These terms and conditions shall apply to any contract between Lolbourne Limited (the “Seller”) and the “Buyer” (which shall mean the person, firm or company placing any order which is accepted by Lolbourne Limited) for the supply of goods (including any instalment or part of them) and services (including any part of them) which Lolbourne Limited is to supply or deliver. These terms and conditions supersede any of our previous terms and conditions and any practice or course of dealing previously applying between the Seller and the Buyer.
A quotation is based on information available to the Seller at the date of the quotation and is subject to sight of materials, their suitability and any artwork to be supplied to the Seller by the Buyer.
Quotations are valid for a period of 30 calendar days and are for the whole of the goods or services to which the quotation relates. The Seller may extend the period for consideration of its quotation at its discretion and may refuse to accept any order for goods and services, which constitute only a part of the quotation unless the initial specification requested separate quotations for separate elements of the order.
All orders must be in writing. No contract shall exist between Lolbourne Limited and the Buyer where the Seller rejects the order.
3. Order, supply and delivery of materials
3.1.1 The Buyer shall be responsible for ensuring that the materials supplied by it or on its behalf to the Seller:
(a) conform to specifications in the quotation and Royal Mail’s, or any other carriers as appropriate, requirements;
(b) are supplied punctually;.
(c) are accompanied by a delivery advice note stating the quantity and description of the materials supplied;
(d) are delivered on pallets, boxed, packed and supplied in such a way as to withstand normal storage and handling;
(e) are sufficient to enable the Seller to deliver the correct quantity of any printing or reproductive work ordered allowing for normal wastage and spoilage.
(f) are suitable for the purpose intended. Without prejudice to 3.1 (e) where materials are supplied or specified, and the Seller so advises the Buyer they are unfit for purpose, the Buyer must instruct the Seller to proceed in writing. The Seller will use reasonable endeavours to secure the best results, but shall have no liability for the quality of the end result.
The Seller shall use its reasonable endeavours to provide the Buyer with a reasonable estimate of the quantity of printing or reproductive work required.
The Seller shall not be required to check the contents of pallets supplied by or on behalf of the Buyer.
All materials supplied by or on behalf of the Buyer are at the Buyer’s risk whilst on the Seller’s premises or in
transit to such premises and the Buyer is responsible for arranging adequate insurance cover for those materials unless arrangements have been made to the contrary.
Any of the Buyer’s materials which remain in the Seller’s possession after 30 calendar days from the completion of any order will be subject to storage charges. The Seller reserves the right to destroy or dispose of all such materials at the Client’s cost not less than 14 calendar days after written notice to that effect is given to the Client. The Seller shall be entitled to make a reasonable charge for the storage of any Buyer’s property left with the Seller before reciept of order after notificaton to the Buyer of Completion of the work.
The cost of collection and delivery of the Buyer’s goods or materials is not included within the quotation and where this is carried out by the Seller for the Buyer it will be charged as an extra.
It is the Buyer’s responsibility to maintain a copy of any original electronic file provided to the Seller.
The Seller shall not be responsible for checking the accuracy of supplied input from an electronic file unless otherwise agreed in writing.
Without prejudice to clause 3.7, if an electronic file is not suitable for outputing on equipment normally adequate for such purposes without adjustment or other corrective action the Seller may make a charge for any resulting additional costs incurred or may reject the file without prejudice to his rights to payment for work done/material purchased.
Metal, film and other materials owned by the Buyer and supplied to the Seller for the production of type, plates, electronic files and the like shall remain the Buyer’s exclusive property. However where content is generated by the Seller, the Seller may, in order to protect his intellecutual property rights and at his absolute discretion, replace such material with unused material of a similar or better quality.
Materials and equipment supplied by or owned by the Seller and used in the production of any work shall remian the Seller’s exclusive property.
The Seller shall not be required to download any digital data from his equipment or supply the same to the Buyer on disk, tape or by any other communication link, unless agreed in writing.
4 Proofs and variations
The Seller shall incur no liability for any errors not corrected by the Buyer where the Buyer has been provided with a proof. The Buyer’s alterations and additional proofs necessitated therby shall be charged extra. When style, type or layout is left to the Seller’s judgement, changes therefrom made by the Buyer shall be charged extra.
Where the Buyer specifically waives any requirement to examine proofs the Seller is indemnified by the Buyer against any and all errors in the finished work.
Due to the differences in equipment, paper, inks, and other conditions between colour proofing and production runs, reasonable variation in colour between colour proofs and the completed work will be deemed acceptable unless otherwise agreed in writing.
Every endeavour will be made to deliver the correct quantity ordered, but estimates are conditional upon margins of 5 per cent for work being allowed for overs or unders the same to be charged or deducted, unless otherwise agreed in writing.
5. Delivery of orders
The specified time for delivery, which shall be of the essence where client work is mailed by the Seller, shall be subject to receipt by the Seller of all information and materials to enable it to proceed with the contract and to comply with any applicable governmental or other consent.
Delivery of the work shall be accepted when tendered.
Should expidited delivery be agreed the Seller shall be entitled to make an extra charge to cover any overtime and additional expenses.
Unless otherwise agreed in writing (in which case an extra charge may be made) delivery will be to the kerbside at the Buyer’s address and the Buyer will make arrangements for off-loading and any additional transportation that may be required.
6 Retention of title
The work remains the Seller’s property until the Buyer has paid for it and discharged all other debts owing to the Seller.
If the Buyer becomes subject to insolvency and the Work has not been paid for in full the Seller may take the goods back and, if necessary enter the Buyer’s premisis to do so, or to inspect and/or label the goods so as to indentify them clearly.
If the Buyer shall sell the goods before they have been paid for in full he shall hold the porceeds of sale on trust for the Seller in a seperate account until any sum owing to the Seller has been discharged from such proceeds.
Where the buyer is in breach of these Terms or performs any act of Bankruptcy or Insolvency the Seller reserves the right to approach the Buyer’s customer and to offer the Work directly to them, notwithstanding the fact that this will involve advising the Buyer’s customer that the Buyer is in breach or in default.
7 Data Protection
The Seller, warrants and undertakes to the Buyer that it shall process any personal data (as defined in the Data Protection Act 1998), only on the instructions of the Buyer, solely for the purposes of this contract and for no other purpose. The Seller represents, warrants and undertakes to the Buyer that it has in place appropriate technical and organisational measures against accidental or unlawful destruction or loss of alteration to, unauthorised disclosure of or unauthorised access to any personal data. The Seller shall ensure that each of its employees, agents and subcontractors are made aware of its obligations with regard to the security and protection of personal data and shall require that they enter into binding obligations reflecting the provisions of this clause. The Seller shall ensure that each of its employees has signed a confidentiality agreement in respect of its Buyer’s data.
Under the Data Protection Act 1998 a data controller is to take reasonable steps to ensure that its data processor has the requisite technical and organisational security measures in place and the following provisions provide for this.The Seller shall, when requested to do so by the Buyer, submit its data processing facilities, data files and relevant documentation to auditing by the Buyer, subject to the Seller’s security and confidentiality procedures and shall comply with all reasonable requests from the Buyer to enable it to comply with any and all of its obligations under the Act. Upon the completion or termination of the contract the Buyer shall provide instructions for the return or destruction of personal data.
The buyer is hereby notified that the Seller may transfer personal information about the buyer to a credit reference agency pursuant to cl 9.1 (e)
8 Intellectual property
The intellectual property rights in any work created by or for the Seller in relation to this contract shall vest in the Seller unless it is agreed in writing that such intellectual property rights shall pass to the Buyer.
9 Charges and payment
9.1 Invoice Payment and charges
a All work carried out shall be charged including preliminary work whether or not the buyer agrees to that work being taken forward into production. All experimental work or otherwise and any corrections made after the first proof and any other changes requested by the Buyer on or after the first proof.
b Any additonal work required of the Seller by reason of the Buyer supplying inadequate copy, incomplete or incorrect instructions or insufficient materials or late delivery of the same shall be charged.
c Payment shall become due before delivery of the work. The Seller, at its absolute discretion, may ask for full or part payment in advance of starting the work.
d All prices quoted are strictly net and are exclusive of VAT which should be payable by the Buyer.
e If credit facilities have been granted, payment is due the by the end of the month following the month of invoice. If any item(s) remain unpaid by that date charges will apply in accordance with the Late Payment Commercial Debt Act 1998. In addition, all invoices will become due and payable immediately and will be treated as overdue items, with appropriate charges applied and all costs reasonably incurred in collecting the debt payable by the Buyer.
f. The Seller reserves the right to charge interest at the rate of 4% above the base rate of HSBC BANK or part thereof on any overdue sums from the date on which payment was due (which shall mean 30 calendar days after the date of any invoice) to the date on which payment is received.
9.2 Payment for postage
Where the mailing is to be undertaken through Lolbourne’s own postal account, the cost of postage shall be paid, and cleared, no later than 48 hours before the mailing begins. If the cost of postage is not paid within the specified time limit the Seller shall have the right to withhold the mailing.
9.3 Postal charge refunds
Where the cost of postage is less than the amount paid by Direct Bank transfer the Seller shall either refund any sums remaining to the Buyer or shall provide a credit for the Buyer for the next mailing it puts through the Seller’s account.
9.4 Credit Facilities
Credit facilities may be granted to applicants who who complete a Credit Account Application Form and who satisfy
the Seller’s critieria as set out from time to time. We reserve the right to withdraw credit facilities at any time, without giving a reason, and in such cases, all outstanding invoices become due and payable immediately.
10 Codes of practice and indemnities
The Buyer shall:
a. provide the Seller with a true copy of all advertising material or other material intended to be enclosed with any material prepared by the Seller;
b. ensure that all information or materials provided by it comply with all applicable statutory requirements and with the codes of practice of the appropriate supervisory bodies including, but not limited to, the British Codes of Advertising, Sales Promotion and Direct Marketing (Cap code); and the Direct Marketing Association’s Code of Practice;
c. ensure that any consumer mailing addresses provided to the Mailing House are cleaned against the Mailing Preference Service (MPS) files, unless it is agreed that this will be carried out by the Mailing House
d. The Buyer shall indemnify the Seller against all costs, claims, liabilities, penalties and expenses which the Seller may incur by reason of its works being illegal, unlawful, infringing any copyright, trademark or other intellectual or other proprietary rights of any third party or is defamatory, obscene or the distribution of which may infringe postal or other regulations or which is in breach of any trade description or other legislation.
11 Provision of computer data
The Buyer shall ensure that any computer data supplied to the Seller is clean, unadulterated, capable of being read and processed and does not contain any computer viruses. In the event of the computer data supplied being corrupt, the Seller shall either require the Buyer to supply clean unadulterated data which does not contain any computer viruses or decontaminate the data itself but at the Buyer’s expense. The Buyer shall ensure that all data supplied to the Seller is completely unambiguous with regard to their format. A specification of the formats of the data supplied and instructions for interpretation must be provided in writing.
12 Liability & claims
12.1 Limitation of Sellers liability.
The Sellers entire liability (including liability for acts and omissions of its employees, agents and sub contractors) in respect of any breach of its contractual obligations and of any representations, statement or tortuous act or omission including negligence shall be limited to the contract price (excluding postage and telecommunications costs).
12.2 Consequential or indirect loss.
The Seller shall not be liable for any indirect or consequential loss or damage, loss of profits or goodwill or loss of any kind, other than the direct loss suffered by the Buyer and subject to limitation under sub clause 11.1.
Advice of any damage, delay or loss of goods in transit or non-delivery must be given in writing to the Seller and the carrier within three clear days of delivery (or in the case of non-delivery, within 3 days of notification of despatch of the goods) and any claim in respect thereof must be made in writing to the Seller and the carrier within 7 clear days. All other claims must be made to the Seller in writing within 14 days of delivery.
If the work is defective so that the Buyer may in law reject it, said rejection must take place within 7 days of delivery of the goods, failing which the Buyer will be deemed to have accepted the work.
In the event of all or any claims or rejections the Seller reserves the right to inspect the work within 7 days of the claim or rejection being notified.
13 Termination and cancellation
Subject to clause 12.2 either party shall be entitled to terminate this contract by notice in writing to the other in the event of any material breach by the other party of any of its obligations under this contract. The termination will take effect 14 calendar days after receipt of written notice unless the defaulting party has remedied the default within this time. The Seller shall be entitled to terminate this contract by notice in writing in the event of the Buyer’s failure to pay in accordance with the terms of the contract or in the event of the Buyer committing an act of bankruptcy or taking any steps leading to liquidation, making any agreement with its creditors or having a receiver or administrative receiver appointed over any of its assets. In the event of termination by the Seller under this clause, the Buyer shall immediately pay any outstanding sums due from it to the Seller.
If either the Seller or the Buyer wishes to cancel the contract (other than for a breach of the contract by the other and the instances arising under clause 12.1) then:
a) where the Buyer cancels the contract it will pay to the Seller a reasonable sum for any work carried out by it prior to such cancellation together with a reasonable profit on the uncompleted portion of the contract;
b) where the Seller cancels the contract it will pay to the Buyer all costs incurred by the Buyer relating to that contract. Termination of the contract by cancellation in 12.2 (a) & (b) above will take effect immediately upon receipt of written notice from the cancelling party to the other party.
14 Agency, partnership and joint adventure
Nothing in this contract shall be construed as to constitute either the Seller or the Buyer to be the agent of the other and it shall not operate so as to create a partnership or joint venture of any kind between them.
15 Force Majeure
The Seller shall be under no liability if he shall be unable to carry out any provison of the contract for any reason beyond his reasonable control including (without limiting for forgoing): Act of God, legislation, war, fire, flood, drought, terrorism, inadequacy or unsuitabiity of instructions, elecronic data or other materials supplied by the buyer, faliure of power, lock-out, strike or other action taken by employees in comtemplaton or furtherance of a dispute. The buyer may by written notice to the Seller elect to terminate the contract and pay for work done and materials used, but subject thereto shall otherwise accept delivery when available.
16 General Lien
Without prejudice to other remedies, in respect of all unpaid debts due from the Buyer the Seller shall have a general lien on all goods and property of or provided by the Buyer in his possession (whether worked on or not) and shall be entitiled on the expiration of 14 days notice to dispose of such goods or property as agent for the Buyer in such manner and at such price as he thinks fit and to apply the proceeds toward such debts, and shall when accounting to the Buyer for any balance remaining be discharged from all liability in respect of such goods or property.
No failure or delay by either the Seller or the Buyer in exercising any of their rights under this contract shall be deemed to be a waiver of those rights. No waiver by either of them of any breach of the contract by the other, shall be considered as a waiver of any subsequent breach of the same or any other provision.
All specifications and notices relied on by the either party and all variations to this agreement must be in writing and include a duly authorised signature.
Notwithstanding that any provisions of this contract may prove to be illegal or unenforceable the remaining provisions shall continue in full force and effect.
20 Entire agreement
These terms and conditions constitute the entire contract between the Seller and the Buyer with respect to the matters dealt with herein. No variation to this contract shall be valid or effective unless made in writing and signed by both of them.
This contract is subject to English law and the Seller and the Buyer agree to submit to the jurisdiction of the English courts in respect of any dispute or difference arising under it.