1.1 In these Terms:
“ACKNOWLEDGEMENT OF ORDER” means an acceptance of order in Writing issued by the Seller, referring to these Terms;
“BUYER” means the person whose oral or Written order for the Goods is accepted by the Seller’s Acknowledgement of Order
“CONTRACT” means the contract for the sale and purchase of the Goods; and/or where the context permits for the packing, storage or carriage of the Goods or any other goods;
“GOODS” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Terms;
“RHA CARRIAGE CONDITIONS” means the Road Haulage Association Limited Conditions of Carriage effective 1st September 1998;
“RHA CONDITIONS” means either or both the RHA Carriage Conditions or the RHA Warehousing Conditions as the context may require;
“RHA WAREHOUSING CONDITIONS” means Road Haulage Association Limited Conditions of Storage 1998 effective 1st November 1998;
“SELLER” means Rowlinson Packaging Limited (registered in England under number 1176301);
“SERVICES” means packing services on the Seller’s premises, the Buyer’s premises, or elsewhere, or warehousing services on the Seller’s premises, or carriage of goods by the Seller for the Buyer;
“TERMS” means the standard terms of sale set out or referred to in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Buyer and the Seller;
“WRITING”, and any similar expression, includes facsimile transmission and comparable means of communication.
1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re enacted or extended at the relevant time.
1.3 The headings in these Terms are for convenience only and shall not affect their interpretation.
2. Basis of 'The Contract'
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with the Seller’s Acknowledgement of Order subject to these Terms, which shall govern the Contract to the exclusion of any other terms subject to which any quotation is purported to be accepted, or any order is made or purported to be made, by the Buyer.
2.2 Where the Acknowledgement of Order refers to the provision of Services then:
2.2.1 if those Services include or consist of warehousing of goods then that aspect of those Services shall be governed by the RHA Warehousing Conditions; and
2.2.2 where these Services include or consist of the carriage of goods then that aspect of those Services shall be governed by the RHA Carriage Conditions.
AND IN THE EVENT that these Terms conflict therewith the RHA Conditions shall prevail.
2.3 No written or oral quotation or offer, statement or negotiations made by or on behalf of the Seller shall be capable of constituting anything other than an invitation to the Buyer to treat. The Buyer may make an offer to purchase Goods or Services either orally or in Writing and the sole method of acceptance of such offer shall be the Seller’s Acknowledgement of Order issued thereafter.
2.4 No variation to these Terms 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 any such representations which are not so confirmed, but nothing in these Sale Terms affects the liability of either party for fraudulent misrepresentation.
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 storage, application or use of the Goods 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, Acknowledgement of Order, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. Orders and specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller’s Acknowledgement of Order.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the Sale terms of any order (including any applicable specification) submitted by the Buyer, orally or in writing, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of the Goods and any specification for them shall be as set out in the Seller’s Acknowledgement of Order and shall be subject to normal tolerances acceptable within the industry.
3.4 If 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 patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or E.U. requirements or where the Goods are to be supplied to the Seller’s specification which do not materially affect their quality or performance.
3.6 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.
3.7 Proofs of all work based on Buyer’s specifications may be submitted to the Buyer for approval in which event no responsibility will be accepted by the Seller for any errors in proofs which may be passed by the Buyer. The Buyer shall be solely responsible for any matter which the Seller prints on the Goods on the instructions, or at the request of, the Buyer and for any design or construction which the Seller executes on the instructions, or at the request of the Buyer, whether the same shall have been supplied by the Seller or by the Buyer.
3.8 All designs, drawings and origination work prepared by the Seller shall remain the property of the Seller unless payment is made for the same specifically, in which case ownership shall pass to the Buyer.
4. Price of 'The Goods'
4.1 The price for the Goods and for the provision of the Services shall be the price stated in the Seller’s Acknowledgement of Order.
4.2 The Seller reserves the right, by giving Written notice to the Buyer at any time before delivery, to increase the price of the Goods or the Services 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 or of rail or other transport costs or any increase in haulage cost due to a delivery vehicle being held up at the port of embarkation due to dock congestion or the effect of strike action), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
4.4 [The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to the Seller before the due payment date.]
4.5 Should the Buyer seek to vary or add to the specification of the Goods set out in the Seller’s Acknowledgement of Order, and should such variation or addition be acceptable to the Seller, any extra cost caused by such variation or addition shall be payable by the Buyer in addition to any agreed cost arising directly from such variation or addition.
5. Terms of payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller may invoice the Buyer for the price of the 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.
5.2 The Buyer shall pay the price of the Goods and of the Services (less any discount to which the Buyer is entitled, but without any other deduction) on or before the end of the calendar month following the date of the Seller’s invoice, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract.
5.3 If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may:
5.3.1 cancel the Contract or suspend any further deliveries to the Buyer;
5.3.2 appropriate any payment made by the Buyer to such of the Goods or Services (or the goods or services supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer);
5.3.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 5 per cent per annum above The Royal Bank of Scotland PLC 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
5.3.4 disallow the Buyer any discount.
6.1 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 set out in the Acknowledgement of Order, by the Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date on giving reasonable notice to the Buyer.
6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Terms 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.
6.4 If the Seller fails to deliver the Goods (or any instalment) 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 to replace those not delivered over the price of the Goods.
6.5 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 limiting any other right or remedy available to the Seller, the Seller may:
6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage and increase the price of the Goods to those ruling at the time of actual delivery of such Goods;
6.5.2 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 under the Contract or charge the Buyer for any shortfall below the price under the Contract; or
6.5.3 treat the Contract as repudiated by the Buyer and claim damages accordingly.
6.6 Where delivery takes place other than at the Seller’s premises, all Goods shall be unloaded promptly at the delivery point by the Buyer, and the Seller shall not be held responsible for any damage sustained to Goods in the course of being so unloaded. Clear and reasonable access to the delivery point should be made available by the Buyer.
6.7 At the conclusion of a Contract where goods are stored at the Seller’s premises at the customer’s request, such goods will be delivered and invoiced in accordance with the terms set out in the Acknowledgement of Order.
6.8 Where it is agreed that the Seller shall supply Goods at a time or times to be determined by the Buyer’s call off of all or any part of the Goods the Buyer shall pay for the Goods forthwith on call off (to the extent that such Goods have been called off) but if the Goods or any part of them have not been called off within 12 months of the date of the Acknowledgement of Order the Buyer shall at the expiry of such 12 months period pay for such Goods as remain unpaid for. Further the Buyer shall be responsible for the insurance of Goods which are not called off within 12 months of the Acknowledgement of Order and shall pay to the Seller storage charges after the said 12 month period of 10% of the purchase price of the Goods per annum calculated on a daily basis and invoiced on a monthly basis. The Seller is entitled to store the same in the open, and without being responsible for any damage or deterioration in the Goods caused by exposure to the elements.
7. Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:-
7.1.1 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
7.1.2 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 or if the Buyer wrongfully fails to collect Goods within [7 days] of notification when the Acknowledgement of Order requires collection by the Buyer, on expiry of the said period of [7 days].
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.3 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, but the Buyer may resell or use the Goods in the ordinary course of its business.
7.4 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 may at any time require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.5 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 moneys owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable.
8. Warranties and liability
8.1 Subject to the following provisions the Seller warrants that the Goods will correspond with their specification at the time of delivery within the normal acceptable tolerances in the industry and that the Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with the Specification and at the intervals and within the times referred to in the Acknowledgement of Order. .
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 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 misuse or alteration or repair of the Goods without the Seller’s approval;
8.2.2 the Seller shall be under no liability to the Buyer for any loss, damage, costs, expenses or other claims for compensation arising from any instructions supplied by the Buyer in the provision of the Services which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form, or arising from their late arrival or non-arrival, or any other fault of the Buyer;
8.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment and in the case of Services if all invoices presented for the Services are not paid by the due date;
8.3 Subject as expressly provided in these Terms, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 The Goods are not tested or sold as fit for any particular purpose unless that purpose is identified in the Acknowledgement of Order.
8.5 A claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.6 Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Terms, the Seller may replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), in which case the Seller shall have no further liability to the Buyer.
8.7 Except in respect of death or personal injury caused by the Seller’s negligence, or liability for defective products under the Consumer Protection Act 1987, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Buyer or the supply of the Services, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods and Services, except as expressly provided in these Terms.
8.8 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. Without limiting the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
8.8.1 Act of God, explosion, flood, tempest, fire or accident;
8.8.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.8.3 acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.8.4 import or export regulations or embargoes;
8.8.5 strikes, lock outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.8.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.8.7 power failure or breakdown in machinery.
9.1 If a claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or 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 indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
9.1.1 the Seller is given full control of any proceedings or negotiations in connection with the claim;
9.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Buyer shall not pay or accept the claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld);
9.1.4 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 this indemnity 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);
9.1.5 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
9.1.6 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 such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
10. Insolvency of buyer
10.1 This clause 10 applies if:
10.1.1 the Buyer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this clause applies then, without limiting any other right or remedy available to the Seller, the Seller may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11.1 The Seller is a member of the group of companies whose holding company is Rowlinson Group Limited, and accordingly the Seller may perform any of its obligations or exercise any of its rights under the Contract 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. 11.2 A notice required or permitted to be given by either party to the other under these Sale Terms 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. 11.3 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.
11.4 If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.11.5 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non exclusive jurisdiction of the English courts.