- ACCEPTANCE AND AMENDMENT
1.1 These Conditions shall apply to all tenders, offers, quotations, acceptances, agreements and deliveries relating to the sale of goods by the Company and the Customer shall be deemed to assent thereto.
1.2 No other conditions or modifications of these Conditions shall be binding on the Company unless a director of the Company agrees thereto in writing making express reference as to the amendment of these Conditions and the Company shall not be deemed to accept such other conditions nor to waive any of these Conditions by failing to object to provisions contained in any purchase order or other communication from the Customer.
2. DEFINITIONS AND INTERPRETATION
2.1 In these Conditions:
‘company’ means PDI (Europe) Ltd.trading as either PDI, Pavilion Promotional or Academy Balls
‘contract’ means the contract for the sale and purchase of the Goods (in which these Conditions apply).
‘goods’ means the goods (including any instalment of such goods) which the Company is to supply pursuant to or in connection with the Customer’s purchase order and the Contract.
‘customer’ means the person, firm or company placing an order with the Company.
2.2 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.
3.1 All descriptions, specifications, weights, dimensions, capacities, prices, performance ratings and other data quoted or submitted by the Company or included in any sales literature, quotation, price list, acknowledgment of order, or other document or information issued by the Company are to be deemed approximate only, are subject to generally accepted trade tolerances and any samples supplied to the Customer are supplied solely for information and as in no way importing any condition or warranty as to quality, description, fitness or suitability for any particular purpose as the case may be (except where stated in writing to be exact or expressly made of the essence) and subject thereto none of such items or any part thereof shall form part of the Contract (other than as approximations).
3.2 All specifications, weights, dimensions, capacities and manufacturing tolerances of the Goods may reasonably be adjusted by the Company during the manufacturing process.
3.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acknowledgment of order, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3.4 The Company reserves the right to make any changes in the specification of Goods which are required to conform with any applicable safety or other legal requirements or which do not materially affect their quality or performance.
4.1 No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in writing of the Company and on terms that the Customer shall indemnify the 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 Company as a result of cancellation.
4.2 The Company reserves the right to sell goods to and deal with any other customer whatsoever.
5.1 Unless otherwise agreed in writing or stated on the Company’s quotation or acknowledgment of order the price payable by the Customer for each delivery of Goods shall be the Company’s labour and materials price ruling at date of despatch.
5.2 Until an order has become binding on the Company all prices are subject to change without prior notice. All prices are based upon the cost of materials, labour, transport and other production costs ruling at the date of the quotation or tender or confirmation of order. If between that date and the completion of the work, whether before or after the quotation is accepted, any variation shall occur in the above-mentioned costs, the price shall be amended to provide accordingly.
5.3 All quantities for printed material and other components are subject to a tolerance of 5% for ordinary printing and 10% for colour work and the contract price shall on completion of the work and delivery be adjusted accordingly.
5.4 After an order has become binding on the Company, all prices will have V.A.T. added at the appropriate rate and are subject to increase to reflect increases from time to time of any tax, duty, fee or charge imposed by any government or other authority prior to delivery, any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
6.1 Unless otherwise agreed in writing or stated on the Company’s quotation or acknowledgment of order, the net invoice amount shall become due for payment by the Customer 30 days after the date of invoice or (if earlier) upon the occurrence of any circumstances whereunder, pursuant to the Contract or these Conditions, payment falls immediately due. The time of payment shall be of the essence of the Contract.
6.2 The Company reserves the right at any time before proceeding or proceeding further with an order to demand full or partial payment of monies due and payable under the Contract and under any other contract between the Company and the Customer.
6.3 If the Customer defaults in any payment the Company may in addition to exercising the right contained in Condition 6.2 above suspend work, delay or withhold delivery or cancel the Contract or suspend work, delay or withhold delivery under or cancel any other contract between the Company and the Customer and retain any progress payments or payments on account already received under the Contract or under any other contract between the Company and the Customer.
6.4 The Company reserves the right to charge interest at an annual rate of three per cent above the base rate from time to time of HSBC plc on all overdue monies.
6.5 The Company shall have a lien on all undelivered goods which the Customer agrees to purchase from the Company and over any of their Customers’ data which is in the possession of the Company for all monies due from the Customer to the Company under any contract between them and the Customer shall have no right of set-off in respect of such monies.
6.6 All rights and remedies afforded to the Company in these Conditions for non-payment shall be in addition and without prejudice to all other rights and remedies available to the Company under the Contract or at law including without limitation the right to receive costs including legal costs incurred by the Company in seeking to recover any disputed or unpaid sums from the Customer.
6.7 If the Companies responsible for the postage costs in respect of the Goods such costs shall be paid to the Company prior to the despatch of such Goods. If such costs are not so paid the Company may, without incurring liability whatsoever to the Customer, delay despatch of the Goods until payment of the postage costs is made.
6.8 Where the customer requests staged delivery of print and direct mail services, the completed print element is payable on first delivery or first mailing date.
6.9 The customer does not have a right of set-off for goods that are stored by the Company awaiting mailing or delivery against other goods that are unpaid for at any time.
7. AUTHOR’S CORRECTIONS AND PROOFS, AND REPRINTS
7.1 An extra charge will be made for any alteration in copy, type, format, style or other items requested by the Customer, whether at the time of passing proofs or not. If any of those items are left to the Company’s judgment, charges therefrom made by the Customer will be charged extra. If the proof is submitted for the Customer’s approval, the Company accepts no responsibility for any error which may occur in the completed work after the proof has been passed by the Customer.
7.2 If the Customer orders a reprint of goods previously manufactured by the Company for the Customer (‘Previous Products’), and there is more than one form of Previous Products, the Customers shall identify the correct form of Previous Products it wants reprinted by way of signing on a copied print of the Previous Products provided by the Company, and returning it to the Company in good time to enable the Company to fulfil the order. The Customer acknowledges that in the absence of identification by the Customer of the correct Previous Products within a reasonable time, the Company will choose what it believes to be the correct Previous Products based on discussions with the Customer. The Company accepts no responsibility for choosing the incorrect Previous Products in the above circumstances.
8.1 Time of delivery is not of the essence of the Contract and may not be made so by notice, and any time or date specified by the Company as the time at which or the date on which the Goods will be delivered is given and intended as an estimate only and the Company shall not be liable for any loss, damage or expense howsoever arising from delay in delivery.
8.2 Direct Mail delivery shall take place when the Goods are collected from the Company by the Post Office and proof of delivery shall be the official receipt of the Post Office received by the Company in respect of such Goods.
8.3 The Company reserves the right to make delivery by instalments, unless otherwise expressly agreed in writing. The period during which delivery by instalments may be made and the quantity of Goods delivered in each instalment shall be in the Company’s discretion.
8.4 Where Goods are delivered in instalments, each delivery shall constitute a separate contract (in which these Conditions apply (mutatis mutandis)) and failure by the Company to deliver any one or more of the instalments or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as repudiated.
8.5 Where the contract provides for delivery by instalments at specified times or intervals the customer shall accept each delivery at the time specified. if the customer refuses or is unable to accept any such delivery the Company may terminate all future deliveries and treat the contract as repudiated and claim damages from the customer for breach of contract.
8 6 Delivery of more or less than the quantity of the Goods due for delivery shall not entitle the Customer to reject the Goods delivered.
8.7 Notwithstanding any express agreement as to the date of delivery the Company shall be entitled to postpone or cancel delivery in whole or in part when it is delayed in or prevented from making or obtaining any Goods or materials or parts or components or services therefore or making delivery of Goods by strikes, lockouts, trade disputes or labour troubles or any cause beyond the Company’s reasonable control. During any of the foregoing events the Company’s obligations shall be suspended until such events cease or until the Company cancels delivery (as the case may be) and the Company shall not be required to obtain elsewhere in the market goods with which to replace or permit it to produce Goods delivery of which has been postponed or cancelled as a result of any of the said events. In the event of cancellation, the Company shall be paid pro rata for Goods delivered or work done to the date of cancellation.
8.8 If the Customer fails to take delivery of Goods or fails to give the 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 Company’s fault) then, without prejudice to any other right or remedy available to the Company (including its right to payment), the Company may:-
(i) store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; and/or
(ii) sell the Goods 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 and the Customer shall indemnify the Company in full against all losses, damages, charges and expenses incurred by the Company directly or indirectly as a result of the Customer’s said failure to take delivery or give adequate delivery instructions to the extent that the Company’s said losses, damages, charges and expenses are not covered by any payments made or monies obtained under paragraph (i) or (ii) above.
9. CUSTOMER’S OBLIGATIONS AND CLAIMS ON DELIVERY (Excluding Direct Mail Goods)
The Customer will examine the Goods carefully within  days of taking delivery and notify the Company (and any carrier of the Goods for the Company) in writing within  days of taking delivery of any error in quantity or quality or description of the Goods delivered or of any damage to the Goods revealed by such examination and not caused since delivery was taken.
10.1 Risk of damage to or loss of Direct Mail shall pass to the Customer at the time the Goods are available for collection from the Company by the Post Office or collected from the Company by the Customer’s nominated carrier and the Company shall not be liable for any loss, damage or expense which arises as a result of the failure by the Post Office or the Customer’s nominated carrier to deliver the Goods.
10.2 Risk of damage to or loss of the Goods (other than Direct Mail)shall pass to the Customer:-
(i) in the case of Goods to be delivered at the Company’s premises, at the time when the Company notifies the Customer that the Goods are available for collection; or
(ii) in the case of Goods to be delivered otherwise than at the Company’s premises, at the time of delivery (except where the goods are sold f.o.b.) or, if the Customer wrongfully fails to take delivery of the Goods, the time when the Company has tendered delivery of the Goods. Delivery to a carrier or to any person firm or company on the Customer’s behalf shall constitute delivery to the Customer.
10.3 Where goods are sold f.o.b. all risk of damage or loss in transit shall pass to the Customer when the Goods are placed on board ship, and the Company shall be under no obligation to give to the Customer the notice specified in Section 32(3) Sale of Goods Act, 1979.
11. TITLE TO GOODS
11.1 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Customer until the Company has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Company to the Customer for which payment is then due, together with any interest or other sums payable under the relevant contract in respect of the Goods and such other goods.
11.2 If the Customer seeks to sell the Goods prior to having paid the Company for them the Customer shall ensure that any contract it enters into with a person firm or company for the sale of the Goods shall include a clause retaining the Company’s title to such Goods in the same terms, mutatis mutandis, as those contained in Condition 11.1.
11.3 All metal film and other materials used by the Company in the production of type, artwork, plates, screens, transfers, film-setting, negatives, positives and all other items of a like nature shall be and remain the property of the Company.
11.4 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Company’s fiduciary agent and bailee and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected, insured and identified as the Company’s property. Until that time the Customer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Company for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
11.5 Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold) the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and, if the Customer fails to do so, forthwith to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
11.6 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness or potential liability any of the Goods which remain the property of the Company, but if the Customer does so all monies owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
12. WARRANTIES AND LIABILITY
12.1 Subject to the terms and conditions set out in this Condition 11, the Company warrants to the Customer that the Goods will correspond with their specification at the time of delivery.
12.2 The warranty in Condition 11.1 above is given by the Company subject to the following conditions:-
(i) the Company shall be under no liability in respect of any defect in the quality or condition of the Goods or their failure to meet specification unless the Customer notifies the Company of such defect or failure giving full details of the alleged defect(s) or failure(s) prior to the delivery of the Goods as defined in Condition 8.2;
(ii) the Company shall be under no liability under such warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
(iii) the Company shall not be responsible for any colour variations between proof and printed copy; and
(iv) the Company shall be under no liability in respect of errors in work completed in accordance with a proof approved by the Customer.
(v) the Company shall be entitled and shall be afforded the facilities to inspect and test the Goods or products into which the Goods have been incorporated and the Company shall be under no liability if such Goods or products are found upon examination by the Company not to be defective and to be in accordance with the specification;
(vi) the Company shall be under no liability in respect of any defect in the Goods or the products into which the Goods have been incorporated arising from any design or specification supplied by the Customer;
(vii) the Company shall be under no liability in respect of any defect arising from wilful damage, negligence, failure to follow the Company’s instructions (whether oral or in writing) misuse or alteration of the Goods or the products into which the Goods have been incorporated;
12.3 Subject as expressly provided in these Conditions all warranties, conditions or other terms implied by law are excluded to the fullest extent permitted by law.
12.4 Where work of a digital nature is undertaken the Company cannot be held responsible for breach of any third party’s copyright or disk corruption.
12.5 Where any valid claim in respect of any Goods or part(s) thereof based on any defect in the quality or condition of the Goods or part(s) thereof or their failure to meet specification is notified to the Company in accordance with these Conditions, the Company shall be entitled to replace the Goods (or the part(s) in question) free of charge or, at the Company’s sole discretion, refund to the Customer the price of the Goods (or a proportionate part of the price) but the Company shall have no further liability to the Customer.
12.6 Except in respect of death or personal injury caused by the Company’s negligence, the 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 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 Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Customer, except as expressly provided in these Conditions.
12.7 Any claim by a customer must be supported by documentary evidence within two weeks of alleged default by the Company.
13. PERIODICAL PUBLICATIONS
Where the Contract relates to the printing of periodical publications it may not be terminated by either party unless notice is given as follows:
Nature of Publication Length of Notice
Weekly Two months
Fortnightly Two months
Monthly Three months
Quarterly or Longer Six months
14. ILLEGAL MATTER
14.1 The Company is not required to print or handle matter which in its opinion is or may be of an illegal or libellous nature or which in the opinion of the Company infringes any copyright, patent, design, trade mark or other industrial or intellectual property rights. The Customer shall indemnify the Company in respect of any claims, costs and expenses arising out of any illegal or libellous matter printed or handled for the Customer or any infringement of any copyright, patent, design, trade mark or other industrial or intellectual property rights.
14.2 The Customer shall promptly inform the Company as soon as it becomes aware of any claim by a third party that any matter supplied to the Company by the Customer is of an illegal or libellous nature or infringes any copyright, patent, design, trade mark or other industrial or intellectual property rights.
14.3 If during the course of carrying out any Contract the Company deems any matter to be libellous or of such nature as may render the Company liable to legal proceedings, then the Company shall not be bound or required to complete such Contract and shall not be under any liability for non-completion. The Customer shall pay for any work done or expenses incurred by the Company in these circumstances.
15. STANDING MATERIAL
15.1 The Company reserves the right to distribute or destroy type, film, data, discs, positives, negatives, screens, plates, lithograph or photogravure work immediately after the execution of the Contract unless written arrangements have been made with the Customer for it to be kept standing. In the event of any material being kept standing by arrangement with the Customer a rental may be charged of such an amount as the Company deems appropriate. Artwork, type, film, positives, negatives, plates and the like produced by the Company to fulfil the Customer’s order will remain the exclusive property of the Company.
15.2 If, following execution of the Contract, part or all of the Goods remain in the Company’s possession the Company reserves the right, at the Customer’s expense, to destroy such Goods unless written arrangements have been made with the Customer for them to be kept standing stock in the event of any material being kept standing by arrangement with the Customer a rental may be charged on such an amount as the Company deems appropriate.
Copyright in all typographical arrangements, artwork, samples or designs prepared by the Company in anticipation of the production of printed matter shall remain vested in the Company unless otherwise agreed in writing by an authorised representative of the Company.
17. MATERIAL SUPPLIED BY THE CUSTOMER
17.1 In the event that the Customer supplies film positives or digital artwork they must be produced against the Company’s current reproduction specification. It is not the responsibility of the Company to check that this specification has been complied with. Should the Company at any time during the course of production discover that this specification has not been complied with the Company reserves the right (at its absolute discretion) to do all or any of the following:-
(i) charge for work carried out prior to discovery of the fault;
(ii) reject the positives;
(iii) bring the positives up to the required standard, and charge for any work and materials involved;
(iv) remove the job from the press; or
(v) charge for all and any costs, losses or expenses (including consequential loss) resulting from the delays or disruption caused.
17.2 The Company may reject any paper, plates, transparencies, discs or data which do not comply with the Company’s specification or other materials supplied or specified by the Customer which appear to the Company to be unsuitable. Additional costs incurred if materials are found to be unsuitable during production may be charged to the Customer. Where materials are so supplied or specified, the Company 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 as supplied or specified. Quantities of materials supplied shall be adequate to cover normal spoilage.
17.3 All information supplied by the Customer to the Company in a computer readable format will be compatible with the systems operated by the Company (which information will be supplied to the Customer on request) from time to time and will be free from any virus. The Customer shall indemnify the Company in respect of any claims, costs and expenses suffered or incurred by the Company as a result of any information supplied to it by the Customer containing a virus or not being compatible with the systems operated by the Company from time to time.
17.4 It is the responsibility of the Customer to ensure that it keeps adequate back-up copies of all data it provides the Company with. Accordingly the Company shall in no circumstances be liable for any loss of data (howsoever arising) or any failure to produce the Goods arising from inaccurate or incomplete data being provided to it by the Customer.
17.5The Customer warrants that it has complied, and that its requirements of the Company in relation to the data comply, in all respects with the provisions of the Data Protection Act 1984 and agrees to indemnify and keep indemnified the Company in respect of any claims, costs and expenses incurred by the Company directly or indirectly as a result of a breach by the Customer of any of the provisions of the Data Protection Act 1984.
18. INSOLVENCY OF THE CUSTOMER
18.1 This Condition applies if:
(i) the Customer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
(ii) an encumbrance takes possession of, or a receiver is appointed in respect of any of the property or assets of the Customer; or
(iii) the Customer ceases, or threatens to cease, to carry on business;
(iv) the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
18.2 If this Condition applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to suspend work, delay or withhold delivery under or cancel the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
Any notice given hereunder must be in writing and may be effected by personal delivery, facsimile, email or by registered mail postage and (subject, in each case, to proof that such notice was properly addressed and despatched) if effected by facsimile/email shall be deemed to be received on the day of sending and if effected by post shall be deemed to be received 48 hours after the date of posting.
20. NO ASSIGNMENT
The Contract shall be personal to the Customer and shall not nor shall any rights under it be assigned by the Customer without the prior written consent of the Company.
21. NO WAIVER
No waiver by the 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.
The Company will be free to sub-contract any or all of its rights and obligations under these Conditions and/or the Contract as it in its absolute discretion sees fit.
23. GOVERNING LAW
The Contract (and these Conditions) shall be governed by and construed in accordance with the laws of England and the Customer and the Company hereby submit to the exclusive jurisdiction of the English Courts. This Condition 21 is for the benefit of the Company only, who accordingly retains the right to take proceedings in any other court of competent jurisdiction.
If any provision of the Contract (or 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 the Contract (or of these Conditions) and the remainder of the provision in question shall not be affected there