JSL PACKAGING LTD
CONDITIONS OF SALE
1. INTERPRETATION
1.1 In these Conditions:
“Buyer” means the
person whose order for the Goods and/or Services is accepted by the Seller;
“Buyer’s Materials” has the meaning set out in condition 5.1;
“Charged Stock” means any Goods which the
Seller agrees to retain at its premises at the Buyer’s request until the date
of its release;
"Conditions" means the terms and conditions of sale set out in this document and
(unless the context otherwise requires) any special terms and conditions agreed
in writing by the Seller;
“Confidential Information” means any information of a secret or confidential nature including
(but not limited to) technical and non-technical information, business and
marketing plans and policies, client lists, terms of contracts or agreements
and other similar information relating to the Seller and its suppliers or
customers;
"Contract" means the relevant contract between the Seller and the Buyer for the
sale and purchase of the Goods and/or the supply of the Services;
"Goods" means
the goods (including any instalment or parts of them, and any Charged Stock
(unless otherwise stated) but excluding any Buyer’s Materials) which the Seller
is to supply in accordance with these Conditions;
"Incoterms" means the international rules for the interpretation of trade terms
of the International Chamber of Commerce as in force at the date when the
Contract is made;
“Intellectual Property Rights” means all intellectual property rights (whether
vested, contingent or future) including patents, trade and service marks, trade
names, rights in designs, copyrights, typography rights, database rights, trade
secrets and know-how, in each case whether or not registered and including
registrations and applications for registrations of any of the same and all
rights and forms of protection of a similar nature or having equivalent or
similar effect to any of the same anywhere in the world;
“Price” means the
price of the Goods and/or the Services;
“Seller" means [ JSL
Packaging Ltd] Limited (registered number [ 4790478].
“Services” means any
design or other services to be provided by the Seller pursuant to the Contract
whether in relation to the supply of Goods or otherwise.
1.2 In these Conditions, the masculine
shall include the feminine and the neuter, and the singular the plural, and
vice versa as the context shall admit or require.
1.3 The expression "person"
shall mean any person, body corporate, unincorporated association and
partnership.
1.4 The headings in these Conditions are
for ease of reference only and shall not affect their construction.
1.5 Any reference to a statutory provision
shall include that provision as from time to time modified or re-enacted
provided that in the case of modifications or re-enactments made after the date
of the Contract they shall not have effected a substantive change to that
provision.
1.6 Unless the context otherwise requires,
any term or expression which is defined in or given a particular meaning by the
provisions of the Incoterms shall have the same meaning in these Conditions,
but if there is any conflict between the provisions of the Incoterms and these
Conditions, the latter shall prevail.
2. BASIS OF THE SALE
2.1 The Seller shall sell
and the Buyer shall purchase the Goods and/or the Services in accordance with
any written order of the Buyer which is accepted by the Seller, subject to
these Conditions. For the avoidance of
doubt, the Seller may refuse any order in its absolute discretion.
2.2 All other terms and
conditions (except those implied in favour of a seller which are not
inconsistent with these Conditions) whether or not the same are endorsed upon,
delivered with or referred to in any purchase order or any other document
delivered or sent by the Buyer to the Seller are expressly excluded.
2.3 Receipt of the Goods
by the Buyer or completion of the Services by the Seller shall be deemed to be
conclusive proof that the Buyer has accepted these Conditions in the absence of
any express or other implied acceptance of these Conditions by the Buyer.
2.4 No variation to these
Conditions shall be binding unless agreed in writing between the authorised
representatives of the Buyer and the Seller.
2.5 The Seller's
employees or agents are not authorised to make any representations concerning
the Goods or Services unless confirmed by the Seller in writing. In entering into the Contract the Buyer
acknowledges that it does not rely on, and waives any claim for breach of, any
such representations which are not so confirmed.
2.6 Any advice or
recommendation given by the Seller or its employees or agents to the Buyer or
its employees or agents as to the Services or to the storage, application or
use of the Goods (whether in conjunction with other materials or otherwise)
which is not confirmed in writing by the Seller is followed or acted upon
entirely at the Buyer's own risk, and accordingly the Seller shall not be
liable for any such advice or recommendation which is not so confirmed.
2.7 Any typographical,
clerical or other error or omission in any sales literature, quotation, price
list, acceptance of offer, invoice or other document or information issued by
the Seller shall be subject to correction without any liability on the part of
the Seller.
2.8 The Buyer shall
provide to the Seller all information necessary to enable it to perform the
Contract. If it does not do so, the
Seller shall have such additional time to perform the Contract as may be
required by it.
3. QUOTATIONS AND
ORDERS
3.1 Any quotation or
estimate given by the Seller is an invitation to the Buyer to make an offer
only and no order of the Buyer placed with the Seller in pursuance of a
quotation or estimate or otherwise shall be binding on the Seller unless and
until it is accepted by an authorised representative of the Seller.
3.2 All quotes are valid
for 30 days only or until earlier acceptance by the Buyer, after which time
they may be altered by the Seller without giving notice to the Buyer.
3.3 The quantity, quality
and description of and any specification for the Goods and/or the Services
shall be those set out in the Buyer's order (if accepted by the Seller). The Buyer shall be responsible to the Seller
for ensuring the accuracy of the terms of any order (including any applicable
specification) submitted by the Buyer.
3.4 No order which has
been accepted by the Seller may be cancelled by the Buyer except with the
agreement in writing of the Seller and on terms that the Buyer shall indemnify
the Seller in full against all loss (including loss of profit), costs
(including the cost of all labour and materials used), damages, charges and
expenses incurred by the Seller as a result of cancellation.
4. SPECIFICATIONS AND
SAMPLES
4.1 If the Services are
to be performed or the Goods are to be manufactured or any process is to be
applied to the Goods by the Seller in accordance with a specification submitted
by the Buyer, the Buyer shall indemnify the Seller against all loss, damages,
costs and expenses awarded against or incurred by the Seller in connection with
or paid or agreed to be paid by the Seller in settlement of any claim for
infringement of any Intellectual Property Right of any person which results
from the Seller's use of the Buyer's specification.
4.2 The Seller reserves
the right to make any changes in the specification of the Goods or Services
which are required to conform with any applicable safety or other statutory
requirements or, where the Goods or Services are to be supplied to the Seller's
specifications, which do not materially affect their quality or performance.
4.3 All sketches, origination work,
drawings, artwork, specifications, mouldings, dies and other such items
prepared or provided by the Seller shall remain the property of the Seller and
shall be returned to the Seller on request.
The Seller may destroy or dispose of such items at its absolute
discretion and without liability to the Buyer.
4.4 The Seller may make an additional
charge for artwork, design and origination work including proofs, samples and
models and accepts no responsibility in respect of any errors, omissions or
defects in or arising from the same if they have been approved by the Buyer.
4.5 Samples are used
solely to enable the Buyer to judge for itself the quality of the bulk and as a
mere indication of the type and quality of the Goods and not so as to
constitute a sale by sample. The Buyer
shall take the Goods at its own risk as to their corresponding with the said
sample.
5. BUYER’S MATERIALS
5.1 The Buyer is advised to retain
duplicates or copies of any master artwork, films, tapes, disks and other
materials provided by it to the Seller in connection with the Contract
(“Buyer’s Materials”).
5.2 The Seller’s
liability for any loss of or damage to any of the Buyer’s Materials or any
Charged Stock whilst in the possession or custody of the Seller (whether such
loss or damage is due directly to the negligence of the Seller, its employees
or agents, or otherwise) shall not exceed the limits set out in condition 5.3
unless:-
5.2.1 at the time of ordering the Goods from
the Seller the Buyer shall declare in writing to the Seller a special interest
in the Buyer’s Materials and/or the Charged Stock and agrees to pay a surcharge
over the Price calculated by reference to the extent of that interest; and
5.2.2 in respect of the Buyer’s Materials,
prior to the initial delivery of such materials to the Seller the Seller
provides the Buyer with a written acknowledgement of such special interest
setting out the extent to which the Seller agrees to narrow the scope of its
limitation of liability in respect of such loss or damage to the Buyer’s
Materials as may occur in the future; or
5.2.3 in respect of the Charged Stock, prior to
the Seller notifying the Buyer that the Charged Stock is available for delivery
to the Buyer the Seller provides the Buyer with a written acknowledgement of
such special interest setting out the extent to which the Seller agrees to
narrow the scope of its limitation of liability in respect of such loss or
damage to the Charged Stock as may occur in the future.
5.3 The limits referred to in condition
5.2 are:-
5.3.2 the Price of the Goods and/or Services
supplied pursuant to the Contract under which the liability arises in respect
of all other claims (including, without limitation, any claims for
consequential loss or damage).
5.4 The Buyer shall insure all Buyer's
Materials and Charged Stock whilst they are in the possession or custody of the
Seller for all
risks (including loss of profit) in full or for the excess over the Seller’s
limit of responsibility set out in condition 5.3.
5.5 The Buyer acknowledges and agrees that
the Seller will have no knowledge of the intrinsic value to the Buyer of any of
the Buyer's Materials or Charged Stock nor of the consequential losses the
Buyer may suffer as a result of any loss of or damage to any of the Buyer's
Materials or Charged Stock whilst in the possession or custody of the Seller
nor does it have the ability to insure against any such loss or damage unless
it is notified of a special interest pursuant to condition 5.2, and that
therefore the limits on the Seller’s liability set out in condition 5.3 are
reasonable in all the circumstances.
6. PRICE
6.1 The Price:-
6.1.1 shall be the Seller's quoted price or,
where no price has been quoted (or a quoted price is no longer valid), the
price listed in the Seller's published price list current at the date of
acceptance of the order. Where the
Goods are supplied for export from the United Kingdom, the Seller's published
export price list shall apply;
6.1.2 is exclusive of any applicable value
added tax, which the Buyer shall be additionally liable to pay to the Seller,
at the rate applicable at the appropriate tax point;
6.1.3 is ex works unless otherwise stated, and
where the Seller agrees to deliver the Goods otherwise than at the Seller's
premises, the Buyer shall be liable to pay the Seller's charges for transport,
packaging and insurance; and
6.1.4 does not include the cost of cases or
other packing materials which shall remain the property of the Seller and will
be returnable at the Buyer’s expense at the request of the Seller. Any such cases or packing materials not
returned by the Buyer within 30 days of such request shall be paid for by the
Buyer at their then value.
6.2 The Seller reserves
the right, by giving notice to the Buyer at any time before delivery of the
Goods or performance of the Services, to increase the Price to reflect any
increase in the cost to the Seller which is due to any factor beyond the control
of the Seller (such as, without limitation), any foreign exchange fluctuation,
currency regulation, alteration of duties, significant increase in the costs of
labour, materials or other costs of manufacture, any change in delivery dates,
production runs, quantities or specifications for the Goods or the Services
which is requested by the Buyer, or any change in the limits on the Seller’s
liability under the Contract requested by the Buyer pursuant to either of
clauses 5.2.1 or 12.3.1 or any delay caused by any instructions of the Buyer or
failure of the Buyer to give the Seller adequate information or instructions.
7. PAYMENT
7.1 The Seller shall be
entitled to invoice the Buyer for the Price on or at any time after delivery of
the Goods or performance of the Services, 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.
7.2 The Buyer shall pay
the Price (in full, in sterling and clear of any banking charges) within 30
days of the date of the Seller's invoice, notwithstanding that delivery of the
Goods or performance of the Services may not have taken place and that property
in the Goods has not passed to the Buyer.
7.3 The time of payment
of the Price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
7.4 The Buyer shall not
be entitled to set off against any monies due to the Seller under the Contract
any amount claimed by or due to the Buyer from the Seller whether pursuant to
the Contract or on any other account whatsoever.
7.5 If the Buyer fails to
make any payment on the due date then, without prejudice to any other right or
remedy available to the Seller, the Seller shall be entitled to:-
7.5.1 cancel the Contract or suspend any
further deliveries or supplies to the Buyer;
7.5.2 appropriate any payment made by the Buyer
to such of the Goods (or the goods supplied under any other contract between
the Buyer and the Seller) as the Seller may think fit (notwithstanding any
purported appropriation by the Buyer);
7.5.3 charge the Buyer interest (both before
and after any judgment) on the amount unpaid, at the rate of three per cent per
annum above Lloyds TSB Bank base rate from time to time, until payment in full
is made (a part of a month being treated as a full month for the purpose of
calculating interest); and
7.5.4 charge the Buyer for all expenses
(including legal fees) incurred by the Seller in collecting the amounts due.
8. DELIVERY
8.1 Delivery of the Goods
shall be made by the Buyer collecting the Goods at the Seller's premises at any
time after the Seller has notified the Buyer that the Goods are ready for
collection or, if some other place for delivery is agreed by the Seller, by the
Seller delivering the Goods to that place.
8.2 Any dates quoted for
delivery of the Goods or for the supply or completion of the Services (as the
case may be) are approximate only and the Seller shall not be liable for any
delay in delivery of the Goods or performance of the Services howsoever caused. Time for delivery shall not be of the
essence. The Goods may be delivered by
the Seller or the Services supplied in advance of the quoted date upon giving
reasonable notice to the Buyer.
8.3 Where
Goods or Services are to be supplied or delivered by the Seller in accordance
with periodic delivery or performance schedules or similar notification of the
delivery or performance requirements of the Buyer, the Buyer shall not be
entitled to cancel or vary any such delivery or performance schedules or
requirements, which are expressed by the Buyer to be firm requirements, without
the prior written consent of the Seller, and the Seller shall be entitled to
reimbursement of any additional costs and expenses incurred or suffered as a
result of such cancellation or variation.
8.4 When
expedited delivery or completion is agreed to by the Seller and necessitates
overtime or other additional costs the Buyer shall reimburse the Seller for the
amount of such overtime payment or other costs.
8.5 Where
postponement of delivery of the Goods or completion of the Services is agreed
by the Seller the Buyer shall, if required by the Seller, pay all costs and
expenses (including a reasonable charge for storage and insurance of the Goods
and interest on the Price) occasioned thereby but any Goods shall be held at
the Buyer’s risk as from the time of postponement.
8.6 Where delivery of the
Goods is to be made by the Seller in bulk, the Seller reserves the right to
deliver up to 10% more or 10% less than the quantity ordered and the Price shall
be adjusted to reflect the quantity delivered but based on the Contract rate.
8.7 The Seller shall be
entitled to make delivery of the Goods or perform the Services by instalments
and to invoice the Buyer for each instalment despatched or performed . Each
delivery or performance shall constitute a separate contract and failure by the
Seller to deliver or perform any one or more of the 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.
8.8 If the Seller fails
to deliver the Goods or perform the Services for any reason other than any
cause beyond the Seller's reasonable control or the Buyer's fault, and the
Seller is accordingly liable to the Buyer, the Seller's liability shall be
limited to the excess (if any) of the cost to the Buyer (in the cheapest
available market) of similar goods or services, to replace those not delivered
or performed, over the Price.
8.9 If the Buyer fails to
take delivery of the Goods or fails to give the Seller adequate delivery
instructions at the time stated for delivery (otherwise than by reason of any
cause beyond the Buyer's reasonable control or by reason of the Seller's fault)
then, without prejudice to any other right or remedy available to the Seller,
the Seller may:-
8.9.1 store the Goods until actual delivery and
charge the Buyer for the reasonable costs (including insurance) of storage; or
8.9.2 sell the Goods at the best price readily
obtainable and (after deducting all reasonable storage and selling expenses)
account to the Buyer for the excess over the Price or charge the Buyer for any
shortfall below the Price.
8.10 Where
damage to or loss of the Goods occurs before delivery to the Buyer, the Seller
undertakes (subject as provided in condition 8.11) to replace or (at its
discretion) to repair free of charge any Goods so damaged or lost in which
event the time for delivery of the damaged or lost Goods shall be extended for
such period as the Seller shall reasonably require for such replacement or
repair.
8.11 The
undertaking in condition 8.10 is conditional upon:-
8.11.1 the Buyer giving written
notice of such damage or loss with reasonable particulars thereof to the Seller
and to the carrier (if other than the Seller) within 7 days of the receipt of
the Goods or in the case of total loss within 5 days of receipt of the Seller’s
or the carrier’s (as the case may be) delivery advice or other notification of
despatch; and
8.11.2 the Buyer (if requested by
the Seller and at the Buyer’s cost) returning any damaged Goods to the Seller’s
works within 30 days of receipt thereof.
8.12 Save
as expressly provided in this condition 8, the Seller shall not have any
liability whatsoever for, or in connection with, any damage to or loss of the
Goods in transit to the contracted place of delivery.
9. ACCEPTANCE
9.1 Without
prejudice to the Buyer’s rights under condition 8.10 and 11 the Buyer shall be
deemed to have accepted the Goods and/or the Services as being in conformity
with the Contract, and shall be bound to pay for them, unless written notice of
rejection thereof is received by the Seller within 7 days of delivery.
9.2 Save
in the circumstances referred to in condition 11, Goods accepted by the Buyer
cannot subsequently be returned and any claim which the Buyer might otherwise
have shall be deemed to have been waived.
9.3 If
after notice of rejection has been given the Buyer deals with the Goods as
owner thereof, or if any conduct of the Buyer is inconsistent with such
rejection or with the ownership of the Goods by the Seller, the Buyer shall be
deemed to have accepted the Goods and be bound to pay for them.
10. RISK AND PROPERTY
10.1 Risk
of damage to or loss of the Goods shall pass to the Buyer:-
10.1.1 in the case of Goods to be delivered at the
Seller's premises, at the time when the Seller notifies the Buyer that the
Goods are available for collection; or
10.1.2 in the case of Goods to be delivered
otherwise than at the Seller's premises, at the time of delivery or, if the
Buyer wrongfully fails to take delivery of the Goods, the time when the Seller
has tendered delivery of the Goods.
10.2 Notwithstanding
delivery and the passing of risk in the Goods, or any other provision of these
Conditions, the property in the Goods shall not pass to the Buyer until the
Seller has received in cleared funds payment in full of the Price and all other
goods agreed to be sold by the Seller to the Buyer for which payment is then
due.
10.3 Until such time as the
property in the Goods passes to the Buyer, the Buyer shall hold the Goods as
the Seller's fiduciary agent and bailee, and shall keep the Goods separate from
those of the Buyer and third parties and properly stored, protected and insured
and identified as the Seller's property.
Until that time the Buyer shall be entitled to resell or use the Goods
in the ordinary course of its business, but shall account to the Seller for the
proceeds of sale or otherwise of the Goods, whether tangible or intangible,
including insurance proceeds, and shall keep all such proceeds separate from
any monies or property of the Buyer and third parties and, in the case of
tangible proceeds, properly stored, protected and insured.
10.4 Until such time as the
property in the Goods passes to the Buyer (and provided the Goods are still in
existence and have not been resold) the Seller shall be entitled at any time to
require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails
to do so forthwith, to enter upon any premises of the Buyer or any third party
where the Goods are stored and repossess the Goods.
10.5 The Buyer shall not be
entitled to pledge or in any way charge by way of security for any indebtedness
any of the Goods which remain the property of the Seller, but if the Buyer does
so all monies owing by the Buyer to the Seller shall (without prejudice to any
other right or remedy of the Seller) forthwith become due and payable.
11. WARRANTIES
11.1 Subject to the
condition 11.2, the Seller warrants that the Goods and Services will correspond
with their specification at the time of delivery or performance (as the case
may be) and will be free from defects in material and workmanship at the time
of their original delivery or performance.
11.2 The warranty set out
in condition 11.1 is given by the Seller subject to the following conditions:-
11.2.1 the Seller shall be under no liability in
respect of any defect in the Goods or Services arising from any drawing, design
or specification supplied by the Buyer;
11.2.2 the Seller shall be under no liability in
respect of any defect arising from fair wear and tear, wilful damage,
negligence, abnormal working conditions, failure to follow the Seller's
instructions (whether oral or in writing), misuse or alteration or repair of
the Goods without the Seller's approval;
11.2.3 the Seller shall be under no liability
under the above warranty (or any other warranty, condition or guarantee) if the
Price has not been paid by the due date for payment; and
11.2.4 the above warranty does not extend to
parts, materials or equipment not manufactured by the Seller, in respect of
which the Buyer shall only be entitled to the benefit of any such warranty or
guarantee as is given by the manufacturer to the Seller and of which the Seller
is actually aware.
11.3 Without prejudice to
the provisions of condition 8, where any valid claim in respect of any of the
Goods or Services which is based on any defect in the quality or condition of
the Goods or Services, or their failure to meet specification, is notified to
the Seller in accordance with these Conditions, the Seller shall be entitled to
replace the Goods or supply further Services (or the part in question) free of
charge or, at the Seller's sole discretion, refund or issue a credit note to
the Buyer for the Price (or a proportionate part of the Price) PROVIDED ALWAYS
that:-
11.3.1 the Buyer has notified the Seller in
writing within 14 days of the time when it discovered, or ought to have
discovered, any such defect;
11.3.2 the Buyer has afforded the Seller a
reasonable opportunity to inspect the Goods and, if so requested by the Seller,
has returned (at the Buyer's risk) the allegedly defective Goods to the
Seller's main office (or such other address as it may have specified) suitably
packaged and carriage pre-paid;
11.3.3 the Goods have been properly and correctly
stored and/or used by the Buyer;
11.3.4 the Buyer has made no further use of the
Goods that are alleged to be defective after the time at which the Buyer
discovered that they were defective; and
11.3.5 the liability of the Seller under this
condition 11.3 is accepted by the Buyer in substitution for and to the
exclusion of any other claims for direct loss which the Buyer has or may have.
11.4 Subject as expressly
provided in these Conditions, and except where the Goods or Services are
supplied to a person dealing as a consumer (within the meaning of the Unfair
Contract Terms Act 1977), all warranties, conditions or other terms implied by
statute or common law are excluded to the fullest extent permitted by law.
12. LIABILITY
12.1 Nothing in these
Conditions shall limit or restrict the Seller’s liability for death or personal
injury resulting from its negligence or for any injury or damage caused by a
defective product within the meaning of the Consumer Protection Act 1987.
12.2 The Seller’s liability
for any claim relating to loss of or damage to any of the Buyer’s Materials is
as set out in condition 5.2.
12.3 The Seller’s aggregate
liability for any other claim or series of claims arising out of the Contract
or out of any act or series of acts or omissions or any default or defaults of
the Seller (whether arising from the Seller’s negligence or otherwise) shall
not (subject to the provisions of condition 12.1) exceed the limits set out in
condition 12.4 unless:-
12.3.1 at the time of ordering the Goods or the
Services from the Seller the Buyer shall declare in writing to the Seller a
special interest in the supply of the Goods or Services and agrees to pay a
surcharge over the Price calculated by reference to the extent of that
interest; and
12.3.2 prior to the delivery of the Goods or
performance of the Services (as the case may be) the Seller provides the Buyer
with a written acknowledgement of such special interest setting out the extent
to which the Seller agrees to narrow the scope of its limitation of liability
in respect of such loss as may occur in the future.
12.4 The limits referred to in condition 12.3
are:-
12.4.1 the Product Liability Limit in respect of
any claims for direct loss suffered as a result of loss of or damage to
physical property caused by the Goods sold or Services supplied; and
12.4.2 the Price of the Goods and/or Services
supplied pursuant to the Contract under which the liability arises in respect
of all other claims (including, without limitation, any claims for
consequential loss or damage).
12.5 The Buyer acknowledges and agrees that
the Seller will have no knowledge of the intrinsic value to the Buyer of any of
the Goods and/or Services nor of the consequential loss or damage the Buyer may
suffer as a result of any failure by the Seller to supply such Goods and/or
Services in accordance with the Contract nor does it have the ability to insure
against any such loss or damage unless it is notified of a special interest
pursuant to condition 12.3, and that therefore the limits on the Seller’s
liability set out in condition 12.4 are reasonable in all the circumstances.
12.6 The Buyer acknowledges that it has discussed
the limitations of the Seller’s liability set out in conditions 5.3 and 12.4
with the Seller and that the Seller has informed the Buyer that:-
12.6.1 the Seller’s insurers require the Seller to
incorporate into the Contract the limitations of liability set out in
conditions 5.3 and 12.4 as a condition of the Seller’s insurance contract;
12.6.2 if the Buyer considered that the
limitations were insufficient in the context of the Buyer’s business, it is
possible for the Seller to negotiate increased insurance cover with its
insurers and in such circumstances a higher maximum limitation could be
negotiated other than that set out in conditions 5.3 and 12.4 provided that the
Price would then be increased to reflect the increased insurance premium payable
by the Seller;
12.6.3 the Buyer acknowledges that it considers
the limitations set out in conditions 5.3 and 12.4 to be reasonable in the
context of its business, the Buyer’s Materials being supplied to the Seller,
and the Goods and Services being supplied by the Seller and that it has not
therefore requested the Seller to make enquiries of its insurers on the basis
set out in condition 12.6.2.
12.7 The Seller shall not
be liable to the Buyer or be deemed to be in breach of the Contract by reason
of any delay in performing, or any failure to perform, any of the Seller's
obligations in relation to the Goods or Services, if the delay or failure was
due to any cause beyond the Seller's reasonable control including, without
prejudice to the generality of the foregoing, act of God, explosion, flood,
tempest, fire or accident, acts, restrictions, regulations, bye-laws,
prohibitions or measures of any kind on the part of any governmental,
parliamentary or local authority, import or export regulations or embargoes,
strikes, lock-outs or other industrial actions or trade disputes (whether
involving employees of the Seller or of a third party), difficulties in
obtaining raw materials, labour, fuel, parts or machinery, or power failure or
breakdown in machinery.
12.8 Where the Goods or
Services are sold under a consumer transaction (as defined by the Consumer
Transactions (Restrictions on Statements) Order 1976 (as amended)) the
statutory rights of the Buyer are not affected by these Conditions.
13. INSOLVENCY
AND BREACH
13.1 If
any of the following events occur, are threatened or in the opinion of the
Seller are reasonably likely to occur:-
13.1.1 the Buyer shall commit any breach of the
Contract and shall fail to remedy such breach (if capable of remedy) within a
period of 7 days from receipt of notice in writing from the Seller requesting
such breach to be remedied;
13.1.2 any distress or execution is levied upon
any of the goods or property of the Buyer;
13.1.3 the Buyer (or where the Buyer is a
partnership any partner thereof) offers to make any arrangements with or for
the benefit of its or his creditors or a petition is presented or an order is
made for the Buyer to become a bankrupt; or
13.1.4 the Buyer (being a limited company) has an
administrative receiver or a receiver and manager appointed of the whole or any
part of its undertaking, property or assets or a petition is presented or an
order is made or a resolution is passed or analogous proceedings are taken for
the winding up of the Buyer or for the appointment of an administrator thereof
The
Seller shall thereupon be entitled without prejudice to its other rights
hereunder forthwith to suspend further performance of the Contract and of any
other contract between the Seller and the Buyer until the default has been made
good or to determine the Contract or any other contract between the Seller and
the Buyer or any unfulfilled part thereof or at the Seller’s option to make
partial supplies of Goods and/or Services.
13.2 Notwithstanding
any such termination the Buyer shall immediately pay to the Seller at the
Contract rate for all work done, materials used and Goods and Services
delivered or performed (as the case may be) up to and including the date of
termination and shall in addition indemnify the Seller against any resulting
loss, damage or expense incurred by the Seller in connection with the supply or
non-performance of the Contract including the cost of any material, plant or
tools used or intended to be used therefor and the cost of labour and other
overheads including a percentage in respect of profit.
14. EXPORT TERMS
14.1 Where the Goods are
supplied for export from the United Kingdom, the provisions of this condition
14 shall (subject to any special terms agreed in writing between the Buyer and
the Seller) apply notwithstanding any other provision of these Conditions.
14.2 The Buyer shall 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 thereon.
14.3 Unless otherwise
agreed in writing between the Buyer and the Seller, the Goods shall be
delivered FOB the air or sea port of shipment and the Seller shall be under no
obligation to give notice under section 32(3) of the Sale of Goods Act 1979 (as
amended).
14.4 The Buyer shall be
responsible for arranging for testing and inspection of the Goods at the
Seller's premises before shipment. The
Seller shall have no liability for any claim in respect of any defect in the
Goods which would be apparent on inspection and which is made after shipment,
or in respect of any damage during transit.
14.5 Payment of all
amounts due to the Seller shall be made by irrevocable letter of credit opened
by the Buyer in favour of the Seller and confirmed by an independent financial
institution acceptable to the Seller.
15. PRODUCT LIABILITY AND REGULATORY COMPLIANCE
15.1 The Buyer shall ascertain and comply
with applicable laws relating to the Goods (including any consumable items),
their operation, use and disposal, including compliance with customs
declarations and formalities and shall ensure that the Goods are used only for
the purposes and in the manner for which they were designed and supplied.
15.2 The Buyer shall procure that:-
15.2.1 the Goods are operated correctly, that safe
working practices are adopted and complied with and that all persons likely to
come into contact with the Goods receive appropriate training and all
applicable information in respect thereof; and
15.2.2 all third parties who use or may be
affected by or rely upon the Goods receive all appropriate warnings and that
any warning notices displayed on the Goods are not removed, defaced or
otherwise obscured.
15.3 The Buyer shall pass on the obligation
set out in condition 15.2 to any third party recipient of the Goods.
15.4 If the Seller makes any recommendation
to the Buyer in respect of the Goods concerning safety after delivery the Buyer
shall promptly comply with same and procure compliance by any third party. Reasonable charges in respect of the Seller
being required to supply replacements for, or additions to, the Goods in this
respect shall be paid by the Buyer.
15.5 The Buyer shall indemnify the Seller in
respect of any liability arising in relation to any breach of the Buyer's
obligations under this condition 15 whether such liability arises as a result
of a third party’s use or operation of the Goods or otherwise.
16. GENERAL
16.1 The Seller may perform
any of its obligations or exercise any of its rights hereunder by itself or
through any other member of its group, provided that any act or omission of any
such other member shall be deemed to be the act or omission of the Seller.
16.2 Any notice required or
permitted to be given by either party to the other under these Conditions shall
be in writing addressed to that other party at its registered office or
principal place of business or such other address as may at the relevant time
have been notified pursuant to this provision to the party giving the notice.
16.3 No waiver by the
Seller of any breach of the Contract by the Buyer shall be considered as a
waiver of any subsequent breach of the same or any other provision.
16.4 If any provision of
these Conditions is held by any competent authority to be invalid or
unenforceable in whole or in part the validity of the other provisions of these
Conditions and the remainder of the provision in question shall not be affected
thereby.
16.5 Save as expressly
stated in these Conditions, a person who is
not a party to the Contract has no right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term of it but this does not affect any right
or remedy of a third party which exists or is available apart from that Act.
16.6 The Buyer shall not at any
time disclose any Confidential Information relating to the Seller or use such
information in any manner which might be detrimental to the Seller.
16.7
The
Contract shall be governed by the laws of England and the Buyer irrevocably
submits to the
jurisdiction
of the English courts.