Terms & conditions

1. Conditions

1.1 These terms and conditions (the “Conditions”) supersede all previous conditions, including any terms and conditions of the Buyer and shall not be superseded, varied or waived other than by the express written consent of the Seller. These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. To the extent any right exists, the Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.

1.2 In the Conditions the following definitions shall apply:
(a) Buyer means the party contracting with the Seller to acquire the Work;
(b) Seller means Trade Colour Printing Ltd;
(c) Work and/or Works means all goods (including intermediate or finished goods) and services including print, mailing and design services;
(d) Preliminary Work means all work done in the concept and preparatory stages including design, artwork and colour matching;
(e) 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 link;
(f) Intellectual Property means all copyright and related rights, rights in designs, patents, trademarks and trade names, design rights, inventions, know-how and other intellectual and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

1.3 Any order or request for Work by the Buyer to the Seller shall be conclusive proof of the Buyer’s acceptance of these Conditions.

3. Payment

3.1 Estimates are based on the Seller’s current costs and, unless otherwise agreed in writing, are subject to amendment to meet any rise or fall in production, delivery or other costs that occur prior to delivery.

3.2 Estimates are given exclusive of all taxes and the Buyer will pay (in addition to the price) all VAT and other taxes applicable in addition to the price for the Work.

3.3 All Work carried out shall be chargeable including Preliminary Work whether or not the Buyer agrees to it being carried forward to production.

3.4 Any additional Work required by reason of the Buyer supplying inadequate copy, incomplete or incorrect instructions or insufficient material or late delivery of any of them shall be chargeable.

3.5 Unless credit facilities have been agreed in accordance with clause 4 payment shall become due prior to delivery of the Work and the Seller may, at its absolute discretion, require part or full payment in advance to starting the Work or prior to delivery.

3.6 If the Work is suspended or delayed for any reason other than the default of the Seller then the Seller shall be entitled to charge for storage and for loss or wastage of materials and other resources to the extent they cannot otherwise be used. In the event that such suspension or delay extends for more than 30 days the Seller shall be entitled to immediate payment for all Work already carried out including materials and all additional costs.

3.7 The Buyer shall indemnify the Seller from and against all legal and other costs and fees incurred by or on behalf of the Seller in connection with the collection of any outstanding indebtedness owed by the Buyer to the Seller.

3.8 The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.

5. Materials Supplied or Specified by the Buyer

5.1 Electronic Files.

5.1.1 The Buyer shall maintain a copy of all Electronic Files provided by the Buyer to the Seller.

5.1.2 The Seller shall not be responsible for checking the accuracy of supplied input from any Electronic File unless otherwise agreed in writing.

5.1.3 Without prejudice to clause 5.1.2 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 either reject the file or charge for any additional costs incurred in taking such corrective action in each case without prejudice to its rights to payment for work done and materials purchased.

5.2 Other Materials

5.2.1 Where the content of the Work is generated by the Seller it may at its absolute discretion (including in order to protect its Intellectual Property) replace any material supplied by the Buyer with materials of similar or better quality.

5.2.2 The Seller may reject any Electronic Files or other materials supplied or specified by or on behalf of the Buyer which the Seller considers unsuitable for the intended purpose and any additional costs incurred shall be chargeable except to the extent that such additional costs could have been avoided but for unreasonable delay by the Seller in ascertaining the suitability of the materials.

5.2.3 Without prejudice to clause 5.2.2 where materials are so supplied or specified by the Buyer and the Seller advises the Buyer of their unsuitability but the Buyer instructs the Seller to proceed anyway the Seller shall have no liability for the quality of the Work. The Buyer shall be responsible for the type of Works they purchase from the Seller. The Seller shall not be liable for any advice or recommendation given to the Buyer as to specification of the Work.

5.2.4 Quantities of materials supplied by the Buyer shall be adequate to cover normal spoilage and any costs incurred as a result of shortages, including re-starting jobs and duplicating masters will be chargeable.

5.3 Risk and Storage

5.3.1 All property supplied to the Seller by or on behalf of the Buyer shall, while it is in the Seller’s possession or in transit to or from the Seller, be deemed to be at the Buyer’s risk unless otherwise agreed in writing.

5.3.2 The Seller shall be entitled to make reasonable charges for the storage of any property supplied by or on behalf of the Buyer before receipt of the order (in sufficient detail to commence Work) or after notification to the Buyer of completion of the Work.

5.3.3 The Buyer warrants to the Seller that the Buyer owns or has absolute rights to use all Intellectual Property and/or other proprietary interests in all materials (including Electronic Files) supplied by or on behalf of the Buyer and that the use of those designs or specifications shall not infringe on the Intellectual Property rights or any other rights of any third party. The Buyer agrees to indemnify, defend and hold harmless the Seller, its directors, officers, employees, consultants and agents from any and all third party claims, liability, damages and/or costs (including, but not limited to, legal fees) arising from, any breach or infringement of any third party Intellectual Property.

5.4 Finished Goods

5.4.1 Risk in the Work and all goods delivered in connection with it shall pass to the Buyer on despatch.

5.4.2 On completion of the Work the Seller will store the Work and other materials for a maximum of one month after which time the Seller may destroy them without notice.

5.5 Title to the Works shall not pass to the Buyer until the Seller receives payment in full (in cash or cleared funds) for the Works. Notwithstanding that the Work remain the property of the Seller the Buyer may sell (at full market value for the account of the Seller) or otherwise deal with the Work in the ordinary course of the Buyer's business. Any such sale or dealing shall be by the Buyer acting as principal on its own behalf who shall be liable for any claims whatsoever and howsoever arising out of any such sale or dealing. The Seller shall be entitled to recover payment for the Work from the Buyer and any other applicable costs notwithstanding that title in any of the Work has not passed from the Seller.

7. Proofs & Variations

7.1 The Work is undertaken by the Seller on the basis that proofs will be provided, diligently checked by the Buyer and approved prior to production of the Work and the Seller shall not be liable for any errors (including errors introduced by the Seller) not corrected by the Buyer where the Buyer has been so provided with proofs.

7.2 Alterations required by the Buyer (except to the extent caused by the default of the Seller) and additional proofs necessitated thereby shall be chargeable. To the extent that style, type or lay-out is left to the Seller’s judgement changes therefrom made by the Buyer shall be chargeable.

7.3 Where the Buyer waives any requirement to examine proofs the Seller shall not be liable for any errors in the finished Work and shall be indemnified by the Buyer against all resulting losses.

7.4 Colour proofs: due to differences in equipment, paper, inks and other conditions between colour proofing and production runs it is expressly agreed and accepted by the Buyer that a reasonable variation in colour between the proofs and the completed job will be acceptable (unless otherwise specifically agreed in writing prior to ordering any Work).

7.5 Variations in quantity: estimates of quantity are conditional upon margins of 5% for Work being allowed for “overs” or “unders” which will be chargeable or deductible, unless otherwise agreed in writing.

7.6 The Seller may at any time change the specification of the Work as required to comply with any applicable safety or statutory requirements or which do not materially impair the function of the Work.

7.7 All implied and express terms, conditions and warranties relating to quality and/or fitness for purpose of the Work are excluded whether made by the Seller or its servants or agents or otherwise.

7.8 A word of warning: The Buyer accepts conversion of files into different software formats such as Microsoft files to PDF has limitations which cause tabs and pagination and text/pictures to reflow or corruption of files. If file formats have been changed the Buyer must check carefully all proofs and the Seller is not responsible for the Buyer’s failure to do so.

9. Acceptance of Work

9.1 The Buyer shall be deemed to have accepted the Work upon delivery. The Buyer shall inspect all the Work within 48 hours of delivery and shall within 72 hours notify the Seller of any defects or if the Work is not in accordance with the Contract.

9.2 In the case of damage, delay or loss of Work in transit or of non-delivery the Buyer shall so notify the Seller and the carrier within 72 hours of delivery (or, in the case on non-delivery, within 72 hours of notification of despatch) and any claim must be made in writing to the Seller and the carrier within 5 days of delivery (or, in the case of non-delivery, within 7 days of notification of despatch).

9.3 If the Buyer properly rejects any Work which is not in accordance with the Contract or is defective the Buyer shall nonetheless pay in full for all Work unless the Buyer promptly notifies the Seller of such rejection in accordance with clause 9.1 and returns all such Work to the Seller within 14 days of delivery (in each case time being of the essence). The Seller shall then and only then, at its option, repair or replace the defective Work, or refund the price or part of the price representing the defective Work. If only part of the Work is defective, such rejection shall not entitle the Buyer to reject all the Work.

9.4 The Seller shall not be liable in respect of any claim for damage, delay or loss of Work in transit or of non-delivery unless the Buyer promptly notifies the Seller in accordance with clause 9.2 and returns all such Work (except in the case of non-delivery) to the Seller within 14 days of delivery (in each case time being of the essence).

11. Cancellation

11.1 The Buyer may cancel the order prior to completion of the Work in which event the Buyer shall pay to the Seller such charges as the Seller shall determine in respect of any materials ordered, labour expended and other incidental expenses in connection with the order together with an amount equal to the Seller’s reasonable estimate of its loss of profit from the order.

11.2 In the event of any cancellation under this contract the Buyer shall be liable to pay a reasonable administration charge to the Seller in addition to all other amounts referred to in clause 11.1.

13. Unlawful Matters

13.1 The Seller may properly refuse to carry out any Work which is in its opinion or may be of an unlawful or defamatory nature or an infringement of the proprietary or other rights of any third party.

13.2 The Buyer shall indemnify the Seller in respect of any and all claims, costs and expenses arising out of any Work relating to any unlawful or defamatory matter or which infringes Intellectual Property or other proprietary or personal rights of any third party together with all costs on a full indemnity basis.

15. Force Majeure

The Seller shall not be liable for any claims, costs, damages or other losses suffered by the Buyer to the extent resulting from any failure on the part of the Seller, its servants and / or agents caused by or directly or indirectly due to war, terrorism, act of any Government or other competent authority, civil unrest, embargo, computer system failure, storm, fire, accident, industrial action including strikes or lockouts, acts of God, illness, prevention from or hindrance in obtaining raw materials, energy or other supplies, or any other similar cause or matter beyond the reasonable control of the Seller.

17. Jurisdiction

This Contract is subject to the Laws of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.

19. Mailing Services

19.1 The Seller shall carry out only those services as specified in its estimate or as otherwise agreed in writing to include carriage, storage, packing or handling and the Seller shall be entitled to perform any such services by itself or by any subsidiary or associated companies or by any other persons.

19.2 The Buyer shall ensure that all materials supplied to the Seller conform to the specifications in the estimate, are supplied punctually, are accompanied by a delivery note stating accurately the quantity and description of the materials supplied, are delivered on pallets or otherwise properly packaged so as to withstand normal transport, storage and handling and are sufficient to enable the Seller to deliver the correct quantity allowing for normal wastage and spoilage.

19.3 The Seller shall check the materials supplied against the delivery note and shall report any discrepancy to the Buyer but the Seller shall not be responsible for any loss arising from any errors in the materials supplied nor shall it be required to check the contents of pallets or packages supplied by or on behalf of the Buyer.

19.4 The Seller is not a common carrier but shall be entitled to enter into contracts for carriage by any route or by any means and for storage, packing or handling by any persons at any place and for any length of time and all such other acts as may be necessary or incidental at the absolute discretion of the Seller to fulfil this Contract.

19.5 Where in any circumstances the Seller acts as a principal in entering into a contract with any person for the carriage or handling of materials, the Seller is not itself a carrier for the purposes of any statutory or other provision or purpose nor does it make or purport to make any contract for the carriage or handling of any goods with the Buyer but nonetheless the Seller shall be entitled to the benefit of all exceptions and limitations in respect of the carrier or other persons handling materials contained in the Seller’s contracts with any third parties and in any event the Buyer will not seek to impose on the Seller and the Seller shall not be under any liability greater than accepted by any carrier under any such contract.

19.6 The Buyer warrants to the Seller that all names, addresses and any other information supplied to the Seller in connection with the provision of mailing services is accurate and that the Buyer has full authority to use such data for the purpose of mailing and the Buyer will indemnify the Seller from and against all claims, costs and other losses arising from the Seller’s use of the data in connection with providing the mailing services except to the extent that such losses arise from the default of the Seller in cleaning or otherwise verifying the data provided always that the Seller shall be under no obligation to clean or otherwise verify any data provided to it by the Buyer except where such services are specifically requested and form part of the mailing services and which will be subject to a separate additional charge. Any cleaning or verification of data undertaken by the Seller will be subject to clause 7.1 namely on the basis that a proof will be provided, diligently checked by the Buyer and approved prior to the provision of the mailing services and the Seller shall not be liable for any errors (including errors introduced by the Seller) not corrected by the Buyer where the Buyer has so been provided with proofs.

19.7 In the event that solely due to the default of the Seller any mailing is incomplete (including the omission of any enclosure) the remedies of the Buyer shall be limited in accordance with clause 10.2 or (if lesser) the cost of any additional postage or carriage incurred as a direct result of such default.

21. Other Important Terms

21.1 These Conditions constitute the entire understanding of the Buyer and the Seller and supersede all prior discussions, negotiations, agreements and understandings, whether oral or written.

21.2 If any part of these Conditions are held invalid, unenforceable or void by a court of competent jurisdiction, these Conditions are considered divisible as to such part, and the remainder of these Conditions are valid and binding as though such part was not included in these Conditions.

21.3 The Seller may revise these Conditions from time to time in the following circumstances: a) changes in how the Seller accept payment from the Buyer; b) changes in relevant laws and regulatory requirements; and c) changes in the nature and make-up of the Seller’s business. Every time the Buyer orders Works from the Seller, the Conditions in force at that time will apply to the Contract between the Buyer and the Seller.

21.4 Nothing in these Conditions affects the statutory rights of any consumer.

21.5 No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

21.6 The Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Seller.

21.7 No failure or delay by the Seller to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

21.8 These Conditions and any document expressly referred to in them constitute the entire agreement between the Buyer and the Seller. The Buyer acknowledges that they have not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in these Conditions or any document expressly referred to in them.