Packaging Services UK Ltd. is hereinafter termed the Seller, The Person, Firm or Company to whom this Order is issued is here in after termed the Customer.
CONDITIONS OF SALE.
1. ACCEPTANCE OF TERMS AND CONDITIONS.
(a) All Contracts and transactions between Packaging Services UK Limited (ďthe SellerĒ) and its customers whether verbally or in writing are unless otherwise agreed in writing by the Seller subject to these Terms and Conditions which shall be deemed to be incorporated in any Contract between the Seller and all or any customers of the Seller (ďthe CustomerĒ), to the exclusion of all other terms and conditions, including any terms and conditions which the Customer may purport to apply under any purchase order confirmation or similar document. (b) All orders for Goods shall be deemed to be on offer by the Customer to purchase Goods pursuant to these conditions.
(c) Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Customerís acceptance of these Terms and Conditions.
(d) These Terms and Conditions shall constitute the whole Agreement between the Seller and its customers and may not be modified or varied unless specifically accepted by the Seller in writing.
(e) In these Conditions: ďGoodsĒ shall mean goods, accessories and materials supplied by the Seller. ďContractĒ shall mean an order for the supply of Goods and/or services made by a Customer and accepted by the Seller.
All tenders and quotations are made and orders are accepted by the Seller on the basis of information supplied by the Customer. In the event of such information proving insufficient or inaccurate the Seller reserves the right to vary the Terms there of and to increase the price tendered or agreed, to such extent as it may deem appropriate.
3. LIMIT OF CONTRACT.
The Sellerís obligation shall extend only to the Goods, work and services specified or referred to in the Contract with the Customer. No variations shall be made unless the same shall be agreed in writing between the Seller and the Customer.
4. CANCELLATION AND EXTRA COSTS.
Cancellation of any orders cannot be accepted or Goods returned for credit, unless previously agreed in writing by the Seller. Where such cancellation is agreed, the Seller reserves the right to charge the Customer the amount of any loss or expense incurred or cost of material used and a reasonable amount for overhead charges and profits. In the event of a delay in or suspension of the work by the Customerís instructions, or lack of instructions, faulty information, or any cause beyond the Sellerís control, for example currency fluctuation, the contract prices shall be increased to cover and the Customer shall be liable to the Seller for any extra expense thereby incurred by the Seller.
(a) Delivery of the Goods shall be made (i) to the buyerís premises, or (ii) if some other place for delivery is agreed in writing between the Seller and the Customer, to that place.
(b) Any time quoted for delivery will run from the latest date of receipt by the Seller of all items necessary to enable the Seller to put the work in hand, including a written order to proceed with the manufacture or supply of the Goods, any necessary licence or permit and any other necessary information. The Seller may deliver goods in advance of the quoted delivery date on giving reasonable notice to the Customer.
(c) Any dates given by the Seller for delivery are only estimates and are not essential Terms of the Contract. The Seller will not be liable for any loss, damage or expense arising directly or indirectly from any delay or failure to deliver however caused.
(d) If the performance of a Contract shall be delayed due to circumstances or conditions beyond the control of the Seller the obligations on the Seller shall be suspended for as long as such circumstances prevail.
(e) Without prejudice to the provisions of Clause 15(a(iii)), if the Customer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the times stated for delivery, the Seller may store the Goods until actual delivery. The Customer shall pay on demand all storage charges incurred by the Seller in terms of this Clause 5(e).
6. TERMS OF PAYMENT.
(a) All prices and charges quoted by the Seller are exclusive of VAT or other governmental charges and carriage charges, unless otherwise stated, and are subject to variation in the event of fluctuations in the cost of labour, materials and overheads. Any increase in such costs during the period of production may be added to the quoted price, but any prices quoted by the Seller will be maintained for thirty days (errors and omissions excepted) from the date of quotation. The amount of any tax or other governmental charge upon the production, sale and/or shipment or otherwise of the Goods whether now imposed by any government or other authority or hereafter becoming effective shall be added to the prices and charges specified and shall be payable by the Customer.
(b) Payment in respect of Goods supplied shall be made on or prior to taking delivery of the Goods unless credit arrangements have been agreed in advance with the Seller. In that event the invoiced price shall be paid by the customer within thirty days of the issue thereof. The Seller does not give settlement discounts unless its prior agreement in writing has been given. The time of payment shall be an essential Term of the Contract.
(c) Interest at the rate of four percent per month above the current base lending rate will be payable by the Customer on all sums remaining unpaid after the due date for payment.
(d) If the Seller fails to make any payment on the due date, then without prejudice to any of the Sellerís other rights under these Terms and Conditions, the Seller may appropriate any payment made by the Buyer to such of the Goods (or Goods supplied under any other contract with the Buyer) as the Seller may in its sole discretion think fit.
(e) In the case of partial completion of an order, the Seller shall be entitled to payment of the price of the Goods supplied. The whole price under the Contract shall be apportioned accordingly.
7. RESERVATION OF TITLE-SCOTLAND.
This provision shall apply to Goods supplied to a Customer in Scotland:-
(a) Property in Goods shall not pass from the Seller to the Customer until the price thereof has been paid in full. The Customer shall store the Goods in such a manner that they are readily identifiable as the Sellerís Goods until the full price is paid.
(b) In the event of failure by the Customer to pay any part of the price by the due date for payment, in addition to any other remedies available to the Seller under these Terms and Conditions or otherwise, the Seller shall be entitled to reposes the Goods. The Customer will assist and allow the Seller to repossess the Goods as aforesaid and for this purpose admits procure the admission of the Seller or its employees and agents to the premises in which the Goods are situated.
(c) If the Customer becomes apparently insolvent or compounds with his or its creditors or has a Liquidator, Receiver or Administrator appointed over all or any of its assets or carried out or undergoes any analogues act or proceeding under foreign law prior to property in any Goods passing, the Customerís right to re-sell or otherwise deal in the Goods shall automatically terminate and the Seller shall be entitled to repossess any of the Goods in respect of which title has not passed as aforesaid.
8. RESERVATION OF TITLE-ENGLAND AND WALES.
This provision shall apply to Goods supplied to a customer in England and Wales:-
(a) Goods shall remain the sole and absolute property of the Seller as legal and equitable owner until such a time as the Customer shall have paid to the Seller the agreed price together with the full price of any other Goods the subject of any other Contract with the Seller.
(b) The Customer acknowledges that he is in possession of the Goods solely as bailee (person receiving goods in trust) for the Seller until such time as the full price thereof is paid to the Seller together with the full price of any other Goods the subject of any other Contract with the Seller.
(c) Until such a time as the Customer becomes the owner of the Goods, he will store them on his premises separately from his own goods or those of any other person and in a manner which makes them readily identifiable as the Goods of the Seller.
(d) The Customerís right to possession of the Goods shall cease if he, not being a Seller commits an available act of bankruptcy or if he, being a Seller does anything or fails to do anything which would entitle any person to present a petition for winding-up. The Seller may for the purpose of recovery of its Goods enter upon any premises where they are stored or where they are reasonably thought to be stored and may repossess the same.
(e) Subject to the Terms hereof, the Customer is licensed by the Seller to process the said Goods in such a fashion as he may wish and/or incorporate them in or with any other product or products subject to the express condition that the new product or products or any other chattel whatsoever containing any part of the Goods shall be separated stored and marked so as to be identifiable as being made from or with Goods the property of the Seller.
(f) If any Goods the property of the Seller are admixed with goods the property of the Customer or are processed with or incorporated therein, the product thereof shall become and/or shall be deemed to be the sole and exclusive property of the Seller. If the Goods the property of the Seller are admixed with goods the property of any person other than the Customer or are processed with or incorporated therein, the product thereof shall become or shall be deemed to be owned in common with that other person.
(g) The Customer shall be at liberty to agree to sell on any product produced from or with the Sellerís Goods on the express condition that such an agreement to sell shall take place as agents and bailees (person receiving goods in trust) for the Seller whether the Customer sells on his own account or not and that the entire proceeds thereof are held in trust for the Seller and are not mingled with any other monies and shall at all times be identifiable as the Sellerís monies.
(h) If the Customer has not received the proceeds of any such sale he will, if called upon so to do by the Seller within seven days thereof assign to the Seller all rights against the person or persons to whom he has supplied any product or chattel made from or with the Sellerís Goods.
9. RESERVATION OF TITLE - OUTSIDE THE UNITED KINGDOM.
This provision shall apply to Goods supplied to a Customer outside the United Kingdom:-
The provision of Clause 8 above shall apply in so far as recognised by the jurisdiction in question and enforceable there under, to the intent that the Seller, until it has received payment in full, shall retain the maximum of rights and powers in relation to the Goods as against the Customer and any other party who has any dealings with the Goods.
Not withstanding that property in the Goods has not passed under Clauses 7,8, or 9 here of, the risk of loss or damage to the Goods shall pass to the Customer on the earlier of (i) the time of their delivery, or (ii) the time at which the Buyer fails to take delivery of the goods.
11. FITNESS FOR PURPOSE.
No condition is made or implied nor is any warranty given or to be implied as to the life or wear of the Goods supplied or that they will be suitable for any particular purpose or for use under any specific conditions not withstanding that such purpose or conditions may be known or made known by the Seller. The Customer agrees that apart from the express terms contained herein or in the tender or quotation or in any document expressly stipulated therein to form part of the Contract and to be outside the provisions of this Clause, no statement or representation has been made by the Seller relating to the Goods supplied, or if any such statements or representations have been made the Customer warrants that he understood them to be statements of opinion only and did not rely on them.
12. QUALITY OF GOODS.
(a) The Customer shall be deemed to have accepted Goods delivered within the United Kingdom as being in accordance with the Contract and free from all defects which would be apparent on a reasonable examination unless, within seven days after receipt of the Goods, the Customer shall have given to the Seller a written notice specifying the matters complained of and shall hereafter afford the Seller a reasonable opportunity to inspect the Goods before they have been used or processed.
(b) Where the Goods are to be exported, the Customer or his representative may inspect the same at the Sellers Works before despatch, and the Seller shall not be liable for any claim made after the date of shipment.
(c) The Seller shall not be liable for defects which would not be apparent on a reasonable examination unless, within six months after the receipt of the Goods or within one thousand working hours whichever shall first occur and forthwith upon the discovery of such defect, the Customer shall have given to the Seller a written notice specifying the matters complained of and shall there after afford the Seller a reasonable opportunity of inspecting the Goods in their alleged defective state.
(d) Provided that the Customer has complied with the requirements as to notice in Terms of this Clause, if the Goods or any part thereof are found by the Seller to be defective or otherwise not in accordance with the contract then, if the Seller and the Customer do not agree that the Customer should accept the Goods at an agreed value, the Seller undertakes either to:-
i) Repay to or credit the Customer with the invoice price there of (including freight) and any reasonable transport costs incurred by the Customer in returning the relevant Goods from the place of delivery of such Goods to the Sellerís premises; or
ii) Remedy any defects or replace the Goods as soon as may be reasonably practicable.
(a) The liability of the Seller to the Customer in respect of defects in the Goods and for breach of the Contract and for negligence there to shall be limited to the obligations under the Terms of Clause 12 and the Seller shall have no other liability whatsoever to the Customer. Not withstanding the terms of this paragraph, nothing contained in these Terms and Conditions shall affect the Sellerís liability under the Unfair Contract Terms Act 1977 for death or personal injury caused by the negligence of the Seller. Where permitted by law so to do the Seller shall be entitled to limit its liability in respect of any such death or personal injury to the sum of £500,000.
(b) The Customer shall not be entitled to withhold payment of any amount payable under any Contract to the Seller because of any disputed claim of the Customer in respect of faulty Goods or any other alleged breach of the Contract, nor shall the Customer be entitled to set-off any amount payable under the Contract to the Seller against any monies which are not then presently payable by the Seller or for which the Seller disputes liability.
14. INTELLECTUAL PROPERTY.
The Customer shall indemnify the Seller against all damages, penalties, costs and expenses to which the Seller may become liable as a result of work done in accordance with the Customerís specifications which involves the infringement of any copyright, letters patent, registered design or other intellectual property rights.
(a) The Seller shall be entitled without prejudice to its other rights and remedies either to terminate wholly or in part any Contract between itself and the Customer or to suspend any further deliveries under any or every such Contract in any of the following events.:-
i) If any debt is due and payable by the Customer to the Seller but is unpaid.
ii) If the Customer has failed to provide any prepayment, Bill of Exchange or other security required by the Contract, provided that in such event the aforesaid rights of termination or suspension shall apply only in regard to the particular Contract in respect of which the Customer shall have so failed.
iii) If the Customer has failed to take delivery of any Goods under any Contract between himself and the Seller otherwise than in accordance with the Customerís contractual rights.
iv) If the Customer becomes apparently insolvent or compounds with his or its creditors or has a Liquidator, Receiver or Administrator appointed over all or any of its assets or carried out or undergoes any analogous act or proceeding under foreign law.
b) The Seller shall be entitled to exercise its aforesaid rights of termination or suspension by notice in writing to the Customer at any time during the continuance of the event or default giving rise thereto and in the event of any such suspension the Seller shall be entitled as a condition of resuming delivery under any Contract between it and the Customer to require prepayment or such security as it may require for the payment of the price of any further delivery.
Any notice required under a Contract or these Terms and Conditions may be delivered personally or sent by first class recorded delivery post or airmail or transmitted by facsimile, in each case to the registered office or business address of the party to whom the notice is addressed and any such notice shall be deemed to have been validly served is sent by post on the expiry of forty eight hours from the time of posting and if delivered personally or transmitted by facsimile at the time of delivery or transmission provided that any such facsimile is confirmed by letter sent within twenty four hours of transmission.
(a) The Customer shall not be entitled to assign the Contract or any benefit there under. The Seller shall be entitled to sub-contract the performance of any part of the Contract but shall remain primarily responsible.
(b) The Contract shall be governed by and interpreted according to the Law of Scotland, with the exception of Clause 8 which shall be governed by and interpreted according to the Law of England.
(c) Any failure by the Seller to enforce any of the provisions of a Contract or these Terms and Conditions shall not be a waiver by it of its rights to enforce that provision.
(d) If any Clause of these Terms and Conditions is held to be invalid or unenforceable, it shall be severed from the remaining Clauses.