1. INTERPRETATION
1.1 The definitions and rules of interpretation in this condition shall apply in these conditions.
Combined Goods: any Goods which have been joined or connected in any way to other goods by or on behalf of the Customer in such a way that the Goods are nevertheless readily identifiable
and removable;
Commercial Unit: a unit of Goods, the division of which would materially impair the value of the Goods or the character of the unit;
Company: KM Packaging Services Limited;
Conditions: these Terms and Conditions of Supply;
Confidential Information: any information disclosed by one (the disclosing party) to another (the receiving party) if the disclosing party has notified the receiving party that the information is confidential, or the information could reasonably be supposed to be confidential;
Contract: any contract between the Company and the Customer for the sale of Goods and / or Services, incorporating these Conditions;
Customer: the person, firm or company who purchases the Goods and / or Services from the Company;
Goods & Services: any goods or Services agreed in the Contract to be sold by the Company to the Customer (including any part or parts of them);
Incorporated Goods: any Goods which have been incorporated into other goods by or on behalf of the Customer in such a way that the Goods are not readily identifiable and removable;
Input Material: any documents, plans, drawings, patterns, designs, substrate, plates or other materials including samples, and any instructions, specification, data or other information provided by the Customer to the Company relating to the Goods;
Intellectual Property Rights: any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports, drawings, specifications, know how, trade secrets, rights in software, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent or similar rights to any of the foregoing in any jurisdiction, whether registered or unregistered;
Output Material: any documents plans, drawings, patterns, designs, substrate, plates or other materials, and any data or other information provided by the Company to the Customer relating to the Goods;
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Any reference to "parties" means the parties to the Contract and "party" shall be construed accordingly.
1.4 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.5 Words in the singular include the plural and in the plural include the singular.
1.6 A reference to one gender includes a reference to the other gender.
1.7 Condition headings do not affect the interpretation of these Conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under Condition 2.3, the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Customer's purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to the sale of all Goods and Services by the Company and any variation to these Conditions and any representations about any Goods or Services shall have no effect unless expressly agreed in writing and signed by an authorised signatory of the Company. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this Condition shall exclude or limit the Company's liability for fraudulent misrepresentation.
2.4 Each written purchase order or acceptance of a quotation for Goods and/or Services by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods and/or Services subject to these Conditions.
2.5 No order placed or quotation accepted by the Customer shall bind the Company until the Company has accepted the Customer’s order in writing.
2.6 Any quotation is given on the basis that no Contract shall come into existence until the Company has accepted the Customer’s order pursuant to Condition 2.5 above. Any quotation is valid for a period of 30 days only from its date (unless otherwise specified), provided that the Company has not previously withdrawn it.
2.7 No order placed or quotation accepted by the Customer which has in turn been accepted by the Company pursuant to Condition 2.5 may be cancelled, varied, or deferred by the Customer, except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), charges and expenses incurred by the Company as a result of such cancellation, variation or deferment.
3. DESCRIPTION
3.1 The quantity and description of the Goods and / or Services shall be as set out in the Company's acceptance of the Customer’s order issued pursuant to Condition 2.5.
3.2 Although reasonable precautions will be taken by the Company to ensure the accuracy of such information, all descriptive matter, weights, dimensions, and performance data supplied by the Company and any descriptions and illustrations contained in the Company’s data sheets, technical bulletins, catalogues, price lists, website and other advertising matter are approximate only and are intended merely to convey a general description of the Goods and / or Services; they are not (unless it is expressly so stated in the Contract) deemed to form any part of any Contract and are not to be regarded as a warranty or representation.
3.3 The Customer shall be responsible to the Company for ensuring the accuracy and completeness of the terms of any order submitted by the Customer and for giving the Company all necessary information relating to the Goods within a sufficient time to enable the Company to fulfil its obligations under the Contract.
3.4 All Input Material held by the Company on behalf of the Customer shall be held at the Customer’s risk and expense and the Customer shall insure the same against all risks whilst it is in the Company’s possession.
3.5 The Company reserves the right at its sole discretion to reject any substrate, plates or any other Input Material which appears to the Company to be unsuitable for the purposes of fulfilling its obligations under the Contract or which does not conform to specification. Notwithstanding the foregoing, the Company shall have no responsibility for checking the suitability, accuracy or completeness of any Input Material. No responsibility is accepted by the Company for imperfect work or delays in delivery due to any Input Material being defective, unsuitable, inaccurate, incomplete, or untimely.
3.6 The Customer warrants that any Input Material submitted by the Customer shall not cause the Company to infringe any Intellectual Property Rights of any other person. The Customer shall hold the Company harmless and shall fully indemnify the Company against any and all loss, damage, costs and expenses awarded against or incurred by the Company in connection with, or paid or agreed to be paid by, the Company, in settlement of any claim for infringement of any Intellectual Property Rights of any other person resulting from the Company’s use of any Input Material submitted by the Customer.
3.7 The Customer warrants that any Input Material submitted by the Customer shall not contravene any applicable safety or other statutory or regulatory requirement. The Customer shall hold the Company harmless and shall fully indemnify the Company against any and all loss, damage, costs and expenses awarded against or incurred by the Company as a result of any breach of this warranty.
3.8 The Company will notify the Customer in writing of any proposed material modifications to the Goods and the Customer shall be deemed to have accepted such modifications unless notice in writing to the contrary shall be received by the Company within 3 days of the date of the Company’s notice to the Customer.
3.9 All Goods shall be supplied by the Company to any standard commercial tolerances that apply within the appropriate industry, unless the Customer notifies the Company in its order of any special tolerances that the Customer requires and the Company agrees in writing to deliver the goods accordingly.
3.10 Subject to the provisions of Condition 9.2 (b), the Customer shall be solely responsible for ensuring the suitability of any Goods for any specific purpose.
3.11 Without limiting the generality of Condition 3.10, all recommendations and advice given by or on behalf of the Company to the Customer as to any method of using or storing the Goods, or the Goods’ suitability for use in any manufacturing process or in connection with any other materials,is in either case given without liability on the part of the Company.
4. DELIVERY
4.1 Delivery will normally be arranged by the Company to the Customers address but delivery terms will be separately agreed in writing, with costs agreed in advance.
4.2 Reasonable endeavours will be made by the Company to deliver the correct quantity of Goods ordered by the Customer. However, the Customer may not reject short or excess deliveries which are within a margin of twenty per cent (20%) short and twenty per cent (20%) over. In such cases, the Company will adjust the price of the Goods proportionately.
4.3 The Company will submit proofs of work to the Customer for approval, subject to schedule constraints. The Company shall not be liable for any delay resulting from the Customer’s failure to return proofs promptly, nor for any errors in the proofs which are not corrected by the Customer. 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 work will be deemed acceptable unless otherwise agreed in writing.
4.4 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.5 Delivery dates and periods shall be extended as necessary if any delay in delivery is caused as set out in Condition 7.3 of these Conditions or due to any other circumstances beyond the control of the Company. If any such delay causes the Company to revise agreed production schedules delivery will (subject to these Conditions) be in accordance with such revised schedules which will be notified to the Customer.
4.6 The Customer may request earlier delivery dates than those originally agreed and the Company will at their discretion endeavour to accommodate such requests providing that sufficient notice is given. Any additional costs associated with achieving an earlier delivery date will be for the Customer's sole account.
4.7 The Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, but are not limited to, pure economic loss, loss of profits, loss of business, loss of production depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods and / or Services (even if caused by the Company's negligence).
4.8 The Customer must examine the Goods upon delivery and within 2 days thereafter notify the Company in writing of any visible defects. In default the Customer will be deemed to have examined and accepted the Goods. Where the Contract is for the sale of Goods making up one or more Commercial Units, the Customer accepting any Goods included in a Commercial Unit shall be deemed to have accepted all of the Goods making up the Commercial Unit.
4.9 If for any reason the Customer fails to take or accept delivery of any or all of the Goods, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Customer (including for loss or damage caused by the Company's negligence);
(b) the Goods shall be deemed to have been delivered; and
(c) the Company may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including storage and insurance and redelivery); or
(d) sell the Goods at the best price readily obtainable and (after deducting any reasonable costs and expenses in connection with the storage and expedited sale of the Goods), charge the Customer for any shortfall below the price for the Goods.
4.10 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.11 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
4.12 Without prejudice to the provisions of Condition 4.11, the Company reserves the right to charge for the storage of Goods at such rate as shall be agreed with the Customer, if:
(a) the Customer requests that its order be put on hold; or
(b) if any Goods are held by the Company (through no fault of the Company) for any period of time beyond any date specified by the Company for the delivery of the Goods.
4.13 Where the Goods are supplied to the Customer’s specification or design, the Customer shall be responsible for ensuring that insofar as is reasonably practicable:
(a) the Goods are so designed as to be safe and without risk to health when properly used; and
(b) such testing and examination is carried out as may be necessary for ensuring that the Goods are safely designed; and
(c) adequate information will be available in connection with the use of the Goods in relation to the use for which they are designed and regarding any conditions necessary to ensure that when put to that use, the Goods will be safe and without risk to health.
4.14 The Customer shall indemnify the Company against:
(a) any costs, expenses, claims, demands or actions which may be made against the Company in this regard or otherwise arising out of any failure on the part of the Customer to undertake the obligations detailed in Condition 4.15; and
(b) all costs and expenses incurred by the Company in dealing with any claims, demands or actions referred to in sub-clause (a) above and in rectifying any defects in the Goods.
4.15 Where the Goods consist of wrappers, containers or any other articles intended for use in connection with any foodstuffs or any substances or materials of a sensitive, volatile or delicate nature, the Customer shall be solely responsible for satisfying itself that such foodstuffs, substances or materials will not be adversely affected by any materials used by the Company in the manufacture or printing of such articles. The Customer shall indemnify and keep indemnified the Company from and against all liability to any third party in respect of any claim that any foodstuffs, substances or materials have been adversely affected as aforesaid and have thereby caused said third party loss, damage or expense.
4.16 The Customer undertakes that it will comply with and will procure that its employees, customers and every other person working with, on, or near or using the Goods shall comply in full with the instructions and recommendations made in any manual or handbook or instructions provided by the Company or other manufacturer of the Goods and that they will comply with all other instructions given in connection with the use of the Goods.
4.17 The Goods are designed to be used without danger to health and safety where correctly used in accordance with the relevant National or International Standard, the rating for which the Goods were designed and accepted good practice. If the Customer intends to use the Goods under unusual conditions (especially if special risks to health and safety are posed), it shall be the sole responsibility of the Customer to ensure the safe use of the Goods in such circumstances.
5. DAMAGE IN TRANSIT AND NON-DELIVERY
5.1 No claim for loss or damage in transit or for errors in despatch or invoicing will be accepted by the Company unless a separate written notice is given to the Company within 2 days of receipt of the Goods. In the case of non-delivery a written notice must be given to the Company within 2 days of the invoice date.
5.2 If liability is accepted by the Company under Condition 5.1, the Company will repair or replace as appropriate at their sole discretion any lost or damaged Goods. The Customer shall have no other claim and the Company shall be under no liability for consequential loss or damage suffered by the Customer by reason of any delay in final delivery.
5.3 The Company will not accept the return of any Goods which have been properly supplied under the Contract.
6. RISK AND TITLE
6.1 Risk of damage to or loss of the Goods shall pass to the Customer:
(a) in the case of Goods to be delivered at the Company’s place of business, at the time when the Company notifies the Customer that the Goods are available for collection; or
(b) in the case of Goods to be delivered other than at the Company’s place of business, at the time of delivery of the Goods to the Customer’s premises, or such other location as shall be notified by the Customer to the Company in advance of despatch of the Goods.
6.2 Title to the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Customer on any account.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Company's bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company's property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery and indemnify the Company against all loss or damage of whatsoever nature affecting the Goods;
(e) notify the Company immediately if it becomes subject to any of the events listed in Condition 12.1 (c) to (f) inclusive;
(f) not assign to any other person any rights arising from a sale of the Goods without the Company’s written consent (and then only subject to a set of terms and conditions containing a Risk and Title clause which is at least as onerous as this Condition 6);
(g) not pledge or in any way charge by way of security for any indebtedness any of the Goods (and if the Customer does so, all moneys owing by the Customer to the Company shall, without prejudice to any other right or remedy of the Company, forthwith become due and payable); and
(h) give the Company such information relating to the Goods as the Company may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business, provided that it shall hold the entire proceeds of any such resale upon trust for the Company until the Goods have been paid for in full and shall keep all such trust monies in a separate bank account which shall not be overdrawn and in which such trust monies are not mingled with its own or any other monies. The Customer acknowledges and agrees that a sale by an administrator or liquidator as part of or in connection with the sale of the assets or part of the assets of the Customer is not in the ordinary course of the Customer’s business.
6.4 If:
(a) the Customer is late in paying for the Goods and / or Services; or
(b) the Customer is late in paying for any other goods supplied by the Company; or if
(c) before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in Condition 12.1 (c) to (f) inclusive or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then:
(d) without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, the Company may enter any premises of the Customer or of any third party where the Goods are stored or kept in order to recover them. The Customer shall not keep the Goods at any premises at which the Customer does not have the right to grant access to the Company.
6.5 With respect to any Combined Goods, the Company shall be entitled to remove and repossess the Combined Goods pursuant to Condition 6.4 (d) regardless of the practical difficulty of so doing or any damage caused to such other goods in the course of taking all reasonable steps to effect such removal (whether such other goods belong to the Customer or to third parties) and the Customer waives any claim it may have against the Company for any damage caused to its goods as a result of taking such reasonable steps and shall indemnify the Company in full against any claim made against the Company by any third party arising out of or in connection with such reasonable steps being taken by the Company.
6.6 With respect to any Incorporated Goods, the Customer shall store such Incorporated Goods separately and shall notify the Company of the precise location and position thereof and the ownership of such Incorporated Goods and the property therein shall vest in the Company. Upon any sale of any Incorporated Goods by the Company, then if the proceeds of sale exceed the price or the balance of the price of the Goods due to the Company from the Customer, the Company shall apply the balance of the proceeds of sale as follows:
(a) firstly, by reimbursing the Company for the cost and expense of the taking of possession of and arranging for the sale of the Incorporated Goods and any damages which the Company has suffered as a result of any repudiation of the Contract by the Customer;
(b) secondly, by paying any sums due and owing to other creditors of the Customer in respect of other items and materials used in connection with the manufacture of the Incorporated Goods where the property in such items and materials has remained vested in such other creditors by reason of effective retention of title clauses and the claims of such other creditors pursuant to such retention of title clauses have been notified to the Company by
the Customer or its liquidator, administrator or receiver, or by such other creditors.
7. PRICE
7.1 Unless otherwise agreed by the Company in writing, the price for the Goods and Services shall be the price confirmed in the Company’s acceptance of the Customer’s order issued pursuant to Condition 2.5, but the Company reserves the right to vary the price and to invoice the Customer at the price ruling at the date of despatch of the Goods.
7.2 If the cost to the Company of performing the Company’s obligations under the Contract shall be increased by reason of the making or amendment of any law or of any order, regulation, or bylaw having the force of law that shall affect the performance of the Company’s obligations under the Contract, the amount of such increase shall be added to the Contract price.
7.3 The Company reserves the right, by giving notice to the Customer at any time before delivery of the Goods, to increase the price of the Goods if the period between acceptance of the Customer’s order and delivery of the Goods is in excess of three months, or to reflect any increase in any cost to the Company which is due to any factor beyond the control of the Company (including any foreign exchange fluctuation, currency regulation, alteration of duties, increase in transportation costs and any increase in the costs of labour, materials or other costs of manufacture), or if there is any change in delivery dates, quantities or specifications for the Goods which is requested by
the Customer, or if there is any increase in any cost to the Company which is in any other way attributable to the Customer. Without limiting the generality of this Condition 7.3, the Company may increase the price of the Goods to reflect any cost increase caused by:
(a) any alteration to the instructions given by the Customer;
(b) any alteration requested by the Customer which requires the submission of additional proofs;
(c) artwork and origination and plate charges;
(d) any experimental, preliminary or additional work requested by the Customer other than that specified in the Company’s acceptance of the Customer’s order issued pursuant to Condition 2.5;
(e) the cost of any alterations or modifications to the Goods requested by the Customer as a result of any tests or inspections of any experimental work undertaken by the Company;
(f) any additional work involved where any Input Material is submitted late, or is found by the Company during production to be defective, unsuitable, inaccurate or incomplete;
(g) any expenses incurred by the Company in procuring appropriate substrate, plates or other materials;
(h) storage charges for retaining any material produced in origination work.
7.4 Unless otherwise agreed in writing between the Customer and the Company, the Contract price shall be exclusive of Value Added Tax which will be charged at the rate which is applicable at the date of despatch of the Goods.
7.5 Any waiver or reduction of any price will only be applicable if agreed by the Company in writing.
8. PAYMENT
8.1 The Company shall be entitled to invoice the Customer for the price of the Goods and / or Services immediately after delivery, or in line with the terms of the order if different.
8.2 The Company’s invoices shall be paid within 30 days of invoice date unless explicitly stipulated differently in writing by the Company, pursuant to Condition 2.5.
8.3 The time of payment of the price shall be of the essence of the Contract.
8.4 No payment shall be deemed to have been received until the Company has received cleared funds. Payment will not be made by cheque, without the prior written agreement of the Company. Any costs incurred by the Company in attempting to clear cheques received shall be charged to the Customer, who will reimburse the Company immediately.
8.5 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
8.6 Any failure by the Customer to pay the Company any sum by the due date for payment and/or the occurrence of any one or more of the events set forth in Condition 12.1 shall entitle the Company, at any time and without notice to the Customer and without limiting any other remedy available to the Company under these Conditions, the Contract, or otherwise:
(a) at its option, to charge interest at the rate of six percent (6%) per annum above the Bank of England’s base lending rate from time to time calculated on a daily basis (whether before or after any judgment) until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest);
(b) to charge the Customer with any costs incurred by the Company in the course of collecting outstanding monies due to the Company from the Customer;
(c) to suspend any warranty for the Goods or any other goods supplied by the Company to the Customer, whether or not they have been paid for;
(d) to appropriate any payment made by the Customer to such of the Goods as the Company may think fit;
(e) to set off any amount owed by the Company to the Customer against any amount owed by the Customer to the Company on any account whatsoever;
(f) to terminate the Contract, or suspend or cancel the further delivery of any Goods and / or Services, including, stopping the delivery of any Goods in transit;
(g) to withdraw or reduce any agreed monthly credit limit; and (h) to cancel any discount (if any) offered to the Customer.
8.7 The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
8.8 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.9 For the avoidance of doubt, and notwithstanding the exercise of any remedy by the Company in accordance with Condition 8.6, or under any other of these Conditions, the Contract, or otherwise, the Customer shall remain liable to pay and shall pay the Company at the Contract rate, any and all payments subsisting at the relevant time.
8.10 The Company shall retain a general lien on the full value of all Goods provided until such Goods have been fully paid for.
9. WARRANTIES
9.1 The Company warrants that upon delivery (subject to the provisions of Condition 9.1):
(a) the Goods will correspond in all material respects with any agreed specification submitted by the Customer and shall be within expected industry standards with regard to defects in materials, workmanship and design; and
(b) if the Customer has made it expressly known to the Company in the Customer’s order that the Goods shall be suitable for a particular purpose and the Company has expressly stated in the Company’s acceptance of the Customer’s order issued pursuant to Condition 2.5 that it will supply Goods suitable for that purpose, then the Goods shall be reasonably fit for the purpose so stated, subject to Customer approval and trial.
9.2 The Company shall not be liable for a breach of any of the warranties in Condition 9.1 unless:
(a) the Customer gives written notice of any defect or deficiency to the Company within 7 days from the date that the Customer discovered or ought to have discovered the defect or deficiency; and
(b) the Company is given a reasonable opportunity after receiving the notice of examining the Goods and the Customer returns such Goods to the Company's place of business at the Company's cost for the examination to take place there, or at the option of the Company, the Goods are made available at the Customer's premises for inspection by the Company.
9.3 The Company shall not be liable for a breach of any of the warranties in Condition 9.1 if:
(a) the Customer makes any further use of any Goods which the Customer has alleged to be defective after giving notice of any such defect; or
(b) the Customer alters or repairs the Goods without the prior written consent of the Company; or
(c) the defect arises because the Customer failed to follow any oral or written instructions as to the storage or use of the Goods or (if there are none) good trade practice; or
(d) the defect arises from any Input Material submitted by the Customer, or from fair wear and tear, wilful damage, negligence, abnormal working conditions or from any misuse of the Goods, or otherwise as a result of failure of the Customer to comply in full with any manual or handbook or instruction containing the technical specifications and operating instructions supplied by the Company for the Goods; or
(e) the Goods have been used for an application other than that specified at the time the Customer’s order was acknowledged, or otherwise not in accordance with the Company’s instructions;
(f) the full price for the Goods has not been paid by the time for payment referred to in Condition 8.2; or
(g) the defect is of a type specifically excluded by the Company by notice in writing.
9.4 Subject to Condition 9.2 and Condition 9.3, if the Goods do not conform to the applicable warranties in Condition 9.1:
(a) the Company shall at its option:
(i) repair the Goods;
(ii) replace such Goods (or the defective part); or
(iii) refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Customer shall, at the Company's expense, return the Goods or the part of such Goods which is defective to the Company; and
(b) the Company shall, if it opts to replace defective Goods, then deliver replacement Goods to the Customer (at the Company’s expense) and ownership of the defective Goods shall, if it has vested in the Customer, re-vest in the Company.
9.5 For the avoidance of doubt (but without prejudice to the provisions of Condition 9.5 (a)), the failure of any part of the Goods to conform to either warranty in Condition 9.2 (a) or (b) shall only render the Company liable to repair, replace or refund the value of that part of the Goods which is defective.
9.6 If the Company complies with Condition 9.4 it shall have no further liability for any breach of the applicable warranties in Condition 9.1.
10. LIMITATION OF LIABILITY
10.1 Save for any stipulation as to the Company’s liability contained elsewhere in these Conditions, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
(a) any breach of these Conditions;
(b) any use made or resale by the Customer of any of the Goods or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in these Conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company's negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
10.4 Subject to Condition 10.2 and Condition 10.3:
(a) the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price, PROVIDED THAT where the Company’s liability is referable only to a particular portion of the Contract price, then the Company’s total liability shall in no circumstances exceed the value of that portion of the Contract price; and
(b) the Company shall not be liable to the Customer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for indirect or consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
11. INDEMNITY
The Customer shall hold the Company harmless and keep the Company fully and promptly indemnified against all direct, indirect or consequential liabilities (all three of which terms include, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with any claim made by or against the Company in respect of any liability, loss, damage, injury, cost or expense whatsoever, howsoever and to whomsoever occurring, to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from any act or omission of the Customer, or from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.
12. TERMINATION
12.1 The Company shall have the right at any time by giving notice in writing to the Customer to terminate the Contract forthwith without liability to the Customer if:
(a) the Customer commits a material breach of any of these Conditions and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing of the
breach; or
(b) the Customer repeatedly breaches any of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to
give effect to these Conditions; or
(c) any distress, execution or other process is levied upon any of the assets of the Customer, or the Customer has a bankruptcy order made against it or makes an arrangement or
composition with its creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or administrative receiver appointed over its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator over the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
(d) any event occurs, or proceeding is taken, with respect to the Customer under the laws of any jurisdiction to which the Customer is subject, that has an effect equivalent or similar to any of the events or proceedings mentioned in Condition 12.1 (c); or
(e) the Customer ceases, or threatens to cease, to carry on all or substantially the whole of its business; or
(f) the financial position of the Customer deteriorates to such an extent that in the reasonable opinion of the Company, the capability of the Customer adequately to fulfil its obligations under the Contract has been placed in jeopardy.
12.2 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of any Goods and Services held or supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt;
(b) the Company may exercise its rights under Condition 6 hereof to recover any Goods from the Customer's premises for which payment has not been made in full, whether or not such
payment is due; and
(c) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
12.3 On termination of the Contract (however arising), Conditions 6-12, 14 and 16 shall survive and continue in full force and effect.
13. ADDITIONAL EXPORT TERMS
13.1 In these Conditions “Incoterms 2020” means the international rules for the interpretation of credit terms at the International Chamber of Commerce as in force at the date when the Contract arises. Unless the context otherwise requires, any term or expression which is defined here or given a particular meaning by the provisions of Incoterms 2020 shall have the same meaning in these Conditions.
13.2 Where the Goods are supplied for export, the provisions of this Condition 13 shall (subject to any special terms agreed in writing between the Customer and the Company) apply, notwithstanding any other provisions of these Conditions.
13.3 Depending on the terms agreed, the Customer may be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them. The Contract shall be subject to the procurement by the Customer at the Customer’s own expense of any import licence and any other authorisations necessarily required for the import of the Goods into the country to which the Goods are to be exported, but failure to obtain any such documents shall not entitle the Customer to cancel the Contract.
13.4 Any import licence required shall be the responsibility of the Customer and will be provided to the Company on a needs basis. In the event of the import licence expiring before the Goods have been made available it shall be the responsibility of the Customer to obtain the renewal of such licence. The Company shall not be liable for any expense or loss caused by delay in obtaining such licence or the renewal thereof.
13.5 The Goods shall be delivered on the terms agreed between the parties and quoted on the order acknowledgement sent to the Customer and the Company shall be under no obligation to give the Customer the notice relating to insurance under Section 32(3) of the Sales of Goods Act 1979.
14. CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS
14.1 The Customer and the Company agree that in the course of the Company supplying Goods and Services to the Customer, the parties may disclose to each other certain Confidential Information. The Customer and the Company agree that each party will maintain the Confidential Information’s confidentiality and not disseminate it to any third party without the disclosing party’s prior written consent, save that this obligation shall not apply to any Confidential Information that either party has a duty (whether legal or otherwise) to communicate or that is in the public domain or is already in the receiving party’s possession through no fault of the receiving party. The Customer shall not use any Confidential Information for any purpose other than to carry out the Customer’s obligations to the Company.
14.2 The Customer acknowledges the Company’s ownership of any Intellectual Property Rights in any Output Material and in any Goods provided to the Customer pursuant to the Contract and agrees not to contest the Company’s ownership or use of any such Intellectual Property Rights. The Customer shall not acquire any such Intellectual Property Rights or any licence or grant of rights therein, nor shall the Customer register or attempt or permit to be registered, any such Intellectual Property Rights or any licence or grant of rights therein. No Output Material may be copied or reproduced in whole or in part without the prior written consent of the Company. The
Customer further acknowledges that any and all Intellectual Property Rights developed by the Company in producing and supplying any Goods and Services shall become vested and shall vest in the Company absolutely. The Company makes no representation or warranty that the use of the Goods will not infringe the Intellectual Property Rights of any third party and the Company accepts no liability in this respect.
15. ASSIGNMENT/SUBCONTRACTING
15.1 The Company shall endeavour to not reassign the Contract or any part of it to any person, firm or company without the prior written consent of the Customer.
15.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
15.3 The Company, but not the Customer, shall be entitled to subcontract any or all of its obligations under all or any part of the Contract.
16. FORCE MAJEURE
The Company reserves the right to defer the date of delivery, or to cancel the Contract or reduce the volume of the Goods and Services ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including Acts of God, governmental actions, acts, restrictions, regulations, by-laws, prohibitions or measures of any
kind on the part of any governmental, parliamentary or local authority, war, threat of war, sabotage, insurrection, civil disturbance or requisition or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, pandemic, tempest, accident, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), import or export regulations or embargoes, restraints or delays affecting carriers or any inability or delay in obtaining supplies of adequate or suitable materials, difficulties in obtaining labour, fuel, parts or machinery or power failure or breakdown in machinery provided that, if the event in question continues for a continuous period in excess of 180 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
17. GENERAL
17.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
17.2 The Contract constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties.
17.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
17.4 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
17.5 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
17.6 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
17.7 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts.
18. COMMUNICATIONS
18.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by email:
(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Customer by the Company; or
(b) (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Customer.
18.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by email, on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
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