a. All purchase orders are accepted subject to the following terms and conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Purchaser purports to apply under any purchase order, confirmation of order, specification or other document).
b. No variation or alteration of these terms and conditions shall have any effect unless expressly agreed in writing by a Director or other authorised executive of FFP Packaging Solutions Limited (Registered No. 893217) Registered in England and Wales. Registered Office 1-7 Tenter Road, Moulton Park Industrial Estate, Northampton, NN3 6PZ, United Kingdom. (hereinafter called "the Company").
Acceptance and Cancellation
a. All purchase orders require the Company's acceptance in writing (by post, fax or e-mail) to create a contract and the Company reserves the right to accept or refuse any purchase order for any reason.
b. The Company's agents or employees are not authorised to make any representation concerning the goods unless confirmed by a Director of the Company in writing. In entering into the contract the Purchaser acknowledges that it does not rely on and waives any claim for breach of such representations which are not so confirmed provided that nothing in this sub-clause will exclude or limit the Company's liability for fraudulent misrepresentation.
c. All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the goods described in them. They will not form part of this contract.
a. The price of the goods shall be the price stated in the Company's acknowledgement of the Purchaser's purchase order. The Company however reserves the right by giving written notice to the Purchaser at any time before delivery to increase the price of the goods to reflect any increase in the cost of the goods which is due to:-
i foreign exchange fluctuations, increases in taxes and duties or increases in labour, materials or other manufacturing costs;
ii any request by the Purchaser to change the delivery dates or the quantities, types or specification of the goods ordered;
iii any delay caused by any instructions of the Purchaser or failure of the Purchaser to give the Company adequate or accurate information or instructions.
b. Unless otherwise agreed the price will include the costs of delivery where the delivery location is in the United Kingdom. Where the delivery location is outside the United Kingdom the price quoted by the Company (unless otherwise agreed in writing) is ex works and the Purchaser will reimburse the Company for all delivery and insurance costs in addition.
c. The cost of pallets used by the Company to transport the goods to the Purchaser is not included in the price. The Purchaser shall make the pallets available for collection by the Company or otherwise return them at the Purchaser's expense. The Company reserves the right to charge the Purchaser for any pallets not returned within a reasonable time at the cost of their replacement at that time.
d. Value Added Tax will be added to all quoted prices at the applicable rate.
a. The goods shall be at the Purchaser's sole risk as soon as they have been delivered to the Purchaser at the agreed delivery location. A clear receipt for the goods shall be sufficient evidence that they have been delivered in good condition.
b. Each delivery is subject to a margin of 10% in quantity being allowed for over or shortages, the same to be charged for or deducted at the pro rata contract price.
c. Any dates specified by the Company for delivery of the goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are specified, delivery will be within a reasonable time.
d. The Company will not be liable for any direct, indirect or consequential losses damages or expenses incurred by the Purchaser as a result of any delay in the delivery of the goods nor will any delay entitle the Purchaser to cancel any order.
e. In the case of delivery of the goods in instalments, the Purchaser shall not be entitled to treat the delivery of faulty goods in any one instalment or the late or non-delivery of any one instalment as a repudiation of the whole contract.
f. If the Purchaser fails to give delivery instructions within 14 days of it being notified that the goods are ready for delivery, the Company shall (without prejudice to any other rights or remedies available) be entitled (but not bound) to store the goods at any available place at the Purchaser's cost and expense.
a. The Company shall be entitled to invoice the Purchaser for the price of the goods on or at any time after delivery. Unless otherwise agreed payment of the price for the goods is due on the 20th day of the month following the month in which the invoice was issued. Time for payment shall be of the essence.
b. The Purchaser shall make all payments due without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Purchaser has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Purchaser.
c. If the Purchaser fails to pay the Company any sum due in accordance with this contract then the Company (without prejudice to any other right or remedy) shall be entitled to:- i. cancel the contract or suspend any further deliveries to the Purchaser; and ii. appropriate any payment made by the Purchaser to such of the goods (or the goods supplied under any other contract between the Company and the Purchaser) as the Company may think fit (notwithstanding any purported appropriation by the Purchaser); and iii. subject to clause 5(d) charge interest on the amount overdue at the rate of 5% per annum above the prevailing National Westminster Bank base rate at that time (such interest to accrue on a day to day basis from the due date for payment until receipt by the Company of the full amount whether before or after any judgement).
d. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
e. The Purchaser shall indemnify the Company against all costs and expenses (including any legal costs and expenses on a full indemnity basis) incurred or sustained by the Company in recovering sums due or in exercising its rights pursuant to this clause 5.
It is hereby agreed and declared between the Company and the Purchaser that until the Company has been paid in full for the goods the subject of
i. this contract and
ii. any other contract between the Company and the Purchaser.
a. The goods remain the property of the Company (although the risk therein passes to the Purchaser) and the Purchaser shall hold the goods on a fiduciary basis as the Company's bailee.
b. The Purchaser shall store and label the goods (at no cost to the Company) in such manner that they shall at all times remain separate from the other goods in the Purchaser's possession and identifiable as the Company's goods.
c. The Purchaser shall maintain the goods in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company.
d. The Purchaser shall hold the proceeds of the insurance referred to in clause 6(c) on trust for the Company and not mix them with any other money.
e. The Purchaser may use or dispose of the goods in the course of its normal business and pass good title to the goods to its customers provided that in doing so any such sale shall be a sale of the Company's property on the Purchaser's own behalf and the Purchaser shall deal as principal when making such a sale.
f. The Purchaser's right to possession of the goods shall terminate immediately if:- i. the Purchaser has a bankruptcy order made against him or makes an arrangement or composition with his creditors or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors or (being a body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Purchaser or for the granting of an administration order in respect of the Purchaser, or any proceedings are commenced relating to the insolvency or possible insolvency of the Purchaser; or ii. the Purchaser suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the contract or any other contract between the Company and the Purchaser, or is unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or the Purchaser ceases to trade; or iii. the Purchaser encumbers or in any way charges any of the goods.
g. The Purchaser grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the goods are or may be stored in order to inspect them, or where the Purchaser's right to possession has terminated, to recover them.
Warranty a. The Company warrants that (subject to the other provisions of this clause 7) upon delivery and for a period of twelve months from the date of delivery, the goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
b. The Company shall not be liable for breach of the warranty in clause 7 (a) unless: i. the Purchaser gives written notice of the defect to the Company and (if the defect is as a result of damage in transit) to the carrier within 3 days of the time when the Purchaser discovers or ought to have discovered the defect; and ii. the Company is given a reasonable opportunity after receiving the notice of examining the goods and the Purchaser (if asked to do so by the Company) returns such goods to the Company's place of business at the Company's expense for the examination to take place there.
b. The Company shall not be liable for breach of the warranty in clause 7 (a) if:- i. prior to delivery of the goods, the Purchaser tested them and signed the Company's trial performance report indicating that the goods comply with the Purchaser's requirements unless a defect occurs within any materials or components used in the goods which did not exist in the goods when they were tested by the Purchaser; or ii. the Purchaser makes any further use of such goods after giving notice of the defect to the Company; or iii. the defect arises because the Purchaser has failed to follow the Company's oral or written instructions as to the storage, handling or use of the goods or good trade practice; or iv. the defect arises because of any negligent act, default or omission committed by the Purchaser or its employees or agents in connection with the storage, handling or use of the goods; or v. the defect arises as a result of defects in or the unsuitability of materials supplied by the Purchaser; or vi. the Purchaser makes any modifications to the goods or uses them for a purpose for which they were not intended.
d. Subject to clauses 7 (b) and 7 (c) if any of the goods do not conform with the warranty in clause 7 (a) the Company shall at its option repair or replace such goods or refund the price of such goods provided that, if the Company so requests, the Purchaser shall, at the Company's expense, return the defective goods to the Company.
e. If the Company complies with clause 7 (d) (subject to clause 8 (c)) it shall have no further liability for a breach of the warranty in clause 7 (a) in respect of such goods.
f. All warranties, conditions and other terms implied by statute or common law (except for the conditions implied by Section 12 of the Sales of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the contract.
Limitation of Liability
a. Subject to clause 7, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Purchaser in respect of :- i. any breach of these terms and conditions; and
ii. any representation, statement or tortious act or omission including negligence arising under or in connection with the contract.
b. Subject to clause 8 (c):- i. the Company's total liability in contract, tort (including negligence or breach of statutory duty) misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this contract shall be limited to Â£1,000,000 in respect of any one claim or the aggregate of all claims arising from any one act or default of the Company.
ii. the Company shall not be liable to the Purchaser for any indirect or consequential loss or damage (which expression shall include without limitation loss of profit, loss of business and depletion of goodwill) costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the contract.
c. Nothing in these conditions excludes or limits the liability of the Company for death or personal injury caused by the Company's negligence or fraudulent misrepresentation.
Without prejudice to the Purchaser's rights under clause 7 the Purchaser shall inspect the goods immediately on the arrival thereof and shall within three days of such inspection give notice in writing to the Company of any matter or thing by reason whereof the Purchaser alleges that the goods have been damaged in transit or are not in accordance with the contract. If the Purchaser shall fail to give such notice the goods shall be deemed to have been accepted by the Purchaser.
Proofs and Variations a. All films and plates for print design which are provided by the Company will remain the property of the Company unless the costs of providing them have been paid by the Purchaser in which case title to them will transfer to the Purchaser when the costs have been paid in full.
b. Once proofs have been approved by the Purchaser in writing, then any subsequent alterations to the proofs will be charged by the Company to the Purchaser as an extra charge.
c. The Company will accept no responsibility for any errors in proofs which have previously been approved by the Purchaser in writing.
Purchaser's property when supplied will be held by the Company at the Purchaser's risk. Where the Purchaser supplies materials adequate quantities shall be supplied to cover spoilage.
In the event that any of the circumstances specified in clauses 6 (f) (i) or (ii) occur then the Purchaser will be deemed to be in default and the Company shall have the right without notice to cancel the contract or to suspend performance under the contract without any liability to the Purchaser.
Third Party Rights
Save as expressly provided, none of the provisions of the contract are intended to or will operate to confer any benefit (pursuant to the Contracts (Rights of Third Parties) Act 1999) on any person other than the Company or the Purchaser.
The Company reserves the right to delay the date of delivery or to cancel the contract or reduce the volume of the goods ordered by the Purchaser (without liability to the Purchaser) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, civil commotion, fire, explosion, flood, strikes or other labour disputes (whether or not relating to the Company's workforce) or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
Assignment a. The Purchaser shall not be entitled to assign the contract or any part of it without the prior written consent of the Company.
b. The Company may assign the contract or any part of it to any person firm or company.
a. Failure or delay by the Company in enforcing or partially enforcing any provision of the contract will not be construed as a waiver of any of its rights under the contract. b. Any waiver by the Company of any breach of, or any default under, any provision of the contract by the Purchaser will not be deemed a waiver of any subsequent breach or default and will in no way affect other terms of the contract.
Interpretation and Law
The contract shall be construed and take effect in accordance with the laws of England and the Purchaser shall accept the exclusive jurisdiction of English Courts.