In these conditions, except where the context otherwise requires, the following words shall have the meanings:
“The Buyer” means the person, firm or company with whom or with which the company contracts subject to these conditions.
“The Company” means BioPak (UK) Ltd whose registered office is Tadcaster House, Kempton Road, Keytec Business Park, Pershore, Worcestershire. WR10 2TA
“The Contract” means the contract made, or to be made between the Company and the Buyer subject to these conditions.
“The Goods” means the articles, products and all things, if any, including samples where relevant, the subject matter of this Contract.
These conditions may not be modified or varied unless the Company agrees in writing and the Company shall not be deemed to accept any other conditions, even if placed in a purchase order or any other communication from the Buyer. All orders are subject to these conditions and the placing of an order shall be considered as acceptance of these conditions.
Unless otherwise agreed in writing all orders are accepted subject to prices and any relevant discounts ruling at the date of dispatch, and any price lists of the Company whether published or not shall not affect the right of the Company to charge for goods in accordance with this clause. All prices are subject to the addition of VAT at the appropriate rate. All prices quoted are “ex-works” unless otherwise stated. The Company reserves its right at its absolute discretion to refuse an order placed by any Buyer.
4. SETTLEMENT TERMS
All accounts are payable within 30 days of the invoice date. No receipts will be issued against payment by cheque unless specifically requested. The Company, at its discretion, reserves the right to charge interest on overdue accounts at 2% per month. The Company can exercise this right in addition to any other rights it may have in respect of the goods or non-payment. The Company may from time to time at its discretion allow a discount on prices for prompt payment within 28 days. That discount may be varied or withdrawn at any time at the discretion of the Company.
Where the Contract is to be or may be fulfilled in separate deliveries or part deliveries, payments for each such delivery or part-delivery, shall be made as if the same constituted a separate Contract.
Any Contract shall be subject to the Company being satisfied as to the Buyer’s creditworthiness and in its absolute discretion, having informed the Buyer that the goods are ready for delivery, the Company may refrain from delivering the goods until such time as the Buyer tenders the purchase money to the Company in a form satisfactory to the Company.
Orders sent in confirmation of telephone instructions should be clearly marked as such, otherwise any additional expense incurred by the Company as a result of duplication of order will be charged to the Buyer.
7. DELIVERY DATES
Delivery dates are promises given in good faith by the Company to indicate estimated delivery times but shall not amount to any contractual obligation to deliver at the time stated. No liability for direct or consequential loss or damage of any nature whatsoever arising from delay in delivery will be accepted by the Company. Goods quoted from stock are quoted subject to being unsold at the time the order is accepted.
8. TITLE TO GOODS
(a) The risk in the Goods shall pass to the Buyer upon delivery and the Buyer should insure the goods accordingly.
(b) Until full payment has been received by the company for all goods howsoever supplied and all services rendered at any time by the company to the Buyer ownership in all Goods supplied by the Company under this contract or any other contract between the Company and the Buyer shall remain in the Company.
(c) Until such time as legal title in the goods passes to the Buyer, it shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected, insured with a reputable company and identified as the Company’s property. Until legal title passes the Buyer shall be entitled to resell or use the goods in the ordinary course of its business but shall forthwith account to the Company for the proceeds (of whatever nature) of disposal of the goods.
(d) Upon the determination of the Buyer’s power of sale, the Buyer shall place the goods at the disposal of the Company and the Company shall be entitled, using such force as may reasonably be necessary, to enter upon any premises of the buyer for the purpose of repossessing the Goods.
Unless otherwise stated in the contract delivery of the goods shall be deemed to have been made upon completion of offloading at the place of delivery nominated by the buyer in writing.
Time for delivery shall not be fundamental to the contract unless otherwise agreed by the seller in writing.
The seller reserves the right to deliver up to 10% more or 10% less than the quantity of goods ordered as proper performance of the contract and any surplus or deficiency shall be charged or allowed at the contract rate.
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 shall not entitle the buyer to treat the contract as a whole as repudiated.
If the buyer fails to take delivery of the goods or fails to give the seller adequate delivery instructions then, without prejudice to any other remedy available to the seller, the seller may: (1) store the goods until actual delivery and charge the buyer for the reasonable costs (including insurance) of storage or (2) after one month from the due delivery date sell the goods at the best price readily available and (after deducting all reasonable storage and selling expenses) charge the buyer for any shortfall below the price.
10. DAMAGE IN TRANSIT AND SHORTAGES
The Company will repair or replace free of charge goods damaged in transit, provided that the carriers and the company receive written notification of such damage within three days of delivery. Goods received in a damaged or unsatisfactory condition must be signed for as such. On receipt, goods should be checked with the advice note enclosed with the goods. Shortage claims will only be considered if the carriers and the Company receive written notification of such damage within three days of delivery. Goods received in a damaged or unsatisfactory condition must be signed for as such. Goods delivered may be up to 10% short or 10% surplus on the order, and will be considered by the Company and the Buyer to be due execution of the order.
Goods correctly supplied may not be returned without the Company’s written agreement. Goods so returned must be consigned “carriage paid” and accompanied by a packing note stating the Company’s invoice number and date thereof together with the reason for return. Any article which has been supplied to special requirements cannot be accepted for credit under any circumstances, and in other instances, a re-stocking charge may be imposed. Returns will only be accepted if all items are unmarked and in new condition with item packaging (if applied) unbroken.
(a) The Company’s liability in respect of goods manufactured and supplied by it shall be limited to replacement of any goods developing defects whilst in normal use where such defects are due to faulty design, materials or workmanship and occur and are notified to the Company in writing by the Buyer within 14 days of the Buyer taking possession of the Goods; and
(b) At the Company’s discretion, any goods alleged to be defective shall be returned at the Buyer’s expense to the Company’s works for inspection; and
(c) For factored goods (i.e. those Goods supplied to the Company by other manufacturers) the Company’s liability is limited to giving the Buyer the benefit of any guarantee or warranty given by the manufacturer of those goods; and
(d) The Company, its employees and its agents shall be under no further liability for any injury, loss or damage of any kind whatsoever or howsoever arising whether direct or consequential. The Buyer agrees to keep the Company indemnified against any third party claims howsoever arising; and
(e) All conditions and warranties expressed or implied by statute, custom, common law, or trade practice are hereby expressly excluded to the extent allowable by law.
(a) If Goods are supplied in accordance with the Buyer’s specifications (“the Specifications”) the Buyer shall be solely responsible for the Specifications and ensuring that they are accurate and that the Buyer and the Company are entitled to use such Specifications without incurring any liability to any third party.
(b) The Buyer shall be responsible for supplying the Specifications in sufficient time to enable the Company to perform the Contract in accordance with its terms.
(c) If the Specifications include the use of any intellectual property the Buyer warrants that it is the owner of the intellectual property in the Specifications and the use of such intellectual property by the Company will not infringe any third party rights. The Buyer hereby indemnified the Company against all and any loss, damages, costs, expenses and any other liability which the Company may incur to a third party arising out of the Company’s use, at the Buyer’s instructions, of the Specifications.
(d) The Specifications and designs of the Company which without prejudice to the generality of the foregoing shall include illustrations, drawings, other descriptive and forwarding specifications, weights, dimensions and product prototypes are, unless expressly stated to be otherwise, subject to modification or improvement and must be regarded as approximate representations only and are not binding in detail unless expressly stated to be so and such title and copyright in the Specifications submitted by the Company shall remain vested in the Company.
(e) The Buyer agrees that it shall not disclose to any third party any of the information relating to the Company’s Specifications without the prior written consent of the company or the party in whom title and copyright in the Specifications is vested.
All drawings, descriptions and other information submitted by the Company shall remain the property of the Company together with the copyright therein. In addition:
(a) All sketches and original work remain the property of the Company.
(b) No responsibility will be accepted by the Company for any errors arising from proofs which have been approved by the Buyer.
(c) The Buyer shall be solely responsible for any matter which they instruct the company to print on the Goods.
No liability will be accepted by the Company for any failure of or delay in performance which is due wholly or partially to Act of God, war, fire, explosion, riot, civil commotion, restriction by Government or other competent authority, strikes, lock outs, failure in supplies of new material or to any cause whatsoever
15. FORCE MAJEURE
Each and every obligation contained in these conditions shall be treated as a separate obligation and shall be severally enforceable as such notwithstanding the non-enforceability of any such obligation.
17. GOVERNING LAW AND JURISDICTION
The Contract shall in all respects be governed by and construed in accordance with English Law and the Company and the Buyer shall submit to the jurisdiction of the English Courts.