Terms and conditions of supply
CONDITIONS FOR THE SUPPLY OF GOODS & SERVICES BY ALPHAPAK LTD
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions:
1.1.1 “Buyer” means the individual, firm, company or other party with whom the Seller contracts
1.1.2 “Buyer’s Materials” means goods or materials supplied by the Buyer
1.1.3 “these Conditions” means the standard conditions set out below and any other terms of sale set out or referred to in the Seller’s acknowledgement of order
1.1.4 “Goods” means such Products and/or Seller Designs and/or services or any of them as the Seller agrees to supply to the Buyer
1.1.5 “Intellectual Property Rights” means copyright, design right, registered designs, database rights, trade marks, logos, patents and all other intellectual property rights of whatever nature
1.1.6 “International Supply Contract” means such a contract as is described in section 26(3) of the Unfair Contract Terms Act 1977
1.1.7 “Products” means all materials and services supplied
1.1.8 “Seller” means Alphapak Ltd
1.1.9 “Seller Designs” means artwork, copy, designs, illustrations, photographs and other artistic works produced by or on behalf of the Seller
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re- enacted, or extended from time to time.
1.3 If the Seller fails to enforce strict compliance with these Conditions by the Buyer such failure will not constitute a waiver of any of the provisions of these Conditions.
1.4 If any provision of these Conditions is or becomes illegal, void or unenforceable the validity of the remainder of the provisions shall not be affected.
1.5 The headings to the clauses of these Conditions are for ease of reference only and shall not affect the interpretation or construction of these Conditions.
2. CONTRACT TERMS, VARIATIONS AND REPRESENTATIONS
2.1 No order placed by the Buyer as a result of a quotation or otherwise shall be binding on the Seller unless and until that order is accepted by the Seller. Any contract between the Seller and the Buyer shall be subject to these Conditions. Any variation of these Conditions must be in writing and signed by a director of the Seller, and no other representative or agent of the Seller has authority to agree any terms or make any representations inconsistent with these Conditions or to enter into any contract except on the basis of these Conditions. Reference in these Conditions to the Seller agreeing matters in writing means that the agreement in writing must be signed by a director of the Seller.
2.2 Unless otherwise agreed in writing by the Seller these Conditions shall apply to the exclusion of any terms and conditions of the Buyer or any inconsistent terms implied by law or trade custom, practice or course of dealing.
2.3 Where the Seller has not given a written acknowledgement of the Buyer’s order these Conditions will nonetheless apply to the contract provided that the Customer has had prior notice of them.
2.4 The Company reserves the right to correct any clerical or typographical errors made by its employees at any time.
3. SPECIFICATION, INSTRUCTIONS AND MEASUREMENTS
3.1 If Goods are made or produced to a specification, instruction or design supplied by the Buyer or any third party on behalf of the Buyer then:
3.1.1 the suitability and accuracy of that specification, instruction or design will be the Buyer’s responsibility; and
3.1.2 the Buyer will indemnify the Seller against any infringement or alleged infringement of any third party’s Intellectual Property Rights and any loss, damage or expense which the Seller may incur by reason of any such infringement or alleged infringement in any country; and
3.1.3 the Buyer will indemnify the Seller against any loss, damage or expense in respect of any liability arising in any country by reason of the Goods being made or produced to such specification, instruction or design.
3.2 All weights, measurements and specifications quoted by the Seller are subject to manufacturing tolerances.
3.3 Exact conformity with samples cannot be guaranteed.
3.4 Goods, and in particular (but not by way of limitation), pigmented materials, are subject to colour variations.
3.5 Prior to production of plates for the purpose of printing, the Seller will produce a proof of the design or (where the Seller has agreed to supply a Seller Design) Seller Design for use on the Products for the Buyer’s written approval. Unless the Buyer reasonably refuses such approval the Buyer will sign such proof and return it to the Seller within 5 days of receipt. No alterations can be made once such proof is so approved unless otherwise agreed in writing by the Seller.
4. QUOTATIONS AND PRICES
4.1 Quotations are for information only and are not an offer and are valid for 30 days from the quotation date unless withdrawn earlier by the Seller.
4.2 The Seller reserves the right to increase its prices at any time to take account of any increase in the cost to the Seller of buying any products or materials or manufacturing working on or supplying any Goods (including but not limited to increases arising from any error or inadequacy in any specification, instructions or design provided by the Buyer, any modification carried out by the Seller at the Buyer’s request or any change in the exchange rates) and such increased prices ruling at the date of despatch by the Seller shall be substituted for the previous contract price.
4.3 All prices quoted are exclusive of VAT and the Buyer shall pay any and all taxes, duties and other government charges payable in respect of the Goods.
4.4 The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of Goods, but full credit will be given to the Buyer provided they are returned undamaged to the Seller before the payment date.
5. SELLER DESIGNS
5.1 Where the Seller has agreed to produce a Seller Design all Intellectual Property Rights in the same shall vest in and remain vested in the Seller unless otherwise agreed in writing by a Director of the Seller notwithstanding that any payment may have been made by the Buyer in respect to the Seller Design. The Buyer may not use or authorise any third party to use any Seller Design without the prior written consent of a Director of the Seller.
5.2 Once the Buyer has paid the agreed contract price for a Seller Design ordered by it or placed on order with the Seller in respect to which the Seller Design is to be used then unless otherwise agreed in writing by a Director of the Seller the Buyer shall have a licence to use the Seller Design as specified by the Seller, and any further use of the Seller Design shall be subject to obtaining the prior written consent of a Director of the Seller and to payment of such licence fee as the Seller may specify.
6.1 Quantities of Products despatched may vary by up to plus or minus 10% in weight or capacity from those ordered, and this will be deemed to be good performance of the contract. The actual weight or capacity delivered shall be shown on the invoice and the Buyer shall pay for the actual weight and/or capacity it receives pro rata within the tolerances stated in this clause.
7. SUITABILITY FOR PRINTING
7.1 Any designs submitted by the Buyer (other than Seller Designs) shall be subject to acceptance by the Seller as suitable for printing. The colours printed may differ from those on the designs. Printed proofs will not normally be supplied by the Seller but, if so supplied, no guarantee is given that the final colours printed will correspond with such printed proofs.
8.1 All tooling used to produce the Products or the Seller’s Designs are and shall remain the Seller’s property notwithstanding that payment may have been made by the Buyer for the same.
8.2 Tooling can only be guaranteed for quality of use for a period of 24 months from the date of the first order after which time the Seller shall be entitled to dispose of the same without notice to the Buyer.
9.1 Unless otherwise agreed in writing by the Seller the Buyer shall collect the Goods from the Seller’s premises within 7 days of receiving notification from the Seller that the Goods are ready. Loading of the Goods shall be at the Buyer’s risk and expense
9.2 If the Seller expressly agrees in writing to deliver the Goods the Seller shall deliver the Goods by the means most convenient to it to the address or addresses in mainland Britain specified by the Buyer at the time it places its order (or if the Buyer has not specified an address) to any address in mainland Britain at which the Buyer resides or carries on business. The Seller shall be entitled to add to the contract price a reasonable charge for packaging and delivery. Off-loading shall be at the Buyer’s risk and expense.
9.3 If the contract is an International Supply Contract it shall be deemed to incorporate the latest edition of Incoterms current at the date of the contract. If there is any inconsistency between Incoterms and any express term of the contract the latter shall prevail. The Seller shall be under no obligation to give the Buyer the notice specified in section 32(3) of the Sale of Goods Act 1979.
9.4 If the Seller is delayed in or prevented from making delivery of or producing any Goods due to any cause whatsoever beyond its reasonable control the Seller shall be entitled to terminate the contract or suspend the order placed by the Buyer without incurring any liability for any loss or damage arising therefrom, but without prejudice in any such case to rights accrued to the Seller in respect of deliveries already made or services already performed.
9.5 Any date for delivery given by the Seller in its order acknowledgement or otherwise cannot be confirmed unless the Buyer acknowledges and accepts such date in writing within three working days of receipt of the Seller’s acknowledgement/confirmation of order. The Seller will try to deliver and/or produce Goods by any agreed date or dates, but although given in good faith, dates given for the provision of proofs and/or the commencement of production and/or for delivery are estimates only and the Seller will not be liable for any failure to meet such date or dates. Time for delivery shall not be of the essence of the contract.
9.6 The Seller shall be entitled to defer delivery until any payments due from the Buyer have been received.
9.7 Where Products are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the contract as a whole as repudiated.
10. RISK IN THE PRODUCTS
10.1 Except in the case of International Supply Contracts and subject to any other agreement in writing by the Seller, the risk in Products which the Seller agrees to supply shall pass to the Buyer on the Deemed Delivery Date as defined in clause 10.2.
10.2 In these Conditions “the Deemed Delivery Date” shall mean:-
10.2.1 the date when the Seller notifies the Buyer the Products are ready for collection or
10.2.2 the date when the Seller delivers the Products to the Buyer or
10.2.3 the date on which the Buyer fails to provide a delivery address or fails to take delivery in accordance with the contract or
10.2.4 the date on which, the Products being ready for delivery, delivery is postponed at the Buyer’s request
whichever shall first occur. Delivery shall be deemed to be completed before off-loading or (in the case of delivery at the Seller’s premises) before loading of the Products.
10.3 Buyer’s Materials shall be at the Buyer’s sole risk at all times, and the Seller shall have no liability for any loss of or damage to Buyer’s Materials however this may be caused and whether or not due to the Seller’s negligence.
11.1 Unless otherwise agreed in writing by a Director of the Seller, in the case of Products and/or services the Seller shall issue to the Buyer a proforma invoice when the order is received and the terms of payment shall be those stipulated in that proforma invoice. In the case of Seller Designs payment of the full contract price must be made by the Buyer prior to printing/plate making commences, unless stipulated otherwise in writing by a Director of the Seller.
11.2 If the Seller agrees in writing that in the case of Goods payment of the full contract price or any part of it may be made after delivery of the Goods then unless otherwise specified in writing by the Seller, payment shall be made by the Buyer net cash not later than 30 days after the invoice date notwithstanding that property in the Goods has not passed to the Buyer. In such case (and without prejudice to clauses 11.1 and 11.4) the Seller shall be entitled to invoice the Buyer for the contract price of Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
11.3 Time for payment shall be of the essence of the contract. Without prejudice to any other rights of the Seller interest will be payable on all overdue accounts at HSBC Bank Ltd base rate plus 4% or at the rate specified from time to time under the provisions of the Late Payment of Commercial Debts (Interest) Act 1998 (whichever is the higher) and for the purposes of clauses 11 and 14 hereof the full contract price for the Goods and the Seller Designs shall include all interest payable hereunder.
11.4 Where Goods are to be delivered outside the UK payment must be by irrevocable letter of credit in London or by such other means as the Seller may specify.
11.5 Payment shall be made by the Buyer in Pounds Sterling unless otherwise specified in writing by the Seller.
12. FAILURE TO PAY, CANCELLATION OR DEFERMENT
12.1 If there is a default event as described in clause 12.2 the Seller may defer or cancel any further deliveries or services, stop any Goods in transit and treat the contract as terminated without prejudice to its rights to the full purchase price for Goods delivered and services performed and damages for any loss suffered by the Seller due to such termination.
12.2 A default event shall be any of the following:
12.2.1 the Buyer’s failure to make any payment when it becomes due;
12.2.2 breach by the Buyer of any of the terms or conditions of the contract;
12.2.3 the Buyer’s proposal for or entry into any composition or arrangement with creditors;
12.2.4 the presentation against the Buyer of any petition for a bankruptcy order, administration order, winding up order, or similar process;
12.2.5 the appointment of an administrative receiver or administrator or receiver in respect of the business or any part of the assets of the Buyer;
12.2.6 the Seller forming the reasonable opinion that the Buyer has become or is likely in the immediate future to become unable to pay his, her or its debts (adopting, in the case of the company, the definition of that term set out in Section 123 of the Insolvency Act 1986).
12.3 Cancellation of the contract by the Buyer will only be accepted at the Seller’s discretion and in any case on condition that any costs or expenses incurred by the Seller up to the date of cancellation and all loss or damage resulting to the Seller because of such cancellation will be paid by the Buyer to the Seller immediately. Acceptance of such cancellation will only be binding on the Seller if in writing and signed by a director.
12.4 Any costs incurred by the Seller because the Buyer suspends or defers any order or because the Seller does not collect, or give instructions for the delivery of, any Goods will be payable by the Buyer immediately on demand.
13. LIMITATION OF LIABILITY
13.1 The Seller will have no liability for damage in transit, shortage of delivery or loss of Goods where the Buyer has not given to the Seller written notice of such damage, shortage or loss with reasonable particulars thereof within 7 days of receipt of the Goods or (in the case of total loss) of receipt of the invoice or other notification of despatch. If the Seller has any liability for damage in transit, shortage of delivery or loss of Goods this shall be limited to refunding to the Buyer the price of or replacing (at the Seller’s discretion) that part of the Goods which is damaged, lost or not delivered but the Buyer must, if so requested provide authority in writing for the Seller’s servants or agents to inspect any damaged Goods within 14 days of the Seller’s request.
13.2 Subject to the foregoing the Seller will have no liability for any loss, costs or expenses (including but not limited to loss of profits, loss of business, loss of opportunity, loss of contracts, loss of anticipated profits, downtime in relation to labour or machinery, loss in relation to raw materials, third party claims, costs, penalties, transport costs, disposal costs or rectification costs) arising out of any damage in transit, shortage of delivery or loss of Goods.
13.3.1 Save as otherwise expressly provided in these Conditions the Seller’s liability in respect of any defective Goods supplied or work done is limited to refunding the price paid by the Buyer for Goods or (at the Seller’s discretion) resupplying Goods which, in the case of defects apparent upon inspection, within 7 days of delivery to the Buyer, and in the case of defects not so apparent, within 2 months of delivery to the Buyer, are found to be defective or fail or are unable to perform in accordance with the contract by reason of faulty or incorrect design workmanship or materials.
13.3.2 If there is any error in any weight, dimension, capacity, performance or other description which has formed a representation or is part of a contract the Seller’s liability in respect to such error (if any) shall not exceed the price of the Goods in respect of which the description is incorrect.
13.3.3 Conditions precedent to the Seller’s liability hereunder shall be that a) as soon as reasonably practicable and in any event within the time limits in clause 13.3.1 the Buyer shall have given to the Seller written notice of the defect, failure or error and shall have provided written authority for the Seller’s servants or agents to inspect the Goods within 14 days of such notice and b) the Buyer shall have stored the Goods in accordance with the Seller’s instructions
13.3.4 The Seller shall have no other or further liability in respect of any direct or consequential loss or damage sustained by the Buyer arising from or iconnection with any such defect failure or error as aforesaid.
13.4 Where the Seller agrees to replace Goods in accordance with the foregoing provisions of this clause or otherwise any time specified for delivery under the contract shall be extended for such period as the Seller may reasonably require.
13.5 All Goods sold by the Seller are supplied with the benefit of the terms implied by section 12 of the Sale of Goods Act 1979. Subject thereto, and whether or not the contract is a contract of sale, all other conditions, warranties and other terms express or implied, statutory or otherwise, are expressly excluded, save insofar as expressly contained herein or as otherwise expressly agreed by the Seller in writing provided that if and insofar as any legislation or any order made thereunder shall make or have made it unlawful to exclude or purport to exclude from the contract any term or shall have made unenforceable any attempt to exclude any such term, the foregoing provisions of this clause will not apply to any such term.
13.6 In the event of any negligence or wilful default on the part of the Seller, its servants or agents in or in connection with the supply of any Goods or the design or manufacture thereof or in the carrying out of any work the Seller shall have no liability to the Buyer except as otherwise expressly provided in these Conditions.
13.7 This clause 13 shall have effect subject to the provisions of section 2(1) of the Unfair Contract Terms Act 1977.
13.8 The provisions of clause 13 are severable and the invalidity or unenforceability of one provision shall not affect that of any other.
14. RETENTION OF TITLE
14.1 The following provisions shall apply to all contracts other than International Supply Contracts and to all Products, which under the contract the Seller agrees to supply to the Buyer.
14.1.1 Upon delivery of the Products and subject to clause 14.3 the Buyer shall hold the Products solely as bailee for the Seller and the Products shall remain the property of the Seller until such time as the Buyer shall have paid to the Seller the full purchase price of all Goods supplied by the Seller whether under the contract or under any other contract. Until such time the Seller shall be entitled to recover the Products or any part thereof and for the purpose of exercising such rights the Buyer hereby grants a licence to the Seller its employees and agents with appropriate transport to enter upon the Buyer’s premises and any other location where the Products are situated and remove the Products.
14.1.2 The Buyer shall maintain all appropriate insurance in respect of the Products from the date or dates on which the risk therein passes to him. In the event of any loss or damage occurring while the Products remain the property of the Seller the Buyer shall immediately on receipt of the insurance monies, remit to the Seller the full purchase price of the Products lost or damaged less any part thereof which has already been paid and until such amount has been so remitted shall hold such amount as trustee and agent for the Seller.
14.1.3 For the avoidance of doubt, the provisions of this clause 14 do not affect the Buyer’s obligations under clause 11 hereof.
14.2 In the case of International Supply Contracts property in the Products shall pass to the Buyer on delivery.
15. INTELLECTUAL PROPERTY RIGHTS
15.1 If a claim is made against the Buyer that the Goods infringe or that their use or resale infringes the Intellectual Property Rights of any other person, then unless the claim arises from the use of a drawing, design or specification supplied by the Buyer, the Seller shall be responsible to the Buyer for any damages awarded against the Buyer by a court of competent jurisdiction in respect to such claim and paid by the Buyer provided that:
15.1.1 the Seller is given full control of the proceedings or negotiations in connection with the claim;
15.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
15.1.3 except pursuant to a final award, the Buyer shall not pay or accept the claim, or compromise any such proceedings without the prior written consent of the Seller;
15.1.4 the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and the Seller’s liability hereunder shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
15.1.5 the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
15.1.6 without limiting any duty of the Buyer at common law, the Seller may require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any damages for which the Seller is liable to pay to the Buyer under this clause.
15.2 The Seller shall have no liability to the Buyer for any action, loss, cost, claim or expense suffered by the Buyer (whether in contract, tort (including but not limited to negligence) or otherwise in respect to or arising out of any claim as described in clause 15.1 except as expressly accepted in clause 15.1.
16. LAW AND JURISDICTION
16.1 The proper law of all contracts with the Seller shall be English law which shall govern in all respects the construction and effect of such contracts and of these Conditions. The Buyer agrees that if there is any dispute arising out of the contract or the performance thereof it will submit to the jurisdiction of the English courts.