Consumer Law, Warranties client vs commercial printer dispute

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galex3usa

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My jurisdiction is: CA

My jurisdiction is: CA

I am a direct mail magazine publisher, using outside printing company. The last order has come about 100 copies short and I need these copies to distribute to advertisers and for promotion. The printer's quotation says that the quantity may come 10% under, unless I order 10% more... which I find unfair- why do I have to pay for unnecessary books?
Now, when I need these missing 100 copies to supply advertisers and to promote the issue, the printer offers me a choice- to print extra 500 copies at outrageous price.
I still owe them 50% balance for the job done, but it is my belief that they didn't supply me the quantity ordered and I think, it's them who should pay to print copies that are missing from my order, if I can not provide advertisers the copies, I cannot get paid either.
My question is: is the printer responsible for supplying the customer the exact number of copies ordered, or they are off the hook by inserting in the contract the text: "Overs and unders are not to exceed 10% under 0% overs of the quantity ordered, and the invoice will reflect the quantity shipped within this tolerance."?
Also, in any case- should I pay them now for the service and THEN claim damages, or I should state now, from the beginning, that I haven't received the product/service I requested and therefore, they should compensate me.. or what? Please advice. Thank you.
 
"Overs and unders are not to exceed 10% under 0% overs of the quantity ordered, and the invoice will reflect the quantity shipped within this tolerance."
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What kind of clause is that to have in your contract with the printer? I really don't like the sound of that clause. Without knowing all the specifics of the contract, that looks like it gives the printer the freedom to print up to 10% less than the actual order and to bill you for the actual number printed.

The last order has come about 100 copies short and I need these copies to distribute to advertisers and for promotion. The printer's quotation says that the quantity may come 10% under, unless I order 10% more... which I find unfair- why do I have to pay for unnecessary books?
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Why? Because that's what's in the contract. The big question is, why would you agree to it?

Assuming your missing 100 copies are within the 10% tolerance, you're SOL. They did what they promised to do within the parameters of the contract, and you need to pay them the balance. If you don't pay, they can sue and will likely win.

How you get your missing 100 copies is up to you. I would advise the company that if they wish to continue doing business with you they should do the 100 copies at cost because that's what you ordered, and any company worth its salt should be able to fulfill a contract to the letter.
 
Thank you for taking the time to answering my question.

If I (most likely) will have to take care of remaking missing 100 copies.... which means that I will have to order 1,000 (this is the minimum)- can I get the printer on unsatisfactory quality of the job? I mean, besides coming short on order, the magazines have been lousy trimmed: some ads clearly feature white field under, an indication that the page wasn't cut properly. Normally, I would not make a big deal out of it and let it go, but because of printer's attitude towards this situation and because the ad is from a big fashion brand who is very specific about quality and so on- can I tell the printer that the advertiser refuses to pay for the ad and therefore, I will demand printer to return me the money otherwise be paid by the advertiser? In other words, can I use this obvious printer's mistake for which they are responsible, I believe, as a lever in settling this issue?
Thank you again!
 
can I tell the printer that the advertiser refuses to pay for the ad and therefore, I will demand printer to return me the money otherwise be paid by the advertiser?
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I'm not sure what you're asking here. Is the advertiser refusing to pay, or are you just using that as a ploy?

What does your contract state about quality of print? If the prints aren't up to some contractually stipulated or industry standard, then maybe you can refuse payment. I couldn't say.
 
Thank you again for your help.
Threatening that advertiser would refuse to pay is speculation, a threat.
However, I thought this over and decided that I would like to schedule a meeting with a printer a.s.a.p., and first apply to their descency- don't you agree that if I order a certain number of copies, which I haven't received, it's your fault and you should pay for printing missing copies at your expense? And if they will stick with their version, that the contract anticipates 10% unders and therefore, I am fully responsible for anything that follows, I would say, that I also had signed the proofs, which feature ACCURATE trims and what I have received is not what I ordered. Therefore, I will pay the remaining balance and for printing extra copies... but then, I would sure them for a full amount, plus extra expense, plus cost of printing extra copies. plus the cost of mailing defected copies.... What do you think they will choose and is this the right thing to do? Please advice. Thank you!
 
don't you agree that if I order a certain number of copies, which I haven't received, it's your fault and you should pay for printing missing copies at your expense?
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Generally, yes. In the circumstances of your specific case, no.

And if they will stick with their version, that the contract anticipates 10% unders and therefore, I am fully responsible for anything that follows, I would say, that I also had signed the proofs, which feature ACCURATE trims and what I have received is not what I ordered. Therefore, I will pay the remaining balance and for printing extra copies... but then, I would sure them for a full amount, plus extra expense, plus cost of printing extra copies. plus the cost of mailing defected copies....
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If you really think the quality is so poor, don't pay them and then sue to get your money back. Just don't pay them. Let them sue you.

I have no idea what "extra expenses" you claim, so I can't speculate as to its merit. I would speculate your claim to be reimbursed for the cost of printing extras has no merit since you didn't pay for the unprinted copies in the first place (per the contract, they can only invoice for quantity shipped). I would speculate your claim to be reimbursed for mailing has no merit if those are costs you would have incurred anyways.
 
Hi,
Here's the latest: yesterday I went and meet with the printer's team. I said, that probably I won't win on missing quantity... but I can't accept the quality. The quality is not bad, but obviosly below high standards and my magazine is about high fashion and any imperfections, like entire content shifted up 1/4"+ are not acceptable because it looks unprofessional.
Most importantly, I said, I need the missing quantity first (because I need to send advertisers, subscribers and for promotion) and then we'll talk about payments. But I stated, that I believe this is the printer's fault and they will have to pay for it. At the end, as the only condition to move on, I had to pay the balance and today they called me up and said, that if I want extra copies to be printed in my time frame, it will cost me $1,000.
I said- ok, let's do it and we'll worry about money later. Needless to say, they required to pre-pay that $1,000 at once, by credit card. I thought, that as I will get my copies, which they use as a leverage against me now, then I can claim money back plus the cost of reprint, since it's a direct cause of their original unsatisfactory quality. This what I meant by "extra expenses". Was what I did right or I made another mistake and what would you reccomend to do next?
Thank you!
 
"Was it right" to pay them the balance, and an additional $1000 for the reprints? That's a business question, not a legal question. FWIW, business-wise, I would have taken my custom elsewhere and let them try to sue me to collect the balance. I am not thrilled about your negotiating position. They seem to have you over a barrel. "Worrying about the money later" is all well and good as long as you are holding the money.

they required to pre-pay that $1,000 at once, by credit card. I thought, that as I will get my copies, which they use as a leverage against me now, then I can claim money back plus the cost of reprint, since it's a direct cause of their original unsatisfactory quality.
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What "reprint"? You're not getting anything re-printed, are you? (The "unders" were never printed in the first place.)

You spent money in two ways: 1) paying for the order of copies they delivered, which you claim are substandard; 2) paying $1000 for the copies that were under and had to be printed.

You can try to recover for the substandard prints by suing them (at the earliest opportunity, hopefully) for breach of contract by delivery of substandard prints. I don't know if you'll succeed.

I am much less optimistic about your prospects of recovering the $1000 you just spent. This is not money that you had to spend because they breached the contract; it's money you had to spend because they delivered fewer prints than you ordered, as contemplated by the contract.
 
The 10% clause in printing is actually very common. Often it is either over or under 10% and you pay for the actual quantity delivered. I'd ask the printer to print what you need at cost - to retain you as a customer. It is really your only shot.
 
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