In the
following conditions 'The Seller' means Buckingham Colour Group Ltd,
trading as Buckingham Colour Press, Busiprint and Buckingham Design
Associates. 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.
1. Definitions
a. 'Seller' means the party providing the goods or services under these
terms and conditions.
b. 'Buyer' means the party contracting with the Seller to acquire the
goods and services supplied under these terms and conditions.
c. ‘Work’ means all goods (by way of intermediate or finished
product) and services supplied by the Seller to the Buyer.
d. ‘Intermediates’ means all products produced during the
manufacturing process including non-exhaustively discs, film, plate,
intellectual property.
e. ‘Preliminary Work’ means all work done in the concept
and preparatory stages (including non-exhaustively design, artwork,
colour matching).
f. ‘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.
g. ‘Periodical Publications’ means publications produced
at (normally regular) intervals.
h. ‘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
a. 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.
b. 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.
c. 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.
d. 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.
e. 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.
f. 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.
g. Unless otherwise agreed in writing, the price of the Work will be
‘ex-works’ and delivery shall be charged extra.
h. 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.
i. 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 Supplierís
Credit Account Application Form and who satisfy the Supplierís
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
a. Delivery of the Work shall be accepted when tendered.
b. 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.
c. 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 difficult
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
a. It is the Buyer's responsibility to maintain a copy of any original
Electronic File provided by the Buyer.
b. The Seller shall not be responsible for checking the accuracy of
supplied input from an electronic file unless otherwise agreed in writing.
c. Without prejudice to clause 5.1(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
a. 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.
b. 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 ascertaining
the unsuitability of the materials then that amount shall not be charged
to the Buyer.
c. 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).
d. 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
a. 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.
b. 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
a. 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.
b. On completion of the Work, the Seller will store the Buyerís
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
a. 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.
b. Type shall be distributed and 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.
c. 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
a. The Work remains the Seller's property until the Buyer has paid for
it and discharged all other debts owing to the Seller.
b. 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.
c. 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.
d. 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 Buyerís customer
that the Buyer is in breach or in default.
8. Proofs and variations
a. 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.
b. 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.
c. 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.
d. 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. Price variation
Estimates are based on the Companyís current costs of production
and, unless otherwise agreed, are subject to amendment on or at any
time after acceptance to meet any rise or fall in such costs.
10. Tax
The Company reserves the right to charge the amount of any value added
tax payable whether or not included on the estimate or invoice.
11. Claims and Liability
11.1 Claims
a. 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.
b. 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.
c. 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.
11.2 Liability
a. 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.
b. 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.
c. 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.
d. 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.
e. 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.
f. 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 partyís
processing.
g. 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.
h. Nothing in these conditions shall exclude the Sellerís liability
for death or personal injury as a result of its negligence.
12. 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.
13. 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.
14. Illegal matter
a. 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.
b. 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.
15. 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 forthwithshould any sum due
thereunder remain unpaid.
16. 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.
17. Data Protection
The Buyer is hereby notified that the Seller may transfer personal information
about the Buyer to a Credit Agency pursuant to cl 2(f) above.
18. 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.
19. 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.
20. Consumers
Nothing in these Terms shall affect the rights of Consumers.
21. 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.