Terms & Conditions
1. Conditions
1.1 These conditions surpass all earlier conditions of the business to the entire exclusion of everything that may appear on or in the Buyer’s order or similar documents and override any conditions of the order or similar document of the Buyer, and are not varied, modified or waived except by a written agreement signed on behalf of the Seller.
1.2. In these Conditions, the following definitions apply:
(a) “Buyer” means the party with whom or on whose behalf Painting-Estimating contracts to provide the Work;
(b) “Seller” means Painting-Estimating;
c) “Work” shall mean every piece of service supplied, including estimating, valuation, and consulting services;
d) “Preliminary Work” shall mean all preparatory work, including services supplied by third parties;
e) “Electronic File” shall mean any digitized form of text, illustration, or other material supplied or produced by either party, whether on disc, through a modem, ISDN, or any other link;(f) “Intellectual Property” means all copyrights, trademarks, trade names, patents, design rights, inventions, know-how, and other intellectual property rights, whether registered or unregistered and including any applications for registration in respect of any of the previous;
1.3. The placing of any order or request for Work by the Buyer to the Seller shall be conclusive evidence of the Buyer’s acceptance of these Conditions.
2. Delivery:
2.1. The Seller shall be under no liability for any delay in delivery of the Work (or any part thereof). The Buyer shall be bound to accept the delivery and pay for the same in full, notwithstanding such delay.
2.2. Unless otherwise agreed, the Work shall be supplied by the Seller electronically to the Buyer. It is the responsibility of the Buyer to make any necessary arrangements to print, store and/or otherwise distribute the Work within their own organization.
2.3. The Seller reserves the right to deliver the Work in separate installments. Each installment shall be invoiced and paid for in accordance with the Conditions. If the Buyer fails to pay the Seller for any installment by the due date, the Seller may, at its sole discretion, suspend any further deliveries of the Work without notice until payment is made and/or treat the Contract as terminated by the Buyer.
3. Payment:
3.1. Quotations are based on the Seller’s costs at the date of the quotation. The Seller reserves the right to fairly adjust the price because of new or revised information obtained by the Seller, which indicates that significantly more work is likely to be required than was originally predicted when the quotation was given unless otherwise agreed to in writing.
3.2. Quotations don’t include the applicable taxes; the payment of all taxes over and above the quoted price shall be the responsibility of the Buyer.
3.3. Every Work done, whether in the form of Preliminary Work or otherwise, is chargeable irrespective of whether the Buyer decides to go ahead with the same in production or not.
3.4. Extra Work because of the defective, incomplete, or inaccurate copy supplied by the Buyer or by delay in providing necessary instructions or documentation shall be charged extra.
3.5. Unless credit facilities have been agreed in accordance with Clause 4 payment shall be made before the Commencement of Work. The Seller may demand part or full payment in advance before Work commences.
4. Credit Facilities:
4.1. Where credit facilities are granted by the Seller, payment shall be made within 30 days from the date of the invoice except where alternative written arrangements have been agreed upon. If any invoice is not be paid by its due date, interest and all costs under the Contract Law and Statutory Law of the USA, as amended, from the expiry of the date for payment until the invoice is paid, and those costs will be chargeable and recoverable from the Buyer. Any invoice not paid on the due date shall render all invoices due from the Buyer to the Seller payable immediately, without deduction or deferment of any payment, and subject to all collection costs reasonably incurred by the Seller in pursuit of payment.
4.2. Credit facilities will be granted only at the discretion of the Seller and on receipt of the Seller’s credit account application form completed by the applicant. The Seller retains the right to withdraw these facilities at any time and without prior notice or explanation, in which event, all invoices, whether due or not, shall become immediately payable.
4.1. Where credit facilities are granted by the Seller, payment shall be made within 30 days from the date of the invoice except where alternative written arrangements have been agreed upon. If any invoice is not be paid by its due date, interest and all costs under the Contract Law and Statutory Law of the USA, as amended, from the expiry of the date for payment until the invoice is paid, and those costs will be chargeable and recoverable from the Buyer. Any invoice not paid on the due date shall render all invoices due from the Buyer to the Seller payable immediately, without deduction or deferment of any payment, and subject to all collection costs reasonably incurred by the Seller in pursuit of payment.
5. Proofs & Variations:
5.1. The Seller undertakes the Work on the strict condition that every piece of information shall first be supplied by the Buyer, thoroughly checked for errors and omissions, and approved in writing before production. The Seller shall not be responsible or liable for any errors or omissions including those introduced by the Seller that were not corrected by Buyer before the information was approved for production.
5.2. Any variations requested by the Buyer (other than as a consequence of the Seller’s breach of contract) and any further copies of the quote as may be required consequent upon such variations shall be subject to an additional charge.
5.3. It is the Buyer’s responsibility to carefully review the completed quote prior to submitting their tender. The Seller accepts no responsibility for any mistake in the completed Work after the tender has been submitted or the tender closing date has passed.
5.4. On color documents, the Buyer understands and agrees that reasonable color variations between proofs and final production run may occur due to differences in equipment, paper, inks, and other conditions of production unless otherwise specifically agreed in writing.
5.5. All implied and express terms, conditions, and warranties as to the quality and fitness for the purpose of the Work are hereby excluded, whether communicated by the Seller, its employees, agents, or otherwise.
6. Illegal Issues:
6.1. The Seller retains the right to refuse, in its opinion, any Work forming or likely to form under civil or criminal liability actionable, violating the proprietary or other rights of any third party, or is otherwise unlawful defamatory under the current laws.
6.2. The Buyer shall at all times indemnify the Seller and keep the Seller fully indemnified against any and all claims, costs, and expenses arising from Work relating to unlawful or defamatory material or any infringement of Intellectual Property or other proprietary or personal rights of third parties. During the process, such indemnification includes all costs on a full indemnity basis.
6.3. All implied and express terms, conditions, and warranties as to the quality and fitness for the purpose of the Work are hereby excluded, whether communicated by the Seller, its employees, agents, or otherwise.
6.4. All implied and express terms, conditions, and warranties as to the quality and fitness for the purpose of the Work are hereby excluded, whether communicated by the Seller, its employees, agents, or otherwise.
6.5. All implied and express terms, conditions, and warranties as to the quality and fitness for the purpose of the Work are hereby excluded, whether communicated by the Seller, its employees, agents, or otherwise.
7. Materials & Equipment Supplied by the Seller:
7.1. Any materials owned or provided by the Seller or on behalf of the Seller for the production of any part of the Work shall remain the exclusive property of the Seller.
7.2. On completion of the Work, printed Stationery shall be delivered to the Buyer, and films, plates, tapes, discs, Electronic Files, and all other related material shall be destroyed. The Seller retains the right to retain Electronic Files of printed Stationery.
7.3. The Seller has no obligation to provide any data from its equipment or in any format supplied to the Buyer.
8. Jurisdiction:
This contract shall be governed by the United States laws, and any dispute arising under it shall be subject to the non-exclusive jurisdiction of the US courts.
9. Insurance:
The Buyer hereby acknowledges that it has read and fully understood the Conditions, in particular, clauses 2, 5, 6, 7, 10, and 11, related to delivery, risk, storage, and limitation of liability. The Buyer accepts that it shall insure against such risks as it considers appropriate having regard to the circumstances.
10-Materials Supplied or Specified by the Buyer:
10.1. Electronic Files:
(a) The Buyer shall retain a copy of any Electronic Files they submit to the Seller.
(b) Except where the result is dictated by the quality criterion set forth in the contract, the Seller shall not be liable for input supplied by the Buyer incorrectly. Unless otherwise agreed in writing, the Seller will have no responsibility or liability for checking the accuracy of the input provided.
(c) If an Electronic File cannot, without UNUSUAL adjustment, be rendered adequately using standard prepress and press equipment, then Seller may refuse to process the file or may charge, in the event the Seller processes the file, for any corrective work or materials which will be required to process the file. In any case, the seller reserves the right to compensation for work performed and materials purchased.
10.2. Other Materials:
(a) The Seller reserves the right to refuse to accept any electronic files or other material supplied by or on behalf of the Buyer that it considers unsuitable for the intended use. Any additional cost incurred because of unsuitability is chargeable save to the extent that the Seller’s unreasonable delay in checking its suitability shall have contributed to the level of additional cost.
(b) In the event of the Seller advising the Buyer of material unsuitability and the Buyer instructing the Seller to proceed regardless, then the Seller accepts no liability for the quality of the Work at all.
(c) Work supplied by Customers is supplied in adequate quantities. The Seller cannot and will not verify quantities before that production, for example. Costs and any necessary amendments to the Work as a result of discrepancies will be chargeable.
10.3. Risk and Storage
(a) Property supplied by or on behalf of the Buyer is at the Buyer’s risk while in possession of the Seller or in transit unless otherwise agreed in writing.
(b) The Seller may charge reasonable storage fees for property supplied by or on behalf of the Buyer, both before receipt of the order (sufficient for the Work commencement) and after notifying (c) The Buyer permits that he either owns or has absolute rights to use all Intellectual Property and other proprietary interests in materials supplied (including Electronic Files). The Buyer hereby indemnifies the Seller in accordance with clause 6.2 against all claims, costs, and expenses arising from such materials.
5.4. Finished Goods
(a) Risk in the Work shall pass to the Buyer upon dispatch.
(b) On completion the Seller will store the Work and related material for a period of not more than months. After this period the Seller reserves the right without giving prior written notice to destroy such materials.
11. Acceptance of the Work:
The Work shall be considered accepted by the Buyer upon delivery of the Work to the Buyer. All aspects of the Work shall be inspected by the Buyer within 48 hours of the date of delivery. Defects or discrepancies with the contract need not be reported to the Seller within 72 hours of delivery.
12. General Exclusion and Limitation:
12.1. The Seller shall not be liable to the Buyer for any consequential or indirect loss or expense, including loss of turnover and profit, occasioned by a breach of this Contract or any negligence.
12.2. In the event of a breach of this contract or negligence by the Seller, the remedies of the Buyer shall be limited to damages. In no event shall Seller’s liability exceed the price agreed to for the Work.
12.3. The Seller shall not be liable for the following, except in respect of death or personal injury in circumstances where this exclusion is prohibited at law:
(a) Any injury or damage, whether direct or indirect, to personal property however caused.
(b) Costs incurred by the Buyer without the Seller’s prior written approval for repairs, replacements, or other work on the Work, whether defective or otherwise.
(c) Any other damages whatsoever, losses, and costs, whether direct or indirect (including losses from delays, substitute purchases, labor, liabilities to customers and third parties, and all other such losses) and whether caused by the Seller’s default or negligence or any defect in the Work.
12.4. If the Seller offers to replace defective Work, the Buyer shall accept the offer unless there is clear and reasonable cause to refuse. If the Buyer chooses to have a third party redo the Work without providing the Seller prior written notice, then the Buyer waives all remedies against the Seller for such defect, including any right to credit or refund of the price.
12.5. If the Buyer forwards the Work to a third party for further processing, the Buyer must inspect and approve the Work before forwarding it. Such inspection and approval (deemed to have taken place) relieve Seller from any liability for further claims based on defects due to the processing by the third party.
12.6. The Seller reserves the right at any time to reject any Work forwarded to the Seller for processing by a third party and shall notify the Buyer promptly and without further processing. If the Buyer continues to insist that the Work be processed, the Seller shall only do so upon written confirmation from the Buyer and shall not be liable for the quality of the Work.
13. Cancellation:
13.1. The Buyer may cancel an order only before the Work is commenced. The Buyer shall reimburse the Seller for all expenses relating to materials ordered, labor expended, and incidental items incurred in connection with the order and, in addition, shall pay a sum equivalent to the Seller’s reasonable estimate of lost profit on any order that is canceled.
13.2. In the event of cancellation of this agreement the Buyer shall, in addition to all other costs referred to in clause 11.1, pay to the Seller a reasonable administration charge.
14. Reservation of Title:
14.1. The Work shall remain the legal and beneficial property of the Seller that he can retain and not deliver until the Buyer pays for all sums to the Seller.
14.2. Work for which title remains with the Seller shall be readily identifiable as the property of the Seller. It shall be the Buyer’s responsibility, at the Buyer’s expense, to return such Work to the Seller upon request or to permit the Seller’s entry to remove such Work from the Buyer’s premises.
14.3. Without prejudice to any other remedy available, the Seller shall have a general right on all Work of the Buyer in its possession for any debts due by the Buyer. Upon giving 14 days’ notice to the Buyer, the Seller may sell any Work as an agent for the Buyer at a price and in a manner to be determined by the Seller. Money received from such sales shall be applied first in the reduction of the debts owing, and any surplus shall be refunded to the Buyer.
15. Rights of Third Parties:
The Buyer acknowledges that the Conditions do not give any third-party rights enforceable by that third party under the United States laws, but this does not affect any right or remedy available to a third party that exists or is available apart from under these laws.
16. Estimating Services:
16.1. The Buyer shall provide a written specification clearly to the Seller and supply prompt responses to all queries raised by the Seller regarding the specification and the Buyer’s requirements.
16.2. Any Intellectual Property generated by the Seller in the persistence of this agreement shall belong solely to the Buyer; provided, however, that nothing hereinafter contained shall limit or restrict the Seller’s right to retain copies for use in marketing and further design development.
16.3. The Seller shall not be liable to the Buyer for any loss or expense caused by the requirements of the work not clearly specified in the specification or shown in the drawings.
17. Data Protection:
17.1. The Buyer permits the Seller that it has the right to provide any personal data included in materials supplied to the Seller according to this agreement. The Buyer shall indemnify the Seller against all claims, costs, and expenses incurred by the Seller as a result of any breach of the foregoing warranty or of the data protection legislation by the Buyer, including any costs of responding to requests for information from third parties.
17.2. To the extent that personal data may be stored by the Seller with respect to providing services to the Buyer, it is always the standard practice of the Seller to remove such data following contract completion.
18. Force Majeure:
The Seller will not bear any liability for costs, damages, claims, or other losses whatsoever in nature made by the Buyer against the Seller, directly or indirectly, on account of the Seller’s failure beyond reasonable control of the Seller. Such events include but are not limited to war, civil unrest, storms, fires, accidents, embargoes, terrorism, actions of governmental or competent authorities, failures or disruptions of computer systems, industrial action including strikes and lockouts, acts of nature, illness, difficulties or delays in obtaining raw materials, energy, or other supplies, or any similar causes or matters beyond the control of the Seller.
