TERMS & CONDITIONS
Azure’s Printing Company Ltd Standard Terms and Conditions on the Sale of Goods
These Conditions contain exclusions and limitations on the Seller’s liability pursuant to the Contract. The Buyer should ensure that it has read and understands such exclusions and limitations (including those contained in conditions 6 and 8)
1. INTERPRETATION
In these Conditions:
“Buyer” means the person who enters into a Contract with the Seller
“Conditions” means the terms and conditions set out below and (unless otherwise stated) includes any special conditions agreed in writing between the Seller and the Buyer
“Contract” means a contract for the sale and purchase of Goods between the Seller and the Buyer in accordance with these Conditions.
“Delivery Point” means the delivery place for the Goods agreed by the Seller and Buyer in writing
“Goods” means any goods and services (including any instalment of such goods or services, or any part of them) described in the Contract
“Intellectual Property Rights” includes some or all (as appropriate) of copyright, design right (registered and unregistered), patents, trademarks (registered and unregistered), know-how and other proprietary information
“Loss” or “Losses” means any direct, indirect or consequential loss (all of which terms include pure economic loss, loss of profits, loss of business, depletion of goodwill and any similar loss), costs, damages, charges or expenses howsoever caused or arising
“Price” means the price of the Goods calculated in accordance with condition 4.
“Seller” means Azure’s Printing Company (a company registered in Republic of Ireland with company number 524286) and whose registered office is 3, Damastown Close, Damastown industrial Park, Dublin 15 D15 EK76.
The words “include” and “including” shall not be construed without limitation.
A reference to a law or statute is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
Words denoting the singular shall include the plural number and vice versa and works denoting the masculine gendershall include the feminine and neuter genders.
2. BASIS OF SALE
– The Seller will sell and the Buyer will purchase the Goods in accordance with the Buyer’s written order to the extent such order is accepted in writing by the Seller in accordance with condition 3.1 below.
– These Conditions shall govern each Contract to the exclusion of any other terms and conditions that the Buyer seeks to impose or incorporate, or which are or would otherwise be implied.
– No variation to these Conditions, nor any representations about the Goods, shall be binding on the Seller unless confirmed in writing by a director of the Seller or a person with the designation “Director”. This Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract in writing.
3. ORDERS AND SPECIFICATIONS
– Each order (or acceptance of a quotation for Goods) by the Buyer shall be deemed to be an offer by the Buyer to buy the Goods subject to these Conditions. No order submitted by the Buyer shall bind the Seller until such order is confirmed in writing by an authorised representative of the Seller (or, if earlier, the Seller delivers the Goods to the Buyer)
– The Buyer is responsible for providing the Seller with all necessary information and licences relating to the use and/or manufacture of the Goods (which the Buyer warrants will be complete, accurate and in full force and effect within a sufficient time to enable the Seller to perform the Contract in accordance with the terms). The Buyer will respond to all information requests from the Seller promptly and in any event within 5 days of the request.
– In addition to the price, the Seller may charge the Buyer on a cost basis or otherwise for plates, dies, or samples supplied to or made for the Buyer and Buyer shall return any such items upon demand unless legal title has passed to it in accordance with these Conditions.
– Charges for the manufacture of additional proofs/copies or modifications to proofs/copies made at the Buyer’s request shall be paid by the Buyer in addition to the Price.
– Any specifications or other information (whether written or otherwise) provided by the Seller in respect of the Goods are issued or provided for the sole purpose of giving an approximate idea of the Goods described in the Contract and only form part of the Contract where expressly agreed by the Seller in writing. The Buyer is responsible for checking and approving all proofs and copies. The Seller is not responsible for any errors which appear in any items where proofs and copies have been submitted for proofing to the Buyer.
– The Seller reserves the right to make any changes to the specification of the Goods which do not materially affect their quality or performance.
– No order which has been accepted by the Seller may be cancelled by the Buyer except with the written agreement of a director of the Seller or a person with the designation “Director”. The Buyer shall indemnify the Seller in full on a €1 or €1 basis against any losses (including design, tooling or machinery costs), incurred by the Seller as a result of cancellation of any order and/or Contract.
– The Seller may dispose of any item, including tooling or machinery, used solely for production of Goods ordered by the Buyer if no orders requiring use of such items are made by the Buyer in any period of 12 months.
– All Intellectual Property Rights and other proprietary rights in drawings, tooling and origination (including plates, dies, moulds and films), samples and finished products created by the Seller are and will remain the absolute property of the Seller notwithstanding that the Buyer has paid a contribution towards the costs of tooling and origination. The Seller reserves the right to grant licences to use any drawings and samples to any third parties.
– The Buyer shall keep in strict confidence all Intellectual Property Rights and all technical or commercial know-how, specifications, invention, processes or initiatives which are of a confidential nature and have been disclosed to the Buyer by the Seller or its agents and any other confidential information concerning the Seller’s business or its products which the Buyer may obtain.
4. PRICE OF GOODS
– Save as otherwise agreed by the parties in writing the Price shall be the price specified in the Seller’s quotation (or if there is no quotation as set out in the Seller’s standard price list (if any) applicable on the date of delivery or deemed delivery of the Goods (or the relevant instalment thereof) pursuant to the relevant order or if there is no standard price list, such price as is agreed between the Buyer and the Seller)
– Unless previously withdrawn, quotations are valid for a period of 30 days only.
– By giving notice to the Buyer at any time before delivery, the Seller may increase the Price to reflect any increase in the cost of the Contract to the Seller including due to increases in the costs of materials used in the production of the Goods and/or any alterations from the original copy on/after the “first proof” stage.
– Unless otherwise stated in the Contract, delivery costs and related insurance are included in the Price.
– The Price is exclusive of Value Added Tax and any other sales taxes which the Buyer will pay in addition at the rate prevailing at the date of invoice.
– The Seller may charge the cost of pallets and returnable containers to the Buyer in addition to the Price, but credit will be given to the Buyer provided they are returned undamaged to the Seller before the due payment date.
5. TERMS OF PAYMENT
– Unless otherwise agreed in writing, the Seller may invoice the Buyer for the Price (or such part of the Price as relates to an instalment) when the Goods (or relevant instalment) are ready for collection by the carriers from the Seller for delivery to the Buyer.
– The Buyer shall pay the Seller’s invoice within the agreed terms of the invoice date, time to be of the essence. Credit terms will be agreed at the order confirmation point.
– If the Buyer fails to make any payment for Goods (or any part thereof) on the due date, the Seller (without prejudice to any other remedy available to it) may exercise to any one or more of the following:-
Suspend any further deliveries to the Buyer under the contract or any other contract between the parties;
Terminate the Contract or any other contact between the parties in whole or in part;
Invoice the Buyer immediately for all costs incurred to date in respect of work in progress for the Buyer;
Commence legal action to recover the price of the Goods whether or not title has passed;
Appropriate any payments made by the Buyer to such of the Goods (or to goods supplied under any separate contract) as the Seller may think fit;
Charge the Buyer interest at the rate set pursuant to the Late Payment of Commercial Transactions Regulations 2012 calculated on a daily basis from the date of the invoice until payment, compounded on the first day of each month and before and after any judgement (unless a Court orders otherwise) together with fixed sum compensation in respect of the Seller’s credit control overhead costs and the cost to the Seller of taking legal action against the Buyer to obtain payment, and/or
Exercise a lien for the amount outstanding under the Contract over any property of the Buyer in the possession of the
– Except as required by law, the Buyer shall pay all amounts due under the Contract in full without any deduction or withholding and shall not be entitled to assert any credit, set-off or counterclaim against the Seller. The Seller may at any time without limiting its other rights or remedies, set off any amount owing to the Seller by the Buyer against any amount payable by the Seller to the Buyer.
6. DELIVERY
– Unless otherwise stated in the Contract, delivery of the Goods (or any instalment of the Goods) shall take place at the Delivery Point and shall be deemed to have been made upon the Goods (or the relevant instalment) being made available for off-loading at the Delivery Point. Unless otherwise agreed in writing, the Buyer shall be responsible for off-loading the Goods. The Buyer shall not refuse to take delivery and shall make available all facilities necessary for delivery to take place. The quantity of any consignment of Goods as recorded by the Seller on despatch from the Seller’s premises shall be conclusive evidence of the quantity received by the Buyer at the Delivery Point, unless the Buyer can provide conclusive evidence to the contrary.
– Delivery dates and times are estimates only. Accordingly delivery dates and times are not of the essence and are not fundamental terms of the Contract. Goods may be delivered by the Seller in advance of the quoted delivery date on giving reasonable notice to the Buyer.
– The Seller reserves the right to delivery up to 10 % more or 10% less than the quantity of Goods ordered as proper performance of the Contract and any surplus or deficiency shall be charged or allowed at the pro rata Contract rate as agreed in advance with the Buyer.
– Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
– Without prejudice to condition B, if the Seller fails to deliver the Goods on or after the agreed delivery date for any reason, the Seller’s liability (if any) shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar replacement goods over the Price of the Goods.
– If the Buyer fails to take delivery of the Goods when they are ready for delivery then, if not previously invoiced, the Buyer will be invoiced for the goods and the Seller may store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage and risk in the Goods shall pass to the Buyer.
7. RISK AND TITLE
– Risk of damage or loss of the Goods shall pass to the Buyer upon delivery in accordance with condition 6.1 above.
– Title to the Goods shall not pass to the Buyer until the Seller has received payment in full in cash or cleared funds of (1) the Price and (ii) all other sums which are or which become due to the Seller from the Buyer on any account.
– Sketches, plates, dies, moulds, tooling and samples shall remain the property of the Seller unless otherwise stated in the Contract.
– Until such time as title in the Goods passes to the buyer, the Buyer shall (i) hold the Goods on a fiduciary basis as the Seller’s bailee, (ii) keep the Goods separate from those of the Buyer and any third parties in such a way that they remain readily identifiable as the Seller’s property, (iii) maintain the Goods in a satisfactory condition and keep them insured on the Seller’s behalf with a reputable insurance company for their full price against “all risks” to the reasonable satisfaction of the Seller (and on request the Buyer shall produce the policy of insurance to the Seller), and (iv) to the fullest extent permitted by law, to hold all proceeds of any claim made upon an insurance policy as referred to in point in (iii) above on trust for the Seller. Notwithstanding the foregoing, the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business.
– The Buyer’s right to possession of the Goods, (and any right it has to sell or use the Goods) shall terminate immediately where the Buyer is in default of the terms of payment for the Goods or fails to observe or perform any of its obligations under the Contract or any other contract between the Seller and the Buyers or in an event stated in condition 9.1 below arises (or the Seller reasonably believes that any such event is about to occur) and in such circumstance, the Seller shall be entitled to require the Buyer to deliver up the Goods to the Seller immediately and if the Buyer fails to do, the Buyer hereby grants to the Seller (and its agents and employees) an irrevocable licence at any time to enter the place of storage of the Goods and to repossess the Goods.
– The Buyer shall not encumber, pledge or charge by way of security any Goods where legal title remains vested in the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other remedy of the Seller) immediately become due and payable.
– Where the Seller hold the Buyer’s property, the Seller shall hold such property at the Buyer’s risk.
– Where the Seller is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer.
– Without prejudice to condition 8.5 on termination of the Contract the Seller’s rights contained in this condition 7 shall remain in full force and effect.
8. LIABILITY
– The Seller shall not be liable (whether in contract, tort, breach of duty or otherwise) in respect of any defect in the Goods arising from any drawing, design, specification of materials supplied by the Buyer, any shortcoming in Goods which accord with samples produced to and approved by the Buyer, any Loss suffered due to an alteration to the Goods by the Buyer without the authority of the Seller, use or storage of the Goods otherwise than in accordance with the Seller’s instructions or any default to the extent it arises due to a default by the Buyer of any term of the Contract.
– Subject to the other terms set out in these Conditions, the Seller warrants that : (a) on delivery, the Goods shall conform in all material respects with any agreed specifications; and (b) on delivery and for a period of 6 months from the date of manufacture of the relevant Goods shall be free from material defects in design, material and workmanship
– All warranties, conditions or other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
– The Buyer must inspect and inform the Seller of any defect in the quality or condition of the Goods or their failure to correspond with any specification within 3 working days from their date of delivery (or in respect of latent defects, within 3 workings days of the latent defect becoming apparent). The Seller shall be given full opportunity to inspect such defective Goods. If delivery is not refused and the Buyer does not notify the Seller within the above period, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure. It is recommended that all Goods be used within 6 months of production. Thereafter, functionality cannot be guaranteed and the Seller shall not be liable for any shortcomings in the goods.
– Without prejudice to condition 8.4 above the Seller cannot guarantee or eliminate defects in bar codes or other similar codes and the Seller shall have no liability in respect of any defects in bar codes or other similar codes supplied to the Buyer unless the defect is notified to the Seller prior to packing and despatch of relevant bar code items to end users.
– Where the Buyer makes a valid claim in respect of any defects or inadequacy in the Goods (or any part of them) in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or refund the Price (or a pro rata amount thereof, depending on the extent to which the Goods are affected ) but the Seller shall have no further liability to the Buyer (provided that, if the Seller so requests, the Buyer shall return the Goods (or part of the Goods that are defective) to the Seller).
– Nothing in these conditions excludes or limits the liability of the Seller (a) for death or personal injury caused by the Seller’s negligence or (b) for fraud or fraudulent misrepresentations or (c) for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability.
– Without prejudice to the foregoing:
The Seller’s total liability in contract, tort, misrepresentation, restitution, breach of duty or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the relevant Contract Price, and
The Seller shall not be liable to the Buyer for pure economic loss, loss of profit, loss of business or depletion of goodwill in each case whether direct, indirect or consequentlal or any claims for consequential or indirect loss whatsoever which arise out of or in connection with the Contract.
– The Seller shall not be liable to the Buyer for any delay or failure in performing its obligations in relation to the Goods if the delay or failure was due to any cause beyond the Seller’s reasonable control including acts of God, war, acts of terrorism, protests, riots, strikes, lock-outs, or other industrial actions or labour disputes (whether or not relating to that party’s workforce) or difficulties in obtaining raw materials, labour, parts or machinery.
9. INSOLVENCY OF BUYER
– If either:-
The Buyer (depending on his/her status) dies, has a bankruptcy order made against him or makes an arrangement or composition with his/its creditors, or takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed over it undertaking or any part thereof, or documents are filed at court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragragh 4 of Schedule B1 to the insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the grant of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer, or
The Buyer (depending on his/its status) suffers/allows any execution, whether legal or equitable, to be revied on his/its property or obtained against him/it or fails to observe or perform any of his/its obligations under the Contract or these Conditions or any other contract between the Seller and the Buyer, or the Buyer is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or ceases, or threatens to cease, to carry on business, or
The Buyer encumbers or in any way charges any of the Goods, or
The Seller reasonably believes that any of the events mentioned in this condition 9 is about to occur, then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to terminate the Contract and/or suspend any further deliveries under the Contract without any liability to the Buyer and, if any of the Goods have been manufactured or delivered but not paid for, all monies outstanding under the Contract shall become immediately due and payable.
10. NOTICES
– This condition 10 shall not apply to the service of any proceedings or other documents in any legal action.
– Notices and communications served in respect of the Contract shall be in writing and:
Addressed to the registered office or the principle place of business of the notified party or to a fax number or email address notified by a party to the other for the purpose of the service of such notices and communications.
Delivered in person, by registered post, by facsimile message or by email
Deemed served (i) where delivered personally upon delivery, (ii) where delivered by registered post at the time reported by the relevant postal agent, (iii) where delivered facsimile message at the time shown on the sender’s written “message sent” confirmation and (iv) where delivered by email and provided no “message undelivered” email is received by the sender before being deemed to have been served, the earlier of (a) receipt of a delivery confirmation email (b) receipt of an acknowledgement from the recipient and (c) one Business Day (being a day (other than a Saturday, Sunday or public holiday) when banks in Ireland are open for business ) of being sent.