- DEFINITIONS
1.1. In these Conditions:
"Business Day" any day other than a Saturday or Sunday or a public or bank holiday in England
"Communisis" Communisis UK Ltd
"Conditions" the Conditions set out in this document together with any special terms agreed in writing (including by fax or email) between the Supplier and Communisis as specified on the Purchase Order
"Contract" the contract for the sale and purchase of the Goods and the supply and acquisition of the Services formed in accordance with clauses 2.2 and 2.3
"Free Issue Materials" materials issued by Communisis to the Supplier free of charge pursuant to the Contract
"Goods" the goods (including any instalment of the Goods or any part of them) described in a Purchase Order
"Intellectual Property Rights" all intellectual and industrial property rights (including patents, know how, registered trade marks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights and unregistered trade marks, rights to prevent passing off for unfair competition and copyright, database rights, domain names, topography rights and any other rights in any invention, discovery or process) in the United Kingdom and all other countries in the world and together with all renewals and extensions thereof
"Press Pass" the visual inspection by Communisis of the Goods on the printing press used by the Supplier
"Purchase Order" any purchase order issued by Communisis for the Goods or Services and which shall incorporate these Conditions
"Services" the services (if any) described in Communisis' Purchase Order
"Specification" includes the technical specifications, plans, drawings, data or other information including all materials and information which explain the structure, type, design, operation and functionality of the Goods and Services referred to in or attached to the Purchase Order
"Supplier" the seller or supplier of the Goods or Services.
1.2. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, consolidates, re-enacted, modified, extended or replaced at the relevant time.
1.3. The headings in these Conditions are for convenience only and shall not affect their construction or interpretation.
1.4. Any phrase in these Conditions introduced by the term "include", "including", "in particular" or any similar expression will be construed as illustrating and will not limit the sense of the words preceding that term.
1.5. In these Conditions the masculine includes the feminine and the neuter and the singular includes the plural and vice versa.
- APPLICATION OF TERMS
2.1. These Conditions apply to the Contract and shall not be modified or excluded in whole or in part unless a duly authorised representative of Communisis otherwise agrees in writing.
2.2. Subject to variation in accordance with clause 2.1 the Contract will be upon these Conditions, the terms set out in the Purchase Order and any Specification referred to in or attached to the Purchase Order to the exclusion of all and any other conditions or contractual provisions and all previous oral or written representations (whether in conflict with these Conditions or not) including any terms and conditions which the Seller purports to apply in any quotation, form of acceptance, acknowledgement, delivery form, invoice or other document. Communisis shall not be deemed to accept such other conditions or contractual provisions by failing to object to provisions contained in any such document.
2.3. Delivery of Goods or commencement of performance of the Services following receipt of these Conditions shall constitute and may be relied on by Communisis as conclusive evidence of the Supplier's acceptance of these Conditions.
2.4. Each quotation for the Goods and Services from the Supplier will be deemed to be an offer by the Supplier to sell the Goods and Services upon these Conditions. All quotations provided by the Supplier, including the price provision, will remain open for 30 days from its date. The Contract is only formed when a written acceptance of the quotation is served by Communisis on the Supplier in the form of a Purchase Order. No Contract will exist prior to service of such notice of acceptance.
- SPECIFICATION AND QUALITY
3.1. The quantity, quality and description of the Goods and the Services shall, subject to the provisions of these Conditions, be as specified in the Purchase Order and/or in any applicable Specification supplied by Communisis to the Supplier or agreed in writing by Communisis.
3.2. Communisis may at any time make written changes to the Purchase Order including changes in the Specification, method of shipment, quantities, packaging or time or place of delivery. If such change results in an increase in the cost of, or time required for, the performance of the Contract an equitable adjustment will be made to the price, delivery schedule or both. Communisis must approve any such claim or adjustment in writing before the Supplier proceeds with such changes.
3.3. Any Specification supplied by Communisis to the Supplier, or specifically produced by the Supplier for Communisis pursuant to the Contract, together with the copyright, design rights or any other intellectual property rights in the Specification, shall be the exclusive property of Communisis. The Supplier shall not disclose to any third party or use any such Specification except as required for the purposes of the Contract or to the extent that it is or becomes public knowledge through no fault of the Supplier.
3.4. The Supplier shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging and delivery of the Goods and the performance of the Services including implied conditions of fitness for purpose, satisfactory quality within the meaning of the Sale of Goods Act 1979 and all relevant British quality/performance standards, shall operate a quality control procedure in relation to the Contract no less exacting than that required by ISO9001 and shall obtain at its expense all necessary consents, licences and permits required for performance of the Contract.
3.5. Communisis and its representatives will have the right to inspect and test the Goods any time prior to delivery and for this purpose the Supplier shall provide access to its premises and shall ensure that Communisis and its representatives have the right to access the premises of any third party during manufacture, processing or storage. The Supplier shall provide Communisis with all facilities reasonably required for inspection and testing. The Supplier shall upon request provide Communisis with all information relating to the Goods or the performance of the Services as Communisis may reasonably require and shall raise no objection to inspection of the Goods or of the performance of the Services by Communisis or its representatives.
3.6. If as a result of inspection or testing Communisis is not satisfied that the Goods or performance of the Services will comply in all respects with the Contract and Communisis so informs the Supplier within seven days of inspection or testing, the Supplier shall take all steps necessary to ensure compliance. Any failure of this obligation by the Supplier will be deemed a material breach which is not capable of remedy. Notwithstanding any such inspection or testing the Supplier will remain fully responsible for the Goods and any such inspection or testing will not diminish or otherwise affect the Supplier's obligations under the Contract.
3.7. The Goods shall be marked in accordance with Communisis' instructions and any applicable regulations, quality assurance standards, or requirements of the carrier and shall be properly packed, stored and secured so as to reach their destination in an undamaged condition.
- PROOFS
4.1. Unless otherwise stated in the Purchase Order the Supplier shall produce to Communisis at the time stated in the Purchase Order or otherwise agreed in writing between the parties a proof or proofs of the Goods for acceptance by Communisis prior to the Supplier producing the Goods (a "Proof").
4.2. Communisis will return such Proofs to the Supplier, with all corrections marked on the Proofs and such Proofs being signed by an authorised representative of Communisis. The Supplier shall ensure that all the corrections marked on the Proofs by or on behalf of Communisis are fully incorporated before production of the Goods. The Goods shall comprise materials substantially the same and of quality which is equal to or better than the material used in the Proofs. Communisis is entitled to reject any Goods which do not comply with these provisions.
4.3. All Press Passes must be attended by Communisis unless otherwise agreed between the parties. If further Press Passes are required as a consequence of default or breach of any term of the Contract, Communisis shall have the right to charge the Supplier for time and expenses at cost.
4.4. The Supplier must retain, for 90 days after acceptance of the Goods by Communisis, printed sections of the Goods which may be audited by Communisis. Retained printed sections must be taken from 1 section (sheet) in every 1000 metres or 1000 sheets for print runs of and below 50,000 metres or sheets, and 1 section (sheet) in every 2000 metres or 2000 sheets for print runs above 50,000. The retained printed sections must represent the full production run and may be used to audit the Supplier's responsibility to print to Specification, and/or proof and/or sample.
4.5. The Supplier shall be responsible for any errors or omissions in any drawings, calculations, packing details or other particulars supplied by the Supplier, whether such information has been approved by Communisis or not, provided that such errors or omissions are not due to inaccurate written information given to the Supplier by Communisis.
- PRICE
5.1. The price of the Goods and Services shall be the price stated in the Purchase Order or (if not stated in the Purchase Order) the price published or notified by the Supplier to Communisis at the time of the Purchase Order and, unless otherwise specified shall be:
5.1.1. exclusive of any applicable value added tax (which shall be payable by Communisis subject to receipt of a correct and valid VAT invoice); and
5.1.2. inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods to the delivery address stated in the Purchase Order and any duties, imposts or levies other than value added tax.
5.2. No increase in the price may be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior written consent of Communisis.
5.3. Communisis shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Supplier to its customers, whether or not this discount is shown in the Supplier's own terms and conditions of sale.
- PAYMENT
6.1. The Supplier may invoice Communisis on or at any time after delivery of the Goods or performance of the Services, as the case may be, and each invoice must be a correct and valid VAT invoice and shall quote the number of the Purchase Order.
6.2. If not American Express payment card and unless otherwise agreed in writing, payment for the Goods and Services is due within 60 days after the end of the month of receipt by Communisis of a correct and valid VAT invoice or, if later, after acceptance of the Goods or Services by Communisis.
6.3. Without prejudice to any other right or remedy, Communisis reserves the right to set off any liability of the Supplier to Communisis against any liability of Communisis to the Supplier.
6.4. If any sum under the Contract is not paid when due then, without prejudice to the parties' other rights under the Contract, that sum will bear interest from the due date until payment is made in full, both before and after any judgment, at 2% above HSBC Bank plc's base rate from time to time. The Supplier is not entitled to suspend delivery of the Goods or performance of the Services as a result of any sums being outstanding.
6.5. The Supplier may be required to sign up to American Express purchasing card.
6.6. The Supplier may request payment on or at any time after confirmed delivery of the Goods or performance of the Services.
- DELIVERY
7.1. Communisis is under no obligation to pay for Goods which are delivered in excess of the quantity specified in the Purchase Order and Communisis shall, at its option, either retain such excess Goods free of charge or notify the Supplier of such excess. If Communisis notifies the Supplier of delivery of the excess Goods those Goods will remain at the Supplier's risk and be returnable at the Supplier's expense.
7.2. Unless otherwise agreed in writing the Goods shall be delivered and off?loaded and the Services performed during Communisis' normal business hours at the address and on the date or dates specified in Communisis' Purchase Order. Where the date of delivery of the Goods or of performance of the Services is to be set after the date of the Purchase Order, the Supplier shall give Communisis reasonable notice of this date, which shall be not less than 28 days from the date of the Contract unless otherwise agreed in writing by Communisis.
7.3. The time of delivery of the Goods and of performance of all the Supplier's obligations is of the essence of the Contract.
7.4. A packing note displayed prominently and quoting the number of the Purchase Order must accompany each delivery or consignment of the Goods.
7.5. Communisis may reject any Goods delivered or not accept any performance of the Services which have not been delivered or performed in accordance with the Contract.
7.6. Communisis will not be deemed to have accepted the Goods until it has had ten Business Days to inspect them following delivery. Communisis will also have the right to reject the goods as though they had not been accepted for ten Business Days after any latent defect in the Goods has become apparent.
7.7. Goods rejected pursuant to clauses 7.5 and 7.6 shall be returned to the Supplier at the Supplier's request and at the Supplier's risk and expense. Alternatively, if the Supplier fails to collect the rejected Goods within a reasonable time after Communisis has given it notice of rejection of the Goods Communisis may dispose of the rejected Goods in such manner as it thinks fit provided that it shall account to the Supplier for the net proceeds of sale (if any). If any of the Goods or Services are so rejected, without prejudice to any other right of Communisis, Communisis may purchase replacement Goods or Services from an alternative supplier and any additional expense incurred and/or any losses or expenses (if any) incurred by Communisis resulting from the Goods or Services not being in accordance with the Contract shall be borne by the Supplier.
7.8. If Communisis agrees that the Goods can be delivered in instalments, or the Services can be performed in stages, then each instalment or stage will be treated as a separate Contract. Without prejudice to any other right or remedy, Communisis will have the right, but not the obligation, to treat all the Contracts for the total Purchase Order as repudiated if the Supplier fails to deliver or perform any instalment or stage and to reject any or all of the instalments or stages for the total Purchase Order if Communisis is entitled to reject any one instalment or stage.
7.9. The Supplier shall supply Communisis with any instructions or other information required to enable Communisis to accept delivery of the Goods and performance of the Services within five Business Days before the delivery of the Products or performance of the Services.
7.10. Communisis shall not be obliged to return any packaging materials to the Supplier, whether or not the Goods are accepted by it.
7.11. f the Goods are not delivered or the Services are not performed on the due date then, without prejudice to any other remedy, Communisis shall be entitled to cancel the Contract in whole or in part.
7.12. The Supplier shall provide evidence of the date and time of delivery and the quantity of the Goods delivered when requested so to do by Communisis.
- ORIGIN AND INSTRUCTIONS
8.1. Upon receipt of a request from Communisis the Supplier shall provide to Communisis evidence of the place of origin of the Goods or any part of the Goods or of raw materials utilised in their manufacture.
8.2. The Supplier shall submit with the Goods full instructions for use and clear warnings with respect of anything which may reasonably be done or omitted to be done in relation to the Goods and which could render them unsafe.
- RISK AND PROPERTY
9.1. Subject to clause 9.2 ownership of the Goods will pass to Communisis on delivery (which will occur after the Goods have been unloaded and stacked).
9.2. If the Goods are paid for prior to delivery ownership (but not risk) of the Goods shall pass to Communisis on payment.
9.3. All items including materials, equipment, tools, Free Issue Materials, dyes and moulds supplied by Communisis to the Supplier and all Proofs will at all times:
9.3.1. be and remain the exclusive property of Communisis;
9.3.2. be held by the Supplier in safe custody at its own risk;
9.3.3. be maintained and kept in good condition by the Supplier until returned to Communisis;
9.3.4. not be disposed of other than in accordance with Communisis' written instructions; and
9.3.5. not be used otherwise than as authorised by Communisis in writing.
9.4. The risk in materials issued by Communisis to the Supplier for incorporation in the Goods including Free Issue Materials, shall pass to the Supplier on delivery.
9.5. If Communisis issues Free Issue Materials pursuant to the Contract the Free Issue Materials shall be and remain the property of Communisis. The Supplier shall maintain all such Free Issue Materials in good order and condition and shall use such Free Issue Materials solely in connection with the Contract. Without prejudice to any other rights of Communisis, the Supplier shall deliver up the Free Issue Materials to Communisis on Communisis' demand whether or not they have been altered or processed. Any surplus Free Issue Materials shall be disposed of at Communisis' discretion. Waste of the Free Issue Materials arising from bad workmanship or the default or negligence of the Supplier shall be made good at the Supplier's expense.
- INTELLECTUAL PROPERTY RIGHTS
10.1. Communisis authorises the Supplier to use those of its Intellectual Property Rights for the purposes of exercising its rights and performing its obligations under the Contract only. The Supplier will have no other rights whatsoever in respect of Communisis' Intellectual Property Rights and upon completion of the Contract will return to Communisis all materials containing or embodying the Intellectual Property Rights.
10.2. The Supplier warrants that neither the Goods, nor their use, resale or importation, infringes the Intellectual Property Rights of any third party except to the extent that any infringements arise directly from the use by the Supplier of any Specifications, drawings, samples or descriptions provided by Communisis.
- CONFIDENTIALITY
11.1. The Supplier shall keep in strict confidence all technical or commercial know?how, specifications, inventions, initiatives or processes which are of a confidential nature and have been disclosed to the Supplier by Communisis or its agents and any other confidential information concerning Communisis' business or the business of Communisis' actual or potential clients, customers and suppliers which the Supplier may obtain. The Supplier shall disclose such confidential material to its employees as on a strictly need to know basis for the purpose of discharging the Supplier's obligations to Communisis under the Contract and shall ensure that such employees are subject to the same obligations of confidentiality as bind the Supplier.
- WARRANTIES AND LIABILITY
12.1. The Supplier warrants to Communisis that the Goods and Services:
12.1.1. will be of satisfactory quality within the meaning of the Sale of Goods Act 1979 and fit for any purpose held out by the Supplier or made known to the Supplier in writing or orally at the time the Purchase Order is placed;
12.1.2. will be free from any defects in design, material and workmanship for a period not shorter than the longer of the Supplier's warranty or 24 months from delivery, unless industry practice indicates a longer warranty period or unless otherwise agreed in writing with Communisis;
12.1.3. will correspond in all respects with the Purchase Order and with any relevant Specification or sample provided by Communisis to the Supplier;
12.1.4. will comply with all statutory requirements, governmental, local authority and other regulations, orders, relevant British Standards and EC requirements and regulations (whether voluntary or not) relating to the Goods and Services and their sale and supply;
12.1.5. will be performed by appropriately qualified and trained personnel, with due care and diligence in accordance with the Contract;
12.1.6. will be performed by appropriately qualified, trained and experienced personnel with a high standard of skill, care and diligence and in accordance with the Contract; and
12.1.7. will be performed to such standards of quality generally observed in the industry for similar services.
12.2. Without prejudice to any other remedy, if any Goods or Services are not supplied or performed in accordance with the Contract or Communisis terminates the Contract in accordance with clause 14.2 then Communisis may (whether or not the Goods have been accepted or the Services performed):
12.2.1. require the Supplier to repair the Goods or to supply replacement Goods or Services in accordance with the Contract within seven days of receipt of such a request from Communisis;
12.2.2. at Communisis' sole option, and whether or not Communisis has previously required the Supplier to repair the Goods or to supply any replacement Goods or Services, to treat the Contract as discharged by the Supplier's breach and require the repayment of any part price which has been paid;
12.2.3. cancel any or all remaining instalments or stages if the Contract has not already been terminated;
12.2.4. refuse to accept any subsequent delivery of the Goods or performance of the Services which the Supplier attempts to make;
12.2.5. recover from the Supplier any additional expenditure reasonably incurred by Communisis in obtaining goods or services equivalent to the Goods or Services in substitution from another supplier; and/or
12.2.6. claim damages for any additional costs, losses or expenses incurred by Communisis which are in any way attributable to the Supplier's breach of the Contract or failure to deliver the Goods or perform the Services on the due date or at all.
12.3. The Supplier will indemnify, keep indemnified and hold harmless Communisis from and against all costs (including the cost of enforcement), expenses, liabilities (including any tax liability), injuries, direct, indirect or consequential loss (all three of which terms include pure economic loss, loss of profit, loss of business, depletion of goodwill and like loss, damages, claims, demands, proceedings or legal costs (on a full indemnity basis)) and judgments which Communisis incurs or suffers as a consequence of:
12.3.1. a direct or indirect breach or negligent performance by the Supplier or failure or delay in performance of the terms of the Contract;
12.3.2. any claim that the Goods infringe, or their importation, use or resale infringes the British or foreign patent, copyright, registered design, design right, trademark, trade name or other intellectual property rights of any other person, except to the extent that the claim arises from compliance with any Specification supplied by Communisis;
12.3.3. any act or omission of the Supplier or its employees, agents or sub?contractors in supplying, delivering and installing the Goods, or in the performance of the Services;
12.3.4. a failure to deliver the Goods on the due date for delivery, or to provide the Services on the due date for performance and/or in accordance with the Conditions, or in respect of a direct or indirect breach or negligent performance or failure in performance by the Supplier of the Contract;
12.3.5. claims made against Communisis in respect of any loss, damage or expense sustained by Communisis or its servants or agents or by any customer or other third party to the extent that such loss, damage or expense was caused by, relates to or arises from the Goods or the Services including any claim against Communisis under the Consumer Protection Act 1987 in respect of the Goods; or
12.3.6 any negligent, defamatory or illegal act or omission of the Supplier in connection with the provision, production or delivery of the Goods and/or Services.
12.4. The Supplier does not exclude its liability (if any) to Communisis for personal injury or death resulting from its negligence; for fraud; or for any other matter which it would be illegal to exclude or to attempt to exclude its liability.
- FORCE MAJEURE
13.1. The Supplier shall not be liable to Communisis by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Goods or the Services, if the delay or failure was beyond the Supplier's reasonable control pursuant to an act of God.
13.2. If the Supplier cannot supply Communisis in accordance with the terms of a Purchase Order because of an event described in clause 13.1, and if Communisis reasonably anticipates that this may prevent Communisis performing obligations to its own customers, Communisis may terminate immediately by written notice that part of, or all of, the Purchase Order which the Supplier cannot fulfil.
- TERMINATION
14.1. Communisis may at any time and for any reason cancel the Purchase Order in whole or in part by notice to the Supplier. If Communisis cancels the Contract pursuant to this clause 14.1 the Supplier shall discontinue all work on the Purchase Order and Communisis shall pay the Supplier for work in progress at the time of termination.
14.2. Communisis may by written notice to the Supplier terminate the Contract immediately if the Supplier:
14.2.1. is in material breach of any of the terms of the Contract and, where the breach is capable of remedy, the Supplier fails to remedy such breach within seven days (or such shorter period as may be specified) after service of a written notice from Communisis, specifying the breach and requiring it to be remedied. Failure to deliver Goods or perform any Services on the due date in accordance with clause 7.2 is a material breach of the terms of the Contract that is not capable of remedy;
14.2.2. becomes bankrupt, insolvent, has a receiver, manager or administrative receiver appointed, makes any composition with its creditors, has a receive appointed under the Mental Health Act 1983 or dies;
14.2.3. has any distraint, execution or other process levied or enforced on any of its property;
14.2.4. the Supplier ceases, or threatens to cease, to carry on business;
14.2.5. has a change in its management and/or control as defined by section 416 Income and Corporation Taxes Act 1988, or Communisis reasonably anticipates that one of the above circumstances is about to occur.
- GENERAL
15.1. Each right or remedy of Communisis under the Contract is without prejudice to any other right or remedy of Communisis whether under the Contract or not.
15.2. Communisis may assign, license or sub?contract all or any part of its rights or obligations under the Contract without the Supplier's consent.
15.3. The Supplier shall not be entitled to assign the Contract or any part of it without the prior consent of Communisis in writing.
15.4. Neither Communisis nor the Supplier shall during the term of the Contract and for 12 months following its termination either directly or indirectly solicit or entice away (or seek to attempt to solicit or entice away) from the employment of the other party any person employed by such other party's group (in the case of Communisis) in the provision of the Goods and Services to the Supplier or (in the case of the Supplier) in the receipt and/or administration of the Goods and Services from Communisis without the other party's prior agreement in writing providing that nothing in this clause 15.4 shall prohibit a party from engaging a person who replies to a general advert and who is not otherwise solicited or enticed.
15.5. No failure or delay by Communisis to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
15.6. If any condition or part of the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from the Contract and will be ineffective without, as far as is possible, modifying any other provision or part of the Contract and this will not affect any other provisions of the Contract which will remain in full force and effect.
15.7. Save as expressly stated otherwise in these Conditions the parties to this Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
15.8. The Contract and the Specification contain all the terms which Communisis and the Supplier have agreed in relation to the Goods and/or Services and supersedes any prior written or oral agreements, representations or understandings between the parties relating to such Goods and/or Services. The Supplier acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Communisis which is not set out in the Contract or specification. Nothing in this clause 15.8 will exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently.
15.9. This Contract shall be governed by and construed in accordance with English law and each party agrees to submit to the exclusive jurisdiction of the English Courts.