“Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
“Buyer” means the person firm or company from whom an Order is accepted by the Seller.
“Conditions” means the terms and conditions set out in this document.
“Contract” means the contract for the sale of the Goods by the Seller governed by these Conditions.
“Goods” means the articles or things or any of them described in the
Order and supplied under the terms of the Contract. “Order” means the order placed by the Buyer for the supply of the Goods.
“Force Majeure Event” has the meaning given in clause 11.
“Seller” means Flambeau EuroPlast Ltd (company number 1216092).
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a party includes its personal representatives, successors or permitted assigns.
Any phrase introduced by the terms Including, Include, In particular, or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
A reference to writing or written includes faxes and e-mails.
A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
The Contract and all agreements from time to time entered into between the Seller and the Buyer which provide for the sale of any Goods by the Seller to the Buyer shall be deemed to incorporate these Conditions which represent the complete agreement of the Seller and Buyer with regard to the Goods except as may be otherwise specifically agreed in writing by the Seller. These Conditions shall override any terms and conditions stipulated incorporated or referred to by the Buyer in any Order correspondence negotiations or in any other way.
The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order are complete and accurate. The Order shall only be deemed to be accepted when the Seller issues a written acceptance of the Order, at which point the Contract shall come into existence.
The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract.
If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed, to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
All intellectual and industrial property rights in or arising out of or in connection with the Goods shall be owned by the Seller.
No cancellation by the Buyer of an accepted order is permitted except where expressly agreed by the Seller in writing.
The price for the Goods shall be as agreed in writing between the Seller and the Buyer.
Unless otherwise agreed between the Seller and the Buyer, the price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer. The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Buyer shall, on receipt of a valid VAT invoice from the Seller, pay to the Seller such additional amounts in respect of V.AT as are chargeable on the supply of the Goods.
The Seller may, by giving notice to the Buyer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to: (i) any factor beyond the Seller’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (ii) any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or (iii) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
The Buyer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Buyer shall not be entitled to assert any credit, set-off or counterclaim against the Seller in order to justify withholding payment of any such amount in whole or in part. The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.
The Seller’s invoice may be issued at any time after the Goods are ready for despatch. Unless otherwise agreed, the Buyer shall pay the invoice in full and in cleared funds prior to the expiry of the calendar month following the calendar month in which the relevant invoice is issued and payment shall be made to the bank account nominated in writing by the Seller.
Time for payment of the price shall be of the essence and if the Buyer fails to make any payment due to the Seller under the Contract by the due date for payment (due date), then the Buyer shall pay interest on the overdue amount at the rate of 2% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date up to and including the date of actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
The Seller reserves the right to suspend further deliveries and to cancel any allowance of further credit: (i) if the Buyer fails to make any payments due to the Seller under the Contract by the due date for payment; or (ii) the Seller in its sole discretion at any time considers that the financial condition of the Buyer has ceased to justify any such credit terms being permitted.
Delivery of the Goods shall be completed on the delivery of the Goods to a carrier. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to, the supply of the Goods.
The Seller reserves the right 16 make delivery by instalments which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
If the Buyer fails to take delivery of the Goods within three Business Days of the Seller notifying the Buyer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Seller’s failure to comply, with its obligations under the Contract: (i) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Seller notified the Buyer that the Goods were ready; and (ii) the Seller shall store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
If ten Business Days after the day on which the Seller notified the Buyer that the Goods were ready for delivery the Buyer has not taken delivery of them, the Seller may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods.
If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
The Buyer shall not be entitled to reject the Goods if the Seller delivers up to and including 10% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Buyer that the wrong quantity of Goods was delivered.
Risk and Title
The risk in the Goods shall pass to the Buyer on completion of delivery.
Title to the Goods shall not pass to the Buyer until the Seller has received payment in full (in cash or cleared funds) for the Goods; and (ii) any other goods or services that the Seller has supplied to the Buyer in respect of which payment has become due.
Until title to the Goods has passed to the Buyer, the Buyer shall: (i) hold the Goods on a fiduciary basis as the Seller’s bailee; (ii) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property; (iii) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (iv) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (V) notify the Seller immediately if it becomes subject to any of the events listed in clause B(b); and (vi) give the Seller such information relating to the Goods as the Seller may require from time to time, but the Buyer may resell or use the Goods in the ordinary course of its business.
If before title to the Goods passes to the Buyer, the Buyer becomes subject to any of the events listed in clause B(b), or the Seller reasonably believes that any such event is about to happen and notifies the Buyer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Seller may have, the Seller may at any time require the Buyer to deliver up the Goods and, if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
Certain packaging and transport materials including containers, cans, drums, crates and pallets remain the property of the Seller and the Buyer shall return all such materials to the Seller without delay in a good and proper condition. The Seller reserves the right to charge the Buyer for any materials not returned.
Buyer’s Insolvency or Incapacity
If the Buyer becomes subject to any of the events listed in clause B(b), or the Seller reasonably believes that the Buyer is about to become subject to any of them and notifies the Buyer accordingly, then, without limiting any other right or remedy available to the Seller, the Seller may cancel or suspend all further deliveries under the Contract or under any other contract between the Buyer and the Seller without incurring any liability to the Buyer, and all outstanding sums in respect of Goods delivered to the Buyer shall become immediately due.
For the purposes of clause B(a) the relevant events are: (i) the Buyer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; (ii) the Buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Buyer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer; (iii) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Buyer, other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer; (iv) (being an individual) the Buyer is the subject of a bankruptcy petition or order; (v) a creditor or encumbrancer of the Buyer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; (vi) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Buyer; (vii) (being a company) a floating charge holder over the Buyers assets has become entitled to appoint or has appointed an administrative receiver; (viii) a person becomes entitled to appoint a receiver over the Buyers assets or a receiver is appointed over the Buyers assets; (ix) any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8(b)(i) to clause 8(b)(viii) (inclusive); (x) the Buyer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; (xi) the Buyers financial position deteriorates to such an extent that in the Sellers opinion the Buyers capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and (xii) (being an individual) the Buyer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
Quality of Goods
The Seller warrants that on delivery, the Goods shall: (i) conform in all material respects with their description; (ii) be free from material defects, in design, material and workmanship.
Subject to clause 9(c) if: (i) the Buyer gives notice in writing to the Seller that some or all of the Goods do not comply with the warranty set out in clause 9(a) within 5 Business Days of delivery of the Goods where the defect would be apparent on visual inspection of the Goods or within a reasonable time of discovery of a latent defect; (ii) the Seller is given a reasonable opportunity of examining such Goods; and (iii) the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Seller’s cost, the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
The Seller shall not be liable for Goods’ failure to comply with the warranty set out in clause 9(a) in any of the following events: (i) the Buyer makes any further use of such Goods after giving notice in accordance with clause 9(b); (ii) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same; (iii) the defect arises as a result of the Seller following any drawing, design or specification or using any material or other property supplied by, on behalf of, the Buyer; (iv) the Buyer alters or repairs such Goods without the written consent of the Seller; (v) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or (vi) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
Where materials or other property are supplied to the Seller by or on behalf of the Buyer to be held by the Seller for the purposes of the Contract, the Seller accepts no responsibility for any loss or damage to such materials or property.
Except as provided in this clause 9, the Seller shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 9(a).
The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
These Conditions shall apply to any repaired or replacement Goods supplied by the Seller.
Nothing in these Conditions shall limit or exclude the Sellers liability for: (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (ii) fraud or fraudulent misrepresentation; or (iii) breach of the terms implied by section 12 of the Sale of Goods Act 1979.
Subject to clause 9.1: (i) the Seller shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and (ii) the Sellers total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
Where work is to be carried out by the Seller in accordance with the Buyers specifications or where the Seller uses any materials or other property which are supplied to it by or on behalf of the Buyer, the Buyer undertakes that by so doing the Seller will not infringe the rights of third parties and the Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages or losses (including any direct or indirect consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller arising out of or in connection with the Sellers use of the Buyers specification, materials or other property under the Contract.
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of Sellers or subcontractors.
The Buyer shall during and after the termination of the Contract keep confidential all information acquired from the Seller or which becomes known to the Buyer in connection with the Contract.
The Seller may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
The Buyer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Seller.
Sales Promotion Documentation
Any samples, drawings, descriptive matter, or advertising produced by the Seller and any descriptions or illustrations contained in the Sellers catalogues, technical circulars, price lists, brochures or other literature are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 15(a); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the couriers delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
Governing law and jurisdiction
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.