TERMS AND CONDITIONS
Positive Group (Midlands) Ltd trading as Positive Print
TERMS AND CONDITIONS
The following terms and conditions are applicable to all trade sales by Positive Group (Midlands) Ltd. (‘The Company’). Where the Customer is buying as a consumer from the Positive Group (Midlands) Ltd / Positive Print website then the additional terms and conditions set out in Schedule A shall also apply.
In these conditions, unless the context requires otherwise:
- 1‘ Conditions’ means these Terms and Conditions;
- 2 ‘The Company’ means Positive Group (Midlands) Ltd trading as Positive Print. Positive Group (Midlands) Ltd is a Company registered in England & Wales with company number 2948681. Registered office and address for communications is 26 Castle Rd, Kings Norton Business Centre, Birmingham B30 3HZ
- 3 ‘Consumer’ means a natural person acting for purposes outside his or her business.
- 4 ‘Contract’ means the contract between the Company and the Customer for the sale and purchase of the Goods coming into existence as referred to in clause 2.4 below;
- 5 ‘Customer’ means the person who buys or agrees to buy the Goods from The Company;
- 6 ‘Customised Goods’ means Goods (as defined below) which have been produced or adapted by or on behalf of The Company to a specification requested by the Customer
- 7 ‘Delivery Date’ means the date specified by The Company as the target date for delivery of the Goods to the Customer;
- 8 ‘Goods’ means the articles/goods described in the Order Acknowledgement and/or any other articles/goods which The Company agrees to sell to the Customer together with any work and/or services which The Company may agree to perform for the Customer in any way relating to the articles/goods which shall include but not be limited to work and/or services in producing customised goods;
- 9 “Order Acknowledgement” means the form of order acknowledgement or order acceptance issued in any manner by The Company to the Customer;
- 10 ‘Price’ means the price for the Goods (and any associated services, including by way of example only delivery, carriage, packing but only where any of the same are expressly shown in the Quotation or Order Acknowledgement to be included in the Price) as set out on The Company’ website at the time the order is placed, as the same may be varied either in accordance with the provisions of the Contract or by agreement in writing between the Parties;
- 11 ‘Quotation” means the quotation made by The Company to the Customer, for the supply of Goods however that quotation may be given;
- 12 ‘Technical Information’ means technical and technological information, specifications, drawings, artwork, together with samples and any and all related information;
- 13 ‘Turnaround Times’ means the time quoted for production time only. Delivery times are not included in Turnaround times quoted by The Company
- 14 ‘Warranty’ means the warranty granted by The Company to Customer in relation to Goods as set out in Clause 9.1.
- 15 ‘Working Day’ means between the hours of 09.00 and 17.00 on a Monday to Friday inclusive but excluding normal statutory Bank Holidays
- 16 Data Protection Legislation: (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
2.1 The Conditions shall apply to all contracts for the sale or supply of Goods by The Company to the Customer to the exclusion of all terms and conditions of the Customer including any terms or conditions which the Customer may purport to apply under any purchase order, confirmation of order or similar or other document.
2.2 A quotation if any is given by The Company is only an invitation to treat. If the Customer wishes to purchase Goods from The Company the Customer shall issue an order to The Company which The Company may, but is not obliged, to accept. All orders from the Customer for Goods shall be deemed to be offers by the Customer to purchase Goods pursuant and subject to the Conditions. The Company will not accept any order from the Customer unless the price specified in the order is The Company’ correct then current Price for the Goods concerned.
2.3 No binding contract shall exist between The Company and Customer with respect to the sale and purchase of Goods until The Company has received Customer’s order and The Company has issued an Order Acknowledgement.
2.4 Without prejudice to any other acceptance by the Customer of the Conditions or the applicability of the Conditions as stated herein acceptance of the Goods by the Customer shall be deemed conclusive evidence of the Customer’s acceptance of the Conditions.
2.5 Any variation or amendment or purported variation or amendment to the Contract, other than in accordance with the terms of the Contract shall be inapplicable unless expressly agreed in writing and expressly agreed on the part of The Company.
2.6 The Company shall be entitled to amend or replace these Conditions from time to time by either sending the new or amended conditions to the Customer or posting the new or amended conditions on its website.
3.1 All Technical Information provided by The Company whether specifically provided to the Customer or generally published by The Company remains the property of The Company and the Customer is entitled to use any such information only for the purpose of evaluating the products described in such information prior to selection for purchase The Customer may not use such Technical Information for any other purpose or publish the same in any way.
3.2 The Company reserves the right to make any changes to the Goods and the Technical Information which it provides about the Goods that it considers appropriate from time to time, without prior notice to the Customer even after receipt of the Customer order provided in this case that such change shall not affect the essential features of the Goods. In the event of any such change The Company is not obliged to manufacture goods to the previous specification.
3.3 Where the Customer provides Technical Information for the use of The Company in connection with Customised Goods The Company shall be entitled to assume that all such information is complete and accurate. The Company shall not be liable for any defect of any sort in any Goods, which arises out of any error or omission in or from such Technical Information.
PROPERTY AND RISK
4.1 Risk of damage to or loss of the Goods shall pass to the Customer upon the Goods being delivered to the Customer or the Customer’s carrier.
4.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of the Contract or that the Goods may have become affixed or attached to any land or building, the property in and all legal and equitable title to the Goods shall not pass to the Customer until the The Company has received in cash or cleared funds payment in full of the Price of the Goods together with the applicable VAT (or other tax or duty payable).
4.3 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods to the order of the The Company as The Company’ fiduciary agent and baillee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the The Company’ property. The Customer shall be entitled to use the Goods whether in the ordinary course of its business or otherwise only after the Customer has accepted the Goods in accordance with the provisions of the Contract.
5.1 The Price is quoted on an ex works basis unless otherwise stated in the Order Acknowledgement.
5.2 The delivery charge payable by the Customer is in the case of website sales, set out in the website and in other cases will be specified in the Quotation or in the Order Acknowledgement.
5.3 The Price quoted is exclusive of VAT (and/or other similar tax or duty) which shall be due from and payable by the Customer at the rate ruling on the date of the The Company’ invoice.
5.4 If the Customer wishes to cancel an Order after the same has been accepted and the Company has performed a pre-print check of the artwork, and the cancellation is accepted by the Company, the Company may, at its sole discretion, make a cancellation charge of £20 +VAT
5.5 If The Company design artwork on behalf of the Customer and create a press quality PDF file and the Customer chooses not to place the order for printing with the Company, the Company shall; make an additional minimum charge of £30 + £5 per page together with VAT
6.1 All Customers placing orders with The Company will be required to pay the whole of the amount of the Price together with VAT to The Company before The Company shall have any obligation to produce or despatch any Goods to the Customer.
6.2 The Company is entitled to invoice the Customer on despatch of the Goods concerned.
6.3 In any case where the Customer fails to pay when due The Company reserves its rights to claim interest and compensation for late payment under the Late Payment of Commercial Debts (Interest) Act 1998 and the Late Payment of Commercial Debts Regulations 2002.
TURNAROUND TIMES, DELIVERY AND TRANSPORTATION
7.1 Turnaround Times quoted do not include the day the order is received unless either;
7.1.1. The Order is placed Online with correct and suitable artwork supplied and payment details received by 10.00 a.m. on a Working Day; or
7.1.2. The Order, correct and suitable artwork and payment details are received by guaranteed post or similar service by 09.30 on a Working Day; or
7.1.3.The order, together with suitable artwork and payment details are delivered to The Company by hand before 09.30 on a Working Day
7.2 In the event that files or documents supplied are incomplete, corrupted, of inadequate quality to use for print or not supplied in accordance with our specifications then the Turnaround Times quoted shall be extended automatically and only recommence when the problem with the files or documents is resolved to our satisfaction
7.3 Delivery is considered complete as soon as the Goods are handed over to the Customer, or the Company’s or the Customer’s carrier or courier.
7.4 Where the delivery is to be effected by the Company the Goods will be despatched to arrive at the agreed delivery address by arrangement.
7.5 Goods ordered for collection will be ready to collect after from our offices by arrangement.
7.6 The Goods are only insured during transportation to the Customer when the Customer requests that they are insured and The Company agrees in writing to make such arrangements, which will always be at the Customer’s expense.
7.7 The Company works hard to ensure that the Goods they supply are of high quality. If the Goods are found to be unacceptable by the Customer due to a shortcoming at The Company and notification is given to the Company in accordance with 7.8 below then the Company will arrange an urgent reprint or otherwise make the Goods of reasonable acceptable quality. Any defective Goods shall be returned to The Company for inspection at the Customer’s cost.
7.8 It is the responsibility of the Customer to inspect the Goods carefully on delivery and to note any shortages, damage or visible defects on the delivery note before signing it. In addition the Customer must notify The Company in writing to be received by The Company within three working days of delivery if there are any shortages, damage to or defects in the Goods, which should be apparent from careful inspection. If the Customer fails to sign the delivery note or does not so notify The Company within such period the Goods shall be deemed to be free from any such damage, defects or shortages and to have been accepted by the Customer. Any defective Goods shall be returned to The Company for inspection at the Customer’s cost.
7.9 Whilst every effort will be made to colour match to samples supplied by The Customer, The Company cannot guarantee colour match to samples provided unless the Customer supplies either full pantone references or full CMYK values
DELIVERY LEAD TIME
8.1 The Delivery Date is given as an indication only, without commitment on the part of The Company. Where delivery is delayed beyond the Delivery Date this does not give the Customer the right to cancel its order.
8.2 In the event of the Customer wishes to postpone any Delivery Date and The Company agrees to such postponement there will be no change to the invoicing conditions and dates initially anticipated nor to the obligation of the Customer to pay on time in relation to such invoice.
WARRANTIES AND LIABILITY
9.1 Customised Goods and Goods manufactured and supplied by The Company are sold with the benefit of the following warranty (the Warranty). The Company warrants that the Goods will be free of material defects resulting from errors in the design or manufacture of the Goods or the use by The Company of defective materials in the Goods in each case for a period of 12 months from the date upon which the Goods were delivered the Customer under the contract concerned.
9.2 The Warranty is given by The Company subject to the following conditions:
9.2.1 The Company shall be under no liability in respect of any defect in the Goods arising from any defective or insufficient Technical Information, drawing, design or specification supplied by the Customer;
9.2.2 The Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow The Company’s instructions, misuse (which includes any use of the Goods for a purpose other than that for which it was designed) or alteration or repair of the Goods without The Company’s approval;
9.2.3 The Company shall be under no liability under the Warranty (or any other warranty, condition or guarantee) whilst and for so long as the Customer is in default of any of its payment obligations to The Company under the Contract;
9.2.4 Where The Company agrees to carry out work on the Goods in the belief that the work is necessitated by some cause covered by the Warranty and it is discovered that the cause is in fact one not covered by the Warranty then The Company shall be entitled to charge the Customer in full for the work carried out by it at The Company’ then current rate for the sale of the relevant labour and for the materials used by it in connection with such work and the Customer shall pay for the same, together with VAT thereon at the applicable rate, forthwith upon demand by The Company.
Where the Goods were not manufactured by The Company, The Company will pass to the Customer on request the benefit of any warranty given by the manufacturer of the Goods concerned.
9.3 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute, trade practices or common law are excluded to the fullest extent permitted by applicable law.
9.4 Provided that nothing in the Contract shall have the effect of excluding or restricting the liability of The Company in respect of any kind of loss damage or liability which cannot or must not be excluded or limited under English law The Company shall not be liable to the Customer, or to any third party, for:
9.4.1 loss of profits
9.4.2 loss of production
9.4.3 loss of turnover
9.4.4 loss of contracts
9.4.5 any other economic loss whatsoever;
9.4.6 any indirect, special or consequential loss and/or damage (whether relating to loss of profit or otherwise);
9.4.7 costs, expenses, other claims for compensation whatsoever relating in any way to the matters referred to in
9.4.1 to 9.4.6 (inclusive) above,
suffered or incurred by the Customer or any third party in any way arising out of any act or omission of The Company or its employees or agents whether for breach of statutory duty or in contract (including any implied term) tort, including negligence, negligent misrepresentation and misstatement or otherwise under or in connection with the Goods, the Contract or under any other agreement relating to the Goods or any part or based on any claim for indemnity or contribution. The foregoing shall not relieve The Company from the obligation to remedy defects in the Goods under and subject to the terms of the Warranty.
9.5 Without prejudice to clause 9.4 the entire liability of The Company to the Customer under or in connection with the Contract save in respect of any kind of loss damage or liability which cannot or must not be limited under English law shall not exceed the Price of the Goods, except as and to the extent expressly provided in the Conditions.
9.6 The Company and the Customer hereby expressly agree that the exclusions and limitations of liability set out in the Conditions are fair and reasonable taking into account the nature of the goods and services to be supplied by The Company to the Customer under the Contract, the Price payable by the Customer to The Company under the Contract, the obligations of The Company under the Warranty, and the cost of existing and future insurance cover to the Parties.
10 The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of The Company’s obligations in relation to the Goods, or otherwise under the Contract if the delay or failure was due to any cause beyond The Company’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond The Company’s reasonable control:
10.1 Act of God, explosion, flood, tempest, fire or accident;
10.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
10.3 acts, restrictions, regulations, byelaws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
10.4 import or export regulations or embargoes;
10.5 strikes, lockouts or other industrial actions or trade disputes (whether involving employees of the The Company or of any other party);
10.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
10.7 power failure or breakdown in machinery.
RETURNS (non Consumer only)
11.1 Other than defective Goods returned under the provisions of 7.7 onwards The Company will not accept the return of any Goods for credit
11.2 Customised Goods including printed goods which are not defective cannot be returned
11.3 Where the Goods supplied by The Company are shown to the reasonable satisfaction of The Company not to be the Goods ordered by the Customer then The Company will credit 100% of the invoice Price for such goods, together with VAT thereon to the Customer.
12. Any disagreement or claim arising out of or relating to the Goods, the Contract or the breach, interpretation, termination or validity of any provision of the Contract, other than one which relates to the non payment or alleged non payment of the Price or other liquidated amount payable by the Customer to the Supplier under the Contract, which cannot be settled between the Parties within thirty days of being raised by either Party in a written notice to the other Party shall be settled by arbitration by a single arbitrator in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment of the same. The identity of the arbitrator shall be agreed between the Parties and in default of agreement within 10 Working Days of the expiry of the period of thirty days referred to above shall be appointed by the President of the Law Society of England then in office upon the application of either Party. The decision of the arbitrator shall be final and binding on the Parties. The place of arbitration shall be Birmingham. The arbitrator shall have full power to order a Party to provide security for costs regardless of whether the High Court would have power in the circumstances to make such an order. Judgement upon any award rendered by the arbitrator may be entered in any court of competent jurisdiction. All notices to be given in connection with the arbitration shall be in writing and if for the Customer shall be sent to the delivery address and if for The Company shall be sent to 26 Castle Road, Kings Norton Business Centre, Birmingham, West Midlands, B30 3HZ
13. The Contract and any and all disputes alleged to relate to it or arise out of it shall be governed by the laws of England, and the Customer agrees to submit to the non-exclusive jurisdiction of the English courts.
A) Where the Customer is buying as a Consumer, but only then, the following additional terms and conditions apply. Should there be any conflict between any provision in this Schedule and any set out elsewhere in the Conditions then the provision in this Schedule shall prevail.
B) Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Customer are not affected by the Conditions.
C) Where the Customer is a consumer, and the Customer is not ordering Goods to be made to their specification e.g. printed materials or any Customised Goods, the Customer has a right to cancel its order under the Consumer Protection (Distance Selling) Regulations 2000 as amended. To exercise this right the Customer must give The Company written notice of cancellation by fax, letter or e-mail.
- The e-mail address of The Company for this purpose is email@example.com
- The postal address of The Company for this purpose is 26 Castle Road, Kings Norton Business Centre, Birmingham, West Midlands, B30 3HZ
Notice of cancellation must quote the order number for the Goods concerned and be given to The Company before the expiry of a period of seven working days starting the day after the day on which the Goods were delivered to the delivery address, if not the right to cancel will not be exercisable.
D) If the Customer exercises the right to cancel after having received the Goods concerned the Customer must immediately return the Goods to The Company. Other than where the Goods are defective the Customer is responsible for the cost of returning the Goods to The Company. If the Customer returns non defective products to The Company at The Company cost then the Customer must at the request of The Company refund the direct cost to The Company of such return.
E) The Customer must take reasonable care of the Goods until they are returned.
F) The return address for Goods is The Company – 26 Castle Rd, Kings Norton Business Centre, Birmingham B30 3HZ
G) Any complaints must be sent to The Company – 26 Castle Rd, Kings Norton Business Centre, Birmingham B30 3HZ
15.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 15 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
15.3 Without prejudice to the generality of clause 1.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Provider for the duration and purposes of this agreement.
15.4 Without prejudice to the generality of clause 1.1, the Provider shall, in relation to any Personal Data processed in connection with the performance by the Provider of its obligations under this agreement:
a. process that Personal Data only on the written instructions of the Customer unless the Provider is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Provider to process Personal Data (Applicable Laws). Where the Provider is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Provider shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so notifying the Customer;
b. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonym sing and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
c. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
d. not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
i. the Customer or the Provider has provided appropriate safeguards in relation to the transfer;
ii. the data subject has enforceable rights and effective legal remedies;
iii. the Provider complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
iv. the Provider complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
e. assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
f. notify the Customer without undue delay on becoming aware of a Personal Data breach;
g. at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
h. maintain complete and accurate records and information to demonstrate its compliance with this clause 15 and allow for audits by the Customer or the Customer’s designated auditor.
15.5 The Customer does not consent to the Provider appointing any third party processor of Personal Data under this agreement. OR The Customer consents to the Provider appointing [THIRD-PARTY PROCESSOR] as a third-party processor of Personal Data under this agreement. The Provider confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement [substantially on that third party’s standard terms of business OR incorporating terms which are substantially similar to those set out in this clause 15. As between the Customer and the Provider, the Provider shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 15.
15.6 Either party may, at any time on not less than 30 days’ notice, revise this clause 15 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).