STANDARD
TERMS AND CONDITIONS OF SALE OF NICHOLL FOOD PACKAGING
LIMITED
("the company")
- INCORPORATION
These Standard Terms and Conditions of Sale are incorporated
in every contract between The Company and the Buyer
of the goods ("the Buyer") unless varied
or deleted by the Special Terms and Conditions of
Sale relating to a specific Contract and signed by
a Director on behalf of the Company and shall apply
in all circumstances and prevail over any conditions
or terms of trading of the Buyer, and supersedes all
other terms and conditions relating to the subject
matter of these Terms and Conditions
- VARIANCE
If any term or condition of any Special Terms and
Conditions of Sale is at variance with any Standard
Term or Condition, the Special Term or Condition shall
apply and the Standard Term or Condition shall not
apply to the extent that it is at variance with the
Special Terms and Conditions
- ACCEPTANCE
(a) All quotations expire thirty days after the date
thereof. No quotation given is an offer of sale capable
of acceptance so as to create a binding contract.
(b) Each accepted order shall constitute an entire
and separate contract to which these Conditions shall
apply.
(c) The Company shall be entitled to subcontract the
fulfilment of the order or any part of the order.
- GOODS
(a) Goods shall be required to conform to the specification
in the order for Goods by the Buyer ("the Purchase
Order") and with the sample or as otherwise expressly
agreed in writing
(b) Where specifications, instructions and the like
are to be supplied the Buyer shall supply such specifications
and/or instructions in reasonable time to enable the
Company to complete delivery within the period agreed.
(c) The Company warrants that it has good title to
the Goods and that it will transfer title in the Goods
to the Buyer pursuant to clause 10
- PRICE
(a) Goods will be invoiced at the prices ruling at
the date of despatch. The Company may increase the
price to the extent that the cost to The Company of
producing the goods has increased.
(b) All orders over £1,000 will be delivered
carriage paid within Great Britain. Orders under £1,000
will attract the Company's standard carriage charge.
Orders requiring a special delivery will bear carriage
at cost.
- PAYMENT
(a) Prices are quoted in sterling exclusive of VAT.
Accounts are due for payment within 30 days of the
date of invoice. All payments shall be made without
any deduction or set-off whatsoever.
(b) If any payment is overdue The Company reserves
the right to suspend any further deliveries and to
charge interest on the amount due in accordance with
The Late payment of Commercial Debts (Interest) Act
1998 until the amount due (including interest) is
paid.
(c) If any sum due to the Company from the Buyer on
any account whatsoever remains unpaid after the Company
has given to the Buyer two days written notice of
its intention to exercise its rights under this Condition
the Buyer shall be deemed to be in breach of this
agreement and the Company shall be entitled to recover
the Goods if necessary by entry into and removal from
the Buyer's premises without prejudice to any other
claims which the Company may have against the Buyer.
Until payment is made the Buyer shall possess the
Goods of the Company as a bailee only.
(d) The Buyer has the right to sell for the account
of the Company any of the Goods in the possession
of the Buyer owned by the Company and the Buyer shall
be under a fiduciary duty to the Company for the proceeds
of sale thereof to the extent that any monies are
owed to the Company.
(e) Nothing herein provided shall give the Buyer the
right to return the Goods to the Company.
- DELIVERY
(a) Unless otherwise agreed, any delivery date or
period specified by The Company is an estimate only
and The Company shall not be liable for any loss or
damage (including consequential loss) sustained by
Buyer as a result of failure to deliver on such date
or within such period. Time shall not be of the essence
for delivery
(b) If The Company is unable to deliver the Goods
for reasons outside its control, The Company shall
be entitled, at the Buyer's expense, to place the
Goods in storage until such time as the Goods may
be delivered
(c) The Company reserves the right to charge in full
for all returnable pallets/stillages and packaging,
other than cartons, not returned in serviceable conditions
carriage paid to works within ninety days from the
date of invoice.
(d) The Company reserves the right to make delivery
by instalments unless otherwise agreed and these Conditions
shall apply (mutatis mutandis) to each instalment
delivery.
(e) The Company shall not be liable for the consequences
of any delay beyond the stated delivery date and no
such delay shall entitle the Buyer to terminate the
contract.
- DAMAGE SHORTAGE OR LOSS
(a) Any claims by the Buyer in relation to quantity
and quality of the Goods, goods damaged upon delivery,
shortage or non-delivery must be made in writing to
The Company and to the carrier. In the case of quality
of the Goods, goods damaged upon delivery or shortage,
the claim must be made in writing to The Company within
72 hours of delivery and in the case of non-delivery
of a whole consignment within 7 days of the agreed
delivery date (if any) or the date of despatch (if
notified) or failing such a date then any date specified
by The Company as date of delivery. If no such claim
is received the Goods shall be deemed to have been
accepted by the Buyer as being in good order and conformity
with the Contract. No claims will be accepted thereafter.
(b) Where goods are accepted the delivery note of
the carrier concerned must be signed legibly and dated
and if without being examined further marked "not
examined".
(c) The goods in respect of which any claim of damage
or shortfall is made shall be preserved intact (including
packing) for a period of 14 days from notification
of the claim within which time The Company and carrier
shall have the right to attend at Buyer's premises
to investigate the claim.
(d) Goods are not to be returned or collected by the
Company under any circumstances without a collection
note issued by the sales office. There will be the
Company's standard collection charge plus carriage
for product returned not required or refused delivery
in the event that the Goods comply with the Order.
- DEVIATIONS
(a) Deviations in the quantity or weight of goods
delivered amounting to not more than 10% shall not
entitle the Buyer to reject the goods delivered and
the Buyer shall have no right to claim for damages
for breach of contract or otherwise. Where an insufficient
or excess quantity of goods within the above limits
are delivered, the Buyer will pay for the goods so
delivered or the Company make an allowance at the
contract rate or deliver the shortfall.
(b) Defects in quality or dimensions in any delivery
shall not be a ground for cancellation of the remainder
of the contract.
- RISK AND OWNERSHIP
(a) Risk in the goods shall pass to the Buyer upon
delivery provided that where delivery is withheld
or delayed by reason of any default of the Buyer risk
shall pass to the Buyer at such time that The Company
would have delivered had such withholding or delay
not occurred.
(b) Notwithstanding delivery and passing of risk,
the legal property in and beneficial ownership of
the goods shall remain in The Company until such time
as The Company shall have received payment in full.
(c) If the Buyer commits any default (which expression
shall without prejudice to the generality thereof
include any failure to pay The Company on the due
date, any composition with creditors, where the Buyer
is a company, the appointment of a receiver of the
Buyer's business or of an administrator or the presentation
of a petition to wind up the Buyer, or where the Buyer
is an individual, the presentation of a bankruptcy
petition) The Company shall be entitled forthwith
to recover and resell any or
all of such goods and for such purpose The Company
shall have an irrevocable licence to enter upon any
premises where the goods may be situated with such
transport as may be necessary and the Buyer shall
render all reasonable assistance to The Company to
enable The Company to so recover the goods.
(d) Until such time as ownership passes to the Buyer,
the Buyer shall store the goods separately from those
supplied by other parties and in such a manner as
they can be clearly identified as the property of
The Company.
- WARRANTY
(a) The Company warrants that the goods at the time
of delivery shall correspond with the description
of the Goods and with the sample, be free from defects
in workmanship and materials and shall comply with
any agreed specifications. If any goods do not conform
to that warranty, The Company will at its option (i)
replace the goods found not to conform to the warranty;
or (ii) take such steps as The Company deems necessary
to bring the goods into a state where they are free
from such defects PROVIDED THAT the liability of The
Company shall in no event exceed the purchase price
of the goods and performance of any one of the above
options shall constitute an entire discharge of The
Company's liability under this warranty. In particular,
and without prejudice to the generality of the foregoing,
the Company shall not be liable for consequential
damage, loss of profit or goodwill
(b) The foregoing warranty is conditional upon:-
(i) a claim in conformity with condition 8 is given
to the Company in writing within the time limits for
any Goods found to be faulty on delivery,
(ii) Buyer giving written notice to The Company of
the alleged defect within 72 hours of the time when
the Buyer discovers or ought to have discovered the
defect and in any event within sixty days of delivery
of the goods;
(iii) Buyer affording The Company a reasonable opportunity
to inspect and test the goods.
(iv) no repairs or alterations having been carried
out to the goods without the prior written approval
of The Company;
(v) the goods having been handled, stored and used
properly and carefully, not subjected to excessive
load or use, and in accordance with any instruction
issued by The Company; and
(vi) the goods having been used for the purpose for
which they were supplied.
(c) It will be for a Buyer to decide whether any goods
are appropriate for his needs and he should not rely
on any statement, advertisement or otherwise of the
Company, but must make his own independent enquiries.
(d) The undertaking contained in paragraph (a) above
does not apply to goods or any part thereof not manufactured
by The Company. In the case of such goods The Company
will use reasonable endeavours to pass on to the Buyer
the benefit of any guarantee, condition, warranty
or servicing arrangement received by The Company from
the supplier of such goods but The Company shall be
under no liability whatsoever for any defect in such
goods.
(e) Save as provided above, all conditions and warranties,
express or implied by common law or by statute as
to the quality, fitness for purpose of merchantability
are hereby expressly excluded to the fullest extent
permitted by law. Nothing in this clause shall operate
to exclude any implied condition concerning the Company's
title in and right to sell the Goods, the Buyer's
right to quiet possession or any liability on the
part of the Company for personal injury or death arising
from it's fraudulent misrepresentation, negligent
actions or those of its employee or agents
(f) All recommendations and advice given by or on
behalf of The Company to Buyer as to the methods of
handling storing, or using the goods, the purposes
to which the goods may be applied and the suitability
of using the goods in conjunction with any other materials
or for any other purpose are given without liability
on the part of The Company, it's servants or agents.
- DAMAGES
(a) In no circumstances whatsoever shall The Company
be liable in contract or tort or otherwise for any
consequential or indirect damage or loss, howsoever
caused.
(b) In any event, The Company's liability to the Buyer
in respect of any breach or non-performance of The
Company's obligations howsoever caused shall be limited
to the price of the goods.
(c) Nothing herein shall affect the liability of The
Company for death or personal injury caused by The
Company's negligence.
- INTELLECTUAL PROPERTY RIGHTS
(a) Where goods are supplied to the specification
of the Buyer, the Buyer will indemnify The Company
against losses, costs, charges, expenses and damages
which The Company may suffer as a result of any claim
or allegation that the dies, tools or goods infringe
the patents, copyright, registered designs or other
protection of any person or that the dies, tools or
goods do not comply with any legislation, regulations
or requirements in force from time to time.
(b) The Buyer recognises that certain information
supplied by The Company concerning the goods is secret
and confidential and proprietary to The Company and
the Buyer shall keep the same in confidence and not
disclose the same to any person, form or company or
use the same for any purpose other than that granted
by The Company. Further, the Buyer shall only disclose
it to those of its officers and employees whose duties
justify the need to know the information and then
solely upon the basis of a
clear understanding by such officers and employees
of their obligation both to maintain the confidential
status of the same and to restrict its use as above.
- TESTS
If Buyer requires the goods to be subjected to any
tests or inspection other than The Company's usual
or routine test or inspection, such test or inspection
shall be carried out at the Buyer's expense and at
a place and time convenient to The Company. If Buyer
does not attend such test or inspection, The Company
shall make it in accordance with the terms notified
to it or deemed by it to be applicable or suitable
and the Buyer shall be deemed to have accepted the
result.
- FORCE MAJEURE
The Company shall not be liable or responsible for
any loss or damage caused by delay in the performance
or non-performance of any of its obligations where
the same is occasioned by any cause whatsoever that
is beyond The Company's reasonable control, including
but not limited to an Act of God; war (whether declared
or not); civil disturbance; terrorism; requisitioning;
governmental or parliamentary restrictions, prohibitions
or enactments of any kind; import or export regulation
strike lock-out or
trade dispute (whether involving its own employees
or those of any other person); difficulties in obtaining
workmen or materials at the price prevailing including
(but not limited to) fuel, breakdown of machinery,
flooding and fire or accident, non-availability or
delay of vessels or other transport. Should any such
event occur The Company may suspend or postpone deliveries
or cancel the contract without incurring any liability
for any loss or damage thereby occasioned.
- BREACH
If Buyer shall default in or commit any breach of
any of its obligations to The Company or if any distress
or execution shall be levied on any of the Buyer's
property or if the Buyer shall make or offer to make
any arrangements or composition with its creditors
or if the Buyer is a limited company any resolution
or petition to wind up its business except for the
purposes of reconstruction or amalgamation is presented
or passed or a receiver or an administrator is appointed
of such company's undertaking, property or assets
or any part thereof or if the Buyer is an individual,
is the subject of a bankruptcy petition, then The
Company shall, without prejudice to any other right
available to The Company be entitled forthwith on
written notice to terminate any contract then subsisting
with the Buyer. In addition to the foregoing the Buyer
shall indemnify The Company against all claims, demands,
costs, expenses and liabilities of whatsoever nature
which may be made against The Company or which The
Company may pay, sustain or incur arising out of or
in connection with any such breach.
- ASSIGNMENT
Buyer shall not assign or transfer or purport to assign
or transfer any contract to which these Conditions
of Sale apply or the benefit thereof to any other
person whatsoever.
- DISTANT SELLING
Unless the Buyer is ordering as a consumer within
the meaning of the Consumer Protection (Distance Selling)
Regulations 2000 and the Electronic Commerce (EC Directive)
Regulations 2002, then the Buyer and Company hereby
agree in advance of any non-consumer order that any
part of those Regulations that do not and/or need
not and/or may not apply to non-consumer orders shall
not so apply.
- GOVERNING LAW
The construction, validity and performance of these
Conditions of Sale and any contract made hereunder
shall be governed in all respects by English Law and
the Buyer and The Company hereby submit to the exclusive
jurisdiction of the English courts.
- EXPORT CONTRACTS
The following additional provisions will apply to
any order for the sale of goods when goods are exported
outside the United Kingdom.
(a) Buyer shall be solely responsible for obtaining
any necessary import licences in respect of the goods
and The Company shall be under no liability whatsoever
in respect of goods exported without the necessary
licences.
(b) If goods are sold F.O.B. (as defined in Incoterms
(1980)) all risk of loss or damage to the goods shall
pass to the Buyer at time the goods pass the ship's
rail and The Company shall be under no obligation
to give the Buyer notice specified in section 32(3)
of the Sale of Goods Act 1979. Incoterms shall apply
except to the extent that they may be inconsistent
with these Conditions of Sale.
- GENERAL
(a) References in these Terms and Conditions of Sale
to the male include references to the female as the
sense may reasonably require, and references to the
singular shall include references to the plural (and
vice-versa) again as the sense may reasonably require.
(b) If the Company does not exercise any right under
these Terms and Conditions of Sale, or delays in so
exercising, then that will not prevent it from exercising
that or any other right in the future.
(c) If any of these Terms and Conditions of Sale cannot
be enforced, then such Terms and Conditions of Sale
will be deemed to have been removed from the contract
and all other terms will remain in force
(d) The Headings shall not form part of these Terms
and Conditions of Sale and shall be disregarded in
interpreting the same
(e) The Buyer may address any complaints to the address
of the Company that appears in the Invoice for the
Goods
(f) Any notices required to be served under this Agreement
shall be served by post addressed to the Company or
the Buyer that appears on the Invoice for the Goods
in a prepaid first class envelope.
(g) Any reference in these Terms and Conditions to
any provision of a statute shall be construed as a
reference to that provision as amended, re-enacted
or extended at the relevant time.
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