General delivery terms of the Estonian Association of Printing Industry
*Approved by the General Meeting of Estonian Association of Printing Industry (EAPI) on 27 March 2003
The Board of Directors of the EAPI has a power to make modifications, if necessary, in these General Delivery Term in compliance with the Law of Obligations Act (resolution of the General Meeting dated 2003-03-27)
Delivery terms – These delivery terms (hereinafter the Delivery Terms) are standard terms in the meaning of the Law of Obligations Act. Unless otherwise specified in a contract, the Performer and the Customer shall proceed from the provisions of these Delivery Terms.
Performers – the EAPI members
Customers – the customers ordering for works and services from the EAPI members
Parties – the Performer and the Customer jointly
Works – works and services ordered by the Customers from the Performers
Offer – an offer in the meaning of the Law of Obligations Act
Consent – an acceptance in the meaning of the Law of Obligations Act Unless otherwise provided by the contract being signed between the Customer and the Performer, the Performer and the Customer shall proceed from the provisions of these Delivery Terms.
2.1 An offer is a proposal made by the Performer to the Customer for signing a contract. An offer shall be sufficiently specified (the price, the time required for performance and other similar terms and conditions). The Performer who made an offer undertakes in case of acceptance thereto to perform the Works on the terms and conditions provided by the offer. An offer shall be made in writing. An offer shall be valid for 30 days from the notification date thereof.
2.2 If the Performer has not specified sufficiently clearly essential terms and conditions for the contract in its offer made to the Customer, such proposal shall be deemed no offer by the Performer. This shall be deemed an invitation to the Performer for making an offer. If the Customer has made an offer for the Performer and no validity term is indicated therein, the Performer is obliged to refer such offer within 30 days from notification date thereof. Both the Customer’s offer and the Performer’s acceptance shall be done in writing.
2.3 An offer lapses if no acceptance has been given thereto in due time or if a rejection notice thereof has been received by the maker of the offer.
2.4 A response including essential modifications if compared to the offer made is a rejection thereof and a new offer at the same time.
2.5 A response including inessential modifications if compared to the offer made is acceptance thereof in such a case if no objection to these modifications has been received from the maker of the offer within three days from receipt of such response. Should the maker of the offer fails to notify about its rejection, the terms and conditions provided by the offer together with the modifications provided by acceptance shall be the content of the contract.
2.6 An offer is generally made by the Performer for free. If the Customer has made an invitation to the Performer for making an offer which preparation requires for more work and exhibitions (preparation of models and samples and other similar) than regularly, the Performer may invoice the preparation of such offer prior to acceptance of the Customer’s invitation. In such a case the Performer’s obligation to prepare an offer shall commence after payment of the invoice by the Customer.
2.7 Each specific offer is made by the Performer only to a specific Customer. The Customer has no right to disclose the content of his offer to third parties. The Performer has also no right to disclose the business information relieved to him while communicated with the Customer to third parties.
2.8 If the Performer attached drawings, models and other similar materials (hereinafter the Material) to his offer, these shall be deemed protected by copyright and such copyright is owned by the Performer. The Customer is entitled to use the Material only for deciding on acceptance or rejection of the offer. The Customer has no right to provide the Material for third parties or use it within own business activities or make modifications in the Material.
2.9 By acceptance of the offer a contract shall be deemed signed between the Parties. Regarding the provisions not included in the offer, the Parties shall proceed from these Delivery Terms.
3.1 An offer shall include the price. The offer shall indicate either the price includes value added tax or not. Should the Performer require for payment of the price entirely or to a certain extent in advance, this must be indicated in the offer.
3.2 The price agreed in an offer may be different from the final price for performance of the Works only if so agreed between the Parties in writing. The Performer is entitled to apply for change of the price if:
• The Material provided by the Customer for performance of the Works was not fit there for and the Performer had to use own Material;
• The Customer changed its initial order during performance of the Works;
• During performance of the Works, a necessity for additional works occurred which were not agreed initially.
3.3 Unless otherwise agreed between the Parties, the costs related to transportation and storing shall be borne by the Customer and these costs shall be indicated separately in the offer.
4. Performance, Delivery and Acceptance of the Works
4.1 As of performance of the Works, the Parties shall proceed from the provisions of the Law of Obligations Act regulating contract agreements.
4.2 The Customer is obliged to accept the Works performed. The Works shall be deemed accepted even in such a case if the Customer does not accept the Works performed with no basis during reasonable time provided there for by the Performer. The Performer becomes entitled to invoice the Customer for the Works performed, for delay fines and storing costs immediately by expiry the term provided by him for acceptance of the Works.
4.3 Should the term provided by the Performer be exceeded by the Customer more than 30 days and the Customer has not accepted the Works performed during this time, the Performer will have no obligation to store the Works as well as no liability for preservation of the Works; the risks related to intentional destruction and worsening of the Works shall transfer from the Performer to the Customer. But the Customer’s obligation to pay the invoice, delay fines and storing costs shall not expire by this.
4.4 Delivery and acceptance of the Works (excluding the cases provided in article 4.3) shall be executed under a delivery and acceptance deed signed by the Parties. The Customer shall notify the Performer about non-compliance of the Works with the terms and conditions agreed not later than within 8 days from acceptance thereof. A notice subjected to non-compliance must be given in writing; the Customer shall describe the non-compliance in details.
4.5 The Performer has no liability for such non-compliance with the terms and conditions agreed which results from deficiency of the Material provided by the Customer.
4.5.1 Provided that the Work is a printed product and the Parties have agreed, that acceptance of the proof by the Customer shall precede the printing process, the Performer shall not be liable for such mistakes which have not been rectified by the Customer on the proof provided.
4.5.2 A trivial (inessential) difference from the color proof, paper sample and other similar agreed between the Parties shall provide the Customer with no basis for withdrawal from the contract, for demand to reduce the price or other similar. Should the Parties fail to agree the triviality of such difference, the claim shall be settled pursuant to article 4.6.
4.6 Provided that the Performer agrees with the Customer’s complaint regarding non-compliance of the Works, the Parties shall agree how to improve, compensate, etc. such non-compliance. If the Performer does not agree with the Customer’s complaints regarding non-compliance of the Works, the Parties shall order for an expert opinion from an independent expert. The costs related to such expertise shall be borne by the Party who looses the claim. The expert opinion shall be binding for the Parties hereto.
4.7 Should the Parties fail to agree how to liquidate, compensate, etc. non-compliance of the Works, the claim shall be settled by the Expert Commission of Estonian Association of Printing Industry.
5. Liability of the Parties. Complaints
5.1 The Parties are liable for all and any damage evidenced on document basis as caused by improper fulfillment of the contract to each other. The Parties shall not be liable for indirect damages caused to each other (not received profit, disturbance of economic activities and other similar). The Parties shall produce their proclamations to each other in writing. The proclamations related to the quality of the Works shall be produced by the Customer not later than within 8 days from acceptance of the Works. Should the Customer fails to follow the term provided by the Performer pursuant to article 4.3, the Customer shall loose its right to submit proclamations.
5.2 The Customer shall return the Works not in compliance with contractual terms and conditions within 14 days from acceptance thereof. The Works returnable shall be delivered to the Performer under a deed (hereinafter the Rejection Deed) where the reason for such rejection must be indicated; the Rejection Deed shall be signed by duly authorized representatives of the Parties. By signing the Rejection Deed, the Performer shall not confirm its consent with the Customer’s complaint. Should the Performer does not agree with the Customer’s complaint, he shall notify the Customer about this within three days from signing the Rejection Deed. In such a case the Parties shall agree how to settle the claim pursuant to article 4.6.
6. Force Majeure
6.1 A failure by the Parties to fulfill the obligations undertaken by the contract shall be excusable if the failure has been caused by force majeure. Force majeure is a circumstance beyond the Party’s control which could not be foreseen by it proceeding from the principle of reasonability or taken into consideration while entering into the contract or precluded or such circumstance or the consequence thereof overthrown. The Parties consider force majeure as a strike, work stoppage, fire or other similar obstacles.
6.2 The Party whose action is prevented by force majeure is obliged to notify about this the other Party as soon as possible.
7. Delay in Fulfillment of the Contract, Differences in Agreed Number of Copies Printed
7.1 Should the Performer be unable to follow the contractual term due to deficiency in labor power or raw material, malfunction of a machine or other similar obstacles which could not be foreseen by him while entering into the contract he shall immediately notify the Customer about this. In such a case the Customer is entitled to withdraw from the contract. If the Customer does not withdraw from the contract, the Parties shall agree a new term.
7.2 Should the obstacle provided in article 7.1 makes fulfillment of the contract for the Performer excessively hard, not profitable, etc., the Performer is entitled to withdraw from the contract. The Performer shall notify the Customer about his withdrawal from the contract in writing. In such a case the Customer will not be entitled to demand compensation of the damages caused to him, but the Performer shall return to the Customer all and any material provided for performance of the Works by the latter; should this be impossible, these materials shall be compensated by the Performer in monetary value.
7.3 Should the Works be printed products and the Parties have agreed total number of copies printed up to 20 000, actual number of copies printed may be different to the extent of 10 %. In case of bigger number of copies printed, the actual number of copies may be different to the extent of 5 %. The difference between the actual number of copies printed and the number of copies agreed is payable on the terms and conditions provided by the offer.
8. Payment Terms
8.1 The price for the Works is agreed between the Parties in the offer. Unless otherwise provided by the offer, the Performer shall place the invoice for the Works together with the delivery and acceptance deed and the payment term is 7 days. The Parties may agree the payment in several installments. Should the Parties have agreed an advanced payment, the Performer becomes obliged to perform the Works only after such advanced payment will be made by the Customer.
8.2 Unless otherwise provided by the offer, the Performer is entitled, in case of any delay occurred, to require for a delay fine of 0,15 % per day for each overdue day.
8.2.1. If an obligor is required to pay expenses and interest in addition to the principal monetary obligation, the performance is deemed to discharge first the expenses, then the interest due and finally the principal obligation.
8.2.2. Without the consent of the creditor, the debtor may not assign a different order for the performance of the obligation.
8.3 Should the Parties have agreed an advanced payment or payment in several installments, the Performer shall be obliged to deliver the Works only after entire payment of the invoices by the Customer which due date has expired. For securing the payment, the Performer is entitled to pledge the Customer’s moveable properties (models, materials, etc.) possessed by him.
9. Ownership and Copyright
9.1 The tools, films, software and other similar obtained by the Performer for performance of the Works is owned by the Performer and ownership thereto shall not transfer to the Customer after delivery of the Works. The Works performed under an order placed by the Customer are owned by the Performer until these Works will be paid 100 %. After entire payment of the invoices placed for performance of the Works (for delay fines as well) by the Customer, ownership of the Works shall transfer to the Customer.
9.2 The risks related to intentional destruction of the Works shall transfer from the Performer to the Customer after acceptance of the Works and not be occurrence of ownership thereto. Should the Works be an object protected by copyright, the author’s proprietary rights shall transfer from the Performer to the Customer by payment for the Works performed. The author’s non-proprietary rights shall remain in ownership of the Performer. Should the Works ordered by the Customer be protected by copyright, the Customer shall be liable for obtaining relevant licenses and payment of remunerations.
9.3 The materials delivered by the Customer to the Performer for performance of the Works are owned by the Customer. The materials not directly used by the Performer for performance of the Works shall be returned by him to the Customer after delivery of the Works (excl. the case provided by article 8.3). Should the Customer intends that the Performer may insure the said materials, the Performer is obliged to do so, presumed that the Customer will pay the costs related to such insurance.
10. Other Provisions
10.1 Should valid legal acts of the Republic of Estonia prescribe mandatory delivery of single copies of specific printed products (hereinafter the Mandatory Copies) to libraries and other similar institutions, the Performer shall make such Mandatory Copies at the Customer’s expense in addition to total number of copies printed under the contract and deliver them at the Customer’s expense to relevant institutions.
10.2 Should any claim arise, the Parties shall apply if necessary to the Expert Commission of the EAPI which composition shall be acceptable for both Parties. The opinion of the Expert Commission of the EAPI is final; the costs related thereto shall be borne by the Party who looses the claim.