Terms & Conditions of Sale
May 2018 Edition
The Customer’s attention is particularly drawn to the provisions of clause 17.1.
1.1 Definitions. In these Conditions, the following definitions apply:
“Business Continuity Plan” means ProCo’s plan for continuity of the business if a disaster affects the operation of ProCo’s business.
“Business Day” means a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
“Commencement Date” has the meaning set out in clause 2.2.
“Conditions” means these terms and conditions as amended from time to time in accordance with clause 24.8.
“Confidential Information” means any information that relates to the business, affairs, operations, customers, processes, budgets, pricing, policies, product information, strategies, developments, trade secrets, know-how, personnel and suppliers of the disclosing party, together with all information derived by the receiving party from any such information and any other information clearly designated as being confidential (whether or not it is marked “private”, “confidential” or “restricted”) or which ought reasonably to be considered confidential.
“Contract” means the contract between ProCo and the Customer for the supply of Goods and/or Services comprising the Order and these Conditions.
“Customer” means the person or firm who purchases the Goods and/or Services from ProCo, as detailed in the Order.
“Customer Data” means all data, information, Confidential Information and Personal Data (as defined in the GDPR and the UK Data Protection Bill), provided to ProCo by the Customer for the purpose of supplying the Goods and/or Services which may include (but shall not be limited to) data and information supplied by or relating to the Customer’s clients.
“Deliverables” means the deliverables set out in the Order.
“Delivery Location” has the meaning set out in clause 4.2.
“Force Majeure Event” means an event beyond the reasonable control of ProCo including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
“GDPR” means the EU General Data Protection Regulation 2016.
“Goods” means the goods (or any part of them) set out in the Order.
“Goods Specification” means any specification for the Goods, that is agreed in writing by the Customer and ProCo either in ProCo’s quotation for the Goods or as otherwise agreed between the Customer and ProCo.
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Order” means the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form or as otherwise agreed by the parties the basis of which shall be ProCo’s quotation for the Goods and/or Services.
“Personal Data” shall have the meaning ascribed to it in the GDPR and the UK Data Protection Bill.
“ProCo” means ProCo Print Limited registered in England & Wales with company number 03378837.
“ProCo Materials” has the meaning set out in clause 8.1.6.
“Security Policy” ProCo’s Information Security Policy, a copy of which is available upon request.
“Service Levels” means the service levels (if any) in accordance with which technical Services are to be provided, which shall be detailed in the agreement for provision of the technical services.
“Services” means the services, including the Deliverables, supplied by ProCo to the Customer as set out in the Order and as more fully described in the relevant Service Schedule.
“Service Specification” means the description or specification for the Services provided in writing by ProCo to the Customer in ProCo’s quotation for the Services or as otherwise agreed between ProCo and the Customer.
“Service Schedule” the Schedule to these Conditions which contains particulars of the Services which may be supplied by ProCo.
“UK Data Protection Bill” means the UK Data Protection Act 2018
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when ProCo issues written acceptance of the Order or ProCo commence provision of the Goods and/or Services, whichever is earlier, at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of ProCo which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by ProCo and any descriptions of the Goods or illustrations or descriptions of the Services contained in ProCo’s catalogues, brochures, or on ProCo’s website or secure web portals, are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.6 Any quotation given by ProCo shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1 The Goods are described in the Goods Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify ProCo against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by ProCo in connection with any claim made against ProCo for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with ProCo’s use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 ProCo reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.
4. DELIVERY OF GOODS
4.1 ProCo shall ensure that each delivery of the Goods is accompanied by a delivery note which details the relevant ProCo reference numbers and the description and quantity of the Goods.
4.2 The parties shall specify in the Order as to how Goods are to be delivered to the Customer or if the Customer will collect the Goods from ProCo. Where:
2.1 ProCo agrees to deliver the Goods to the Customer, the “Delivery Location” shall be the location set out in the Order or such other location as the parties may agree;
2.2 the parties agree that the Customer shall collect the Goods from ProCo, the “Delivery Location” shall be either ProCo’s Sheffield premises at Parkway Close, Parkway Industrial Estate, Sheffield, S9 4WJ; or ProCo’s Stansted premises at Units 2&3, M11 Business Link, Parsonage Lane, Stansted, CM24 8GF; or such other location as may be advised by ProCo before delivery. The Customer shall collect the Goods from ProCo within three (3) Business Days of ProCo notifying the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location or on completion of loading of the Goods at the Delivery Location, as applicable.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. ProCo shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide ProCo with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If ProCo fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. ProCo shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event, the Customer’s failure to provide ProCo with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.6 If the Customer fails to accept or take delivery of the Goods within five (5) Business Days of ProCo notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by ProCo’s failure to comply with its obligations under the Contract in respect of the Goods:
4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the sixth (6th) Business Day following the day on which ProCo notified the Customer that the Goods were ready; and
4.6.2 ProCo shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten (10) Business Days after ProCo notified the Customer that the Goods were ready for delivery the Customer has not accepted or taken delivery of them, ProCo may resell or otherwise dispose of part or all of the Goods.
4.8 The Customer shall not be entitled to reject the Goods if ProCo delivers up to and including five (5) per cent more or less than the quantity of Goods ordered.
4.9 ProCo may deliver the Goods by instalments, which may be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. QUALITY OF GOODS
5.1 ProCo warrants that on delivery, the Goods shall:
1.1 conform in all material respects with their description and any applicable Goods Specification;
1.2 be free from material defects in design, material and workmanship;
1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2 Subject to clause 5.3, if:
2.1 the Customer gives notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
2.2 ProCo is given a reasonable opportunity of examining such Goods; and
2.3 the Customer (if asked to do so by ProCo) returns such Goods to ProCo’s place of business at the Customer’s cost, ProCo shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 ProCo shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:
3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
3.2 the defect arises because the Customer failed to follow ProCo’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
3.3 the defect arises as a result of ProCo following any drawing, design or Goods Specification supplied by the Customer;
3.4 the Customer alters or repairs such Goods without the written consent of ProCo;
3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
3.6 the Goods differ from their description or any relevant Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in this clause 5, ProCo shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by ProCo under clause 5.2.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until ProCo has received payment in full (in cash or cleared funds) for:
2.1 the Goods; and
2.2 any other goods that ProCo has supplied to the Customer.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
3.1 hold the Goods on a fiduciary basis as ProCo’s bailee;
3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as ProCo’s property;
3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on ProCo’s behalf from the date of delivery;
3.5 notify ProCo immediately if it becomes subject to any of the events listed in clauses 18.1.2 to 18.1.12; and
3.6 give ProCo such information relating to the Goods as ProCo may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 18.1.2 to clause 18.1.12, or ProCo reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy ProCo may have, ProCo may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. SUPPLY OF SERVICES
7.1 ProCo shall provide the Services to the Customer in accordance with the Service Specification and the relevant Service Schedule in all material respects.
7.2 ProCo shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 ProCo shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and ProCo shall notify the Customer in any such event.
7.4 ProCo warrants to the Customer that the Services will be provided using reasonable care and skill.
8. CUSTOMER’S OBLIGATIONS
8.1 The Customer shall:
1.1 ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification and/or the Service Specification are complete and accurate;
1.2 co-operate with ProCo in all matters relating to the Services;
1.3 provide ProCo, its employees, agents, consultants and subcontractors, with access to the Customer’s premises and other facilities as reasonably required by ProCo to provide the Services;
1.4 provide ProCo with such information and materials as ProCo may reasonably require, to supply the Services and ensure that such information is accurate in all material respects;
1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
1.6 keep and maintain all materials, equipment, documents and other property of ProCo (“ProCo Materials”) at the Customer’s premises in safe custody at its own risk, maintain ProCo Materials in good condition until returned to ProCo, and not dispose of or use ProCo Materials other than in accordance with ProCo’s written instructions or authorisation; and
8.2 If ProCo’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default”):
2.1 ProCo shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays ProCo’s performance of any of its obligations;
2.2 ProCo shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from ProCo’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
2.3 the Customer shall reimburse ProCo on written demand for any costs or losses sustained or incurred by ProCo arising directly or indirectly from the Customer Default.
9. SERVICE LEVELS
9.1 Where applicable, ProCo shall use reasonable endeavours to ensure that the Services meet or exceed the Service Levels.
9.2 If the parties deem necessary, ProCo shall provide the Customer with a regular report detailing its performance in respect of each of the Service Levels.
9.3 If ProCo fails to meet the Service Levels, ProCo shall:
3.1 notify the Customer as soon as reasonably practicable;
3.2 provide the Customer with a plan to remedy the failure; and
3.3 take remedial action to rectify or to prevent the failure from recurring.
9.4 Senior representatives of both parties shall have regular meetings to monitor and review performance, the achievement of the Service Levels and the provision of the Services.
10. CHANGE CONTROL
10.1 If either party requests a change to the scope, specification or execution of the Goods and/or Services to be supplied, ProCo shall, within a reasonable time, provide a written estimate to the Customer of:
1.1 the likely time required to implement the change;
1.2 any necessary variations to ProCo’s charges arising from the change;
1.3 any other impact of the change on the Contract.
10.2 If the Customer wishes ProCo to proceed with the change, the parties shall agree the necessary variations to the charges, the Goods and/or Services and any other relevant terms of the Contract to take account of the change.
11. CHARGES AND PAYMENT
11.1 Subject to any changes made pursuant to clause 10, the price for Goods and the Services shall be the price set out in the Order and any additional costs will be agreed between ProCo and the Customer.
11.2 ProCo shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom ProCo engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by ProCo for the performance of the Services, and for the cost of any materials.
11.3 ProCo reserves the right to:
3.1 increase its standard fee rates for the charges for the Services. ProCo will give the Customer written notice of any such increase three (3) months before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify ProCo in writing within four (4) weeks of the date of ProCo’s notice and ProCo shall have the right without limiting its other rights or remedies to terminate the Contract by giving four (4) weeks’ written notice to the Customer; and
3.2 increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to ProCo that is due to:
3.2.1 any factor beyond the control of ProCo (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
3.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
3.2.3 any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give ProCo adequate or accurate information or instructions in respect of the Goods.
11.4 In respect of Goods and Services, ProCo shall invoice the Customer on or at any time after completion of delivery or completion of the Services unless agreed otherwise by the parties.
11.5 The Customer shall pay each invoice submitted by ProCo:
5.1 within 30 days of the end of the calendar month of the invoice; and
5.2 in full and in cleared funds to a bank account nominated in writing by ProCo, and time for payment shall be of the essence of the Contract.
11.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by ProCo to the Customer, the Customer shall, on receipt of a valid VAT invoice from ProCo, pay to ProCo such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
11.7 Without limiting any other right or remedy of ProCo, if the Customer fails to make any payment due to ProCo under the Contract by the due date for payment (“Due Date”), ProCo shall have the right to charge interest on the overdue amount at the rate of 4 per cent per annum above the then current National Westminster Bank Plc’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
11.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against ProCo in order to justify withholding payment of any such amount in whole or in part. ProCo may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by ProCo to the Customer.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by ProCo unless agreed otherwise in writing by the parties.
12.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on ProCo obtaining a written licence from the relevant licensor on such terms as will entitle ProCo to license such rights to the Customer.
12.3 All ProCo Materials are the exclusive property of ProCo.
12.4 Where, as part of the Services, ProCo is required to use Intellectual Property Rights belonging to the Customer or otherwise, the Customer hereby grants to ProCo or shall procure the grant to ProCo of a non-exclusive right to use such Intellectual Property Rights for the purpose of providing the Services. Any such right will cease on completion of the Services. All such Intellectual Property Rights shall remain the property of the Customer or owner of the Intellectual Property Rights.
12.5 The Customer shall keep ProCo indemnified in full against all costs, expenses, damages and losses (whether direct or indirect) including any interest, fines, legal and other professional fees and expenses awarded against or paid by ProCo as a result of or in connection with any claim made against ProCo for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the use of any Intellectual Property Rights in accordance with the Customer’s instructions or directions.
13. DATA PROTECTION
13.1 In so far as ProCo processes any Personal Data on behalf of the Customer/Controller, ProCo shall:
1.1 process the Personal Data only on behalf of the Customer only for the purposes of performing the Contract and only in accordance with instructions contained in the Contract or received from the Customer from time to time;
1.2 not otherwise modify, amend or alter the contents of the Personal Data or disclose or permit the disclosure of any of the Personal Data to any third party unless specifically authorised in writing by the Customer;
1.3 implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure;
1.4 take reasonable steps to ensure the reliability of any of ProCo’s personnel who have access to the Personal Data;
1.5 obtain prior written consent from the Customer before transferring the Personal Data to any sub-contractors in connection with the provision of the Services;
1.6 ensure that only those ProCo personnel who need to access the Personal Data are granted access to such data and only for the purposes of the performance of the Contract and ProCo shall ensure all ProCo personnel required to access the Personal Data are informed of the confidential nature of the Personal Data and comply with the obligations set out in this clause 13;
1.7 not publish, disclose or divulge any of the Personal Data to any third party unless directed to do so in writing by the Customer;
1.8 notify the Customer within twenty-four hours (one Business Day) if it receives:
1.8.1 a request from a Data Subject to have access to that person’s data; or
1.8.2 a complaint or request relating to the Customer’s obligations under the GDPR and/or UK Data Protection Bill; or
1.8.3 any other communication relating directly or indirectly to the processing of any Personal Data in connection with the Contract;
1.9 provide the Customer with full co-operation and assistance in relation to any complaint or request made in respect of any Personal Data.
1.10 permit the Customer or its external advisers (subject to reasonable and appropriate confidentiality undertakings) to inspect and audit ProCo’s data processing activities and comply with all reasonable requests or directions by the Customer to enable the Customer to verify and procure that ProCo is in full compliance with its obligations under the Contract and those of the GDPR and UK Data Protection Bill; and
1.11 not transfer the Personal Data outside the European Economic Area without the prior written consent of the Customer.
13.2 The parties shall, and ProCo shall procure that any sub-contractors shall comply at all times with the GDPR and/or UK Data Protection Bill and shall not perform their obligations under the Contract in such a way as to cause either party to breach any of its obligations under the GDPR and/or UK Data Protection Bill. ProCo shall notify the Customer within twenty-four hours (one Business Day) if it becomes aware of any breach of the GDPR and/or UK Data Protection Bill by ProCo or any of its sub-contractors in connection with the Contract.
14. CUSTOMER DATA
14.1 ProCo shall take all necessary, reasonably foreseeable steps to ensure that any Customer Data which comes into its possession or control in the case of providing the Goods and/or Services is protected in accordance with the Security Policy and requirements of the GDPR and UK Data Protection Bill, and in particular ProCo shall not use the Customer Data or reproduce the Customer Data in whole or in part in any form except as may be required by this Contract.
14.2 The parties shall ensure that any Customer Data transferred to the other in the course of the Contract is transferred in a secure and safe manner. The Customer shall be responsible for ensuring that Customer Data transferred to ProCo is transferred securely and safely. ProCo shall not assume responsibility for the Customer Data until such Customer Data is delivered to, and accepted by, ProCo.
14.3 Where the parties transfer Customer Data electronically, they shall ensure that such Customer Data is properly encrypted prior to transfer using an encryption method agreed by the parties.
14.4 The parties shall ensure that any user identifications, passwords, codes or keywords required to access Customer Data are made available only to those personnel who need to know such details for the purpose of providing the Goods and/or Services and that such personnel do not disclose such user identifications, passwords, codes or keywords to unauthorised personnel.
14.5 The parties shall ensure that any personnel involved in the transfer, processing or handling of Customer Personal Data are properly trained and are aware of the importance of ensuring the security of the Customer Data as well as trained properly on the processes and methods used for maintaining the security of such Customer Data.
14.6 If either party believe that there has been a breach of this clause 14, it shall notify the other immediately. Both parties shall take appropriate steps to identify and remedy the breach which may or may not involve temporarily suspending, or permanently removing, personnel access to Customer Data. The reporting of a breach or a suspected breach shall be communicated within twenty-four hours to the ProCo Data Protection Officer by email:
14.7 Both parties shall maintain a list of their respective personnel who have access to Customer Data in relation to the Contract.
15.1 Except to the extent set out in this clause 15, or where disclosure is expressly permitted elsewhere in the Contract, each party shall:
1.1 treat the other party’s Confidential Information as confidential; and
1.2 not disclose the other party’s Confidential Information to any other person without the owner’s prior written consent.
15.2 Clause 15.1 shall not apply to the extent that:
2.1 such information was in the possession of the party making the disclosure, without obligation of confidentiality, prior to its disclosure; or
2.2 such information was obtained from a third party without obligation of confidentiality; or
2.3 such information was already in the public domain at the time of disclosure otherwise than through a breach of this agreement; or
2.4 such information was independently developed without access to the other party’s Confidential Information.
15.3 ProCo may only disclose the Customer’s Confidential Information to ProCo personnel who are directly involved in the provision of the Goods and/or Services and who need to know the information. ProCo shall ensure that such personnel are aware of, and comply with, these confidentiality obligations.
15.4 ProCo shall not, and shall procure that their personnel do not, use any of the Customer’s Confidential Information received from the other otherwise than for the purposes of the Contract.
15.5 Nothing in this clause 15 shall prevent either party from using any techniques, ideas or knowledge gained during the performance of the Contract in the course of its normal business to the extent that this use does not result in a disclosure of the other party’s Confidential Information or an infringement of Intellectual Property Rights.
16. SECURITY REQUIREMENTS
16.1 The parties shall comply with the Security Policy and obligations under the GDPR and UK Data Protection Bill, and shall ensure that all personnel involved in the provision of Goods and/or Services receive proper training regarding the Security Policy and are aware of its importance.
16.2 ProCo shall notify the Customer of any changes or proposed changes to the Security Policy.
16.3 Each party shall advise the other as soon as it becomes aware of any breach, or potential breach, of the Security Policy or any other breach, or potential breach, of security which may adversely affect the Services. Contact the ProCo Data Protection Officer by email within twenty-four hours:
17. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
17.1 Nothing in these Conditions shall limit or exclude ProCo’s liability for:
1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
1.2 fraud or fraudulent misrepresentation;
1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
1.4 breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
1.5 defective products under the Consumer Protection Act 1987.
17.2 Subject to clause 17.1:
2.1 ProCo shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under, or in connection with, the Contract; and
2.2 ProCo’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall under no circumstances exceed the value of the Goods and/or Services supplied under this Contract.
17.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
17.4 This clause 17 shall survive termination of the Contract.
18.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
1.1 the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing of the breach;
1.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
1.3 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
1.4 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
1.5 the other party (being an individual) is the subject of a bankruptcy petition or order;
1.6 a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
1.7 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
1.8 a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
1.9 a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
1.10 any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 18.1.2 to clause 18.1.9 (inclusive);
1.11 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
1.12 the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
18.2 Without limiting its other rights or remedies, ProCo may terminate the Contract:
2.1 by giving the Customer three months’ written notice;
2.2 with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
18.3 Without limiting its other rights or remedies, ProCo shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and ProCo if:
3.1 the Customer fails to make pay any amount due under this Contract on the due date for payment; or
3.2 the Customer becomes subject to any of the events listed in clause 18.1.2 to clause 18.1.12, or ProCo reasonably believes that the Customer is about to become subject to any of them.
19. CONSEQUENCES OF TERMINATION
19.1 On termination of the Contract for any reason:
19.1.1 the Customer shall immediately pay to ProCo all of ProCo’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, ProCo shall submit an invoice, which shall be payable by the Customer immediately on receipt;
19.1.2 the Customer shall return all of ProCo Materials and any Deliverables which have not been fully paid for. If the Customer fails to do so, then ProCo may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
19.1.3 ProCo shall return to the customer, in a safe and secure manner all Customer Data that was transferred to ProCo throughout the duration of the Contract and take reasonable steps to ensure the Customer Data is removed permanently from ProCo’s systems.
19.1.4 the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
19.1.5 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
20. EXIT AND SERVICE TRANSFER
20.1 Subject to clause 21.2, if the Contract terminates or expires for any reason, ProCo shall co-operate with the Customer and/or any incumbent supplier to the extent reasonably required to facilitate the smooth migration of the provision of Goods and/or Services from ProCo to the Customer and/or the incumbent supplier.
20.2 The Customer shall pay ProCo’s charges in respect of the provision of such transitional assistance services.
21. DISPUTE RESOLUTION PROCEDURE
21.1 The parties shall attempt, in good faith, to resolve any dispute promptly by negotiation which shall be conducted as follows:
1.1 the dispute shall be referred, by either party, first to the Senior Managers or Finance Directors of each of the parties for resolution;
1.2 if the dispute cannot be resolved by the Senior Managers or Finance Directors of the parties within 14 days after the dispute has been referred to them, each party shall refer the dispute to the Managing Directors of the parties for resolution.
21.2 If the Managing Directors are unable, or fail, to resolve the dispute within 21 days of the dispute being referred to them, either party may refer any dispute for mediation pursuant to this clause 21.2, but neither shall be a condition precedent to the commencement of any court proceedings, and either party may issue and commence court proceedings prior to or contemporaneously with the commencement of mediation.
21.3 If and to the extent that the parties do not resolve any dispute or any issue in the course of any mediation, either party may commence or continue court proceedings in respect of such unresolved dispute or issue.
21.4 Nothing in this clause 21 shall prevent either party from instigating legal proceedings where an order for an injunction, disclosure or legal precedent is required.
22.1 The parties shall:
1.1 comply with all applicable laws, regulations and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
1.2 have and shall maintain in place throughout the term of the Contract its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements.
1.3 Promptly report to the other any request or demand for any undue financial or other advantage of any kind received in connection with the performance of the Contract.
23. BUSINESS CONTINUITY
23.1 ProCo shall operate and maintain a Business Continuity Plan which shall be utilised should a disaster occur which threatens or affects the operation of ProCo’s business. ProCo shall produce a copy of the Business Continuity Plan to the Customer on request.
24.1 Force majeure:
1.1 ProCo shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
1.2 If the Force Majeure Event prevents ProCo from providing any of the Services and/or Goods for more than four (4) weeks, ProCo shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
24.2 Assignment and subcontracting:
2.1 ProCo may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
2.2 The Customer shall not, without the prior written consent of ProCo, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
3.1 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
3.2 Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9:00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
3.3 This clause 24.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
24.4 Waiver and cumulative remedies:
4.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
4.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
5.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
5.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
24.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
24.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
24.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by ProCo.
24.9 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
The following Schedule provides, in more detail, information regarding the Services ProCo may make available to its Customers. The Order will specify the Service(s) to be taken and the relevant section(s) of this Schedule 1 shall apply. If there is any conflict between the Conditions and this Schedule, the provisions of this Schedule shall take precedence.
PRINTING SERVICES (LITHOGRAPH & DIGITAL PRINT)
1 Lithograph printing is where ProCo prints items on behalf of the Customer in a traditional manner using printing presses and plates.
2 Digital printing is where ProCo prints items on behalf of the Customer using digital and laser technology.
3 ProCo may, from time to time, adopt new technologies to provide printing services to the Customer unless the Customer expressly requires a particular type of print to be used.
All work carried out by ProCo at the Customer’s request, in advance of these Services being supplied, whether experimentally, or otherwise, shall be chargeable by ProCo.
ProCo is entitled to make a charge to cover any additional work involved where the Customer supplies copy to ProCo which is not clear and/or legible.
1 It is the Customer’s responsibility to maintain copies of all electronic files which are sent to ProCo for provision of the Services.
2 ProCo shall not be responsible for checking the accuracy of input which is supplied by the Customer using an electronic file unless otherwise agreed between ProCo and the Customer.
3 If an electronic file is not suitable for outputting on equipment normally adequate for such purposes without adjustment or other corrective action, ProCo may charge the Customer for any resulting additional costs which it incurs.
1 Proofs of all work may be submitted by ProCo for the Customer’s approval, and ProCo shall not incur any liability for any errors which are not corrected by the Customer in any proofs which are submitted. Any alterations made by the Customer which result in additional proofs being necessary shall be charged for separately by ProCo in addition to the cost of the Services.
2 When style, type or layout is left to the judgement of ProCo, any changes made thereto by the Customer shall be subject to an additional charge by ProCo. 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 between the parties.
Variations in Quality
Every endeavour will be made to deliver the correct quantity ordered, but estimates are conditional upon margins of 5 per cent for work in one colour and 10 per cent for other work being allowed for overs and shortage (4 per cent and 8 per cent respectively for quantities exceeding 50,000 units).
1 Metal, film, glass and other materials owned by ProCo and used in the production of type, plates, moulds, stereotypes, electrotypes, film set in negatives, positives and the like shall remain the exclusive property of ProCo. For the purposes of the Contract such items will be ProCo Materials. Where such items are supplied by the Customer, such items shall be the Customer’s property and shall at all times remain the Customer’s property.
2 Type may be distributed and lithographic, photogravure or together work effaced immediately after the order is executed unless written arrangements are made to the contrary. In the latter event, rent may be charged.
Materials Supplied by the Customer
1 ProCo may reject any paper, plates or other materials supplied or specified by the Customer, which appear, in ProCo’s full discretion, to be unsuitable for use. Additional costs incurred if materials are found to be unsuitable during production may be charged by ProCo except that if the whole or any parts of such additional costs could have been avoided but for unreasonable delay by ProCo in ascertaining the unsuitability of materials, then that amount shall not be charged to the Customer.
2 Where materials are supplied or specified, ProCo will take care to secure the best results, but responsibility will not be accepted for imperfect work caused by defective or unsuitable materials supplied by the Customer.
3 Quantities of materials supplied shall be adequate to cover normal spoilage.
1 Except in the case of a Customer who is not contracting in the course of a business or holding himself out as doing so, any Customer’s property and all property supplied to ProCo by or on behalf of the Customer shall be deemed to be at the Customer’s risk whilst it is in the possession of ProCo or in transit to or from the Customer unless agreed otherwise in writing.
2 ProCo shall be entitled to make a reasonable charge for the storage of any Customer’s property left with ProCo before receipt of the Order or after the Customer has been notified by ProCo that the Services have been completed.
1 ProCo shall not be required to print, and may refuse to print, any matter which in ProCo’s reasonable opinion is, or may be, of an illegal or libellous nature or an infringement of the proprietary or other rights of any third party. ProCo shall not be liable to the Customer for any losses the Customer suffers as a direct or indirect result of any such decision taken by ProCo.
2 ProCo shall be indemnified by the Customer in respect of any claims, costs and expenses arising out of any libellous matter or any infringement of any third parties Intellectual Property Rights.
Any Contract for the printing of a periodical publication may not be terminated by either party unless at least thirteen weeks’ notice in writing is given in the case of periodicals produced monthly, or more than twenty six weeks’ notice in writing is given in the case of other periodicals. Notice may be given at any time but wherever possible should be given after completion of work on any one issue. Notwithstanding this ProCo may terminate any such Contract immediately should any sum due in respect thereof remain unpaid.
Direct Mail Services
ProCo and the Customer shall agree the specifics of the direct mail services to be provided in the Order or the Services Specification. However, for the purposes of this Section B of Schedule 1, direct mail services mean that ProCo will complete specific services on behalf of the Customer (which may include (without limit) data manipulation, data cleansing, lasering and/or printing, fulfilment and distribution) and facilitate distribution of such items as directed by the Customer, and/or the Customer will supply to ProCo certain items which ProCo will facilitate the distribution thereof to end users.
Order, Supply and Delivery of Materials
2.1 Supply of Materials
1.1 The Customer shall be responsible for ensuring that the materials supplied by the Customer or on the Customer’s behalf:
1.1.1 conform to the specifications detailed in the Order or detailed in any Services Specification, as well as the relevant carrier’s requirements;
1.1.2 conform to ProCo’s goods inward delivery instructions, further details of which are available from ProCo on request;
1.1.3 are supplied to ProCo punctually;
1.1.4 are delivered on pallets, boxed, packed and supplied in such a way as to withstand normal storage and handling; and
1.1.5 are provided in sufficient quantity so as to enable ProCo to deliver the correct quantity of any printing or reproductive work allowing for normal wastage and spoilage.
1.2 ProCo shall use its reasonable endeavours to provide the Customer with a reasonable estimate of the quantity of printing or reproductive work required.
2.2 Checking Materials
ProCo shall count the number of pallets containing materials supplied by or on behalf of the Customer against any delivery note and shall, as soon as reasonably practicable, report any discrepancies to the Customer. ProCo shall not be required and shall have no responsibility for any losses arising from any errors or omissions in the materials supplied by or on behalf of the Customer to ProCo. ProCo shall not be required to check the contents of the pallets supplied by or on behalf of the Customer.
2.3 Insurance of Materials
All materials supplied by or on behalf of the Customer will be held at the Customer’s risk whilst on ProCo’s premises or in transit to such premises and the Customer is responsible for arranging adequate insurance cover for those materials unless arrangements have been made to the contrary with ProCo.
2.4 Storage of Materials
Any of the Customer’s materials which remain in ProCo’s possession after one month (or such other period as ProCo may notify to the Customer in the quotation) from completion of the Order may be subject to storage charges at ProCo’s standard rates. ProCo reserve the right to destroy or dispose of all such materials at the Customer’s cost not less than 14 days after written notice is given to that effect to the Customer.
2.5 Physical Delivery of Materials
Unless agreed otherwise, the cost of collection and delivery of the Customer’s goods or materials is not included within any quotation provided by ProCo. Where this is a service which is carried out by ProCo on behalf of the Customer it will be charged for as an extra service and ProCo shall furnish the Customer with details of such costs in advance of the Services being supplied.
Payment for Postage
1 Where any delivery is to be undertaken through ProCo’s own postal account:
1.1 the cost of such postage shall be paid, by telegraphic transfer, no later than 48 hours before the mailing is due to commence. If the cost of postage is not paid within this specified time, ProCo shall have the right to withhold the mailing;
1.2 the Customer acknowledges that in these circumstances only, ProCo will act as agent of the Customer when it pays the carrier’s charges, and the Customer shall be the beneficiary of the delivery services. For the avoidance of doubt, except in these limited circumstances, no other relationship of agency applies between the Customer and ProCo.
2 Postal Charge Refunds:
Where the cost of postage is less than the amount paid by the Customer, ProCo shall either refund any sums remaining to the Customer, or shall provide a credit for the Customer for the next mailing it puts through on ProCo’s account. This shall be agreed by ProCo and the Customer acting reasonably.
Codes of Practice and Indemnities
The Customer shall:
1 provide ProCo with a true copy of all advertising material or other material intended to be enclosed with any material prepared by ProCo;
2 ensure that all information or materials provided by the Customer comply with all applicable statutory requirements and with the codes of practice of the appropriate supervisory bodies including, but not limited to, the British Code of Advertising and Sales Promotion (BCASP) and the Direct Marketing Association Codes of Practice;
3 indemnify ProCo against all costs, claims, liabilities, penalties and expenses which ProCo may incur by reason of its works being illegal, unlawful, infringing any copyright, trademark or other intellectual or proprietary rights of any third party or is defamatory, obscene or the distribution of which may infringe postal or other regulations or which is in breach of any trade description or other legislation. ProCo shall have the right upon request from any body authorised to administer quality standards in mail production, to supply that body with samples of any mailings relating to the contract.
Provision of Computer Data:
The Customer shall ensure that any computer data supplied to ProCo is clean, unadulterated, capable of being read and processed and does not contain any computer viruses, worms, or trojan horses. If the computer data being supplied by the Customer, or on the Customer’s behalf, is corrupt, ProCo shall either require the Customer to supply clean, unadulterated data which does not contain any computer viruses or to decontaminate the data itself but at the Customer’s expense. The Customer shall ensure that all data supplied to ProCo are completely unambiguous with regard to their format. A specification of the formats of the data supplied and instructions for interpretation must be provided in writing.
As part of the Services ProCo makes available to its Customers, ProCo has developed a system which enables Customers to utilise a secure web portal to access ProCo’s technical services from the cloud. Details of the technical services taken by the Customer will be contained in the Order. Access to ProCo’s system and/or technical services will be governed by the terms of a supplemental agreement which the Customer will be required to enter into in addition to these Conditions. The Service Levels for the technical services will be specified in the supplemental agreement.
STORAGE & WAREHOUSING
Warehousing and Storage Services
ProCo will make available to the Customer the provision of warehouse and storage facilities so that the Customer may store items belonging to it at ProCo’s premises located at Parkway Close, Parkway Industrial Estate, Sheffield, S9 4WJ (or such other location as the parties may agree from time to time).
Items to be Stored
ProCo and the Customer will agree between them, acting reasonably, the items to be stored and the charges to be made for such storage facilities.
1 ProCo will take reasonable steps to ensure that its warehouse facilities are secure and are maintained so as to provide an appropriate environment for the storage of items.
2 The Customer is responsible for informing ProCo of any specific storage requirements in respect of any items. ProCo will determine with the Customer, acting reasonably, if such requirements can be fulfilled. ProCo reserve the right to made additional charges to the Customer for items requiring specific storage requirements and environments.
3 ProCo shall have no responsibility to the Customer for checking that the quantity of items delivered to it are the quantities notified to it by the Customer as requiring storage.
Insurance and Risk
1 Unless agreed otherwise with ProCo, the Customer is responsible for insuring all items which are stored on ProCo’s premises.
2 Title to any items stored at ProCo’s premises on behalf of the Customer under the warehouse and storage arrangements will, unless agreed otherwise, remain with the Customer. Risk in the items stored will also remain with the Customer unless agreed otherwise with ProCo.
As and when the Customer requires access to any items stored by ProCo, or requires ProCo to deliver such stored items to end users on its behalf, it will provide ProCo with detailed instructions and give ProCo reasonable advance notice of its requirements. ProCo will advise the Customer promptly as to whether the request can be fulfilled and the estimated timescales for fulfilment and the charges to be made by ProCo.