STANDARD CONDITIONS OF CONTRACT
The customer’s attention is drawn in particular to the provisions of clause 8.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.4.
Contract: the contract between EDWPS and the Customer for the production of the Work in accordance with these Conditions.
Copy: means artwork and text provided by the Customer.
Customer: the person or firm who purchases the Work from EDWPS.
Customer Materials: means any paper, plates or other materials supplied by or specified by the Customer.
Customer’s Property: means artwork, copy and all other intellectual property supplied by the Customer.
Delivery Location: has the meaning given in clause 4.2.
Estimate: the document setting out the Price, delivery and Work to be undertaken by EDWPS.
Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.
Order: the Customer’s instructions to the Supplier to do the Work.
Price: means the price for the Work as set out in the Estimate and Order.
Proofs: any proofs, which are agreed in writing by the Customer and EDWPS.
Supplier: Eight Days a Week Print Solutions Limited (“EDWPS”) (registered in England and Wales with company number 06054241).
Work: the documents and products as set out in the Order.
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to a party includes its successors and permitted assigns.
- A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
- Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
- A reference to writing or written includes fax and email.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to and authorise and purchase the Work in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Proofs submitted are complete and accurate.
2.3 The Order shall only be deemed to be accepted when EDWPS issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 Any advertising produced by EDWPS and any illustrations contained in EDWPS’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Work referred to in them. They shall not form part of the Contract nor have any contractual force.
2.5 A quotation for the Work given by EDWPS shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3. The Work and Proofs
3.1 Proofs of all Work may be submitted for the Customer’s approval and EDWPS shall incur no liability for any errors not corrected by the Customer in Proofs so submitted. Customer’s alterations and additional Proofs necessitated thereby shall be charged extra. When style, type or layout is left to EDWPS’s judgement, changes therefrom made by the Customer shall be charged extra.
3.2 To the extent that the Work is to be produced in accordance with the Proofs supplied by the Customer, the Customer shall indemnify EDWPS against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable legal and other professional costs and expenses) suffered or incurred by EDWPS in connection with any claim made against EDWPS for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with EDWPS’s use of the Proofs. This clause 3.2 shall survive termination of the Contract.
3.3 Customer Materials:
- In the event that Customer Materials are supplied or specified are found to be unsuitable during the production process, then EDWPS may reject such Customer Materials. Where additional cost is incurred as a result of the unsuitability then such costs will be charged to the Customer except that if the whole or part of such additional cost could have been avoided but for unreasonable delay by EDWPS in ascertaining the unsuitability of the Customer Materials then that amount shall not be charged to the Customer;
- Where Customer Materials are so supplied or specified, EDWPS will take every care to secure the best results, but responsibility will not be accepted by EDWPS for imperfect work caused by defects in or unsuitability of Customer Materials so supplied or specified; and
- Quantities of Customer Materials supplied shall be adequate to cover normal spoilage.
3.4 EDWPS reserves the right to amend the Work if required by any applicable statutory or regulatory requirement, and EDWPS shall notify the Customer in any such event.
4.1 EDWPS shall ensure that:
- Each delivery of the Work is accompanied by a delivery note that shows the date of the Order, the relevant Customer and EDWPS’s reference numbers, the type and quantity of the Work (including the code number of the Work, where applicable), special storage instructions (if any) and, if the Work is being delivered by instalments, the outstanding balance of Work remaining to be delivered; and
- If EDWPS requires the Customer to return any packaging materials to EDWPS, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as EDWPS shall reasonably request. Returns of packaging materials shall be at the Customer’s expense.
4.2 EDWPS shall deliver the Work to the location set out in the Estimate and Order or such other location as the parties may agree (Delivery Location) at any time after EDWPS notifies the Customer that the Work is ready.
4.3 Delivery is completed on the completion of unloading of the Work at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. EDWPS shall not be liable for any delay in delivery of the Work that is caused by a Force Majeure Event or the Customer’s failure to provide EDWPS with adequate delivery instructions or any other instructions that are relevant to the supply of the Work.
4.5 If EDWPS fails to deliver the Work, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Work of similar description and quality in the cheapest market available, less the Price of the Work. EDWPS shall have no liability for any failure to deliver the Work to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide EDWPS with adequate delivery instructions or any other instructions that are relevant to the supply of the Work.
4.6 If the Customer fails to accept delivery of the Work within 3 Business Days of EDWPS notifying the Customer that the Work is ready, then, except where such failure or delay is caused by a Force Majeure Event or EDWPS’s failure to comply with its obligations under the Contract in respect of the Work:
- delivery of the Work shall be deemed to have been completed at 9:00 am on the third Business Day after the day on which EDWPS notified the Customer that the Work were ready]; and
- EDWPS shall store the Work until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
4.7 Every effort shall be made to deliver the correct quantity ordered, but estimates are conditional upon margins of 5 per cent. In the event of overs or shortage then EDWPS shall make a pro-rata adjustment to the invoice for the Work.
4.8 EDWPS may deliver the Work by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 EDWPS warrants that on delivery, and for a period of 6 months from the date of delivery (warranty period), the Work shall:
- conform in all material respects with their description and any applicable Proofs and Copy;
- be free from material defects in Copy, Proofs and workmanship;
- be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
- be fit for any purpose held out by EDWPS in its Estimate(s).
5.2 Subject to clause 5.3, if:
- the Customer gives notice in writing to EDWPS during the warranty period within a reasonable time of discovery that some or all of the Work does not comply with the warranty set out in clause 5.1;
- EDWPS is given a reasonable opportunity of examining such Work; and
- the Customer (if asked to do so by EDWPS) returns such Work to EDWPS’s place of business at the cost of EDWPS,
EDWPS shall, at its option, repair or replace the defective Work, or refund the Price of the defective Work in full.
5.3 EDWPS shall not be liable for the Work’s failure to comply with the warranty set out in clause 5.1 where:
- the Customer makes any further use of such Work after giving notice in accordance with clause 5.2;
- subject to clause 3.4, the defect arises because of the unsuitability of Customer Materials supplied or specified by the Customer;
- the defect arises because the Customer failed to follow EDWPS’s oral or written instructions as to the storage and use of the Work or (if there are none) good trade practice regarding the same;
- the defect arises as a result of EDWPS following any Proofs and Copy supplied by the Customer;
- the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
- the Work differs from its description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, EDWPS shall have no liability to the Customer in respect of the Work’ failure to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Work supplied by EDWPS.
6. Title and risk
6.1 The risk in the Work shall pass to the Customer on completion of delivery.
6.2 Title to the Work shall not pass to the Customer until the earlier of:
- EDWPS receives payment in full (in cash or cleared funds) for the Work and any other Work that EDWPS has supplied to the Customer, in which case title to the Work shall pass at the time of payment of all such sums; and
- the Customer resells the Work, in which case title to the Work shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Work has passed to the Customer, the Customer shall:
- store the Work separately from all other Work held by the Customer so that they remain readily identifiable as EDWPS’s property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the Work;
- maintain the Work in satisfactory condition and keep them insured against all risks for their full Price from the date of delivery;
- notify EDWPS immediately if it becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d); and
- give EDWPS such information as EDWPS may reasonably require from time to time relating to:
(i) the Work; and
(ii) the ongoing financial position of the Customer.
6.4 Subject to clause 6.5, the Customer may resell or use the Work in the ordinary course of its business (but not otherwise) before EDWPS receives payment for the Work. However, if the Customer resells the Work before that time:
- it does so as principal and not as EDWPS’s agent; and
- title to the Work shall pass from EDWPS to the Customer immediately before the time at which resale by the Customer occurs.
6.5 At any time before title to the Work passes to the Customer, EDWPS may:
- by notice in writing, terminate the Customer’s right under clause 6.4 to resell the Work or use them in the ordinary course of its business; and
- require the Customer to deliver up all Work in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Work is stored in order to recover them.
6.6 Customer’s Property
- Except in the case of a Customer who is not contracting in the course of a business, not holding themselves out as doing so, Customer’s property supplied to EDWPS by or on behalf of the Customer shall, whilst it is in the Possession of EDWPS or in transit to or from the Customer be deemed to be at the Customer’s risk unless otherwise agreed and the Customer should insure such Customer property accordingly.
- EDWPS shall be entitled to make a reasonable charge for the storage of any Customer’s property left with EDWPS before receipt of the Order or after notification to the Customer of completion of the Work.
7. Estimates, Price and payment
7.1 Estimates for the Work are based on EDWPS’s current costs of production and, unless otherwise agreed, are subject to change at any time after acceptance of the Customer’s Order to meet any increase, (or decrease), in such costs.
7.2 The Price for the Work shall be the price:
- for all work carried out, whether experimentally or otherwise, at the Customer’s request prior to or after the Order; and set out in the Order, or, if no price is quoted, the price set out in EDWPS’s Estimate and published price list in force as at the date of delivery.
7.3 EDWPS may, by giving notice to the Customer at any time before delivery, increase the Price of the Work to reflect any increase in the cost of the Work that is due to:
- any factor beyond EDWPS’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- any Customer Materials supplied or specified being unsuitable to produce the Work;
- any request by the Customer to change the delivery date(s), quantities or types of Work ordered, or the Copy/Proofs; or
- any delay caused by any instructions of the Customer or failure of the Customer to give EDWPS adequate or accurate information or instructions.
7.4 The Price for the Work:
- excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to EDWPS at the prevailing rate, subject to the receipt of a valid VAT invoice;
- includes the costs and charges of packaging, insurance and transport of the Work to the Delivery Location, unless agreed otherwise in the Estimate.
- Additional costs will be charged where the Customer requires:
(i) delivery to a different address that is not the agreed Delivery Location;
(ii) an expedited delivery that requires additional production costs including additional labour costs such as overtime;
(iii) any additional work involved where Copy supplied is not clear and legible; and
(iv) alterations and additional Proofs.
- In the event that the Work is suspended at the request of or delayed by the Customer for any reason for a period of 30 days, the EDWPS shall be entitled to payment for Work already carried out, for Materials specially ordered and any other additional costs including storage.
7.5 EDWPS may invoice the Customer for the Work on or at any time after the completion of delivery.
7.6 The Customer shall pay each invoice submitted by EDWPS:
- within 7 days of the due date of payment of the invoice; and
- in full and in cleared funds to a bank account nominated in writing by EDWPS, and
- time for payment shall be of the essence of the Contract.
7.7 If the Customer fails to make a payment due to EDWPS under the Contract by the due date, then, without limiting EDWPS’s remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. CLAIMS, LIMITATION OF LIABILITY and INDEMNITY
- The Customer agrees to notify and advise EDWPS and the carrier in writing:
- of any damage, delay or partial loss of the Work in transit or of non-delivery within 3 calendar days of delivery (or, in the case of non-delivery, within 28 calendar days of despatch of the Work) and any claim in respect thereof must be made in writing to EDWPS and the carrier within 7 calendar days of delivery, (or, in the case of non-delivery within 42 calendar days of despatch;
- All other claims must be made in writing to EDWPS within 28 calendar days of delivery. EDWPS shall not be liable in respect of any claim unless the aforementioned requirements have been complied with except in any particular case where the Customer proves that:
(i) It was not possible to comply with the requirements;. and
(ii) Advice(where required) was given and the claim made as soon as reasonably possible
8.2 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.3 Nothing in in the Contract limits any liability which cannot legally be limited, including liability for:
- death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
- fraud or fraudulent misrepresentation;
- breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
- defective products under the Consumer Protection Act 1987.
8.4 Subject to clause 8.3, EDWPS’s total liability to the Customer shall not exceed the value of the contract.
8.5 Subject to clause 8.3, the following types of loss are wholly excluded:
- loss of profits;
- loss of sales or business;
- loss of agreements or contracts;
- loss of anticipated savings;
- loss of use or corruption of software, data or information;
- loss of or damage to goodwill; and
- indirect or consequential loss.
8.6 Illegal matter
- EDWPS shall not print any matter which, in its opinion is, or appears to be, of an illegal or libellous nature or an infringement of the proprietary or other rights of any third party.
- The Customer agrees to indemnify EDWPS in respect of any claims, costs and expenses arising out of;
(i) any libellous matter; or
(ii) infringement of any Intellectual Property Rights (see clause 3.3).
8.7 This clause 8 shall survive termination of the Contract.
9.1 Without limiting its other rights or remedies, EDWPS may terminate this Contract with immediate effect by giving written notice to the Customer if:
- the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within ten days of that party being notified in writing to do so;
- the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
- the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
- the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
9.2 Without limiting its other rights or remedies, EDWPS may suspend provision of the Work under the Contract or any other contract between the Customer and EDWPS if the Customer becomes subject to any of the events listed in clause 9.1(b) to clause 9.1 (d), or EDWPS reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract within 7 days of the due date for payment.
9.3 Without limiting its other rights or remedies, EDWPS may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract within 7 days of the due date for payment.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to EDWPS all of EDWPS’s outstanding unpaid invoices and interest and, in respect of Work supplied but for which no invoice has been submitted, EDWPS shall submit an invoice, which shall be payable by the Customer immediately on receipt.
9.5 Periodical publications:
- Where the parties have contracted for the supply of periodical publications, either party shall, subject to clauses 9.1; 9.2; 9.3 and 9.4 (the right to terminate immediately) give:
(i) not less than 13 weeks written notice for periodicals produced monthly; or
(ii) not less than 26 weeks for other periodicals;
(iii) notice may be given at any time, but wherever possible, should be given after completion of work on any one issue.
9.6 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
9.7 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
10. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for two months, the party not affected may terminate the Contract by giving 30 days’ written notice to the affected party.
11.1 Assignment and other dealings.
- EDWPS may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
- The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, 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 EDWPS.
- Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2 (b).
- Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
11.3 Entire agreement.
- The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party 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.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 11.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
- Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the address specified in order acknowledgment.
- Any notice or communication shall be deemed to have been received
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9:00 am on the two Business Day after posting; and
(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.7 (b) (iii), business hours means 9.00am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.
- This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
11.8 Third party rights.
- Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
- The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
11.9 Governing law.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law 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 the Contract or its subject matter or formation.