Terms of use

THORPE PACKAGING TERMS AND CONDITIONS OF BUSINESS.
A   Conditions applicable

1 These Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order      confirmation of order or similar document.
2   All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
3   Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
4   Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing
 by the Seller.
B   The Price
5   The Price shall be the Seller’s quoted price. The Price is exclusive of VAT which shall be due at the rate ruling on the date of the Seller’s invoice.
6   Payment of the Price and VAT shall be due within 30 calendar  days of the date of the invoice. Time for payment shall be of the essence.
7   Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 5% above   
 Midland Bank plc’s base rate from time to time in force and shall accrue at such a rate after as well as before any judgment. 
8  The seller may by giving to the buyer at any time up to 7days before delivery increase the Price of the Goods to reflect any increase in the cost to the Seller which is due to factors occurring after the making of the contract of sale which are beyond the reasonable control of the Seller (including, without limitation, foreign exchange fluctuations, taxes and duties and the cost of labour , materials and other manufacturing costs).  Provided that the Buyer may cancel this contract within 7 days of any such notice for the Seller.
C   Payment of goods supplied
9    If the buyer fails to make payment for the Goods in accordance with this contract of sale or commits any other breach of this contract of sale or if any distress or execution shall be levied upon any of the Buyer’s goods or if the Buyer offers to make any arrangement with its creditors or if any petition in bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or assets or if any petition for the appointment of an administrator is presented against the Buyer or if the Buyer shall suffer any analogous proceedings under foreign law all sums outstanding in respect of the Goods shall become payable immediately.  The Seller may in its absolute discretion and without prejudice to any other rights which it may have:
(a)   suspend all future deliveries of Goods to the Buyer and/or terminate the contract without liability upon its part; and/or
(b)    exercise any of its rights pursuant to clause (number of clause relating to the seller’s retention of title).
D   Cancellation of orders
10   The Seller may cancel this contract before the Goods are delivered by giving written notice.  On giving such notice the Seller shall promptly repay to the Buyer any sums paid in respect of the Price.  The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
11   The Buyer may cancel this contract at any Time before all of the Goods are delivered by giving written notice.  On giving such written notice:
(a)   the Seller shall cease to be bound to deliver and the Buyer shall cease to be bound to receive delivery of any further goods:
(b)   the Buyer shall cease to be bound to pay that part of the Price which related to goods which have been delivered;
(c)   the Buyer shall be liable to repay the Seller for any loss or damage whatever arising from such cancellation.”
E   Description

1.The Goods shall be supplied in accordance with the description contained in the Seller’s specification and manufactured in accordance with all

applicable British Standards which relate specifically to the Goods.

1. The Seller may from time to time make changes in the specification of the Goods which are required to comply with any applicable safety or statutory

requirements or which do not materially affect the quality or fitness for purpose of the Goods.
14   All products are manufactured to tolerances as specified in the PFGC Standards 1/89, 2/89 and 3/69 and PFMS 2/65 1/64 3/87 and 4/68.  Suitability of  the goods for any specific purpose cannot be guaranteed by the Seller.
F   Delivery
15    Delivery of the Goods shall be made to the Buyer’s address on the Delivery Date. The Buyer shall make all arrangements necessary to take delivery of
the Goods whenever they are tendered for delivery.
16   The Goods shall be delivered to the Buyer at the Seller’s address. The risk in the Goods shall pass to the Buyer upon such delivery taking place.

1. The Seller shall arrange for carriage of the Goods to the Buyer’s address. The costs of carriage and any insurance which the Buyer reasonably directs the Seller to incur shall be reimbursed by the Buyer without any set-off or other withholding   whatever and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Buyer’s agent.

18   The Goods shall be at the Buyer’s risk as from delivery.  Delivery shall be taken as occurring :-
(a) Where the goods are delivered by the Seller or its agents when the goods or packages in which the goods are contained are off loaded from  the Seller’s or its agents Vehicle.
(b) When goods are collected by the Buyer or his agent when the goods or the packages in which the goods are contained are loaded onto the  vehicle provided or used by the Buyer or his agent.
19    If the goods shall be lost or damaged in transit or the Buyer shall receive any notification indicating the probability of such loss or damage the Buyer shall give immediate notice in writing to the Seller and to any carriers concerned and shall take prompt and reasonable measures to establish the  responsibility for any such loss or damage and generally to safeguard the interests of the Buyer and Seller.
20    The Seller may deliver the Goods by separate installments. Each separate installment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
21   The failure of the Seller to deliver or the failure of the Buyer to pay for any one or more of the said installments of the Goods on the due dates shall not entitle either party to treat this contract as repudiated.
22   The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
23   Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within [3]   months of the Delivery Date.”

 

 

G   Damage & Shortage
24   The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that:
(a)such discrepancy in quantity shall not exceed: 10% as regards thickness; and, 5% as regards size.
         (b)the Price shall be adjusted pro rata to the discrepancy.
         The Property in any rejected goods shall revert to the Seller
         H   Title to the Goods
26   In spite of delivery having been made property in the Goods shall not pass from the Seller until:
(a)the Buyer shall have paid the Price plus VAT in full; and
(b)no other sums whatever shall be due from the Buyer to the Seller.

1.  Until property in the Goods passes to the Buyer in accordance with clause 26 the Buyer shall hold the Goods and each of them on a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all  other goods in its possession and marked in such a way that they are clearly identified as the Seller’s property.

28   Notwithstanding that the Goods (or any of them) remain the property of the Seller the Buyer may sell or use the goods in the ordinary course of the Buyer’s business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn Bank account and shall be at all material times identified as the Seller’s money.
29   The Seller shall be entitled to recover the Price (plus VAT) notwithstanding that property in any of the Goods has not passed from the Seller.
30   Until such time as property in the Goods passes from the Seller the Buyer shall upon request deliver up such of the Goods as have not ceased to be in existence or resold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned occupied or controlled by the Buyer where the Goods are situated and repossess the Goods. On the making of such request the rights of the Buyer under clause 28 shall cease.
31   The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.

1. The Buyer shall insure and keep insured the Goods to the full Price against ‘all risks’ to the reasonable satisfaction of the Seller until the date that property in the Goods passes from the Seller, and shall whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.”

33   The Seller may for the purpose of recovery of its goods enter upon any premises where they are stored or where they are reasonably thought to be stored and may repossess the same.
34   If goods the property of the Seller are mixed with goods the property of the Buyer or are processed with or incorporated therein the product shall become and / or shall be deemed to be the sole and exclusive property of the seller.
35   If goods the property of the Seller are mixed with goods the property of any person other than the Seller or are processed with or incorporated therein the product thereof shall become and/or shall be deemed to be owned in common by the Seller and that person in the proportion which the values of the respective goods bear to each other.
I   Limitation imposing time limits upon bringing claims for defects, damage, loss or non-delivery
36   The Buyer shall inspect the Goods on delivery and shall within 7 days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with description.   The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery and before any use is made of them. If the Buyer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the contract and free from any defect or damage which would be apparent on a reasonable examination of the Goods and the Buyer shall be deemed to have accepted the Goods. The Seller shall not be liable for any alleged defect, shortage in quantity, damage or failure to comply with description or sample after this period.
37   The Buyer shall notify the Seller of any non-delivery of a whole consignment of complete cartons within 7 days of the date of dispatch (as stated on the invoice). Notwithstanding the receipt by the Seller of any   such notice a clear signature on a carrier’s delivery advice sheet shall be deemed to signify receipt of the quantity of cartons indicated on the advice sheet.
38   If the Goods are not in accordance with the contract for any reason the Buyer’s sole remedy shall be limited to the Seller making good any shortage by replacing such Goods or, if the Seller shall elect, by refunding a proportionate part of the Price.
J   Consequential Loss &Breach of Contract.
39   The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of this contract.
40   In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
K   Residual exclusion of causes of actions
41   All warranties and conditions whether implied by statute or otherwise are excluded from this contract Provided that nothing in this contract shall restrict or exclude liability for death or personal injury caused by the negligence of the Seller or affect
the statutory rights of a buyer dealing as consumer.
42   All terms, conditions and warranties (whether implied or made expressly) whether by the Seller or its servants or agents or otherwise (other than those express warranties set out in the current edition of the Seller’s specification) relating to the quality and/or fitness for purpose of the Goods or any of the Goods are excluded.”
L   Licencing & subcontracting work
43   “The Seller may license or sub-contract all or any part of its rights and obligations under this contract without the Buyer’s consent.”

         M   Intellectual property rights
44   No right or licence is granted under this contract of sale to the Buyer under any patent, trade mark, copyright, registered design or other intellectual property right except the right to use or resell the Goods.
45   Where any specifications and designs of the Goods or any of the Goods have been provided by the Buyer the copyright, design right or other intellectual property in them shall remain the property of the Buyer.
  46   The specifications and designs of the Goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Seller. Where any designs or specifications have been supplied by the Buyer for manufacture by or to the order of the Seller then the Buyer warrants that the use of those designs or specifications for  the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
47   If the buyer shall be subject to any claim from a third party that the goods infringe such third party’s intellectual property rights then the buyer shall indemnify the seller against such claims(s).
48   The seller will indemnify the buyer against any claim that the sale or use of the goods by the buyer contravenes any third party’s intellectual property rights.
49   All preliminary work whether experimental or otherwise carried out at the Buyer’s request shall be charged in addition to the sums specified in this contract. An estimate of the cost of such preliminary   work to be supplied upon request.
50   An additional charge may be made to cover any initial work involved where a copy supplied is not clear or legible.
51   All sketches and original work prepared by the Seller shall remain the property of the Seller unless specifically paid for by the Buyer.
52   In the case of printed materials all alterations from the original copy on and alteration of  the first proof including alterations including style will be charged extra. No responsibility will be accepted for any errors in proof which have been accepted in writing by the Buyer.
N   Liabilities Clause
53   The Seller shall be under no liability if it is prevented from or delayed or hindered in performing any of its obligations under the contract by reason of act of God war, civil disturbance, riot, labour dispute, fire, accident, explosion, flood, drought, storm or other event or any cause (whether or not of the same nature as the foregoing  beyond the control of the Seller.)
O   Jurisdiction
54   This contract is subject to the Law of England and Wales.
55   All disputes arising out of this contract shall be subject to the exclusive jurisdiction of the courts of England and Wales.
56   Nothing in this clause 54 shall prevent the buyer from commencing proceedings against the seller in any other court of competent jurisdiction nor shall the commencement of proceedings in one or more jurisdictions preclude the commencement of proceedings in any other jurisdiction whether concurrently or not.