contract for the printing of a periodical publication may not be terminated by either party unless 13 weeks’ notice in writing is given. Notice may be given at any time but wherever possible should be given after completion of work on any one issue. Nevertheless the printer may terminate any such contract forthwith should any sum due thereunder remain unpaid.
7.9 Unless agreed in writing, customer supplied goods or printed finished goods are stored at a monthly pallet rate payed in arrears (3 monthly). Goods are insured at replacement cost only and no liability for consequential loss is accepted.
8. Liability
8.1 The Company’s whole liability and the Customer’s sole remedies for any default in respect of Goods or Services supplied shall be as follows save that this Clause shall not confer any rights or remedies to which the Customer would not otherwise be legally entitled:
8.2 The Company does not exclude liability for:-
8.2.1 death or personal injury and subject to the provisions of Sub-clause (d) below direct physical damage to tangible property of the Customer to such extent that such damage death or injury is caused by the negligence of the Company its employees agents or subcontractors and
8.2.2 any breach by the Company of any term as to title quiet possession and freedom from encumbrances which may be implied under the Sale of Goods Act 1979
8.3 For any default relating to Goods delivered hereunder whether occurring at the time of delivery or thereafter then subject to the other provisions of this Clause the Customer shall give written notice of any default within 72 hours of its being discovered by the Customer. The Customer is advised to examine the Goods upon delivery and no claim will be entertained unless notified within seven days of the date of delivery. Thereafter, the Customer shall allow the Company every reasonable opportunity to replace the Goods or the part in question.
8.4 In the event of any valid claim in respect of any default the Company shall be entitled to replace the Goods or Services (or the part in question) or remedy the Service free of charge to the Customer or at the Company’s discretion refund to the Customer the price of the Contract (or proportionate part of that price) but the Company shall have no further liability to the Customer.
8.5 The Company’s maximum total liability for any one default shall not exceed the purchase price of the Goods or Services in respect of which the Company is liable. Should any limitation in these Conditions be held invalid any liability thereby arising shall nevertheless be subject to this monetary unit.
8.6 In no event shall the Company be liable for the following loss or damage howsoever caused even if foreseeable by the Company:
8.6.1 economic loss (loss or profits business revenue goodwill or anticipated savings) or
8.6.2 any other consequential loss or damage (except expenses incurred with regard to death or personal injury) and
8.6.3 claims against the Customer by any other parties.
8.7 The Company shall be under no liability whatever if the price paid for the Goods or Services has not been paid by the due date for payment.
8.8 No valid claim shall arise in respect of quantities supplied to the Customer in accordance with clause 3.2 above.
9. Force majeure
9.1 The Company shall be entitled to delay or cancel delivery or reduce the amount delivered if it is prevented or hindered or delayed through any circumstances beyond its control including but not limited to strikes, accidents, breakdowns or unavailability of materials from the normal source of Supply.
9.2 If a Contract or Order or any part thereof shall become impossible of performance or otherwise frustrated by reason beyond the control of the Company or as a result of the Customer’s default the Company shall be entitled to a reasonable remuneration for work done together with reimbursement of all expenses until the date of such frustration.
10. General
10.1 The Contract for Supply and Sale of Services is personal to the Customer and incapable of assignment or charge without the written consent of the Company.
10.2 The Company may sub-contract the performance of the Contract in whole or in part.
10.3 In the event of any Condition being judged unreasonable it shall be modified to the extent necessary to make it reasonable and the remaining Conditions or part Conditions shall nevertheless remain full force and effect.
10.4 If any provision of this agreement becomes unlawful unenforceable or void such provision shall to the extent required be deemed to be deleted from this agreement and rendered ineffective as far as possible for the purpose of construing performing or enforcing this agreement and without modifying the remaining provisions hereof which shall continue in full force and effect.
10.5 This Contract shall in all respects be governed by English Law and the Customer and Company agree to submit to the non-exclusive jurisdiction of the High Court of Justice in England and Wales.