CONDITIONS OF SALE
1.1 In these Conditions:
“Customer” means the person designated as such in the quotation, acceptance of order, invoice or other form to which these Conditions are annexed;
“Work” means the goods and services specified in the quotation, acceptance of order, invoice or other form to which these Conditions are annexed;
“Printing Company” means Fawcett Print Services Limited (registered in Scotland under number SC243705 trading as “XIC”);
“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and the Printing Company;
“Contract” means the agreement between the Customer and the Printing Company for the supply of the Work by the Printing Company;
“Writing” includes telex, cable, email, facsimile transmission and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. BASIS OF SALE
2.1 The Printing Company shall supply and the Customer shall accept the work in accordance with any written quotation of the Printing Company which is accepted by the Customer, or any written order of the Customer which is accepted by the Printing Company, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and the Printing Company.
2.3 The Printing Company’s employees or agents are not authorised to make any representations concerning the Work unless confirmed by the Printing Company in Writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
3. ORDERS AND SPECIFICATIONS
3.1 No order submitted by the Customer shall be deemed to be accepted by the Printing Company unless and until confirmed in Writing by the Printing Company’s authorised representative.
3.2 The Customer shall be responsible to the Printing Company for ensuring the sufficiency and accuracy of the terms of any order (including any applicable specification) submitted by the Customer, and for giving the Printing Company any necessary information or material relating to the Work within a sufficient time to enable the Printing Company to perform the Contract in accordance with its terms.
3.3 The quantity, job description of and any specification for the Work shall be those set out in the Printing Company’s quotation (if accepted by the Customer) or the Customer’s order (if accepted by the Printing Company).
3.4 The Customer shall indemnify the Printing Company against all loss, damages, costs and expenses awarded against or incurred by the Printing Company in connection with or paid or agreed to be paid by the Printing Company in settlement of any claim for infringement of any copyright, design, trademark or other industrial or intellectual property rights of any other person which results from the Printing Company’s use of the Customer’s specification or any information or material supplied by the Customer to the Printing Company as aforesaid or otherwise from the performance by the Printing Company of this Contract in accordance with its terms.
3.5 No order which has been accepted by the Printing Company may be cancelled by the Customer except with the agreement in Writing of the Printing Company and on terms that the Customer shall indemnify the Printing Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Printing Company as a result of cancellation.
4. PRICE OF WORK
4.1 The price of the Work shall be the price quoted by the Printing Company in Writing. All prices quoted are valid for 30 days only (or until earlier acceptance by the Customer), after which time they may be altered by the Printing Company without giving notice to the Customer. The Printing Company shall not be bound by any price quoted or estimated to the Customer unless confirmed by the Printing Company in Writing.
4.2 The Printing Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Work to reflect any increase in the cost to the Printing Company which is due to any factor beyond the control of the Printing Company (such as, without limitation, any significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Work which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Printing Company adequate information or instructions or materials.
4.3 Except as otherwise stated under the terms of any quotation or acceptance of order or in any price list of the Printing Company, and unless otherwise agreed in Writing between the Customer and the Printing Company, all prices are given by the Printing Company for delivery at the Printing Company’s premises as stated in such quotation or acceptance of order, and where the Printing Company agrees to deliver the Work otherwise than at those premises, the Customer shall be liable to pay in addition to the price for the Work such costs incurred by the Printing Company for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value-added tax, which the Customer shall be additionally liable to pay to the Printing Company.
5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in Writing between the Customer and the Printing Company, the Printing Company shall be entitled to invoice the Customer for the price of the Work on or at any time after delivery of the Work, unless the Work is to be collected by the Customer or the Customer wrongfully fails to take delivery of the Work, in which event the Printing Company shall be entitled to invoice the Customer for the price at any time after the Printing Company has notified the Customer that the Work is ready for collection or (as the case may be) the Printing Company has tendered delivery of the work.
5.2 The Customer shall pay the price of the Work on the earlier of:
5.2.1 delivery of the Work in terms of Clause 6.1 of these Conditions; and
5.2.2 the expiry of 7 days from the date of the Printing Company’s invoice, (or, where a credit account facility has previously been agreed in writing between the Printing Company and the Customer, the expiry of 30 days from the date of the Printing Company’s invoice) notwithstanding that delivery may not have taken place and the property in the Work has not passed to the Customer.
The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Printing Company, the Printing Company shall be entitled to:
5.3.1 rescind the Contract or suspend any further deliveries to the Customer;
5.3.2 appropriate any payment made by the Customer to such of the Work (or Work supplied under any other contract between the Customer and the Printing Company) as the Printing Company may think fit (notwithstanding any purported appropriation by the Customer); and
5.3.3 charge the Customer interest (both before and after any decree) on the amount unpaid, at the rate of four percent per annum above Royal Bank of Scotland base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6.1 Delivery of the Work shall be made by the Customer collecting it from the Printing Company’s premises at any time after the Printing Company has notified the Customer that the Work is ready for collection or, if some other place for delivery is agreed by the Printing Company, by the Printing Company delivering the Work to that place.
6.2 Any dates quoted for delivery of the Work are approximate only and the Printing Company shall not be liable for any delay in delivery of the Work howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Printing Company in Writing, the Work may be delivered by the Printing Company in advance of any quoted delivery date upon giving reasonable notice to the Customer.
6.3 The Printing Company reserves the right to deliver up to five percent more or less than the quantity of Work ordered subject to a proportionate adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.
6.4 Where the Work is to be delivered in installments, each installment shall constitute a separate contract (to which these Conditions shall apply as they apply to this Contract mutatis mutandis) and failure by the Printing Company to deliver any one or more of the installments in accordance with these Conditions or any claim by the Customer in respect of any one or more installments shall not entitle the Customer to treat the Contract as a whole as repudiated.
6.5 If the Printing Company fails to deliver the work for any reason other than any cause beyond the Printing Company’s reasonable control or the Customer’s fault, and the Printing Company is accordingly liable to the Customer, the Printing Company’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar Work to replace those not delivered over the price of the work.
6.6 If the Customer fails to take delivery of the Work within seven days after the Printing Company notifies the Customer in Writing that the Work is available for collection, or if some other place for delivery is agreed by the Printing Company, if the Customer fails to take delivery of the work or fails to give the Printing Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Printing Company’s fault) then, without prejudice to any other right or remedy available to the Printing Company, the Printing Company may:
6.6.1 store the Work until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
6.6.2 sell the Work at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
7. RISK AND PROPERTY
7.1 Risk of damage to or loss of the work shall pass to the Customer:
7.1.1 in the case of Work to be delivered at the Printing Company’s premises, at the time when the Printing Company notifies the Customer in Writing that the Work is available for collection; or
7.1.2 in the case of Work to be delivered otherwise than at the Printing Company’s premises, at the time of delivery or, if the Customer wrongfully fails to take delivery of the work, the time when the Printing Company has tendered delivery of the Work.
7.2 Notwithstanding delivery and the passing of risk in the Work, or any other provision of these Conditions, (but subject to the proviso in this Condition 7.2), the property in and title to the Work shall not pass to the Customer until the Printing Company has received in cash or cleared funds payment in full of the price of the work provided that, where the Work is delivered in installments in terms of Condition 6.4, property in and title to such of the work as is thereby delivered shall not pass to the customer until the Printing Company has received in cash or cleared funds payment in full of the price of such Work.
7.3 Until such time as the property in and title to the Work passes to the Customer (and provided the Work is still in existence) the Printing Company shall be entitled at any time to require the Customer to deliver up the work to the Printing Company and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Work is stored and repossess the Work.
7.4 Risk of damage to or loss of any items provided by the Customer to the Printing Company for the purposes of the Contract shall remain at all times with the Customer.
8. WARRANTIES AND LIABILITY
8.1 The Printing Company shall not be liable for any claim based on failure of the work to correspond with specifications where the work or the bulk of it corresponds with proof (s) submitted by the Printing Company and the Customer fails to notify the Printing Company of the failure of the proof(s) to correspond with specification within seven days of the date of submission or (where the failure was not apparent on reasonable inspection) within a reasonable time after discovery of the failure.
8.2 Without prejudice to the foregoing clause 8.1 any claim by the Customer which is based on any defect in the quality or condition of the work or its failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to the Printing Company within 14 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Customer does not notify the Printing Company accordingly, the Customer shall not be entitled to reject the Work and the Printing Company shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Work had been delivered in accordance with the Contract.
8.3 Where any valid claim in respect of any of the work which is based on any defect in the quality or condition of the Work or its failure to meet specification is notified to the Printing Company in accordance with these Conditions, the Printing Company shall be entitled to replace the work (or the part in question) free of charge or, at the Printing Company’s sole discretion, refund to the Customer the price of the work (or a proportionate part of the price), but the Printing Company shall have no further liability to the Customer.
8.4 Except in respect of death or personal injury caused by the Printing Company’s negligence, the Printing Company shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Printing Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the work or its use or resale by the Customer, except as expressly provided in these Conditions.
8.5 The Printing Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Printing Company’s obligations in relation to the work, if the delay or failure was due to any cause beyond the Printing Company’s reasonable control (including but without prejudice to the generality of the foregoing strikes, lock-outs or other industrial actions or trade disputes) whether involving employees of the Printing Company or of a third party.
9. INSOLVENCY OF CUSTOMER
9.1 This clause applies if:
9.1.1 the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes apparently insolvent or (being a company) passes a resolution for its winding up (other than a voluntary winding up for the purpose of a solvent reconstruction or amalgamation) or is the subject of a petition for the appointment of a liquidator or provisional or interim liquidator or of an administration order or interim administration order is made in relation to the Customer; and
9.1.2 a receiver or administrative receiver is appointed in respect of any of the property or assets of the Customer or any security over any such property or assets is enforced; or
9.1.3 the Customer ceases, or threatens to cease, to carry on business; or
9.1.4 the Printing Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
9.2 If this clause applies then, without prejudice to any other right or remedy available to the Printing Company, the Printing Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Work has been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10.1 The Printing Company shall be entitled to assign or sub-contract the Contract in whole or in part without the consent or approval of the Customer.
10.2 Unless supplied by the Customer or unless otherwise agreed by the Printing Company in Writing all type-plates, moulds, stereotypes, electrotypes, film-setting and negative or positive photographs used or produced by the Printing Company in connection with the Contract shall be the exclusive property of the Printing Company whether such items have been commissioned by the Customer or otherwise.
10.3 No waiver by the Printing Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
10.5 The Contract shall be governed by the laws of Scotland and the Customer and the Printing Company hereby submit to the nonexclusive jurisdiction of the Sheriff Court of Grampian Highland and Islands at Aberdeen.