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1.1 In these Conditions ‘Buyer’ means the person whose order for the Goods is accepted by the Seller, ‘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 Conditions, ‘Seller’ means ProAmpac Security Products Limited, ‘Conditions’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller, and ‘Contract’ means the contract for the purchase and sale of the Goods.
1.2 Any reference in these 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.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2 Basis of the sale
2.1 All orders are subject to credit approval, rejection or modification by the Seller. The Buyer agrees that each order constitutes a representation that it is both solvent and not a debtor in any insolvency, bankruptcy, or restructuring proceedings. The Contract shall be effected upon the Seller giving written acceptance of the Buyer’s order (which shall specify the quantity and price of Goods ordered) and the date of the contract shall be deemed to be the date of the acceptance unless otherwise expressly specified. The Contract shall incorporate and be subject to these Conditions in all respects and no variation of or addition to these Conditions shall form part of the Contract or be effective against the Seller unless expressly made or approved by the Seller in writing. All quotations shall be invitations to treat only and shall not constitute offers capable of acceptance by the Buyer and shall be valid only for a period of thirty (30) days from the date of the quotation unless otherwise specifically provided. These Conditions shall override and take the place of any other conditions in any document or other communication used by the Buyer in concluding any contract with the Seller. These Conditions embody the entire understanding of the Seller and the Buyer relating to the Contract and save where otherwise provided herein override and supersede all prior promises, representations, understandings or implications relating thereto.
2.2 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, 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. Specifications, descriptions and drawings
3.1 All drawings, design, sketches and samples prepared by the Seller and the copyright therein shall remain the property of the Seller and shall be returned to it by the Buyer on demand. All such drawings, designs, sketches and samples are confidential and shall not be copied or reproduced or disclosed to any third party without the prior written consent of the Seller.
3.2 The Buyer is responsible for ensuring that any specification submitted by the Buyer is complete and accurate. 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 (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional 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 actual or alleged 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. Seller reserves the right to cancel all Contracts, without liability, if the Buyer’s specifications: (i) infringe a third party’s intellectual property rights; or (ii) violate any foreign, federal, state or local law, regulation or order. In such case, the Buyer is responsible for all costs incurred by Seller up to and including the date of cancellation.
3.3 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 regulatory requirements which do not materially affect their quality or performance.
3.4 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 such cancellation.
4. Price of the goods
4.1 The price of the Goods is the price quoted by the Seller. All prices quoted are valid for thirty (30) days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods 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 cost of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is required 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 Except as otherwise stated, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
4.4 The price is exclusive of; (i) printing plates; (ii) art charges; (iii) freight; (iv) warehousing and handling fees; (v) brokerage fees; (vi) upcharges; (vii) any applicable excise, value-added tax, sales, use or similar taxes; (viii) insurance; or (ix) tooling of any kind, which the Buyer shall be additionally liable to pay to the Seller.
4.5 The cost of pallets, boxes, packages and other returnable containers may 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 date for payment of the relevant invoice.
4.6 Shortages or surpluses within the permitted delivery variations (as per Condition 6.6) shall be charged pro-rata the agreed price of the Goods.
5 Terms of payment
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to 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 within thirty (30) days from the date of 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 (as set out at Condition 5.1 above). The time of payment of the price shall be of the essence of the Contract.
5.3 All preliminary work (including the costs of acquiring or preparing appropriate tools where necessary) done by the Seller at the request of the Buyer in relation to the Contract, or the goods or materials used in conjunction therewith shall be paid for by the Buyer upon demand by the Seller.
5.4 If the Buyer fails to make any payment by the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract and any other contract between the Buyer and the Seller, suspend any further deliveries to the Buyer, to stop Goods in transit, appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer), and charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of two per cent (2%) per month (calculated on a day to day basis) until payment in full is made.
5.5 Acceptance by Seller of Buyer’s payment of an invoice in full or in part shall be without prejudice to any claims or rights of the Seller against the Buyer.
5.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5.7 In the event of a default in the payment of an invoice, Buyer will be responsible for all of Seller's costs of collection, including, but not limited to, court costs, filing fees and legal fees.
5.8 In the event of a full or partial cancellation of a Contract, the Buyer is responsible for all costs incurred by Seller up to and including the date of cancellation. This includes all costs expended and committed for raw materials, work in process, finished Goods, labour, supplies, administrative costs, any subcontractors’ or third-party suppliers’ fees, and any other costs associated with performance of any order and loss of profits.
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, 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 upon 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 Conditions 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 less the price of the Goods.
6.5 If the Buyer fails to take delivery of the Goods on the date of delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or the Seller’s failure to comply with its obligations under the Contract) or fails to give the Seller adequate delivery instructions then, without prejudice to any other right or remedy available to the Seller, delivery of the Goods shall be deemed to have been completed and the Seller may store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage. If seven (7) days after the day on which the Buyer failed to take delivery of the Goods the Buyer has not taken actual delivery of them, the Seller may resell or otherwise dispose of part or all of the Goods.
6.6 The Seller shall be deemed to have fulfilled its Contract by delivery of quantities within the following variations:
6.6.1 Bags - delivery variations of not more than 10% of each type of printed or non-standard plain bag resulting from over or under runs except that the allowable variations in deliveries of each type of printed or non-standard plain bag ordered in quantities of less than 5,000 shall be 25%.
6.6.2 Film - delivery variations of not more than 10% of each type of printed or non-stock unprinted film resulting from over or under runs except that the allowable variations in deliveries of each type of printed film ordered in quantities of less than 10,000 printed impressions shall be 25%.
6.6.3 All other packaging materials - delivery variations of not more than 10% where the material content of the Contract does not exceed 10 tonnes or 7.5% where the material content of the Contract exceeds 10 tonnes.
6.7 Any query regarding delivery documentation and invoices shall be notified to the Seller within ten (10) days of the date of invoice. If the Buyer does not notify the Seller accordingly the Buyer shall be deemed to have accepted the sufficiency and accuracy of such delivery documentation and invoices and shall accordingly pay the price by the due date.
6.8 No lead times are guaranteed unless otherwise stated in writing by Seller.
7 Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer; 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 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.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, 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. In the case of machinery or other equipment supplied by the Seller on hire, lease, lease purchase or any other equivalent arrangement, title in such machinery or equipment shall only pass (if at all) in accordance with the specific terms agreed between the Seller, and the Buyer in respect of such arrangement.
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 shall be entitled to resell or use the Goods in the ordinary course of its business subject to clause 7.4. If the Buyer resells the Goods before property in the Goods passes to the Buyer, it does so as principal and not as the Seller’s agent and property to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs.
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 shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon 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 change 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 prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8. Warranties, liability and returns
8.1 Subject to the conditions set out below the Seller warrants that the Goods will be of satisfactory quality, where appropriate correspond with their specification at the time of delivery and be free from defects in design, material and workmanship and remain so for 24 months after delivery.
8.2 The above warranty is given by the Seller subject to the following conditions: the Buyer makes no further use of or sale of such Goods after giving notice to Seller of the defective Goods, the Seller is not liable for any damage, defects or compatibility issues if the Goods are used with products of another manufacturer, the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer; the Seller shall be under no liability in respect of any defect, failure, breakdown, malfunction or breakage arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing) including failing to store the Goods in a warehouse environment for flexible plastic packaging films with a temperate not exceeding 35°C and the humidity not exceeding 60% and ensuring that the Goods are not exposed to excessive or prolonged exposure to heat and/or humidity, alteration or repair of the Goods without the Seller’s written approval, 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, the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
8.All warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Any 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 in writing within fourteen (14) 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 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.
8.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specifications is notified to the Seller in accordance with these Conditions, the Buyer shall obtain the Seller’s written consent to return the defective Goods and on receipt of an authorisation number from the Seller, the Buyer shall be permitted to return the Goods to the Seller. The Seller shall be given a reasonable opportunity of examining such Goods. Provided that the Buyer returns the non-confirming Goods in the same condition in which they were received, the Seller shall, at its sole discretion, either replace the Goods (or the part in question) free of charge or, refund or credit the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer. This Condition shall apply to any repaired or replacement Goods supplied by the Supplier.
8.6 Any samples, drawings, descriptive matter or advertising produced by the Seller and any descriptions or illustrations contained in the Seller's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
8.7 Nothing in these Conditions shall limit or exclude the liability or remedy of either party in respect of; (i) death or personal injury caused by negligence, (ii) fraud or fraudulent misrepresentation, (iii) breach of the terms implied by section 12 of the Sale of Goods Act 1979, or (iv) defective products under the Consumer Protection Act 1987. The Seller shall not have any liability to the Buyer for loss of profit loss of business, loss of agreements or contracts, loss of anticipated savings, depletion of goodwill or any indirect or consequential loss which arise out of or in connection with the Contract. The Seller’s total liability to the Buyer under or in respect of the Contract for any claim or claims, whether arising in contract, tort (including negligence), breach of statutory duty or restitution, or for misrepresentation, or otherwise howsoever shall in no circumstances exceed the price of the Goods, except as expressly provided in these Conditions.
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 under the Contract, if the delay or failure was due to any cause beyond the Seller’s reasonable control, including but not limited to act of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil disturbance or requisition, acts restrictions regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes; strikes, lock-outs, epidemic, pandemic or other industrial actions or trade disputes whether involving employees of the Seller or of a third party); difficulties in obtaining raw materials, labour, fuel, parts of machinery; power failure or breakdown in machinery.
8.9 The Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Seller; (i) in connection with any claim made against the Seller that the information provided in respect of the Goods (which the Buyer instructed the Seller to use) is illegal, false, misleading or deceptive and (ii) as a result of any environmental pollution, contamination or damage (including, in addition to the above, fines and penalties to the extent allowed by law, clean-up and other remedial or containment costs and legal, technical or similar fees and expenses) to the environment or natural resources occurring in connection with the Buyer’s use of any Goods regardless of cause, including Buyer’s negligence, strict liability, or other act or omission
8.10 If the Seller is in possession of a mould or other equipment owned by the Buyer, the Seller’s maintenance and repair obligations shall be limited to those to which it has expressly agreed to in writing.
9.1 This Condition applies if: the Buyer makes any 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 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or the Buyer ceases, or threatens to cease, to carry on business; or 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.
9.2 If Condition 9.1 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract or any other contract between the Buyer and the Seller 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.
9.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
9.4 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
10 Export terms
10.1 In these Conditions ‘Incoterms’ means the international rules for the interpretation of trade terms of the International Chamber of Commerce in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
10.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this Condition 11 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
10.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
10.4 Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered FCA (Incoterms 2020) ProAmpac’s factory and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
11.1 The Buyer shall not assign the Contract or any part thereof or any rights thereunder in whole or in part without the prior written consent of the Seller. The Seller may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
11.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing and delivered by hand or by pre-paid first-class post or other next working day delivery 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. Any notice shall be deemed to have been received if delivered by hand, on signature of a delivery receipt and if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Working Day after posting. For the purposes of this Condition 11.2, references to time are to local time in the place of deemed receipt and “Working Day” shall mean a day other than a Saturday or Sunday, a public holiday or a day on which banks are not open for business in the country of deemed receipt.
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 these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
11.5 The Contract shall be governed by and construed in accordance with the laws of England, and the Buyer agrees to submit to the exclusive jurisdiction of the English courts as regards any dispute arising under or in connection with these Conditions or the sale of the Goods.
11.6 The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.7 In performing its obligations under the Contract, the parties shall comply with all applicable laws, statutes, regulations from time to time in force, including the Bribery Act 2010 and the Seller shall comply with the Modern Slavery Act 2015.
11.8 (a) Each party undertakes that it shall not at any time during the Contract and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Condition 11.8 (b).
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this Condition 11.8; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
11.9 Nothing in these Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
12 Buyer’s Requirements
12.1 All Goods are sold on the condition that Buyer will examine and test samples prior to the initial purchase to determine whether the Goods meet Buyer's requirements. Once the Seller has made samples available, the Buyer’s order for Goods acts as confirmation of such examination and testing.
12.2 It shall be the Buyer’s responsibility to assure that the Goods are suitable for the Buyer’s needs.