Working with Penguins can be fun and to keep us all on the same page, here’s our Terms & Conditions:
Standard Conditions of Contract
‘Company’ refers, where appropriate, to Design Penguin Creative Ltd.
This set of standard conditions does not apply in the case of a customer who is not contracting in the course of a business nor holding himself out as doing so.
In these conditions, ‘electronic file’ means any text, illustration or other matter supplied to the company in digitised form on disk, via email, file transfer etc.
1. Price variation: Estimates are based on the company’s current costs of production and, unless otherwise agreed, are subject to amendment on or at any time after acceptance to meet any rise or fall in such costs.
2. Tax: The company reserves the right to charge the amount of any value added tax payable whether or not included on the estimate or invoice.
3. Preliminary work: All work carried out, whether experimentally or otherwise, at customer’s request shall be charged.
4. Copy: A charge may be made to cover any additional work involved where copy supplied is not clear and legible.
5. Electronic files:
(a) It is the customer’s responsibility to maintain a copy of any original electronic file.
(b) The company shall not be responsible for checking the accuracy of supplied input from an electronic file unless otherwise agreed.
(c) Without prejudice to clause 15, if an electronic file is not suitable for outputting on equipment normally adequate for such purposes without adjustment or other corrective action the company may make a charge for any resulting additional cost incurred.
6. Proofs: Proofs of all work may be submitted for customer’s approval and the company shall incur no liability for any errors not corrected by the customer in proofs so submitted. Customer’s alterations and additional proofs necessitated thereby shall be charged extra. When style, type or layout is left to the company’s judgement, changes made by the customer shall be charged extra.
7. Colour proofs: Due to differences in equipment, paper, inks and other conditions between colour proofing and production runs, a reasonable variation in colour between colour proofs and the completed job will be deemed acceptable unless otherwise agreed.
8. Variations in quantity: 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 only and 10 per cent for other work being allowed for overs or shortage (4 per cent and 8 per cent respectively for quantities exceeding 50,000) the same to be charged or deducted.
9. Terms of Payment: Where no other terms have been specified, the Company’s terms of payment regarding established credit accounts are net cash payable in full within 14 days of invoice. In the case of new business, the terms are strictly cash with order until a credit account has been established, following receipt of two satisfactory trade references. The company reserves the right to withhold supplies if the account is not settled within 30 days maximum.
10. Delivery and payment:
(a) Delivery of work shall be accepted when tendered and thereupon, or if earlier on notification that the work has been completed, payment shall become due.
(b) Unless otherwise specified the price is for delivery of the work to the customer’s address as set out in the estimate. A charge may be made to cover any extra costs involved for delivery to a different address.
(c ) Should expedited delivery be agreed an extra may be charged to cover any overtime or any other additional costs involved.
(d) Should work be suspended at the request of or delayed through any default of the customer for a period of 30 calendar days the company shall then be entitled to payment for work already carried out, materials specially ordered and other additional costs including storage.
11. Ownership and risk:
(a) The risk in all goods delivered in connection with the work shall pass to the customer on delivery.
(b) Goods supplied by the company remain the company’s property until the customer has paid for them and discharged all other debts owing to the company.
(c) If the customer becomes insolvent (as set out in clause 16) and the goods have not been paid for in full the company may take the goods back and, if necessary, enter the customer’s premises to do so, or to inspect the goods.
(d) If the customer shall sell the goods before they have been paid for in full he shall hold the proceeds of sale on trust for the company in a separate account until any sum owing to the company has been discharged from such proceeds.
12. Claims Advice of damage, delay or loss of goods in transit or of non-delivery must be given in writing to the company and the carrier within three clear days of delivery (or, in the case of non-delivery, within 28 days of notification of despatch of the goods) and any claim in respect thereof must be made in writing to the company and the carrier within seven clear days of delivery (or, in the case of non-delivery, within 42 days of notification of despatch). All other claims must be made in writing to the company within 28 days of delivery. The company shall not be liable in respect of any claim unless the aforementioned requirements have been complied with except in any particular case where the customer proves that (i) it was not possible to comply with the requirements and (ii) advice (where required) was given and the claim made as soon as reasonably possible.
(a) The company shall not be liable for indirect loss or third party claims occasioned by delay in completing the work or for any loss to the customer arising from delay in transit, whether as a result of the company negligence or otherwise.
(b) Insofar as is permitted by law where work is defective for any reason, including negligence, the company’s liability (if any) shall be limited to rectifying such defect. Where the company performs its obligations to rectify defective work under this condition the customer shall not be entitled to any further claim in respect of the work done nor shall the customer be entitled to treat delivery thereof as a ground for repudiating the contract, failing to pay for the work or cancelling further deliveries.
15. Customer’s property:
(a) Customer’s property and all property supplied to the company by or on behalf of the customer shall while it is in the possession of the company or in transit to or from the customer be deemed to be at customer’s risk unless otherwise agreed and the customer should insure accordingly.
(b) The company shall be entitled to make a reasonable charge for the storage of any customer’s property left with the printer before receipt of the order or after notification to the customer of completion of the work.
16. Materials supplied by the customer:
(a) The company may reject any files or originals supplied or specified by the customer which appear to be unsuitable. Additional cost incurred if materials are found to be unsuitable during production may be charged except that if the whole or any part of such additional cost could have been avoided but for unreasonable delay by the company in ascertaining the unsuitability of the materials then that amount shall not be charged to the customer.
(b) Where files or originals are so supplied or specified, the company will take every care to secure the best results, but responsibility will not be accepted for imperfect work caused by defects in or unsuitability of materials so supplied or specified.
Without prejudice to other remedies, if the customer becomes insolvent (namely, being a company is deemed to be unable to pay its debts or has a winding up petition issued against it or has a receiver, administrator or administrative receiver appointed to it or being a person commits an act of bankruptcy or has a bankruptcy petition issued against him) the company shall have the right not to proceed further with the contract or any other work for the customer and be entitled to charge for work already carried
out (whether completed or not) and materials purchased for the customer, such charge to be an immediate debt due to him. Any unpaid invoices shall become immediately due for payment.
18. General Lien: Without prejudice to other remedies, in respect of all unpaid debts due from the customer the company shall have a general lien on all goods and property in his possession (whether worked on or not) and shall be entitled on the expiration of 14 days’ notice to dispose of such goods or property as agent for the customer in such manner and at such price as he thinks fit and to apply the proceeds towards such debts, and shall when accounting to the customer for any balance remaining be discharged from all liability in respect of such goods or property.
19. Illegal matter:
(a) The company shall not be required to produce any matter which in his opinion is or may be of an illegal or libellous nature or an infringement of the proprietary or other rights of any third party.
(b) The company shall be indemnified by the customer in respect of any claims, costs and expenses arising out of any libellous matter or any infringement of copyright, patent, design or of any other proprietary or personal rights contained in any material produced for the customer. The indemnity shall include (without limitation) any amounts paid on a lawyer’s advice in settlement of any claim that any matter is libellous or such an infringement.
20. Periodical publications: A contract for producing a periodical publication may not be terminated by either party unless 13 weeks notice in writing is given in the case of periodicals produced monthly or more frequently or 26 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. Nevertheless the company may terminate any such contract forthwith should any sum due thereunder remain unpaid.
21. Force majeure: The company shall be under no liability if he shall be unable to carry out any provision of the contract for any reason beyond his reasonable control including (without limiting the foregoing): Act of God; legislation; war; fire; flood; drought; inadequacy or unsuitability of any instructions, electronic file or other data or materials supplied by the customer; failure of power supply; lock-out, strike or other action taken by employees in contemplation or furtherance of a dispute; or owing to any inability to procure materials required for the performance of the contract. During the continuance of such a contingency the customer may by written notice to the company elect to terminate the contract and pay for work done and materials used, but subject thereto shall otherwise accept delivery when available.
22. Law: These conditions and all other express and implied terms of the contract shall be governed and construed in accordance with the laws of England.