APS Group Terms and Conditions of Sale – UK

1. Definitions

“APS Group” means the party providing the goods or services under these Terms.
“Buyer” means the party contracting with the APS Group to acquire the goods and services supplied under these Terms.
“Contract” means the contract between the APS Group and the Buyer for the supply of goods and/or services in accordance with these Terms, based upon an Order.
“Electronic File” means any text, illustration or other matter supplied or produced by either Party in digitised form on disc, through a modem, or by ISDN or any other communication link.
“Insolvency” means the Buyer is in a position where it is 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 or such analogous insolvency event takes place.
“Intermediates” means all products produced during the manufacturing process including non-exhaustively discs, film, plate, intellectual property.
“Order” means any order agreed from time to time in writing between the parties.
“Periodical Publications” means publications produced at (normally regular) intervals.
“Preliminary Work” means all work done in the concept and preparatory stages (including non-exhaustively design, artwork, colour matching).
“Terms” means these terms and conditions.
“Work” means all goods (by way of intermediate or finished product) and services supplied by the APS Group to the Buyer pursuant to the Contract.

2. Payment and Credit Facilities

Estimates are based on the APS Group’s current costs of production and fulfilment and, unless otherwise agreed in writing, are subject to amendment to meet any rise or fall in such costs that have taken place by the time of delivery.
Estimates are given and charges are made exclusive of tax, VAT, tariffs, levies and/or duties (“Taxes“) and the APS Group reserves the right to charge and the Buyer will pay any VAT or other such Taxes payable.
All work carried out shall be charged. This includes all Preliminary Work whether or not the Buyer agrees to that work being taken forward to production.
Any additional work required of the APS Group by reason of the Buyer supplying inadequate copy, incomplete or incorrect instructions or insufficient materials, or late delivery of the same, shall be charged.
Payment shall become due before delivery of the Work. The APS Group, at its absolute discretion, may ask for part or full payment in advance of starting the Work.
If credit facilities have been granted by the APS Group, payment is due by the end of the month following the month of Invoice. If any item(s) remain unpaid by that due date charges will apply, in accordance with s5A and/or s6 of the Late Payment Commercial Debt (Interest) Act 1998 or any subsequent enactment. In addition, all invoices will become due and payable immediately and will be treated as overdue items, with appropriate charges applied and all costs reasonably incurred in collecting the debt payable by the Buyer.
Unless otherwise agreed in writing, the price of the Work will be “ex-works” and any delivery shall be charged extra.
Should the Work be suspended or delayed by the Buyer for any reason the APS Group shall be entitled to charge for storage and for loss of or wastage of resources that cannot otherwise be used.
Should the suspension or delay in clause 2(h) above extend beyond 30 days the APS Group shall be entitled to immediate payment for work already carried out, materials specially ordered and any other additional costs.
Credit facilities may be granted to applicants who complete the APS Group’s New Customer Application Form and who satisfy the APS Group’s criteria as set out from time to time. Where facilities are granted the APS Group reserves the right to withdraw them at any time, without having to give their reasons and, in such a case, all outstanding invoices become due and payable immediately.

3. Basis of Contract

The Contract shall come into existence on the date on which the relevant Order placed by the Buyer is accepted in writing by the APS Group.
These Terms shall apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
All Work supplied by the APS Group shall be governed by the terms of the Contract, including these Terms.

4. Delivery

Delivery of the Work shall be accepted when tendered.
Unless otherwise agreed in writing completion and delivery times are a guide only and, whilst the APS Group will make every effort to adhere to proposed timescales, time is not of the essence in any Contract with the Buyer.
Unless otherwise agreed in writing, (in which case an extra charge may be made):
1. delivery in the UK will be to the kerb side at the Buyer’s address and the Buyer will make arrangements for off-loading and for any additional transportation to its storage facility; and
2. delivery to any location outside of the UK will be limited to no greater an obligation upon APS Group than Incoterms 2010 DAP (Delivered at Place), and shall not (for the avoidance of doubt) include DDP (Delivered Duty Paid); and
3. it shall be the Buyer’s responsibility to accurately inform the APS Group, upon request, of the applicable customs commodity codes for any relevant item of Work.
Subject to any agreement as per clause 4(c) above, delivery involving difficult access and/ or unreasonable distance from vehicular access shall entitle the APS Group to make an extra charge to reflect its extra costs.
Should expedited delivery be agreed the APS Group shall be entitled to make an extra charge to cover any overtime or any other additional costs.

5. Materials supplied or specified by the Buyer

5.1 Electronic Files

It is the Buyer’s responsibility to maintain a copy of any original Electronic File provided by the Buyer.
The APS Group shall not be responsible for checking the accuracy of supplied input from an electronic file unless otherwise agreed in writing.
Without prejudice to clause 5.2(b), if an electronic file is not suitable for outputting on equipment normally adequate for such purposes without adjustment or other corrective action the APS Group may make a charge for any resulting additional cost incurred or may reject the file without prejudice to its rights to payment for work done/material purchased.

5.2 Other Materials

Metal, film and other materials owned by the Buyer and supplied to the APS Group for the production of type, plates, film-setting, negatives, positives, electronic files and the like shall remain the Buyer’s exclusive property. However where the content is generated by the APS Group, the APS Group may, in order to protect its intellectual property rights and at its absolute discretion, replace such material with unused material of a similar or better quality.
The APS Group may reject any film, discs, paper, plates, electronic files or other materials supplied or specified by the Buyer which appear to be unsuitable for the purpose intended. Additional cost incurred if materials are found to be unsuitable during production may be charged.
Without prejudice to clause 5.2.b, where unsuitable materials are so supplied or specified, and the APS Group so advises the Buyer, and the Buyer instructs the APS Group in writing to proceed anyway, the APS Group will use reasonable endeavours to secure the best results, but shall have no liability for the quality of the end-product(s).
Quantities of materials supplied shall be adequate to cover normal spoilage. Any costs incurred as a result of shortages, including re-starting jobs, duplicating masters etc will be charged in addition to the estimated price.

5.3 Risk and storage

Buyer’s property and all property supplied to the APS Group by or on behalf of the Buyer shall while it is in the possession of the APS Group or in transit to or from the Buyer be deemed to be at the Buyer’s risk unless otherwise agreed in writing and the Buyer should insure accordingly.
The APS Group shall be entitled to make a reasonable charge for the storage of any Buyer’s property left with the APS Group before receipt of the order or after notification to the Buyer of completion of the work.

5.4 Finished Goods

The risk in the Work and all goods delivered in connection with the Work shall pass to the Buyer on delivery and the Buyer should insure accordingly.
On completion of the Work, the APS Group will store the Buyer’s materials and Work for a maximum of one month, after which time they will be destroyed without further notice.

6. Materials and equipment supplied by the APS Group

Metal, film and other materials owned by the APS Group and used in the production of Intermediates, type, plates, film-setting, negatives, positives, electronic files and other production processes, together with items thereby produced, shall remain the APS Group’s exclusive property.
Type shall be distributed and film and plates, tapes, discs, electronic files or other work shall be destroyed immediately after the order is executed unless written arrangements are made to the contrary. In the latter event, storage shall be charged.
The APS Group shall not be obliged to download any digital data from its equipment or supply the same to the Buyer on disc, tape or by any communication link.

7. Retention of Title

The Work remains the APS Group’s property until the Buyer has paid for it and discharged all other debts owing to the APS Group.
If the Buyer becomes subject to Insolvency and the Work has not been paid for in full the APS Group may take the goods back and, if necessary, enter the Buyer’s premises to do so, or to inspect and/or label the goods so as to identify them clearly.
If the Buyer shall sell the goods before they have been paid for in full the Buyer shall hold the proceeds of sale on trust for the APS Group in a separate account until any sum owing to the APS Group has been discharged from such proceeds.
Where the Buyer is in breach of these Terms or suffers any act of Insolvency the APS Group reserves the right to approach the Buyer’s customer and to offer the Work directly to them, notwithstanding the fact that this will involve advising the Buyer’s customer that the Buyer is in breach or in default.

8. Proofs and variations

The APS Group shall incur no liability for any errors not corrected by the Buyer where the Buyer has been provided with proofs. The Buyer’s alterations and additional proofs necessitated thereby shall be charged extra. When style, type or layout is left to the APS Group’s judgement, changes therefore made by the Buyer shall be charged extra.
Where the Buyer specifically waives any requirement to examine proofs the APS Group is indemnified by the Buyer against any and all errors in the finished Work.
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 in writing.
The APS Group will endeavour to deliver the correct quantity ordered, but estimates are conditional upon margins of 5 per cent for work being allowed for overs or unders the same to be charged or deducted, unless otherwise agreed in writing.

9. Claims and Liability

9.1 Claims

Notification of any damage, delay or loss of goods in transit or of non-delivery must be given in writing to the APS Group and the carrier within three clear days of delivery (or, in the case of non-delivery, within 3 days of notification of despatch of the goods) and any claim in respect thereof must be made in writing to the APS Group and the carrier within seven clear days of delivery (or, in the case of non-delivery, within 7 days of notification of despatch). All other claims must be made in writing to the APS Group within 14 days of delivery. The APS Group shall not be liable in respect of any claim unless the aforementioned requirements have been complied with except in any particular case where the Buyer proves that
1. it was not possible to comply with the requirements and
2. the claim was made as soon as reasonably possible upon discovery by the Buyer of the relevant grounds for such claim.
If the Work is defective so that the Buyer may in law reject it, said rejection must take place within 7 days of delivery of the goods, failing which the Buyer will be deemed to have accepted the Work.
In the event of all or any claims or rejections the APS Group reserves the right to inspect the Work within seven days of the claim or rejection being notified.

9.2 Liability

Insofar as is permitted by law where Work is defective for any reason, including negligence, the APS Group’s liability (if any) shall be limited to rectifying such defect, or crediting its value against any invoice raised in respect of the Work.
Where the APS Group performs its obligations to rectify defective Work under this condition the APS Group shall not be liable for indirect loss, consequential loss or third party claims occasioned by defective Work and the Buyer shall not be entitled to any further claim in respect of the Work nor shall the Buyer be entitled to repudiate the Contract, refuse to pay for the work or cancel further deliveries.
Defective Work must be returned to the APS Group before replacement or credits can be issued. If the subject Work is not available to the APS Group the APS Group will hold that the Buyer has accepted the Work and no credits or replacement Work will be provided.
The APS Group shall not be liable for indirect loss, consequential loss or third party claims howsoever arising, and including (without limitation) any occasioned by delay in completing the work or for any loss to the Buyer arising from delay in transit, whether as a result of the APS Group’s negligence or otherwise.
Where the APS Group offers to replace defective Work the Buyer must accept such an offer unless he can show clear cause for refusing so to do. If the Buyer opts to have the work re-done by any third party without reference to the APS Group the Buyer automatically revokes any right to any remedy from the APS Group, including but not exclusively the right to a credit in respect of Work done by the APS Group.
Where the Work will be forwarded by or on behalf of the Buyer to a third party for further processing the Buyer will be deemed to have inspected and approved the Work prior to forwarding and the APS Group accepts no liability for claims arising subsequent to the third party’s processing.
The APS Group reserves the right to reject any work forwarded to it after initial processing by a third party as soon as is reasonably practicable without processing the work any further. Should the Buyer require the APS Group notwithstanding to continue, then the APS Group is only obliged to do so after confirmation from the Buyer in writing.
Nothing in these Terms limits any liability of the APS Group which cannot legally be limited, including but not limited to liability for death or personal injury as a result of its negligence, fraud or fraudulent misrepresentation or breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession). Subject to the preceding sentence, the APS Group’s total liability (which shall include all liability in contract, tort (including negligence), breach of statutory duty, or otherwise), howsoever arising with respect to any Work item shall not exceed the price of the relevant Work item in question.

10. Insolvency

Without prejudice to other remedies, if the Buyer becomes Insolvent, the APS Group shall have the right not to proceed further with the Contract or any other work for the Buyer and be entitled to charge for work already carried out (whether completed or not) and materials purchased for the Buyer, such charge to be an immediate debt due to the APS Group. Any unpaid invoices shall become immediately due for payment.

11. General Lien

Without prejudice to other remedies, in respect of all unpaid debts due from the Buyer the APS Group shall have a general lien on all goods and property of or provided by the Buyer in its 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 Buyer in such manner and at such price as it thinks fit and to apply the proceeds towards such debts, and shall when accounting to the Buyer for any balance remaining be discharged from all liability in respect of such goods or property.

12. Illegal matter

The Buyer warrants that in supplying the Works as requested by the Buyer, the APS Group shall not infringe the rights, including intellectual property rights, of any third party.
The APS Group shall not be required to print any 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.
The APS Group shall be indemnified by the Buyer in respect of any claims, costs and expenses howsoever arising out of any printing, use, reproduction and/or supply by the APS Group of any materials, matter, information, data or content originally supplied by or on behalf of the Buyer in connection with the performance of the Contract by the APS Group, including (without limitation) any illegal or unlawful matter including matter which is libellous or infringes any copyright, patent, design or other intellectual property, proprietary or personal rights. 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.

13. Periodical publications

A Contract for the printing of 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 must be given after completion of work on any one issue. Nevertheless the APS Group may terminate any such Contract forthwith should any sum due thereunder remain unpaid.

14. Force majeure

The APS Group shall be under no liability if it shall be unable to carry out any provision of the Contract for any reason beyond its 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 Buyer; failure of power supply; lock-out, strike or other action taken by employees in contemplation or furtherance of a dispute; pandemic, epidemic; non-performance by suppliers or subcontractors, material supply chain disruptions or delays, any law or any action taken by a government or public authority (including without limitation imposing an export or import restriction, quota or prohibition) or failing to grant a necessary licence or consent or owing to any inability to procure materials required for the performance of the Contract. During the continuance of such a contingency the Buyer may by written notice to the APS Group elect to terminate the Contract and pay for work done and materials used, but subject thereto shall otherwise accept delivery when available.

15. Data Protection

The Buyer is hereby notified that the APS Group may transfer personal information about the Buyer to a Credit Agency pursuant to clause 2f above. Otherwise, with respect to all applicable legislation in any jurisdiction protecting the fundamental rights and freedoms of individuals, in respect of their right to privacy and the processing of their personal data, as amended from time to time, including (without limitation) Regulation (EU)2016/679, ‘the General Data Protection Regulation’ (“GDPR“), the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003, together with all decisions, guidelines, guidance notes and codes of practice issued from time to time by courts, data protection authorities and other applicable Government authorities (the “Data Protection Laws“), the APS Group undertakes, where it processes personal data (as such term is defined under the Data Protection Laws (“Personal Data“)) under this Agreement:

to do so only as strictly necessary to perform its obligations under (and in accordance with the terms of) this Agreement and the Buyer’s instructions from time to time, or in accordance with all applicable laws (subject to informing the Buyer in advance, unless prohibited from doing so by such laws);
to notify the Buyer if it considers that any of the Buyer’s instructions infringe the Data Protection Laws;
not to disclose the Personal Data to a third party in any circumstances other than at the specific request of the Buyer or if otherwise compelled by law to make such disclosure;
to ensure that only such of the Staff who may be required by the APS Group to assist in meeting its obligations under this Agreement shall have access to the Personal Data and that such Staff have received training and/or instruction in the care and handling of Personal Data, and are required to keep it confidential;
to notify the Buyer promptly following receipt of, and to provide all necessary information and assistance to the Buyer in responding to, any request or notification from a data subject and/or any regulator under the Data Protection Legislation, including (without limitation) with respect to security, impact assessments and consultations with regulators, together also with providing full support and assistance regarding all data subject access, correction, objection, erasure and portability requests, as applicable, and otherwise in order to enable the Buyer to comply with its obligations under the Data Protection Laws;
to notify the Buyer within 24 hours of becoming aware of a Personal Data Breach (being any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data), providing the Buyer with all information to meet its reporting obligations under the Data Protection Laws, including (as a minimum): describing its nature, the categories and numbers of Data Subjects concerned, identifying the data protection officer from whom more information may be obtained; describing its likely consequences and the measures taken or proposed to be taken to address it; and taking such steps required by the Buyer to assist in its investigation, mitigation and remediation;
at the written direction of the Buyer, to delete, provide a complete copy, or return all Personal Data and all copies thereof under its control to the Buyer on termination of the Agreement unless required by Data Protection Laws to store the Personal Data; and
to maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Buyer, any regulator or by their designated auditors;
not to transfer any Personal Data outside of the European Economic Area without prior written consent of the Buyer;
not to appoint (or replace) any third party sub-processor of any Personal Data under this Agreement without the prior written consent of the Buyer. In all cases where a sub-processor is appointed, to execute a written contract between the APS Group and the sub-processor including terms which are equivalent to those set out in this Clause 15, and the APS Group shall remain fully liable to the Buyer for any breach of such terms and/or the Data Protection Laws by such sub-processor;
to allow its data processing facilities, procedures and documentation which relate to the processing of Personal Data to be scrutinised by the auditors of the Buyer in order to ascertain compliance with the Data Protection Laws; and
to have in place such technical and organisational measures as are reasonably necessary and appropriate to safeguard 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.
The parties acknowledge that the Buyer is the “controller” of the Personal Data and the APS Group is acting as “processor” on behalf of the Buyer (as such terms are defined in the Data Protection Laws) provided however that it is also acknowledged that the Controller could be the Buyer and/or other parties and therefore all references to the Buyer in this clause 15 shall be interpreted to extend to any other controller as if they were a party to this Agreement. The APS Group acknowledges that all right, title and interest in the Personal Data is vested solely in the Buyer.
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).
On termination of the Agreement, for whatever reason, the APS Group shall cease to use the Personal Data and shall arrange for the prompt and safe return to the Buyer of all Personal Data together with all copies in its possession or control.

16. Law

These Terms and all other express and implied terms of the Contract shall be governed and construed in accordance with the laws of England and the parties agree to submit to the jurisdiction of the courts of England and Wales.

17. Notices

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 by email, 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 email to the other party’s valid email address. Any notice or communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, 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 email, on the next Business Day after transmission. This clause 14.2 shall not however permit the service of any proceedings or other documents in any legal action by email.

18. Consumers

Nothing in these Terms shall affect the rights of Consumers.

19. Severability

All clauses and sub-clauses of these Terms are severable and if any clause or identifiable part thereof is held to be unenforceable by any court of competent jurisdiction then such enforceability shall not affect the enforceability of the remaining provisions or identifiable parts thereof in these Terms.

20. Entire Agreement

These Terms constitute the entire agreement and understanding between the APS Group and the Buyer and supersede any previous agreements, promises, assurances, warranties, representations, undertakings or understandings between them, whether written or oral.

21. Rights of third parties

Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contract (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

22. Non Solicitation

Neither party shall, from the date hereof until the anniversary of the date of termination or expiry of the Contract:

offer employment to, enter into a contract for the services of, or attempt to entice away from the other party any individual who is (at the time of the offer or attempt) or who was (at any time during the immediately preceding 6 month period) an employee or an officer of the other party, or any Affiliate of such other party; or
procure or facilitate the making of any such offer or attempt by any other person;

provided that such restrictions shall only apply to such employees who were involved in the provision or receipt of the Goods and/or Services, and shall not apply where the individual in question has merely responded to a general recruitment campaign without otherwise having been approached, solicited or enticed away by such party. The undertakings in this clause apply to actions carried out by either party in any capacity and whether directly or indirectly, on its own behalf, on behalf of any other person or jointly with any other person. Each of the covenants in this clause are considered fair and reasonable by the parties.

UK V.6