Etiquette Labels Ltd - Terms and Conditions of Sale
Definitions and Terms of Contract
In these Conditions Etiquette Labels Limited is referred to as “Etiquette” and the party to which the quotation has been given, or with which the seller has entered into a contract, is referred to as “The Customer”. All orders from the Customer shall be treated by Etiquette as an offer to purchase. No contract shall come into existence until such order has been accepted by Etiquette by way of an order of acknowledgement in the form used by Etiquette from time to time (“the Order Acknowledgement”). Neither the performance in whole or in part of the Customer’s order, nor any conduct whatsoever on the part of the Customer, shall be construed as the acceptance by Etiquette of any terms and conditions inconsistent with these Conditions of Sale, which shall not be deemed to have been altered, modified or varied by any condition stipulated by the Customer, unless such condition has been agreed, in writing, by Etiquette. The Customer acknowledges that in entering into a contract with Etiquette it does not rely on any representations or statements which may have been made by Etiquette, or its servants or agents, and all such representations or statements are herby excluded, save as may be expressly incorporated in these conditions, in the Order Acknowledgement, or in any other amended Order Acknowledgment.
The price payable by the Customer for each delivery shall be the price ruling as published or operated by Etiquette at the date of despatch, to which shall be added any Value Added Tax and any other tax or duty relating to the manufacture, transportation, export, import, sale or delivery of the goods. All prices are on an ex-factory basis and do not include transportation costs unless otherwise expressly agreed. Special carriage or transport costs incurred at the request of the Customer will be charged to the Customer. Quotations are based on Etiquette’s 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. All work carried out, whether experimentally or otherwise, at the Customer’s request shall be charged.
Terms of Trading
Unless otherwise stated, terms of payment are net against invoice, payable within 30 days from the date of the invoice. In the event of payment being overdue Etiquette reserves the right to charge interest and compensation in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. On any account not paid within Etiquette’s terms of trading, Etiquette reserves the right to add to the account any cost incurred by Etiquette in instructing an agent or solicitor to act on Etiquette’s behalf in the recovery of that account.
A charge may be made to cover any additional work involved where copy supplied is not clear and legible. Electronic files. In these conditions, “electronic file” means any text, illustration or other matter supplied to Etiquette in digitised form on disk, through a modem, or by ISDN or any other communication link. It is the Customer’s responsibility to maintain a copy of any original electronic file. Etiquette shall not be responsible for checking the accuracy of supplied input from an electronic file unless otherwise agreed. Without prejudice to clause 16, if any electronic file is not suitable for outputting on equipment normally adequate for such purposes without adjustment or other corrective action Etiquette may make a charge for any resulting additional cost incurred.
Proofs of all work may be submitted for the Customer’s approval and Etiquette shall incur no liability for any errors not corrected in proofs so submitted. The Customer’s alterations and additional proofs necessitated thereby shall be charged extra. When style, type or layout is left to Etiquette’s judgement, changes therefrom made by the Customer shall be charged extra. 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.
Variations in quantity
Every endeavour will be made to deliver the correct quantity ordered, but estimates are conditional upon margins of 10 per cent being allowed for overs or shortage, the same to be charged or deducted.
Machine readable codes
In the case of machine readable codes or symbols Etiquette shall print the same as specified or approved by the Customer in accordance with generally accepted standards and procedures. The Customer shall be responsible for satisfying himself that the code or symbol will read correctly on the equipment likely to be used by those for whom the code or symbol is intended. The Customer shall indemnify Etiquette against any claim by any party resulting from the code or symbol not reading or not reading correctly for any reason, except to the extent that such claim arises from any failure of Etiquette to comply with paragraph (a) above which is not attributable to error falling within the tolerances generally accepted in the trade in relation to printing of this sort.
Delivery and payment
Delivery of work shall be accepted when tendered and thereupon, or if earlier on notification that the work has been completed, payment shall become due. Unless otherwise specified the price is for the delivery of the work to the Customer’s address as set out in the quotation. A charge may be made to cover any extra costs involved for delivery to a different address. Should expedited delivery be agreed an extra sum may be charged to cover any overtime or any other additional costs involved. Should work be suspended at the request of or delayed through any default of the Customer for a period of 30 calendar days Etiquette shall then be entitled to payment for work already carried out, materials specially ordered and other additional costs including storage.
Ownership and risk
The risk in all goods delivered in connection with the work shall pass to the Customer on delivery. Goods supplied by Etiquette remain Etiquette’s property until the Customer has paid for them and discharged all other debts owing to Etiquette in cash or cleared funds. If the Customer becomes insolvent (as set out in clause 24) and the goods have not been paid for in full Etiquette may take the goods back and, if necessary, enter the Customer’s premises to do so, or to inspect the goods. If the Customer shall sell the goods before they have been paid for in full the Customer shall hold the proceeds of sale on trust for Etiquette in a separate account until the sum owing to Etiquette has been discharged from such proceeds.
Advice of damage, delay or loss of goods in transit or of non-delivery must be given in writing to Etiquette and the carrier within 24 hours of delivery. Claims for damage will only be accepted where the Customer has endorsed the Goods Received Note as “Damaged” (or, in the case of non-delivery, within 28 days of notification of despatch of the goods) and any claim in respect thereof must be made in writing to Etiquette and the carrier within seven clear days of delivery (or, in the case of non-delivery , within 42 days of notification of despatch).All other claims must be made in writing to Etiquette within 28 days of delivery. Etiquette shall not be liable in respect of any claim unless the aforementioned requirements have been complied with except with 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.
Etiquette shall not be liable for indirect loss or third party claims occasioned by delay in completing the work or for any loss to the Customer arising from delay in transit, whether as a result of Etiquette’s negligence or otherwise. Insofar as permitted by law where work is defective for any reason, including negligence, Etiquette’s liability (if any) shall be limited to rectifying such defect. Where Etiquette performs its obligations to rectify defective work under this condition the Customer shall not be entitled to any further claim in respect of the work done nor shall the Customer be entitled to treat delivery thereof as a ground for repudiating the contract, failing to pay for the work or cancelling further deliveries. Nothing in these conditions shall exclude Etiquette’s liability for death or personal injury as a result of its negligence.
Metal, film and other materials owned by Etiquette and used by Etiquette in the production of type, plates, film-setting, negatives, positives and the like shall remain Etiquette’s exclusive property. Such items when supplied by the Customer shall remain the Customer’s property. Artwork and type may be distributed and plates, tapes, disks or other work effaced immediately after the order is executed unless written arrangements are made to the contrary. In the latter event, storage costs may be charged. Etiquette shall not be required to download any digital data from Etiquette’s equipment or supply the same to the Customer on disk, tape or by any communication link unless written arrangements are made to the contrary. If such a request is raised by the Customer it is in the understanding that a charge will be made for the data retrieval and transfer.
The Customer’s property and all property supplied to Etiquette by or on behalf of the Customer shall while it is in the possession of Etiquette or in transit to or from the Customer be deemed to be at Customer’s risk unless otherwise agreed and the Customer should insure accordingly. Etiquette shall be entitled to make a reasonable charge for the storage of any Customer’s property left with Etiquette before receipt of the order or after notification to the Customer of completion of work following the expiry of a reasonable period of time.
Materials supplied by the Customer
Etiquette may reject any film, disks, paper, plates or other materials supplied or specified by the Customer which appear to Etiquette to be unsuitable. 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 costs could have been avoided but for unreasonable delay by Etiquette in ascertaining the unsuitability of the materials then that amount shall not be charged to the Customer. Where materials are so supplied or specified, Etiquette will take every care to secure the best results, but responsibility will not be accepted for imperfect work caused by defects in or unsuitability of materials so supplied or specified. Quantities of materials supplied shall be adequate to cover normal spoilage.
Delivery and Risk
The time given for the delivery and completion is intended as a best estimate only and is dated from receipt by Etiquette of the Customer’s written order and of all necessary information to enable the work to be put into hand, and of any monies that may be due. Orders accepted and acknowledged by Etiquette are based on the time of delivery not being of the essence. Etiquette shall be under no liability for any failure to deliver or for any delay in delivery for any reason whatsoever. Goods supplied by Etiquette shall be at the Customer’s risk immediately on delivery to the Customer or into custody on the Customer’s behalf (whichever is the sooner).
Passing of Property
Goods supplied by Etiquette shall remain the property of Etiquette until payment in full of all monies owing by the Customer, to Etiquette, in respect of such goods has been received (in cash or cleared funds) by Etiquette and, until such time, the Customer shall hold such goods as bailee for Etiquette. Notwithstanding that property in the goods has not passed to the Customer, the Customer shall be entitled to use the same in the ordinary course of business and to resell the same provided always that the proceeds of any such resale or, if less, such part of the proceeds as is equal to the amount of Etiquette’s invoice, shall be held on trust by the Customer for Etiquette until such time as Etiquette has received payment in full of all amounts (in cash or cleared funds) owing by the Customer to Etiquette in respect of such goods or any other debts. Notwithstanding that property in any goods has not passed to the Customer, Etiquette shall be entitled to sue the Customer for the price thereof if not paid on the due date. Etiquette shall be entitled at any time to repossess goods which remain the property of Etiquette and the Customer hereby grants to Etiquette, its agents or servants a licence to enter upon any premises where such goods are stored for the time being for the purpose of repossessing the same and agrees to give Etiquette such assistance as Etiquette may require for such purpose. The costs of any repairs required to the goods to return them to a saleable condition shall remain the liability of the Customer.
Since, under normal circumstances, goods are despatched as detailed on the Order Acknowledgment, Etiquette reserves the right to charge the Customer in full for any costs incurred prior to cancellation.
Damage in Transit (see also Paragraph 11)
In the case of goods ordered for delivery Etiquette will repair or replace, free of charge, goods damaged in transit, providing the Customer, or consignee, shall within 24 hours of delivery, give Etiquette notice in writing of such damage. When goods are delivered to the Customer, a delivery note signed as receipt of that delivery in good condition will be treated as fulfilment of Etiquette’s obligations under the above paragraph. Where the Customer arranges delivery of the goods, liability for the goods damaged in transit shall rest solely with the Customer. Any complaint as to the goods supplied, work done, or service rendered must be notified to Etiquette within seven days.
The following guarantee is given in lieu and to the exclusion of any other guarantee, condition or warranty, either express or implied by statute or otherwise. Subject to Etiquette’s liability under Clause 19 hereof, Etiquette’s liability in respect of goods of their own manufacture (either as originally supplied or as repaired or replaced as hereinafter mentioned) is limited to repairing such goods in respect of which defects arising solely from faulty materials or workmanship, or, alternatively, at Etiquette’s option, to refunding the Customer any sum paid by him in respect of such defective goods, provided, in either case, that notice in writing of the defects shall have been given by the Customer to Etiquette within seven days and that, where practicable and if required by Etiquette, such defective goods or parts thereof are promptly returned to Etiquette, or to such other place as Etiquette shall direct. Etiquette’s liability in respect of, or consequent upon, any such fault, whether in original or replaced workmanship or material, is limited as aforesaid and does not extend in any circumstances to any expenditure incurred by the Customer, consequential loss or damage or loss of profits. In the case of goods or part thereof not of Etiquette’s manufacture proving defective, the Customer shall be entitled only to the benefit of any guarantee, condition or warranty which Etiquette shall have received in respect thereof and only to the extent that Etiquette can enforce the same. All guarantees will be invalidated should the customer modify, alter, or tamper with any products delivered to them, or cause such work to be carried out, irrespective of whether the products have been paid for in full, or not.
The Customer, at his own expense, shall provide any import licence required for the import of goods into the country to which the goods are to be despatched from the United Kingdom and also any export licence required for the export of the goods from the United Kingdom. The Customer shall be responsible for paying all import or other taxes, levies, duties or surcharges of whatsoever nature imposed or operative in the country to which the goods are despatched.
In the event that any provision of these Conditions shall be determined to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall not affect the validity or enforceability of the remaining provisions of these conditions which shall be construed as if such illegal or unenforceable provision or provisions had not been included.
Without prejudice to other remedies, if the Customer becomes insolvent (namely, being a company deemed to be unable to pay its debts or has a winding up petition issued against it or has a receiver, administrative receiver appointed to it or being a person commits an act of bankruptcy or has a bankruptcy petition issued against him) Etiquette shall have the right not to proceed further with the contract or any other work for the Customer and be entitled to charge for work already carried out (whether completed or not) and materials purchased for the Customer, such charge to be an immediate debt due from the Customer to Etiquette. Any unpaid invoice shall become immediately due for payment.
Without prejudice to other remedies, in respect of all unpaid debts due from the Customer Etiquette shall have a general lien on all goods and property in Etiquette’s possession (whether on Etiquette’s premises or not) and shall be entitled on the expiration of 14 days’ notice to dispose of such goods or property as agent for the Customer 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 Customer for any balance remaining be discharged from all liability in respect of such goods or property.
Etiquette shall not be required to print any matter which in Etiquette’s opinion is or may be of an illegal or libellous nature or an infringement of the proprietary or other rights of any third party. Etiquette shall be indemnified by the Customer in respect of any claims, costs and expenses arising out of libellous matter or any infringement of copyright, patent, design or any other proprietary or personal rights contained in any material printed for the Customer. 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.
Etiquette shall be under no liability if Etiquette shall be unable to carry out any provision of the contract for any reason beyond its 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 customer; 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 customer may by written notice to Etiquette elect to terminate the contract and pay for the work done and materials used, but subject thereto shall otherwise accept delivery when available.
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 Customer and Etiquette agree that the English Courts shall have exclusive jurisdiction.