STANDARD CONDITIONS OF CONTRACT (January 2019)
The following terms and conditions constitute the entire agreement between the parties and supersede any previous agreements, warranties, representations, undertakings or understandings between the parties and may not be varied except in writing.
a. “Contract” means the contract for the provision of Work by Qualvis to the Customer in accordance with Condition 2 which shall incorporate these Conditions.
b. “Customer” means the party contracting with Qualvis to purchase the Work provided under a Contract.
c. “Electronic File” means any text, illustration or other matter supplied or produced by either Party in digitised form on disc, flash drives, USBs, through a modem, or FTP or any other communication link.
d. “Intermediates” means all products produced during the manufacturing process including discs, flash drives, USBs, plate and Intellectual Property.
e. “Insolvency” means any of the following: the presentation of a petition, or the convening of a meeting for the purpose of considering a resolution, for the winding up or dissolution of, the passing of any resolution for the winding up or dissolution of, or the making of a winding up order against or order for the dissolution of, a party; the appointment of a receiver, administrative receiver, receiver and manager, administrator or similar officer over all or any of the assets or undertaking of a party, the making of an administration application, or the making of an administration order in relation to a party; the proposal of, application for or entry into of a compromise or arrangement or voluntary arrangement, or any other scheme, composition or arrangement in satisfaction or composition of any of its debts or other arrangement for the benefit of its creditors generally, by a party with any of its creditors (or any class of them) or any of its members (or any class of them) or the taking by a party of any action in relation to any of the same or the filing of any documentation for the purpose of obtaining a moratorium pursuant to section 1A and paragraph 7 of schedule A1 of the Insolvency Act 1986 in relation to a party; the taking by any creditor (whether or not a secured creditor) of possession of, or the levying of distress, execution or enforcement or some other process upon, all or part of the property, assets or undertaking of a party, or the service of a notice of enforcement under paragraph 7 of Schedule 12 of the Tribunals, Courts and Enforcement Act 2007, or the taking control of goods pursuant to that Schedule, in relation to a party; the deemed inability of a party to pay its debts within the meaning of section 123 of the Insolvency Act 1986; the suspension of payment of debts by a party; the ceasing by a party to carry on the whole or a substantial part of its business; or the occurrence of an event or circumstance in relation to a party similar to any of those referred to in in this definition in any jurisdiction other than England and Wales, and the term “Insolvent” shall be construed accordingly.
f. “Intellectual Property” means any and all intellectual property arising or subsisting in any part of the world including inventions, patents, registered designs, domain names, trade marks (whether registered or unregistered), applications for any of the foregoing and the right to apply therefor in any country of the world; copyrights, rights in the nature of copyrights, moral rights, design rights and database rights; trade names and logos; rights in goodwill or to sue for passing off; know-how and trade secrets; and all or any similar or equivalent rights.
g. “Preliminary Work” means all work done in the concept and preparatory stages (including design, artwork, proto types and colour matching).
h. “Price” means the price payable for the Work, as confirmed in Qualvis’ confirmation of order or as varied by Qualvis from time to time in accordance with Condition 3(a).
i. “Products” means the products to be provided by Qualvis as set out in its confirmation of order.
j. “Qualvis” means Qualvis Print & Packaging Limited, a company incorporated in England and Wales (company number 8804567) whose registered office is at 854 Melton Road, Thurmaston, Leicester LE4 2BT.
k. “Services” means the services to be supplied by Qualvis as set out in its confirmation of order.
l. “Work” means all Products including materials (by way of intermediate or finished product) and Services supplied by Qualvis to the Customer under a Contract.
m. “Written Approval” means approval signified by any email emanating from an email address of a director or employee of the Customer or any oral approval given by such a person provided this is in circumstances where time does not permit Written Approval.
2. Application of Terms
a. These Conditions shall apply to and be incorporated into all estimates, quotations, offers, orders, acceptances and agreements for the provision of Work by Qualvis and shall prevail over any other term of the Contract unless otherwise agreed by Qualvis in writing. All terms and conditions of the Customer are excluded.
b. No order placed by the Customer shall be deemed to be accepted by Qualvis until a written acknowledgment and order confirmation is issued by Qualvis or (if earlier) Qualvis commences or delivers any Work.
c. Any estimate or quotation is given on the basis that no contract will come into existence until Qualvis dispatches an acknowledgement and confirmation of order to the Customer.
a. The Price is based on Qualvis’ current costs of all associated items relating to the production (i.e. materials, overheads) and, unless otherwise agreed in writing, is subject to amendment to meet any rise in such costs that have taken place by the time of delivery.
b. The Price and payment is to be in GBP and is exclusive of tax and Qualvis reserves the right to charge and the Customer will pay any VAT or other tax payable.
c. Unless otherwise agreed in writing, the Price will be “ex-works” and delivery shall be charged extra.
d. Qualvis shall be entitled to charge for all Work carried out, including all Preliminary Work, whether or not the Customer agrees to that Work being taken forward to production.
e. Any additional Work required of Qualvis by reason of the Customer supplying inadequate copy, incomplete or incorrect instructions or insufficient materials or late delivery of the same shall be charged for by Qualvis at its standard hourly rate.
f. If credit facilities have not been granted in accordance with Condition 4 below, payment is due prior to Qualvis starting the Work.
g. If credit facilities have been granted in accordance with Condition 4 below, payment is due within 30 days of the date of the invoice.
h. Notwithstanding the provisions of Conditions 3(f) and 3(g) above, Qualvis, at its absolute discretion, may ask for part or full payment in advance of starting the Work. Any such payment is non-refundable to the extent that Qualvis has already committed to make payments to third parties, including for raw materials or in commencing production, in respect of the Contract.
i. If all or any part of the Price or any other sums due to Qualvis remain unpaid by their due date Qualvis shall be entitled to charge interest and charges in accordance with the Late Payment of Commercial Debts (Interest) Act 1998. In addition, all outstanding invoices will become due and payable immediately and will be treated as overdue, with appropriate interest and charges applied and all costs reasonably incurred in collecting the debt payable by the Customer. In addition, and without prejudice to any other rights which Qualvis has, it shall be entitled to suspend performance of any ongoing Work for the Customer until such time as the outstanding amounts have been paid in full.
j. Should the Work be suspended or delayed by the Customer for any reason Qualvis shall be entitled to charge for storage and for loss of or wastage of resources that cannot otherwise be used.
k. Should the suspension or delay in Condition 3(j) above extend beyond 30 days of the “original required date” Qualvis shall be entitled to immediate payment for 30% of the total order value, materials specially ordered and any other additional costs.
4. Credit Facilities
Credit facilities may be granted to the Customer if it completes Qualvis’ Credit Account Application Form and if it satisfy Qualvis’ criteria from time to time, which will include Qualvis undertaking third credit searches with third parties. The granting of credit facilities shall be within Qualvis’ sole discretion. Where facilities are granted Qualvis reserves the right to withdraw them at any time, without having to give its reasons and, in such a case, all outstanding invoices will become due and payable immediately.
a. Delivery of the Work, in full, shall be accepted when tendered with the specified “original required date”. Unless prior agreement to this, Qualvis may charge the Customer 30% of the order value if the timeline of taking in full exceeds 30 days from the “original required date” and for any resulting storage, insurance and/or transportation charges and/or any other costs and expenses incurred by it (including third party charges for waiting time and time incurred by its own personnel). The risk in the Work (including Products) shall pass to the Customer on delivery and the Customer should insure accordingly. Without prejudice to this Condition, any failure by the Customer to take delivery of the Work in full shall constitute a fundamental breach of the Contract and shall give Qualvis the right (at its option) to treat the Contract as discharged and sue the Customer for damages unless agreed otherwise. Qualvis will consider the continuing to hold any goods on your behalf to a maximum three months (“Initial Storage Period”), the Customer agrees that a debt will be due and that we will invoice for the said goods immediately at the end of the (“Initial Storage Period”) for the remaining 70% given 30% will have already been invoiced totaling 100%. Our invoices will be payable in accordance with our standard payment terms. All remaining products which have not been delivered to the Customer but have been invoiced given they are at the end of the (“Initial Storage Period”), the Customers will instruct either delivery immediately or an agreed delivery schedule in which further costs could be incurred or instructions to destroy if not required.
b. Unless otherwise agreed in writing completion and delivery times are a guide only and, whilst Qualvis will make every effort to adhere to proposed timescales, time is not of the essence in any contract with the Customer.
c. Unless otherwise agreed in writing (in which case an extra charge may be made) delivery will be to kerbside at the Customer’s address (as confirmed by Qualvis via email) and the Customer will make arrangements for off-loading and for any additional transportation to its storage facility.
d. Subject to any agreement in accordance with Condition 5(c) above, delivery involving difficult access and/or unreasonable distance from vehicular access shall entitle Qualvis to make an extra charge to reflect its extra costs.
e. Should expedited delivery be agreed Qualvis shall be entitled to make an extra charge to cover any overtime or any other additional costs.
6. Materials supplied or specified/approved by the Customer
6.1 Electronic Files
a. It is the Customer’s responsibility to maintain a copy of any original Electronic File provided by the Customer.
b. Qualvis shall not be responsible for checking the accuracy of supplied input from an Electronic File unless otherwise agreed in writing.
c. Without prejudice to Condition 6.3(b), if an Electronic File is not suitable for outputting on equipment normally adequate for such purposes without adjustment or other corrective action Qualvis may make a charge for any resulting additional cost incurred or may reject the file without prejudice to its rights to payment for Work done, material purchased and /or other commitments entered into as a result of the Contract.
a. Qualvis shall, prior to starting the manufacture of any Products for the first time, obtain the Customer’s Written Approval to all artwork which is to be incorporated into or forms part of the Products. The Customer shall respond promptly to any request for Written Approval and within any timescale provided by Qualvis acting reasonably. Usually the Customer will be asked to provide Written Approval of the initial design and concept and then final Written Approval (“Final Written Approval”) to a repro file and CAD file provided by Qualvis to the Customer.
b. If the Customer does not provide its Written Approval or Final Written Approval within the timescale required by Qualvis, Qualvis shall not be liable for any delay in or failure to meet any requested time for delivery or any other losses arising, including consequential loss. Qualvis will, unless it notifies the Customer otherwise, require Final Written Approval at least 72 hours prior to any committed production schedule.
c. The Customer’s Final Written Approval of the repro file and CAD file shall be confirmation to Qualvis that it can proceed with the manufacture of the Products.
6.3 Other Materials
a. Metal, film and other materials owned by the Customer and supplied to Qualvis for the production of type, plates, artwork, origination, Electronic Files and the like shall remain the Customer’s exclusive property. However, where the content is generated by Qualvis, Qualvis may, in order to protect its Intellectual Property rights and at its absolute discretion, replace such material with unused material of a similar or better quality.
b. Qualvis may reject any paper, plates, origination, Electronic Files or other materials supplied or specified by the Customer which appear to it to be unsuitable for the purpose intended. Additional cost(s) incurred if materials are found to be unsuitable during production may be charged to the Customer except that if the whole or any part of such additional cost could have been avoided but for unreasonable delay by Qualvis in ascertaining the unsuitability of the materials then that amount shall not be charged to the Customer.
c. Without prejudice to Condition 6.3(b) above, where unsuitable materials are so supplied or specified, and Qualvis so advises the Customer, and the Customer instructs Qualvis in writing to proceed anyway, Qualvis will use reasonable endeavors to secure the best results, but shall have no liability for the quality of the end-Product(s).
d. Quantities of materials supplied by the Customer shall be adequate to cover normal spoilage. Any costs incurred as a result of shortages, including re-starting jobs, duplicating masters or similar will be charged to the Customer in addition to the Price.
6.4 Risk and storage
a. Customer’s property and all property supplied to Qualvis by or on behalf of the Customer shall while it is in the possession of Qualvis or in transit to or from the Customer shall be deemed to be at the Customer’s risk unless otherwise agreed in writing and the Customer should insure accordingly.
b. Qualvis shall be entitled to make a reasonable charge for the storage of any Customer’s property left with Qualvis before receipt of the order or after notification to the Customer of completion of the Work.
6.5 Finished Products
a. The Customer acknowledges that the Work may deteriorate over time, and specifically acknowledges that the warranty in Condition 11.1(a) below shall not be of benefit to the Customer where Work is stored by Qualvis for more than three months from the date of manufacture.
7. Materials and equipment supplied by Qualvis
a. Materials owned by Qualvis and used in the production of Intermediates, type, plates, artwork, origination, Electronic Files and other production processes, together with items thereby produced, shall remain Qualvis’ exclusive property unless specified by the customer prior to work commencing.
b. Type shall be distributed and plates, artwork, origination, Electronic Files or other work destroyed after a period of 12 months of no use after the order is executed unless written arrangements are made to the contrary. In the latter event, storage shall be charged.
c. Qualvis shall not be obliged to download any digital data from its equipment or supply the same to the Customer on disc or by any communication link.
8. Intellectual Property indemnity
a. The Customer warrants that it is the owner, or licensee, of all Intellectual Property and other material or information that it provides to Qualvis to enable Qualvis to perform and provide the Work. If Qualvis have created artwork, structural design in which the Customer wishes to use, then Qualvis becomes the owner of such Intellectual Property.
b. The Customer shall indemnify and hold harmless Qualvis from and against any and all demands, claims, alleged claims, proceedings, damages, penalties, fines, liability and losses, damages, costs and expenses (including legal costs) arising out of a breach of the warranty in Condition 8(a).
9. Retention of Title
a. The Work remains Qualvis’ property until the Customer has paid for it and discharged all other debts owing to Qualvis.
b. If the Customer becomes subject to Insolvency and the Work has not been paid for in full Qualvis may take any Products back and, if necessary, enter the Customer’s premises to do so (in respect of which the Customer grants to Qualvis an irremovable licence to enter such premises and shall procure for Qualvis such a right for Qualvis to enter any third party premises at which the Products are stored), or to inspect and/or the Customer shall at all times ensure that it has labelled the Products so as to identify them clearly.
c. Where the Customer is in breach of these terms or suffers any act of Insolvency Qualvis reserves the right to approach the Customer’s customer and to offer the Work directly to them, notwithstanding the fact that this will involve advising the Customer’s customer that the Customer is in breach or in default of the Contract.
10. Proofs and variations
a. Qualvis shall incur no liability for any errors not corrected by the Customer where the Customer has been provided with proofs and Written Approval referred to in Condition 6.2 above has been obtained. The Customer’s alterations and additional proofs necessitated thereby shall be charged extra. When style, type or layout is left to Qualvis’ judgement, changes therefrom made by the Customer shall be charged extra. Further to this Qualvis will have no liability in customers wishing to order products in which are not designed wholly for the purpose in which they are being used. Reverse printing on substrates which the mill manufacture advises against, given the variables this could cause towards finished consistency Qualvis cannot guarantee repeatable quality consistency.
b. Where the Customer specifically waives any requirement to examine proofs Qualvis is indemnified by the Customer against any and all errors in the finished Work and the Customer shall not make any claim against Qualvis in respect of such Work.
c. Colour proofs 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.
d. Variations in quantity Qualvis will use reasonable endeavours to deliver the quantity of Products ordered, but estimates are conditional upon margins of 10 per cent for work being allowed for overs and 5 per cent for work being allowed for unders. The Customer will be charged for the actual volume delivered, unless otherwise agreed in writing.
11. Claims and Liability
a. Qualvis warrants to the Customer that, for a period of three months from the date of manufacture of the Products, the Products will be of satisfactory quality and be free from material defects in design and workmanship.
b. Advice of damage, delay or loss of Products in transit or of non-delivery must be given in writing to Qualvis and the carrier within 14 days of delivery (or, in the case of non-delivery, within 14 days of notification of despatch of the Products) and any claim in respect thereof must be made in writing to Qualvis and the carrier within 30 days of delivery (or, in the case of non-delivery, within 30 days of notification of despatch). All other claims must be made in writing to Qualvis within 30 days of delivery. Qualvis shall not be liable in respect of any claim unless the aforementioned requirements have been complied with except in any particular case where the Customer proves that (i) it was not possible to comply with the requirements and (ii) the claim was made as soon as reasonably possible.
c. Qualvis will not be liable for any breach of the warranty in Condition 11.1(a) above unless the Customer notifies Qualvis of any alleged defect in accordance with Condition 11.1(b) above and in any event before the expiry of the period referred to in Condition 11.1(a) above and at Qualvis’ request the Customer allows Qualvis to inspect the allegedly defective Work at the Customer’s premises.
d. Subject to Conditions 11.1(c) and 11.1(e), if Qualvis finds that any Work does not conform to the warranty in Condition 11(a), Qualvis will (at its option and as the Customer’s sole remedy) repair or replace or issue the Customer with a refund or credit note for the Work in question.
e. Qualvis will not be liable to the Customer for any breach of the warranty in Condition 11.1(a) above if:
i. the defect in question was caused or aggravated by the Customer’s (or its representatives’ or employees’) act or omission, including improper use, handling, installation or storage or any modification to or alteration of the Work;
ii. the defect in question was caused by normal wear and tear; or
iii. the Customer continues to use the Work in question after discovering the defect.
f. Qualvis excludes, to the fullest extent permitted by law, all warranties, conditions and other terms which may be implied by statute, common law or otherwise.
a. Subject to Conditions 11.2(b) and (c) below Qualvis’ total liability to the Customer under and/or in connection with the Contract (whether arising in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise) shall not exceed the total amount payable by the Customer under the Contract.
b. Subject to Condition 11.2(c) below Qualvis will not be liable to the Customer for:
i. loss of contracts, business, revenue, profits, goodwill, opportunity or anticipated savings;
ii. any indirect, consequential or special loss or damage of any kind.
c. Nothing in these conditions shall exclude Qualvis’ liability for death or personal injury as a result of its negligence or for fraud or fraudulent misrepresentation.
Without prejudice to any rights or remedies to which a party may be entitled whether hereunder, at law or in equity, either party may terminate the Contract with immediate effect by giving notice in writing to the other party if the other party:
a. is in material breach of the Contract and such material breach is: (i) incapable of remedy; or (ii) if capable of remedy, not remedied by the other party within 30 days of written notice of being given written notice of such breach; or
b. becomes Insolvent.
13. Effect of Termination
a. Upon termination or expiry of the Contract howsoever arising Qualvis shall be entitled to issue an invoice to the Customer for all stocks held, work in progress and the cost of any commitments made to third parties which Qualvis cannot terminate.
b. Upon termination of the Contract howsoever arising and subject always to the provisions of this Condition 13, all rights and obligations hereunder shall immediately cease and determine without prejudice to any rights of action then accrued under the Contract, including any rights which either party may have in respect of a claim for damages for breach by the other party or under any indemnity. All sums due from one party to the other will become due and payable immediately.
c. The following Conditions shall survive the termination of the Contract howsoever arising: 3, 6.5, 8 to 11, 14, 15(b), 18 to 21 and this Condition 13.
14. General Lien
Without prejudice to any other remedies Qualvis may have, in respect of all unpaid debts due from the Customer Qualvis shall have a general lien on all Products and property of or provided by the Customer in its possession (whether worked on 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 it 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.
15. Illegal matter
a. Qualvis shall not be required to print any matter which in its opinion is or may be of an illegal or libelous nature or an infringement of the proprietary or other rights of any third party.
b. The Customer shall indemnify and hold harmless Qualvis from and against any and all demands, claims, proceedings, damages, costs and expenses (including legal costs) arising out of the printing by Qualvis for the Customer of any illegal or unlawful matter including matter which is libelous or infringes the Intellectual Property rights of a third party. The indemnity shall include any amounts paid on a lawyer’s advice in settlement of any claim that any matter is libelous or such an infringement.
16. Force majeure
Qualvis shall be under no liability if it shall be unable to carry out any provision of the Contract for any reason beyond its reasonable control. During the continuance of such a contingency the Customer may by written notice to Qualvis elect to terminate the Contract and pay for Work done (including Preliminary Work) and materials used, but subject thereto shall otherwise accept delivery when available.
17. Data Protection
The Customer is hereby notified that Qualvis may transfer, and consents to such transfer by Qualvis of, personal data about the Customer (including its directors and employees) to a Credit Agency pursuant to Condition 3(g) above. Any personal data processed by Qualvis shall be carried out in accordance with all applicable data protection legislation.
a. Any demand, notice or other communication given or made under or in connection with the Contract shall be in writing and shall be given or made to the recipient at the address provided to the other party (or to such other address as either party may from time to time notify to the other party for this purpose) or to such email address(es) as either party may from time to time notify to the other party for this purpose.
b. Every demand, notice or other communication addressed in accordance with the provisions of this Condition 18, shall be deemed to have been duly given or made, if delivered by hand, upon delivery at the address of the recipient party, if sent by first class post two business days after the date of posting and if sent by email on transmission to the correct email address, provided that, where, in accordance with the above provisions, any demand, notice or other communication would otherwise be deemed to be given or made on a day which is not a business day or after 5.30pm on a business day, such demand, notice or other communication shall be deemed to be given or made at 9.00am on the next business day.
c. Service of legal proceedings shall not be by email.
The Customer shall not without the prior written consent of Qualvis assign, transfer, novate, charge or deal in any other manner with the Contract or any of its rights under the same, or purport to do so.
a. No delay by either party in exercising, or failure by either party to exercise, any right, power or remedy provided by law or under the Contract shall:
i. operate as a waiver of that or any other right, power or remedy; or
ii. affect the other terms of the Contract.
b. A waiver of any breach of or default under the Contract shall not constitute a waiver of any other breach or default and will not prevent a party from subsequently requiring compliance with the waived obligation.
c. Except where provided otherwise, the rights, powers and remedies provided in the Contract are exhaustive and are exclusive of any other rights, powers and remedies provided by law.
d. With the exception of statements made fraudulently, the Contract constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes all previous agreements between the parties relating to such matters and no party has relied upon any representation save for a representation expressly set out in the Contract.
e. If any provision of the Contract shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of the Contract which shall remain in full force and effect.
f. Nothing in the Contract is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise either party to act as agent for the other party, and neither party shall have authority to act in the name of or on behalf of or otherwise to bind the other party in any way.
g. The parties do not intend that any term of the Contract should be enforceable, whether by virtue of the Contracts (Rights of Third Parties) Act 1999 or otherwise, by any person who is not a party to the Contract.
h. The Contracts and any dispute or claim arising out of or in connection with the same or the subject matter or formation of the same (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby agree that the courts of England and Wales shall have exclusive jurisdiction to settle any such dispute or claim.
a. References to Conditions are to conditions of these terms and conditions.
b. The headings to Conditions are for convenience only and shall not affect the construction or interpretation of the Contract.
c. References to a “person” or a “third party” shall be construed so as to include any individual, firm, corporation, government, state or agency of a state or any joint venture, trust, association or partnership (whether or not having separate legal personality).
d. References to the singular shall include the plural and vice versa.
e. A reference to any statute or statutory provision shall include any subordinate legislation made under the relevant statute or statutory provision and shall be construed as a reference to such statute, statutory provision or subordinate legislation as it may have been, or may from time to time be, amended, modified or re-enacted (with or without modification).
f. A reference to “including” or “include” shall be construed as being followed by the words “without limitation”.