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Standard Terms and Conditions

CDMS LIMITED - Standard Terms and Conditions of Contract

1. General

All agreements by the Company are made subject to these terms and conditions which may not be varied unless confirmed in writing by a duly authorised representative of the Company.

2. Definitions
The following terms shall have the meanings respectively assigned to them: -


3. Price and Payment
(a) The Company's charges for the Services shall unless otherwise provided for in the Contract or agreed in writing by the Company be the quoted price set out in the Company's letter, acknowledgement of order or quotation. The Company shall have the right to charge the Customer the full Contract Price in the event any Services are cancelled by the Customer after the order is placed and prior to delivery by the Company
(b) If overtime or special handling is requested to accomplish any work within non-standard time limits specified by the Customer this will be charged to and paid by the Customer at the Company's charging rate for the time being. A list of the Company's current charging rates will be provided on request..
(c) All charges for Services will be invoiced on completion (or, in the case of regular or repeat Services, on completion of each part) and shall be payable within 30 days of the date of invoice unless otherwise agreed in writing. The Company shall be entitled to charge interest at the rate of 2 per cent per month on any amount not paid within the said 30-day period. Interest shall be charged from the due date for payment until the receipt in cleared funds of the monies due. Any query arising out of an invoice shall be made by the Customer in writing to the Company within 14 days of receipt of that invoice, failing which the Customer shall be deemed to accept the invoice as valid and correct. The Customer shall not be entitled to make any deductions or set off any amounts due to the Company under the Contract howsoever arising unless with the prior written consent of the Company. The Company shall have a lien over any Customer Data or other property of the Customer in its possession in respect of any sum not paid by the due date and the Company shall have the right to cease to provide any Services with immediate effect. Title does not pass until payment has been received.
(d) All charges of the Company are quoted exclusive of Value Added Tax, which shall be levied at the appropriate rate.


4. Price Variation
The prices quoted are based on current costs of production on the Company's understanding of the Customer Specification (where applicable) and are subject to amendment by the Company on or at any time before completion collection or delivery of the Services to meet any rise or fall in such costs, change or fuller definition of the Customer Specification and additional costs incurred due to deficiencies or errors in, or delayed receipt by the Company of, information, pre-printed stationery, data or other material supplied by the Customer which results in a complete or partial re-run or any other additional work being required.


5. Customer's Obligations
The Customer agrees to comply with the requirements and procedures relating to the Services as set out on the CDMS Website. CDMS will have no liability for any delay or other issue resulting from the Customer's failure so to comply.


6. Collection/Delivery/Storage and Disposal of Stock
(a) Unless otherwise specified the price quoted is exclusive of delivery and storage.
(b) Where collection of the Finished Work is undertaken by the Customer or his carrier title and risk shall pass and payment shall become due upon the earlier of collection or 7 days after notification that the work is available for collection.
(c) Where the Customer requests the Company to arrange delivery of the work at the Customer's expense, delivery of the work shall be deemed to have occurred upon collection by the carrier and thereupon risk shall pass and payment shall become due. In this event the Company shall not be liable for any loss to the Customer caused by delay in transit. Advice of damage or partial loss of Finished Work shall be given in writing to the Company and the carrier within 3 days of delivery. Advice of non-delivery shall be given in writing to the Company and the carrier within 7 days of despatch. The Company shall advise the Customer verbally or in writing of despatch of the Finished Work.
(d) Whilst all reasonable efforts are made to check the quality and quantity of goods received from suppliers on a Customers behalf the Company cannot be held liable if the final quantity or quality supplied is not to Customer's requirements. On receipt, quality checks can only be made on the condition of the pallets and packaging that may impact on the goods' condition. The quantity of pallets and number of boxes or ram bundles can be checked but not the number of items within those boxes/ram bundles. This is the Customers' responsibility with their supplier. If, once goods are processed, quality and quantity issues become apparent, the Customer will be advised.
(e) Should the Customer fail to deliver the Customer Data/Property on or before the date agreed for the delivery of such Customer Data/Property , then the Company will use its reasonable efforts to reallocate its resources to process the Customer's work as promptly as possible after actual delivery of such data/property but in such circumstances the original completion timescale agreed (if any) may be extended by the Company.
(f) Time for delivery by the Company of any data, materials or Finished Work shall not be of the essence.
(g) Where delivery is to be in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with the Contract or any claim by the Customer in respect of one or more instalments shall not entitle the Customer to treat this Contract as a whole as repudiated.
(h) Where collection or delivery of the Finished Work does not take place in accordance with the foregoing provisions this may result in an additional charge to the Customer to cover such delay and any resulting storage costs.
(i) CDMS will store Customers' stocks free of charge for two weeks prior to and during a specific mailing.
(j) Once a mailing is completed the Company will contact the Customer within one week detailing all leftover stocks. From the date of contact the Company will continue to store, free of charge, the relevant stock for a period of up to two weeks only.Following this time, if instructions have not been received from the Customer, the Company reserves the right to store the products externally and pass on all incurred costs plus a management fee of 20%.


7. Variations in timescale
(a) Should expedited delivery be required by the Customer and agreed by the Company an extra charge may be made to cover any overtime at the Company's then current rates or other additional costs involved.
(b) Should any Services be suspended or the delivery/completion date delayed at the request or through any default of the Customer the Company shall then be entitled to payment for work already carried out and materials specially ordered and other additional costs including storage such payment being on account of, and without prejudice to the Company's entitlement to, the full Contract Price.
(c) Should commencement of any Services be suspended at the request of or delayed through any default of the Customer beyond the scheduled date of commencement the Company shall be entitled to payment by the Customer for the cost of idle machine or staff time so caused to the extent that it cannot be otherwise utilised.


8. Suitability of Customer Specification and Material supplied by the Customer
(a) The Company may reject any materials supplied or specified by the Customer which appears to the Company to be unsuitable. If during the printing or enclosing process it becomes apparent that the pre-printed stationery/paper is unsuitable and as a result causes degradation to the speed of throughput any overtime at the Company's then current rates or similar additional costs incurred in attempting to maintain production schedules may be charged.
(b) Quantities of materials supplied by the Customer must be adequate to cover normal spoilage in testing and production.
(c) The Customer shall be responsible for the accuracy and fitness for purpose of any Customer Specification and where any materials are supplied by the Customer or so specified the Company shall not be liable under the Contract or otherwise for any defective work save for any failure by the Company to exercise reasonable skill and care.


9. Customer Data /Property/Data Protection
(a) Customer Data and all other property supplied by or on behalf of the Customer shall, while it is being worked on by the Company or stored by the Company on behalf of the Customer or in transit to or from the Customer, be deemed to be at the Customer's risk. It will not be insured by the Company.
(b) Customer Data/property is to be transported at the Customer's expense to and from the premises designated by the Company as the premises at which the Services are to be performed. The Customer Data must on delivery to the said premises be in a condition and form acceptable to the Company.
(c) The Company shall be entitled to reject any part or whole of the Customer Data/Property which it may in its absolute discretion decide to be unacceptable for any reason and/or unsuitable for use on its equipment. The Company cannot accept responsibility for errors caused by the inadequacy illegibility or inaccuracy of the CustomerData/Property. The Customer Data/Property may be retained by the Company until the Services are completed.
(d) CDMS will comply with the Seventh Data Protection Principle and will process all personal data only in accordance with the Customer's instructions. The Customer shall remain liable for complying with its obligations as data controller under the Data Protection Act 1998 and warrants that it has all necessary authority and consents necessary for the Company to provide the Services.


10. Illegal Matter
(a) The Company shall not be required to print or reproduce in any form or medium any matter or print on any pre-printed stationery containing matter which in its 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 Customer warrants to the Company that it has the right to supply to the Company the Customer Data and has obtained all necessary consents to do so.
(c) The Company shall be indemnified by the Customer in respect of all claims costs losses and expenses arising out of any libellous matter, breach by the Customer of the Warranty in clause 10b), use by the Company of the Customer Data or any infringement of copyright patent design trade mark or of any proprietary or personal rights contained in any material printed for the Customer. The indemnity shall extend to any amounts paid on the Company's lawyer's advice in settlement of any claim, including any legal fees incurred by the Company in relation to such settlement.


11. Standing Matter
(a) Programs, character styles, magnetic tapes, films, translation tables and any other materials created and developed by the Company for the production of printed work or converted data shall remain the exclusive property of the Company.
(b) Unused paper may be disposed of and programs and any other work effaced immediately after the order is executed unless written arrangements are made to the contrary. In the latter event, storage may be charged.


12. Regular Work
In the absence of any written agreement to the contrary estimates are given on the condition that not less than three months' written notice is given to terminate the Contract for the monthly provision of Services and not less than one month's written notice in the case of the weekly provision of Services.


13. Liability
(a) The Customer acknowledges that the process of printing, direct mail fulfilment and data management cannot be guaranteed to be 100% error free or free from delays. Therefore, the Customer shall not arrange its business such that delivery of the Services at the scheduled time is critical. In any event, the Company shall not be liable for failure to perform its obligations in whole or in part if such failure arises from: - (i) any circumstances which are beyond or outside the reasonable control of the Company. (ii) Inadequate, deficient, incorrect or otherwise faulty preparation of data or software if the same shall not have been entirely prepared by the Company. (iii) Results produced by the Customer Data or any loss suffered by the Customer consequent on such results.
(b) Without prejudice to the generality of 16(a) the Company will use all reasonable efforts to extend or enforce so far as it can any warranty or guarantee given by any supplier in respect to any Third Party System for the Customer's benefit.
(c) The Company's liability for loss of or damage to disks or magnetic tapes shall be limited to the physical value of such media and the data contained thereon shall be deemed to be of no value.
(d) The Company shall not be liable to the Customer in respect of any Liability Event for loss of profits goodwill business interruption or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) irrespective of whether such loss was (in the case of loss or damage suffered in tort) reasonably foreseeable or was (in the case of loss or damage caused by breach of contract) in the reasonable contemplation of the Customer and the Company at the date of the Contract or the Company had been advised of the possibility of the Customer incurring the same.
(e) The Company's liability in respect of any Liability Event or series of connected Liability Events shall be limited to rectifying any defect or error giving rise to the Liability Event or where such rectification is not reasonably practical without loss to the Customer an amount equal to the aggregate amount paid by the Customer to the Company under the Contract to which the Liability Event or series of connected Liability Events relates.
(f) The Company shall carry out the Services with reasonable skill and care but except as expressly provided in the Contract all other warranties conditions and terms implied by statute (including the Supply of Goods and Services Act 1982 and any statutory amendment or modification thereto) and common law are excluded to the fullest extent permitted by law (other than where work is carried out on behalf of a consumer within the meaning of the Unfair Contract Terms Act 1977).
(g) The foregoing provisions of this clause 13 shall not exclude any liability of the Company for death or personal injury caused by the Company's negligence.


14. Intellectual Property
Any patent copyright or other proprietary rights in or to any other programs, methods, character sets, translation tables, development data, procedures or techniques used by the Company in the provision of the Services (together "Company IPR") shall at all times remain the property of the Company. The Customer does not obtain under the Contract any right or licence to use, copy, sell or in any other way deal with any such Company IPR and undertakes with the Company to keep secret and confidential all Company IPR and all manuals programmes (whether recorded in writing or reproduced electronically or magnetically) procedures or techniques disclosed or made available to the Customer.

15. Insolvency
If the Customer fails to pay any debt due to the Company within 14 days of the same becoming due or the Customer becomes insolvent or is unable to pay his debts as they become due or commits any act of bankruptcy or (being a limited company) goes into liquidation or has a receiver appointed over its undertaking or assets or a substantial part thereof or has any execution levied upon its goods or assets, or undergoes a change of control or the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly, then the Company may without notice suspend or determine the Contract or the unfulfilled part thereof and stop any goods or Output Data in transit without prejudice to any other right or remedy which the Company may lawfully enforce or exercise and if any goods or Output Data have been delivered and not paid for the price will become immediately due and payable notwithstanding any previous agreement to the contrary.


16. General
(a) The Company is a member of the group of companies whose holding company is Littlewoods Shop Direct Group Limited and accordingly the Company may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Company.
(b) All documentation and information in any way acquired under the Contract will be used by the parties solely for the purposes of the Contract. The parties acknowledge that in the course of the Contract they may receive or otherwise acquire commercially sensitive information (whether documentary or otherwise) relating to the other party and its business activities. Each party agrees to keep all such information strictly confidential.
(c) Any notice required or other document to be given under the Contract shall be in writing and shall be deemed to have been duly served if left at, sent by hand, recorded delivery, by facsimile or other electronic media addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified in writing pursuant to this provision to the party giving the notice. Any such notice or other document shall be deemed to have been received by the addressee, two working days following the date of dispatch if the notice or other document is sent by recorded delivery post, or simultaneously with the delivery or transmission if sent by hand, facsimile or other electronic means.
(d) No waiver by either party of any breach of the Contract by the other party shall be considered as a waiver of any subsequent breach of the same or any other provision.
(e) Any dispute arising under or in connection with the Contract or as to the rights and liabilities of the parties hereto, or as to construction or interpretation hereof shall be settled by an amicable effort of both parties' senior management.
(f) A person who is not a party to a Contract shall have no right to enforce any term of such Contract under the Contracts (Rights of Third Parties) Act 1999.
(g) The Contract shall be governed by the laws of England, and the Customer agrees to submit to the exclusive jurisdiction of the English courts.
(h) If any provision of the Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected thereby.
(i) The Company may from time to time subcontract and/or assign all or any of its obligations and duties under the Contract but the Customer shall not assign any of its rights or obligations under the Contract without the previous consent in writing of the Company.
(j) Any Contract contains the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and replaces all prior agreements and understandings. There are no promises, terms, conditions or obligations; oral or written, express or implied other than those contained therein. No amendment modification or extension of any Contract or waiver of any terms and conditions thereof shall be binding upon the Parties unless it is in writing and duly signed by both Parties.