Terms and Conditions of Sale
1. In these terms and conditions (“Terms”), the word “Goods” shall refer to either the food packaging products or machinery to be provided by the Seller to the Buyer as agreed between them.
2. The Seller is Colpac Limited, registered in England and Wales with company number 00326182, Enterprise Way, Maulden Road, Flitwick, Bedfordshire, MK45 5BW which shall sell the Goods and the Buyer is the person, firm or company which shall buy the Goods from the Seller.
3. These Terms form the basis of the contract between the Seller and the Buyer. No variation of or addition to these Terms and no term or condition not set out herein shall be binding on the Seller unless the same is made in writing and signed by a director. In the event of any inconsistency or conflict between these Terms and any terms and conditions of the Buyer, these Terms shall prevail.
4. QUOTATIONS: Any quotation provided shall be subject to written confirmation by the Seller following receipt of an order from the Buyer and all prices quoted are exclusive of VAT.
5. TERMS
a) The Buyer shall pay for the Goods within 30 days of delivery and the time of payment is to be of the essence of the contract.
b) If the Buyer refuses to accept or take delivery of the Goods for any reason the Seller may, at its entire discretion, elect to give the Buyer notice of its intention to treat the Goods as delivered, such that the Buyer’s obligation to pay for the goods in accordance with clause 4(a) is triggered.
c) In the case of contracts involving more than one delivery, if the Buyer fails to make the required payment to the Seller on the due date for any one of the scheduled deliveries, the Seller may, at its entire discretion, treat the contract as repudiated by the Buyer and claim damages.
d) No cancellation of any order or part of an order will be accepted after the Buyer has signed an order except by mutual written agreement and then only on terms which will fully indemnify the Seller. Any Goods returned without the written consent of the Seller will be refused. The Seller reserves the right to cancel any order placed by the Buyer or to make any alteration to the specification of the Goods ordered if such cancellation or alteration is necessitated by any cause beyond the Seller’s reasonable control whether such cause exists at the date of the order or not. Without prejudice to the foregoing, the Seller reserves the right to change the design of any component parts of the Goods.
6. DELIVERY
a) Where a contract provides for one single delivery, Goods shall be delivered and accepted as soon as ready.
b) If the Buyer refuses to take delivery of any of the Goods, the Seller reserves the right to charge the Buyer £10 per pallet per week or part thereof until such time as the Buyer takes delivery, in addition to treating the Goods as delivered in accordance with clause 4(b) above, such that the Buyer’s obligation to pay for the Goods in accordance with clause 4(a) is triggered, together with interest in accordance with clause 16(a) below.
c) Each delivery shall constitute a separate contract and any failure or defect in any one delivery shall not vitiate the contract as to remaining deliveries.
d) Any completion or delivery date given by the Seller is an estimate only and shall not be or become a term of the contract or any contract collateral hereto. Any such completion or delivery date is given without any legal commitment, and the Seller shall not be liable for breach of any warranty or representation which may have been made in the course of negotiation in relation to a completion or delivery date.
e) The Buyer will accept delivery of the Goods ordered hereunder notwithstanding that delivery of all or part is made after the estimated delivery date.
f) Without prejudice to the generality of clause 4, the Buyer shall not be entitled to cancel an order or part of an order by reason of any failure by the Seller to deliver any Goods comprising a part of that order.
7. QUANTITY VARIATIONS: A shortage or surplus, charged pro rata, not exceeding 10 per cent, will be considered due execution of any order.
8. The Seller shall not be liable to the Buyer in respect of any failure to deliver in total or in part where this results from any failure of any supplier of the Seller to deliver on time to the Seller, or from any other cause or event whatsoever which is not under the direct control of the Seller.
9. All specifications, drawings and particulars of weight and dimensions submitted by the Seller to the Buyer are approximate only.
10. BUYER’S REQUIREMENTS, PRINTING AND CONSTRUCTION
a) Any alteration made by the Buyer to the original specification of Goods on and after first proof (including alterations in style or construction) will be charged extra by the Seller. Proofs of all work may be submitted for the Buyer’s approval and no responsibility will be accepted by the Seller for any errors that have been accepted by the Buyer.
b) The Buyer shall be solely responsible for the matter which the Buyer instructs the Seller to print on the Goods or for any design or construction which the Buyer supplies and instructs the Seller to execute and for any claim by a third party arising therefrom.
c) Every care will be taken to secure best results when materials are supplied by the Buyer, but the Seller will not accept responsibility for unsatisfactory work caused by defects in or unsuitability of materials so supplied.
d) All materials used in the manufacture of the Goods are a plus or minus 5% thickness tolerance compared with the material thickness specified.
11. SAMPLES
a) The contract between the Seller and the Buyer is not a contract for sale by sample, and the conditions implied by section 15 of the Sale of Goods act 1979 and section 5 of the Supply of Goods and Services Act 1982 are hereby expressly excluded from this contract.
b) Whilst every endeavour will be made to supply material in accordance with the quality of sample submitted and quoted for this cannot be guaranteed.
12.
a) The Seller shall not be liable for defects in, or damage to the Goods supplied to the Buyer or for any such Goods being in any other respect not in accordance with the contract, unless the Buyer notifies the Seller of the matters complained of in writing within 3 working days of delivery of the Goods. The Seller shall not be liable for any latent defects in any Goods delivered to the Buyer unless written notification of any such defect is given to the Seller by the Buyer within 3 working days of the defect coming to the attention of the Buyer. The Seller may at its sole discretion repair or replace any Goods so notified to it which are defective, damaged or in any other respect not in accordance with the contract.
b) Save as provided by clause 11c, the Seller’s liability in respect of Goods which are defective, damaged or in any other respect not in accordance with the contract is limited to (as the Seller may elect at its sole discretion) either giving the Buyer reasonable credit for the same or repair or replacement in accordance with clause 11a above. The Seller’s maximum liability cannot in any circumstances exceed the invoiced value of the Goods sold and proved to be defective, damaged or in any other respect not in accordance with the contract, and the Seller shall not be liable for any expenditure incurred by the Buyer in respect of such Goods nor for any loss of profit nor any indirect special or consequential loss or damage to the Buyer or any other person.
c) Nothing in these Terms shall limit or exclude the Seller’s liability for death or personal injury caused by the Seller’s negligence.
13. Where assembly and/or installation are affected by the Buyer, the Seller’s shall not be liable for any damage or loss or expense of whatsoever nature arising from improper, faulty or incorrect assembly and/or installation.
14. TITLE
a) All sketches, origination work, dies, cutting tools, typesetting, artwork, film, positives, negatives, transparencies and printing plates remain the property of the Seller for 6 months after the order is executed unless written arrangements are made to the contrary.
b) The title in the Goods supplied shall remain vested in the Seller until all monies payable by the Buyer to the Seller for the Goods have been paid in full (in cash or cleared funds).
c) If a Receiver is appointed over any of the assets or undertaking of the Buyer, or if a winding-up order is made against the Buyer, or the Buyer goes into voluntary liquidation or enters into administration (whether out of court or otherwise) or calls a meeting or makes any arrangement or composition with its creditors or any analogous proceedings or procedure or commits any act of bankruptcy or is otherwise insolvent or ceases or threatens to cease to trade, then all monies due to the Seller from the Buyer for the Goods shall become immediately due in full. In such event or if payment for the Goods is not made in full on the due date, the Buyer grants the Seller, its agent and employees an irrevocable licence at any time to enter upon the land or premises of the Buyer to recover the Goods.
d) Until all monies payable by the Buyer to the Seller for the Goods shall be paid in full (in cash or cleared funds): i) the Buyer shall store the Goods in such a way that they are all clearly the property of the Seller and are readily identifiable as such; and ii) the Buyer shall be not entitled to sell or otherwise transfer property in the Goods to any third party.
e) The Buyer’s property when supplied to the Seller will be held at the Buyer’s risk.
f) On termination of these Terms, howsoever caused, the Seller’s (but not the Buyer’s) rights contained in this clause 13 shall remain in effect.
15. Notwithstanding paragraph 13 above, risk in the Goods shall pass to the Buyer on delivery to the site. Any return of the Goods or part thereof to the Seller’s premises by the Buyer shall be at the risk of the Buyer unless such Goods are carried by the Seller, its agents or carriers in which case the Goods shall be at risk of the Seller. In the case of contracts including assembly, Goods and materials are deemed to be delivered on delivery to the site and they are stacked stored and assembled at the Buyer’s risk.
16. The Buyer undertakes that the site for delivery of the Goods shall be readily accessible when the Goods are delivered.
17. In the event that the Buyer does not pay the Seller in full for the Goods on the due date, the Seller, without prejudice to any other rights which it may have hereunder or otherwise, may:
a) charge the Buyer interest in respect of the amount outstanding at the rate of 6% per annum above the base rate for the time being of Barclays Bank Plc on all overdue payments, such interest to accrue daily until payment is made in full; and
b) suspend or cancel any orders placed by the same Buyer in whole or in part and suspend or cancel further deliveries under this and/or any other order placed by the Buyer.
18. The Buyer may not for any reason withhold or set-off payment and shall pay on the due date the contract price notwithstanding any claims the Buyer may have against the Seller, which claims must be made subsequently.
19. INTELLECTUAL PROPERTY
a) The Buyer acknowledges that all Intellectual Property Rights in the Goods or design services supplied (including the design of all such Goods) including any Intellectual Property Rights used by the Seller in connection with producing or selling the Goods or the design services are owned by the Seller no licence to any Intellectual Property Rights is granted under these Terms save to the minimum extent necessary for the sale itself.
b) The Buyer shall not use any of the Seller’s Intellectual Property Rights except where it has first obtained the specific written consent from the Seller to do so. This means that, amongst other things, the Buyer shall not, and shall not consider or attempt to, infringe any Seller Intellectual Property Right or seek to permit or encourage any third party to infringe any Seller Intellectual Property Right.
c) In making an order, the Buyer acknowledges the fundamental importance of such Intellectual Property Rights to the Seller and that any infringement of such rights is likely to result in serious damage to the Seller and its business.
d) In this Clause, “Intellectual Property Rights” means: patents, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist now or in the future in any part of the world.
e) In addition to the above, the Buyer shall not use the Goods or design services supplied as a basis for seeking the alternative supply of goods and services that resemble the Goods and design services supplied. This includes a restriction such that the Buyer shall not supply, or provide details of, the Goods or the design of the Goods to a third party anywhere in the World as part of a request that, or in any way related to seeking that, such third-party copy, replicate or imitate in any way the design of the Goods. The Buyer acknowledges and understands that doing so would be regarded as a serious breach of these Terms and as infringement of Intellectual Property Rights by the Seller.
20. The Seller reserves the right to vary the price without prior notice to the Buyer for the purpose of covering variations in the cost of raw materials, fluctuations in exchange rates, changes in any specification required by the Buyer or any other reason beyond the Seller’s direct control, whereupon the Goods not yet delivered shall be charged at the varied price.
21. Without prejudice to any other rights or remedies of the Seller, the Seller shall be entitled on giving notice to the Buyer to determine any contract forthwith, demand immediate payment of any amount due or accruing due to it thereunder and to retain any deposits, if any of the following circumstances occur;
a) the Buyer, not being a body corporate, becomes bankrupt or compounds or makes any arrangement with his creditors or commits any act of bankruptcy;
b) the Buyer, being a body corporate, goes into liquidation whether compulsory or voluntary (save for the purpose or amalgamation or reconstruction) or has a receiver appointed over its undertaking or assets or any part thereof:
c) the Buyer commits any breach of its obligations hereunder in relation to payment or any other obligation thereby causing the Seller loss.
22.
a) Any notice given by one party to the other under these Terms shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may have been notified pursuant to this provision. Notices may be served in person or by first class recorded delivery and shall be deemed served at the time of delivery.
b) No waiver by the Seller of any breach of contract by the Buyer shall be considered a waiver of any subsequent breach of the same or any other provision.
c) If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
23. FORCE MAJEURE: the performance of the contract is subject to variation or cancellation by the Seller owing to acts of God, war, strikes, lock-outs, fire, flood, drought, tempest or any other cause beyond the control of the Seller or owing to any inability by the Seller to procure materials or articles required for the performance of the contract and the Seller shall not be held responsible for any inability to deliver caused by any such contingency.
24. This contract shall be deemed to have been made in England and shall be governed in all respects (including in construction, validity and performance) by English Law. The parties shall submit to the jurisdiction of the English Courts provided that the Seller shall be entitled if it so elects to bring proceedings against the Buyer in the courts of the jurisdiction in which the Buyer resides or carries on business.