Terms and conditions of trading with dl design associates
DL DESIGN ASSOCIATES LIMITED TERMS & CONDITIONS
Conditions of Trading
We are built upon a reputation for providing a service to the highest competitive standards but 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. Clients should not request copying services unless they are sure that they comply with the warranty contained in Condition 27.
In these Conditions:
"the Company" means the person or legal entity specified on the front of these terms and conditions.
"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 Client from the Company;
"the Client" means the person, firm, company or organisation who orders the Commissioned Work pursuant to these Conditions;
"the Clients Materials"Â means all materials delivered to the Company by or on behalf of the Client;
"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.
"Original Items" as defined in Condition 21(b)
The Company and the Client 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 Client's order or in correspondence or elsewhere 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 Company unless made in writing and signed by a duly authorised representative of the Company.
(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 Client shall be additionally liable.
(b) The Company reserves the right to increase any part of the costs or fees payable:
(i) in respect of design work where the Client's requirements are not clear, necessitating the production of additional proofs;
(ii) where poor quality artwork is provided by the Client 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 cost to the Company 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 Client;
(v) any delay caused by any instructions of the Client changes to the Order, failure of the Client to give the Company adequate information or failure of the Client to supply clear or legible copy;
(vi) failure or delay of the Client to take delivery instructions.
(vii) all quotations are valid for 30 days from the date of the quotation.
(viii) Overs and unders of + or - 10% will be charged for.
The Company shall seek to notify the Client of the amount of any increase as soon as reasonably practicable. The Client 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 increases by more than 10% provided notice of cancellation is given by the Client as soon as reasonably practicable on receiving notification of such increase but the Client shall pay the Company 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 Client may cancel if the price increase is more than 20% and in such circumstances the pro rata costs payable by the Client shall be calculated on the increased costs.
(c) Without prejudice to the above, the Company 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 Company, payment of the Company's invoices shall be paid 50% up front before the Commissioned Work commences and the balance of 50% upon delivery of the Commissioned Work.
(e) Clients may apply to become credit account Clients which application may be accepted at the Company's sole discretion. Credit account Clients shall pay the Company within 7 days of the date of the Company's invoice.
(f) If the client fails to make payment on the due date, the Company shall be entitled to charge the Client interest under the Late Payment of Commercial Debt Act 1998 as amended.
(g) The Company may require the Client to pay a deposit at the time the order is placed. Furthermore, if in the opinion of the Company, the creditworthiness of the Client shall have deteriorated prior to delivery, the Company may require full or partial payment of the price prior to delivery.
4. Preliminary work
The Company shall charge and the client shall pay the Company for all preliminary work carried out, whether experimental or otherwise, at the Client's request. In the event that the Company accepts early termination by the Client of any preliminary work, the Client shall pay the Company for the preliminary work, if any, carried out prior to such termination on a pro rata basis.
It shall be the responsibility of the Client to inspect all proofs submitted for approval and the Company shall not be liable to the Client for any errors not corrected by the Client in proofs so submitted, except typographical or other errors made by the Company, and any additional proofs necessitated thereby shall be charged extra to the Client.
6. Full colour printing
(a) Due to the nature of the processes involved, the Company does not guarantee that the Commissioned Work will match the Client's Materials in colour, saturation or texture.
(b) Clients 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 Client for this service which shall be agreed with the client prior to commencement of the Commissioned Work.
(c) The Client shall be responsible for ensuring that the Client's Materials supplied are suitable for full colour printing and the Client's attention is brought to Condition 20(b) in this respect.
7. Variations in quantity
The Company shall endeavour to deliver the correct quantity of the Commissioned Work but orders for the Commissioned Work are accepted on the condition that the Client 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 Client collecting the Commissioned Work at the Company's premises at any time after the Company has notified the Client that the Commissioned Work is ready for collection or, if some other place for delivery is agreed by the Company, the Company delivering the Commissioned Work to that place.
9. Delivery is free within 1 mile.
If the place of delivery is outside 1 mile, the Company shall charge for such delivery and insurance at the rates ruling at the date ofdelivery.
10. The Company shall endeavour to fulfil all orders which may from time to time be placed with it by the Client and shall endeavour to comply with delivery dates quoted but the time for delivery shall not be of the essence. THE COMPANY SHALL NOT BE LIABLE FOR ANY LOSS DIRECTLY OR INDIRECTLY ATTRIBUTABLE TO ANY DELAY BEYOND THE STATED DELIVERY DATE UNLESS SUCH A DELAY HAS BEEN CAUSED BY THE COMPANY'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 Company to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Client in respect of any one or more of the instalments shall not entitle the Client to treat the order as a whole as repudiated or cancelled.
12. Risk & title
The risk in the Commissioned Work shall pass to the client on delivery and the Client 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 Company until the Client has paid all money owed by it to the Company.
14. The Company 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 Company reasonably believes it to be stored.
15. Until payment is made the Client shall possess the Commissioned Work as a fiduciary agent and bailee only and shall store each item of the Commissioned Work securely and separately from the Client'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 Company's invoices.
16. The Client's right to possession of the Commissioned Work shall cease if any of the events described in Condition 29 occurs.
17. The Client grants the Company an irrevocable licence to enter at any time any vehicle or premises owned or occupied by the Client or in its possession for the purpose of repossessing and removing any of the Commissioned Work the property in which has remained in the Company under Condition 13. The Company shall not be responsible for and the Client will indemnify the Company 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 Company's rights and remedies if the Client 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 Company in fulfilling an Order belong to the Company absolutely subject to Condition 21 below regarding origination items.
20. Client's materials
(a) Whilst the Company shall endeavour to preserve the Client'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 client'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 Company's negligence. The Client shall supply adequate quantities of such materials to cover spoilage.
(b) Whilst the Company shall endeavour to maintain its usual quality standards where the Client's Materials are used, the Company shall not be liable for imperfect work caused by defects in or unsuitability of the Client's Materials and the Client shall not be entitled to reject such work for such reason.
(c) The Company shall have a lien over the Client's Materials against payment of all costs or fees due to it by the Client from time to time and shall be entitled (if any payment is not made on the due date) to dispose of the Client's Materials for such sums (if any) as the Company may in its discretion think appropriate towards the settlement of the amount due.
21. Design work
(a) Subject as provided in this Condition, ALL DESIGN WORK ORIGINATED BY THE COMPANY SHALL AS TO ITS MATERIAL ELEMENTS AND AS TO THE COPYRIGHT OR DESIGN RIGHT IN RELATION TO IT, BELONG TO THE COMPANY, and the Client shall not have any right to reproduce or authorise an other person to reproduce any such design work in whole or in part of to do any act which would, in the absence of author is at ion by the Company, infringe any copyright or design right which may subsist in relation to any such design work. The Company reserves the right to charge for work undertaken should a project be put on hold or cancelled by the Client.
(b) In the course of the design work, the Company 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 Company absolutely.
(c) On payment by the Client of all sums due to the Company, the Company will:
(i) return to the Client the Client's Materials
(ii) deliver and transfer to the Client the Origination Items; and
(iii) at the Client's request assign to the Client the Company's copyright and design right in relation to the design work subject to payment by the Client of all additional expenses relating to such assignment.
22. Scanning and archiving
The client 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 Company shall not be liable for any loss suffered by the Client by virtue of any item supplied by the Client being inaccurate, containing defects or being erased unless such loss arises by virtue of the Company's negligence and/or breach of contract.
Subject always to Condition 23 below:
(a) the Company shall not be liable to the client in respect of a claim relating to the Commissioned Work unless the Client shall notify the Company in writing of such claim such notice to be received by the Company 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 Client can show that compliance with the time limits was not possible and that notice of the Client's claim had been given to the Company as soon as reasonably practicable.
(b) any liability incurred by the Company in respect of any of the Commissioned Work supplied pursuant to these Conditions howsoever arising shall be limited at the Client's option to reprinting the Commissioned Work, refunding the costs or fees paid or replacing or refunding the cost of the Client's Materials, save that nothing in this Condition shall operate to exclude any liability on the part of the Company for personal injury or death.
24. These Conditions do not and will not affect the statutory rights of the Client 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"Â 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 Company shall not be liable to the Client or be deemed to be in any breach of any order for the Commissioned Work by reason of any delay in performing or failure to perform any of the Company's obligations in relation to the order placed by the Client if the delay or failure was due to any cause beyond the Company's reasonable commercial control.
27. Client's warranty and indemnity
(a) The Company 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 Client warrants to the Company that it owns the Clients Materials and all Intellectual Property Rights in them and that the Clients 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 provision of any services infringe any Intellectual Property Rights of any third party.
(c) The Client 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 Company to Possess.
(d) The Client shall indemnify the Company and keep it indemnified in respect of all costs, claims, liabilities and expenses to which the Company 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 Company's legal costs.
28. Periodic Publications
Where the Client places an order with the Company for the printing or 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 Company's right to terminate the contract with immediate effect if the Client 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 of the other party, being an individual 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 other 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 as amended from time to time; or
-ceases or threatens to cease to carry on business; or
-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 Client is in breach of any of its obligations under these Conditions or the Conditions are terminated by the Company under (a) above, then the Company without prejudice to any of its other rights may immediately suspend the performance of any order placed by the Client and shall be entitled to charge the Client, and the Client 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 Client.
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 supercede 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 Client acknowledges that he has not relied on any representation or warranty not contained in these Conditions.
(c) It is expressed provided that nothing in these Terms and Conditions shall exclude any liability of the Company for fraudulent misrepresentations.
32. Third party rights
No person who is not a Client 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.