TERMS AND CONDITIONS OF SALE
The following terms and conditions (the “Terms and Conditions”) shall apply with respect to any goods or materials and associated documentation (the “Products”) sold to Buyer by FFP Packaging Solutions Limited a company registered in the United Kingdom under number 893217 whose registered office is at 1-7 Tenter Road, Moulton Park Industrial Estate, Northampton, NN3 6PZ (“Seller”) in accordance with the details of a written contract between the Buyer and Seller to which these Terms and Conditions are attached (the “Contract”). As used herein, the term “Buyer” means the entity identified as Buyer in the Contract. Other than as specified in the Contract, no terms or conditions set forth or referenced in any request for quotation, quote or proposal, Purchase Order, order acknowledgment, invoice or other document issued or submitted by Buyer or Seller relating to the sale and purchase of the Products that differs from, conflicts with or are in addition to the provisions of these Terms and Conditions shall apply.
1. Effective date of Contract. The Contract is effective only when duly executed in writing by both Buyer and Seller.
2. Warranty. The sole and exclusive warranties made by Seller with respect to the Products are as set forth in this Section.
a. Seller warrants to Buyer that for a period of six (6) months after delivery (Incoterms 2010) as specified in the Contract, (the “Warranty Period”),(a) the Products will be free of defects in workmanship and material, and (b) the Products will conform to any specifications set forth in the Contract.
b. In the event of a breach of this warranty, Buyer must notify Seller within the Warranty Period. Unless Buyer notifies Seller of a breach of the warranty within the applicable period, Seller shall have no liability or obligation with respect to a breach of this warranty.
c. Buyer’s sole and exclusive right and remedy, and Seller’s sole and exclusive liability and obligation, for a breach of this warranty shall be that Seller will either repair or replace the relevant Products or refund or credit to Buyer the price Buyer paid therefor. The decision whether to repair, replace, refund or credit the Products shall be at the Seller’s sole discretion. Repaired Products and replacement Products shall be warranted for the remainder of the original Warranty Period.
d. The warranty set forth in this Section 2 will not apply, and Buyer shall have no right or remedy and Seller shall have no liability or obligation under the warranty set forth herein, if: (i) the Product is damaged after delivery in accordance with the agreed Incoterm; (ii) the Product is changed or modified (unless the change or modification is made by or in accordance with written instructions of Seller); (iii) the Product is misused, abused or neglected, deteriorates due to erosion, abrasions or chemical action, fails due to issues with the material being processed, fails after expiration of the Warranty Period, fails due to improper installation (except for installation provided or supervised by Seller), improper operation or improper maintenance; (iv) the issue with the Product is directly or indirectly attributable to, or directly or indirectly results from or arises out of, compliance with any design, specification or other specific requirement of Buyer; (v) the Product fails due to failure or substandard performance of any non-Seller equipment, part, product or system with which the Product is used, installed or incorporated; (vi) the Product is used for a purpose or application for which it is unfit, unsuitable or inappropriate (whether or not a particular use or application for the Product is identified, Buyer shall be solely responsible for determining the fitness, suitability and appropriateness of the Product for the purposes and applications for which they are used by Buyer); or (vii) the issue with the Product is directly or indirectly attributable to, or directly or indirectly results from or arises out of, a change in safety, health or other governmental or regulatory standards, mandates or other requirements after the date of manufacture of the Product.
e. THE WARRANTIES IN THIS SECTION 2 ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY SELLER WITH RESPECT TO THE PRODUCTS. NO OTHER WARRANTY, WHETHER EXPRESS OR ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE IMPLIED SHALL EXIST IN CONNECTION WITH THE PRODUCTS, PARTS, COMPONENTS OR ANY SALE OR USE THEREOF.
3. Delivery; Late Deliveries; Risk; Title; Payments.
a. Delivery terms shall be as specified in the Contract (Incoterms 2010), subject to a quantity tolerance of 10% over or under - any such variance to be charged or credited pro-rata to the agreed price. Any change to the delivery terms shall be made in accordance with Section 6 (Changes) of these Terms and Conditions. Unless expressly excluded under the Contract, partial deliveries shall be permitted.
b. Seller shall use commercially reasonable efforts to deliver the Products on the dates specified in the Contract. If Seller fails to deliver within ten (10) working days of the delivery date and such failure is due to the sole fault of Seller and without a force majeure event, Buyer shall be entitled to liquidated damages from the date ten (10) working days after delivery should have taken place. The liquidated damages shall be payable at a rate of 0.5% of the Contract price for each completed week of delay. The liquidated damages shall not exceed 5.0% of the Contract price. If delivery of only a portion of the Contract is delayed, the liquidated damages shall be calculated based on the price of the delayed Product along with the price of any shipped Products that cannot reasonably be used by Buyer as a result of Seller’s delay in shipping the delayed Products. Only in the case where the Seller’s delay is such that Buyer’s entitlement to liquidated damages has reached the above mentioned limit of 5.0% will such delay be considered a material failure of the Seller’s obligations under the Contract. The foregoing liquidated damages and associated termination rights in sub-Section 7.a. of these Terms and Conditions shall be the sole and exclusive obligations and remedies for any late delivery by the Seller.
c. Risk of loss to the Products shall pass upon delivery as specified in the Contract, and title to the Products shall pass to Buyer after final payment for the Products has been received by Seller.
d. Seller will invoice Buyer for the Products, which invoices shall be paid by bank transfer in accordance with the terms of payment specified in the Contract. Unless specified otherwise in the Contract, prices are net prices to Seller and include the cost of delivery to any point in the UK, but exclude any taxes, impositions and other charges, including but not limited to sales, value-added and similar taxes and other charges imposed by any government authority, freight and other shipping and transportation charges to destinations outside of the UK, forwarding agent’s and broker’s fees, consular fees and import duties, all of which shall be borne by Buyer.
4. Acceptance. Acceptance of the Products will occur five (5) days after delivery of the Products, as specified in the Contract.
5. Indemnification. The sole and exclusive indemnification of Buyer by Seller is as set forth in this Section 5.
a. Seller agrees to defend, indemnify and hold Buyer and its directors, officers, employees, and agents harmless from and against any claims, suits, actions, or proceedings, losses, damages, expenses, penalties, fines or other liabilities (including reasonable attorneys’ fees) (“Claims”) that arise out of or result from a claim that the Products in the form supplied to Buyer by Seller infringes any issued patent, registered trademark or registered copyright of any third party; provided, however, that neither Seller nor any of its affiliates shall have any obligation to defend, indemnify and hold harmless Buyer against an infringement claim to the extent such claim is based upon, arises out of or results from (i) any alteration, change or modification to the Products by anyone other than Seller or one of its affiliates, (ii) the use, installation or incorporation of the Products with any product, component or part not supplied by Seller or one of its affiliates, (iii) the process, procedure or system for which or in which the Products are used, installed or incorporated, (iv) a material, part or component supplied by a third party that Buyer or any of its affiliates mandated be used, installed or incorporated in the Product, (v) compliance with a specific design requirement of Buyer or any of its affiliates, or (vi) use of any patent, copyright, trademark or other intellectual property of Buyer or any of its affiliates.
b. Seller’s obligation to defend, indemnify and hold harmless Buyer against an infringement claim shall be subject to and conditioned upon Seller being given written notice of such claim (including all known material facts related thereto) within ten days after such claim is asserted against Buyer (provided that the failure to give Seller written notice of an infringement claim as provided herein shall not relieve Seller from its obligations with respect to such claim if and to the extent Buyer can demonstrate that Seller was not prejudiced thereby and Buyer granting Seller and its affiliates exclusive direction and control of the investigation, defense and settlement of such claim at Seller’s expense, including, but not limited to, the selection of legal counsel to represent Buyer and the selection of experts. Seller’s obligation to indemnify and hold harmless Buyer will include judgments, settlements, and reasonable attorneys’ fees, experts’ fees and other reasonable defense costs and expenses.
c. Seller reserves the right to modify any Product that is alleged or found to infringe any patent, trademark, copyright, or other intellectual property right to make it non-infringing and/or to substitute a non-infringing product for any Product that is alleged or found to infringe any patent, trademark, copyright, or other intellectual property right, and Buyer must permit Seller to modify, at Seller’s option and expense, any Product that is alleged or found to infringe any patent, trademark, copyright, or other intellectual property right to make it non-infringing and/or to substitute, at Seller’s option and expense, a non-infringing product for any Product that is alleged or found to infringe any patent, trademark, copyright, or other intellectual property right; provided, however, that any such modified Product or substitute product must be equivalent or superior in all material respects in form, fit, function, performance and quality to the Product that is modified or for which it is substituted.
d. EXCEPT IN THE CASE OF A CLAIM UNDER THIS SECTION 5 OR BREACH OF SECTION 8, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANYONE CLAIMING BY, THROUGH OR UNDER THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING LOST PROFITS OR LOSS OF BUSINESS, ARISING OUT OF, RESULTING FROM OR IN ANY WAY RELATED TO THE PRODUCTS OR THE TERMS AND CONDITIONS FROM ANY CAUSE OR CAUSES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE CASE OF SELLER’S INDEMNIFICATION OBLIGATIONS UNDER SUB-SECTION (a) OF THIS SECTION, IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT OR TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE PURCHASE PRICE PAID TO SELLER UNDER THE APPLICABLE ORDER, EVEN IF SELLER IS ADVISED OR PLACED ON NOTICE OF THE POSSIBILITY OF SUCH PENALTIES OR DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY ESSENTIAL PURPOSE OF ANY PRODUCT.
6. Changes. Once a Contract has been duly executed, no changes shall be made to such Contract without the express written agreement of Buyer and Seller. Buyer and Seller will endeavor to agree to such changes within seven (7) business days of Buyer’s request. Any proposed change that reduces the scope of the order shall be treated as a partial termination in accordance with the provisions of Section 7 (Termination) of these Terms and Conditions.
7. Termination. The sole termination rights for Seller and Buyer are as set forth in this Section:
a. Either party may terminate a Contract if: (i) the other party fails to perform a material obligation under the Contract and fails to cure such failure to perform within thirty (30) business days from the date that the non-defaulting party provides written notice of such default to the defaulting party to the extent that is capable of cure within said period; (ii) the other party becomes unable to pay its bills as they become due in the ordinary course, a trustee or receiver of a party’s property is appointed, a party makes an assignment for the benefit of creditors, a petition in bankruptcy is filed by or against a party, or any like or similar action occurs. In the event of Supplier’s default under the Contract in relation to any partial delivery of the Products, the Buyer’s rights of termination under this sub-Clause 7.a shall be limited to that part of the Contract so affected.
b. Upon any termination of a Contract, including a partial termination, other than a termination by Buyer due to a force majeure event or for cause pursuant to sub-Section 7.a. above, Seller shall invoice and Buyer shall promptly pay Seller that proportion of the Contract price accrued on the date of such termination, taking into account the Sellers completion of work on the Contract and any non-cancellable material purchases at such time. Title to any Products subject to such termination shall remain with Seller:
8. Intellectual Property Rights. All rights to and in any and all copyrights, patents and trademarks in the Products are the sole and exclusive property of Seller, including, but not limited to, all patent rights, copyright rights, know-how and trade secrets, associated with such Products (“Seller’s Intellectual Property”). Buyer hereby acknowledges that it does not have, and shall not acquire by virtue of any Contract, any rights or license to or under Seller’s Intellectual Property with respect to any Products and components, parts and accessories therefor, including, without limitation, any right and/or license to reconstruct the Products.
9. Seller’s Compliance.
a. Seller will ensure that the manufacture of the Products is carried out in compliance with applicable national, federal, state, provincial and local laws, statutes, codes, rules, regulations, ordinances of the country of origin in which manufacture takes place.
b. Seller sells the Products and related services in compliance with the applicable laws of the United Kingdom.
c. For avoidance of doubt, the Seller’s compliance with any laws does not include compliance with laws that are applicable as a result of the particular use or application for which the Product is being used or the particular buyer or user of the Products, or the laws of any other jurisdiction.
d. If Seller, or its representatives, is present at a Buyer site, Seller will be required to comply only with those rules in force at the site and local laws and regulations of which Seller was notified by Buyer in writing in advance of the visit
a. “Confidential Information” means information that one party makes available to the other in connection with the Contract and bears a label or is otherwise clearly marked as being “confidential” or “proprietary” at the time of disclosure. Confidential Information shall not include information that (a) was in the possession of or known to a party or any of its parent companies, subsidiaries or affiliates without obligation of confidentiality prior to receipt from the other party, (b) is or becomes known to the public without breach by a party of the terms of the Contract, (c) is received by a party or any of its parent companies, subsidiaries or affiliates without obligation of confidentiality from a third party reasonably believed to have the right to provide such information on such basis, or (d) is independently created or developed by or for a party or any of its parent companies, subsidiaries or affiliates without use of information provided by the other party under the Contract.
b. Each party will hold and treat as confidential, and use reasonable care to prevent the unauthorized use or disclosure of, all Confidential Information of the other party, where reasonable care means no less than the degree of care used by a party in protecting its own Confidential Information of like import. A party may use the other party’s Confidential Information solely in connection with its performance of the Contract.
c. Notwithstanding sub-Section 10.b., Confidential Information of a party may be used, disclosed and otherwise made available by the receiving party on a confidential basis within the receiving party’s business organization, including its parents, subsidiaries and other affiliated entities and their respective directors, officers, managers, employees, accountants and attorneys, in connection with normal management reporting, financial and tax filing, reporting, auditing and disclosure, compliance audits, record and document retention and backup, and other similar activities within its business organization.
11. Force Majeure.
a. Either party shall be entitled to suspend performance of its obligations under the Contract to the extent that such performance is impeded or made unreasonably onerous by Force Majeure, meaning any of the following circumstances: industrial disputes and any other circumstance beyond the control of the parties, such as fire, war, extensive military mobilization, insurrection, requisition, seizure, embargo, restrictions in the use of power, currency and export restrictions, epidemics, natural disasters, extreme natural events, terrorist acts and defects or delays in deliveries by sub-contractors caused by any such circumstance referred to in this Section 11.
b. The party claiming to be affected by Force Majeure shall notify the other party in writing without delay on the intervention and on the cessation of such circumstance. If a party fails to give such notice, the other party shall be entitled to compensation for any additional costs which he incurs and which he could have avoided had he received such notice. If Force Majeure prevents the Buyer from fulfilling his obligations, he shall compensate the Seller for expenses incurred in securing and protecting the Products; provided, however, that Force Majeure shall not excuse any failure to make timely payment under the Purchase Order.
c. Either party shall be entitled to terminate the Purchase Order if performance is suspended under this Section for more than thirty (30) days. If Seller is the terminating party due to Buyer’s Force Majeure, Buyer shall be obligated to make payment to Seller in accordance with sub-Section 7.b. of these Terms and Conditions. If Buyer is the terminating party due to Seller’s Force Majeure, Seller shall be obligated to refund any amounts already paid by Buyer prior to such termination.
12. Assignment. The Contract shall be binding upon and enforceable against, and inure to the benefit of and be enforceable by Buyer and Seller, and their respective successors and assigns, except that no right, liability or obligation of either Buyer and Seller under or in respect of the Contract may be directly or indirectly subcontracted or assigned, by operation of law or otherwise to anyone other than an affiliate or a successor to its business or the portion thereof involved in the performance of the Contract, without first obtaining the written consent of the other party. Buyer acknowledges that one or more affiliates of Seller shall be responsible for the manufacture and shipment of the Products sold by Seller and certain related services, and expressly agrees that such arrangement does not violate the provisions of the Contract.
13. Entire Agreement. The Contract, including these Terms and Conditions, embodies the entire agreement and understanding among Buyer and Seller, and supersedes and replaces each course of conduct previously pursued or accepted, and each oral or written representation, agreement or commitment previously made by or on behalf of Buyer, or Seller with respect to the subject matter of the Contract. Any provision of the Contract, including these Terms and Conditions, which is intended to apply after termination of the Contract shall survive the expiration or termination of the Agreement and shall continue and thereafter remain in full force and effect. For the avoidance of doubt, Sections 2, 3, 5, 6, 7, 8, and 10-16 of these Terms and Conditions shall survive the expiration or termination of the Agreement.
14. Language. The Contract and these Terms and Conditions are presented in English language.
15. Governing Law. The Contract and these Terms and Conditions shall be governed by and construed in accordance with the laws of England and Wales, without regard to conflict of laws principles of any jurisdiction. The U.N. Convention on the International Sale of Goods is expressly excluded.
16. Disputes. All disputes in connection with this Contract or the execution thereof shall be settled through friendly negotiations. In case no settlement can be reached, the case should then be submitted exclusively to the competent courts of England and Wales. Pending any dispute neither Party shall be excused from performing any of its obligations under these Terms and Conditions, except for obligations directly affected by the dispute.