In these Terms and Conditions of sale (“General Conditions”), “the Company” shall mean Povoas Packaging Limited and the words “the Buyer”, “the Goods” and “Delivery Address” shall be interpreted according to the information below. “The Goods” shall include packaging and where the context so admits and part of the Goods agreed to be sold or supplied to the Buyer.
1. Acceptance of orders and incorporation of Terms and ConditionsThe Buyer’s order for the Goods is accepted by the Company on and subject to these General Conditions which shall prevail over and take effect in place of any terms and conditions of, referred to or adopted by the Buyer. No variation of these General Conditions shall be effective against the Company unless in writing and signed by a director of the Company. These General Conditions embody the entire understanding of the Company and the Buyer relating to the order and override and supersede all prior promises, representations, understandings or implications relating thereto.
2. Fulfilment and delivery of orders(a) Any date quoted by the Company or stipulated by the Buyer for the provision of proofs, the commencement of production, delivery or otherwise shall be treated as an estimate only and the Company shall in no circumstances be liable for loss or damage arising from delay howsoever caused.
(b) Delivery shall be affected when the Goods are handed over to the Buyer or to a carrier for carriage to the Buyer, whichever shall first occur.
(c) The Company shall have the right to deliver the Goods by instalments and to invoice the Buyer therefor. Each instalment so delivered shall for the purpose of payment be deemed to be a separate Contract and if so invoiced shall be paid for accordingly.
(d) The Buyer shall provide a person duly authorised by the Buyer to acknowledge receipt of the Goods. Any acknowledgement of receipt of the Goods which is or purports to be given by or on behalf of the Buyer shall be conclusive evidence as between the Company and the Buyer that there was no shortage in the quantity of Goods received by the Buyer which would have been apparent from inspection of the Goods at the time of receipt and the Goods were at the time of such receipt in apparently good order and condition unless such acknowledgement specifically states that less than the correct quantity has been received or that the Goods have been received in a damaged condition.
(e) Any claim in respect of shortage of or damage to the Goods, must be made by the Buyer in writing to the Company and if the Goods have been delivered to a carrier, also to the carrier within 7 days of delivery.
(f) If for any reason whatsoever the Company or any carrier shall be unable to hand over the Goods to the Buyer at the Delivery Address or in accordance with the￼￼ Buyer’s delivery instructions, any storage, demurrage or additional freight, insurance or other costs or expenses incurred by or on behalf of the Company shall be for the account of the Buyer and will be invoiced to and shall be payable by the Buyer at the same time as the invoice for the Goods in respect of which they were incurred.
(g) All plates, artwork and other original work produced by the Company in connection with the order shall remain the property of the Company unless paid for by the Buyer. (h) All illustrations, drawings and other information issued by the Company or contained in its catalogues, price lists, advertisements or any other publications must be regarded as approximate guides only and weights, measurements, capacities, properties, colours and other particulars of Goods, processes, equipment or materials are offered by the Company in good faith as being approximately correct but no responsibility can be accepted for their accuracy except where otherwise specifically agreed in writing by the Company. Errors and omissions in such publications are subject to correction.
(i) Where an order is accepted by the Company and supported by a purchase order (PO), Buyer liability for costs associated with part manufacture commences as soon as the manufacture process starts. If the PO is subsequently cancelled by the Buyer, all costs accrued against that order shall be the responsibility of the Buyer.
(j) Exact quantities of the Goods are not guaranteed by the Company. Delivery of the quantity stated on the order, 10% more or less, shall be good performance for the purposes of this Contract. Subject to this, the Buyer shall be obliged to accept and to pay at the Contract rate for the quantity actually delivered. (k) Good performance shall be deemed to have been achieved should: i. the width of the Goods so delivered be either greater or less than thewidth ordered by the Buyer provided that such discrepancy shall notexceed 5% (subject to a minimum of 4mm) ii. the length of the Goods so delivered be either greater or less than thelength ordered by the Buyer provided that such discrepancy shall notexceed 5% (subject to a minimum of 6mm) iii. the average film thickness of the Goods so delivered be either greater orless than the average film thickness ordered by the Buyer provided thatsuch discrepancy shall not exceed 10% iv. the spot thickness of the Goods so delivered be either greater or less thanthe spot thickness ordered by the buyer provided that such discrepancy shall not exceed 20%
3. RiskThe risk of all loss, destruction, damage or deterioration of the Goods howsoever caused shall pass to the Buyer immediately the Goods are despatched from the Company’s premises, save that:
(a) Where the Goods are carried to the Buyer in the Company’s vehicles, such riskshall pass to the Buyer immediately the Goods are unloaded;￼
(b) Where the Buyer fails to give delivery instructions, such risk shall pass to the Buyer at midnight on the seventh day following the date of any notice given by the Company to the Buyer that the Goods are ready for delivery.
The Buyer should insure the Goods once the risk has been passed to them.
4. Prices and Payment(a) Unless otherwise stated overleaf, prices quoted are inclusive of freight to the Delivery Address but do not include VAT.
(b) The Company’s published prices and rates are subject to alteration without notice. Notwithstanding any price given in any quotation or in the order, the price payable for the Goods will be that given in the Company’s Acknowledgement of the Buyer’s order, provided that by notice in writing to the Buyer, the Company may substitute for that price, the price for the Goods ruling at the date of despatch or if ex works of notification to the Buyer that the Goods are ready for collection. Any notice so given may be withdrawn at the time by the Company.
(c) Actual payment of the invoice price and any VAT, freight insurance, storage, demurrage, interest or other costs payable hereunder shall be made without any deduction or set-off except as permitted by Condition 4(d) by end of the month following delivery of Goods. If any sum payable under this agreement shall not be paid when due, the Buyer shall pay to the Company interest on such sum calculated on a daily basis and compounded quarterly from the due date until payment at the rate of 8% per annum over the Barclays Bank Plc base rate from time to time in force. The Company will also exercise, under such circumstances, the statutory right to claim compensation for debt recovery costs under the late payment legislation.
(d) If part of an invoice is rendered by the Company as bona fide and for good cause disputed by the Buyer, only the disputed part may be withheld and the balance must be paid as required by Condition 4(a).
(e) Where any amount is due and owing by the Buyer to the Company on any outstanding invoice, the Company reserves the right in whole or in part to cancel orders and/or to suspend work on any orders which it may have in hand. The Buyer will remain liable to pay for partly manufactured cancelled orders according to the Contract rate for the Goods.
(f) Notwithstanding Condition 5 hereof, the Company shall be entitled to maintain an action for the price of the Goods at any time after their delivery.
(g) All cheques must be cleared on or before the due date for payment.
(a) The legal title to the Goods shall not pass to the Buyer until all sums due or owing on any account whatsoever by the Buyer to the Company have been paid in full￼￼or the Goods cease to be identifiable as the property of the Company by reason only of their conversion into other products by the Buyer. Until such time the Buyer shall hold the Goods as bailee of and in a fiduciary capacity for the Company and shall at any time on demand made by the Company:-
(i) store the Goods separately from other Goods and so as to be identifiable as the property of the Company, and
(ii) deliver up the Goods to the Company, and/or
(iii) shall further permit the Company, its agents, at any time without notice to enter upon the Buyer’s premises and retake possession of the Goods.
(b) The Buyer shall be entitled to sell in the ordinary course of its business any of the Goods which are the property of the Company on condition that the Buyer shall hold on trust for and demand made by the Company pay or transfer to the Company to the extent of any monies due or owing to the Company, the proceeds of such sale and all claims that the Buyer may have against its Purchaser as the result of such sale.
6. Buyer’s BreachWithout prejudice to any common law or statutory rights of the Company or to any rights of the antecedent breaches, if the Buyer fails or is unable to comply with or perform any part hereof, ceases trading or commits any act of bankruptcy or shall suffer any execution or distress to be levied on its Goods or, being a Company, shall enter into liquidation whether compulsory or voluntary save for the purpose of reconstruction or amalgamation of a Company whilst solvent or shall have a Receiver appointed, the Company shall have the right forthwith as its option to suspend any outstanding work and/or deliveries and/or to determine this Contract in so far as it may be unperformed and/or to exercise the right to repossess any Goods which are the property of the Company pursuant to Condition 5 hereof.
7. Inspection of Goods and Returns(a) The Buyer shall inspect the Goods immediately on receipt hereof. Unless the Company shall have been notified to the contrary before the expiration of the period specified in Condition 8 hereof, the Goods shall be deemed in all respects to be in conformity with the Contract.
(b) The Buyer shall not be entitled to return all or any of the Goods without the Company’s prior consent.
(c) No Goods shall be returned to the Company otherwise than in accordance with Condition 8 hereof. If unauthorised returns are made, the Company reserves the right to refuse the return or to accept it and, in the latter case, the Goods will be held as the Buyer’s property and at its risk and expense. No acceptance of￼￼returned Goods shall be evidence of agreement to cancel any Contract nor any admission of any defects in the Goods.
8. Guarantee(a) The Company will modify, or its option, replace free of charge any of the Goods found to be defective in ordinary use or service or found not to correspond in any material respect with any description of them in the order, on condition that:-
(i) the Company is notified in writing of defect or non-conformity immediately such defect or non-conformity became apparent and in any event within thirty days of receipt of such Goods by the Buyer.
(ii) such notice states the product code, job number, advice or invoice number and the Buyer’s order number,
(iii) such Goods are made available for collection by or on behalf of the Company safely and suitably packaged
(iv) where with the Company’s consent, Goods are returned otherwise than by the Company’s transport, such Goods are returned to such addresses as the Company may appoint intact for examination and,
(v) such examination discloses the Company’s judgement the defect or non-conformity complained of.
All carriage and insurance costs, where any Goods are collected by the Company’s transport shall be for the Company’s account. If the Company agrees that the Buyer may return any Goods otherwise than by the Company’s transport, all carriage and insurance costs shall be pre-paid by the Buyer but will be reimbursed by the Company if the conditions of this guarantee are satisfied.
(b) The Guarantee does not extend to any of the Goods which have not been stored in appropriate conditions and for a reasonable period in all the circumstances subjected to misuse, neglect or accident or which have been cut, printed, fabricated or processed by any third party, nor does it extend to any printing errors or omissions including variations in colour or shade which shall have been passed or not objected to in a proof submitted to the Buyer.
9. Limitation of Company’s Liability(a) The Guarantee contained in Condition 8 hereof is in lieu of and shall replace all other representations or undertakings, express or implied by statute, common law or otherwise as to the state, quality, yield, performance, or fitness of the Goods for any particular purpose, or their correspondence with description or sample, all of which are hereby expressly excluded.￼￼
(b) The total liability of the Company on any claim or demand including all costs and expenses in connection therewith whether in Contract, tort including negligence or otherwise arising out of or connected with or resulting from the manufacture, sale, delivery, modification, replacement or use of the Goods or the non- performance by the Company of any of its obligations hereunder shall not exceed the invoice price of the Goods excluding VAT, freight, insurance, storage, demurrage and packaging.
(c) In no circumstances shall the Company be liable to or to indemnify or make contribution to the Buyer in respect of any special or consequential loss or damage including but not limited to loss of revenue or profit, tooling or manufacturing charges, claims by customers or third parties, or costs and expenses incurred in connection with substitute Goods, howsoever such loss or damage may be caused.
(d) The preceding provisions of this Condition 9 shall not apply so as to exclude or restrict liability than cannot by law lawfully be excluded.
10. Buyer’s Warranty and Indemnity(a) The Buyer represents and warrants to the Company that all information relevant to the specification of the Goods and their use which is or may be relevant to their manufacture, packaging, storage or transportation by the Company is contained in the Buyer’s order.
(b) The Buyer shall indemnify the Company against all claims, demands, damages, penalties, costs, expenses or liabilities in respect of the infringement of any letters patent, registered design, design copyright, copyright, trade mark or other industrial property right or breach of confidence not being a breach by the Company or in respect of any words or symbols printed on the Goods arising or resulting from the instructions of the Buyer or any specifications provided by the Buyer to the Company.
11. Force MajeureFailure by the Company to observe any of the provisions hereof arising from causes beyond its reasonable control including without limitation strikes, lockouts, shortage of labour, fire, storm, flood, machinery breakdown, inability to obtain raw materials, equipment, fuel, power components or transportation shall not be deemed breaches of it or these General Conditions so that the Contract resulting from the order shall continue in force until the circumstances shall have ceased to prevent performance and when such circumstances shall have ceased and performance becomes possible the Company shall continue to perform such Contract and any necessary adjustment in the price for the Goods shall be made by the Company.￼￼
12. Applicable LawThe Contract and these General Conditions shall be governed by and construed with English Law.
13. Miscellaneous(a) Headings are included for convenience only and do not affect the interpretation of these General Conditions.
(b) The Company reserves the right to sub-contract the whole or any part of its performance under this order.
(c) No delay, neglect or forbearance on the part of the Company in enforcing against the Buyer any Term or Condition hereof shall be or be deemed to be a waiver or in any way prejudice any right of the Company in respect thereof.