|3.0||INSURANCE AND RISK|
|4.0||TERMS OF PAYMENT|
|5.0||LIMITATION OF LIABILITY|
|6.0||RESERVATION OF TITLE|
|7.0||DEFAULTS BY THE CUSTOMER|
|9.0||VARIATION IN PRICE|
|10.0||NON CONFIRMED AGREEMENTS|
|11.0||INTELLECTUAL PROPERTY COPYRIGHT AND PATENTS|
|12.0||HEALTH & SAFETY AT WORK|
In particular, all reference to goods shall be interpreted to include all goods and materials supplied under a contract for the supply of services.
1.1 These TERMS AND CONDITIONS shall apply to all sales of goods and the supply of all services by Par-Pak Europe Ltd (“the Company”), it’s employees and agents to the Person firm or company proposing to purchase (“the Customer”) from the Company and supersede all previous Terms and Conditions appearing in any advertisement of the Company or elsewhere and any advice, representation, promise, condition, inducement or warranty, express or implied, given by the Company not included in writing in this Contract and no variation or purported variation (including in particular any Terms and conditions on the Customer’s Contract or Tender Documents and / or drawings (where submitted), whether before or after the making of the Contract and shall not have effect unless expressly agreed in writing by a duly authorised officer of the Company. Updates on the Company’s Terms and conditions of sale can be found at www.Holfeldplastics.com/terms.
1.2 The Customer agrees that all quotations and/or estimates furnished in respect of Goods and/or Services of the Company shall constitute invitations to treat only on the part of the Company, and are given without prejudice to the right of the Company to vary any of the contents thereof at any time. There shall be no contract between the Company and the Customer until the Customer’s order is accepted orally and confirmed in writing or in writing by the Company as per section 8, which acceptance shall be the subject of section 1.2 above.
2.1 The Company will use its best endeavours to deliver all goods within a reasonable time and at the date and within the time specified (if any).
2.2 All delivery dates given by the Company are made honestly and on reasonable grounds but shall be estimates only and the Company shall not be liable for any damage or inconvenience or any loss however caused, suffered by the Customer as a result of such delivery dates not been met.
2.3 If due to delays beyond the company's control (“Force Majeure”) the Company is prevented from delivering any Goods and/or Services by the appropriate delivery date, such date shall be postponed for a reasonable period. Beyond such period the Company may, without liability, cancel part or all of the contract as regards such Goods and/or Services or the Customer may without liability cancel part or all of the Contract without liability, unless the goods either have been or are in, the course of manufacture (including liability for materials ordered and/or delivered), or have been appropriated by the Company.
2.4 If due to delays beyond the Company’s control or its suppliers, Goods and/or Services have not been delivered within the specified time, the Company shall not be liable for expense, loss or damage, direct or indirect suffered by the Customer as a result.
2.5 Where the Customer is entitled to call off goods under a purchase order at intervals it shall take delivery of the goods immediately upon the delivery dates or at the intervals stated in the purchase order or as soon thereafter as it is notified by the Company that the goods are available for delivery.
2.6 Any Goods and/or Services ordered by the Customer but not delivered, within six weeks from the date of the original order (“Old Stock”), save for “Force Majeure”, shall be invoiced to the Customer as if the Goods and/or Services had been delivered, unless it is expressly agreed in writing by the company beforehand. Once invoiced the Customer has two weeks to take delivery of the Goods and/or Services otherwise they may be disposed off as the Company sees fit without recourse to the Customer. Old Stock Invoices are payable on receipt and do not fall under confirmed trading credit terms.
2.7 Storage of “Old Stock” may be arranged between the Company and the Customer, under a “Storage Agreement”, but only if the goods have been paid for in full. In the absence of such a “Storage Agreement” the “Old Stock” will be dealt with as per S2.6.
2.8 The Customer shall take delivery of the goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity ordered provided that such a discrepancy in quantity shall not exceed 10% and the price will be adjusted pro rata to the discrepancy.
2.9 The Company shall deliver goods in a manner according to its normal practice unless informed by the Customer of its specific packaging or delivery requirements. The Customer shall inform the Company in writing of such requirements at least three days prior to delivery. Notwithstanding section 2.8 where there is conflict between the quantities specified in the Customer’s purchase order and the Customer’s specific packaging or delivery requirements the Company may at its sole discretion increase or decrease the delivery of product to comply with either requirement. As in Section 2.8 the price will be adjusted pro rata to the increase or decrease in product delivered.
2.10 If any delivery of goods is rejected by the customer, for reasons not the responsibility of the company, then any additional delivery charges incurred shall be invoiced to the customer plus a handling charge of 10% of the sales value of the delivery.
2.11 If on inspection, quantities of goods delivered differ from the quantities on the delivery docket, then the goods should be returned to the company. Under no circumstance should the delivery documentation be altered.
2.12 The Customer is responsible for insuring that only the correct goods are unloaded on delivery. Any damage caused or costs incurred due to the Customer unloading of goods not designated for the Customer, then the Customer shall reimburse the Company for any and all associated costs.
3.0 INSURANCE AND RISK
3.1 The customer shall carry all risk of loss and damage to the Goods and/or Services or any part of them from the time of delivery to any place stipulated by the Customer and/or to the Customer or his agents.
3.2 From the date of delivery, the Customer shall: -
3.2.1 Indemnify and keep indemnified the Company against all loss and damage to the Goods and/or Services or part thereof.
3.2.2 Insure and keep insured the Goods and/or Services in an amount at least equal to the invoiced amount to the Customer by the Company.
3.2.3 Hold upon trust for the Company absolutely all proceeds of any such insurance.
3.3 It is understood and agreed by the Customer that the Company is not an insurer and that any insurance in respect of the Goods and/or Services should be at the expense of the Customer.
4.0 TERMS OF PAYMENT
4.1 Unless otherwise agreed in writing, all charges shall be as specified in the Customer’s Application for Credit and shall be exclusive of VAT (“Value Added Tax”) and any other applicable taxes and/or duties.
4.2 All payments shall be made without deduction or deferment or set off on account of disputes, warranty claims or for any other reason whatsoever. If a Customer who is not a consumer, shall fail to make payment in accordance with these Terms for the Goods and/or Services (including terms under “Granting an Application for a Credit Account”) provided under this or any other contract the Customer may have with the Company, then the Company may suspend further supply of Goods and/or Services or credit. If such payment or part thereof shall remain in arrears for seven days after written demand shall have been made, then the Company may cancel this and other credit facility and without prejudice to any other right which the company shall have.
4.3 Without prejudice the Customer shall pay to the Company interest on overdue payments at the rate of 8% per annum. Such interest will be payable on demand and may be charged daily and added to the balance of overdue payments and will compound annually. This clause shall not be taken as limiting the Company’s rights under section 8 of this contract.
4.4 The customer shall pay to the Company the whole of the price of the Goods and/or Services supplied within 30 days from date of invoice unless there is an express agreement (e.g. “Granting an Application for a Credit Account”) in writing between the parties that other terms of payment shall apply, but in either case shall be the essence. If delivery of the Goods and/or Services or material shall be prevented or delayed by the Customer, payment shall be made by the due date as if there had been no such prevention or delay.
4.5 The company may resort at its own discretion, to legal action in order to recover any monies due by the customer outside of the agreed credit terms. If such legal action is taken, the customer will be liable for all costs incurred in recovery of the debt.
4.6 The Company may at any time and without prior default by the Customer refuse further orders or at its sole discretion, accept such orders subject to amended Terms and Conditions.
4.7 Any Invoices issued for Tooling are deemed contributions only and do not constitute ownership by the Customer unless there is a prior agreement in writing.
5.0 LIMITATION OF LIABILITY
5.1 Subject to section 5.2 hereof the Company makes no warranty or representation as to the quality of any goods or their fitness for a particular purpose or their conformity with any description or sample unless such warranty or representation has been expressly stated in writing by the Company. Further, the Company will not be responsible to the Customer or any other person for damage, injury or loss of any kind whatsoever (including loss of profits and consequential loss) to any property, persons or animals caused directly or indirectly by the goods supplied, advice given or any act or omission by the Company and the Customer shall indemnify the company in respect of all claims made by any person against the Customer or the Company in respect of such damage, injury or loss.
5.2 The exemption from the provisions of Section 13, 14 and 15 of the Sales of Goods Act and the Supply of Services Act 1980 (“the 1980 Act”) contained in clause 5.1 hereof shall, in all cases other than a contract for the international sale of goods (as defined in “the 1980 Act”), be subject to the restrictions on such exemptions contained in section 55(4) of the 1893 Act (as inserted by section 22 of the 1980 Act).
5.3 Any claim by the Customer 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 the delivery is refused by the Customer) be notified to the Company within 24 hours from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable period of time after the discovery of the defect or failure. After notification the company shall issue an incident number which must accompany any samples of defective goods or related correspondence thereafter. The customer shall send samples of goods with the alleged defect to the company for inspection, quoting the aforementioned incident number. Once the company accepts the goods are defective, the company will issue a complaints number under which the goods may be returned. No returns will be accepted by the company unless they are accompanied by a valid complaints number. If the Customer shall not be entitled to reject the goods, the Company shall have no liability for such defect or failure and the Customer shall be bound to pay the price as if the goods had been delivered in accordance with the contract.
5.4 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 Company in accordance with these conditions, the Company shall be entitled to replace the goods (or part thereof) free of charge or at the Company’s sole discretion, refund to the Customer the price of the goods (or a proportionate part thereof), but the Company shall have no further liability to the Customer.
5.5 All products supplied by this company are made “fit for purpose”, and are designed to operate within the customer’s existing manufacturing operations and procedures. Manufacturing operations presupposes that the equipment is properly maintained to acceptable industry standards and includes equipment makes and models, product handling, product end use and process automation. It is the responsibility of the customer to ensure the continued suitability of the products supplied by this company in the light of any planned changes to their manufacturing operations.
6.0 RESERVATION OF TITLE
6.1 The ownership of the goods shall remain the property of the Company, which reserves the right to dispose of the goods until payment is made in full for all the goods which have been received by it in accordance with the terms of this contract or until such time as the Customer sells the goods to its customers by way of bona fide sale at full market value. If such payment is overdue in whole or in part the Company may (without prejudice to any of its other rights) recover or resell the goods or any part of them and may enter upon the Customer’s premises by its servants or agents for that purpose. Such payment shall become due immediately upon the commencement of any act or proceeding in which the buyer’s solvency is involved. If any of the goods are incorporated in or used as goods for other goods before such payments the property in the whole of such other goods shall be and remain with the Company until such payment has been made, or the other goods have been sold aforesaid, and the Company’s rights hereunder in the goods shall extend to those other goods.
6.2 Until ownership of the goods has passed to the Customer the Customer must:
6.2.1 Hold the goods on a fiduciary basis as the Company's bailee;
6.2.2 Store the goods (at no cost to the Company) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Company’s property.
6.2.3 Not destroy, deface or obscure any identifying mark or packaging on or relating to the goods.
6.2.4 Maintain the goods in a satisfactory condition insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company and on request the Customer shall produce the policy of insurance to the Company; and
6.2.5 Hold the proceeds of any insurance referred to in section 6.2 (d) on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn account.
7.0 DEFAULTS BY THE CUSTOMER
If the Customer: -
7.0.1 fails to comply with any term of its obligations including stipulations as to payment;
7.0.2 commits any act of bankruptcy or receives any Petition or Receiving Order in bankruptcy, makes an arrangement for a composition with creditors or suffers any distress or execution or;
7.0.3 resolves or is ordered to be wound up or has a Receiver or an examiner appointed then in any such event the Company shall have the right (without prejudice to any other remedies) to cancel an uncompleted order, to hold or suspend delivery of goods or supply of further credit hereunder, to take repossession of goods and to demand payment forthwith all sums due by the Customer to the Company.
8.1 No contract shall exist between the parties until the company has accepted an order from the Customer. The placing of an order by the Customer shall not be sufficient to establish contractual relations even though the Company shall have previously issued a quotation.
8.2 Customers may place orders stated in the Company’s quotation or Company’s current price list where one has been issued.
8.3 All quotations are made and given on the understanding that the whole of the quantity to which the quoted price relates will be ordered. Should part of such a quantity be delivered, and the Customer cancel or refuse to accept delivery of the balance, the Company shall have the option of re-invoicing the quantity delivered at the Company’s quoted price for the quantity delivered or current price list or invoicing the balance undelivered at the quotation price.
8.4 The Company will notify acceptance of a Customer’s order by forwarding to the Customer an Order Acknowledgement. In certain circumstances an Order Acknowledgement may be issued after the goods have been delivered, particularly where the Customer requires urgent delivery of the goods and/or gives a verbal order.
8.5 The placing of an order by the Customer with the Company is an acceptance of these Standard Terms and Conditions of Sale.
9.0 VARIATION IN PRICE
9.1 The Company shall be entitled to adjust the purchase price of the goods before or after the making of the contract to which these terms relate in the event of any variations in the costs of the goods supplied to the Customer or any part thereof caused by any reason whatsoever beyond the control of the Company including (without prejudice of the generality of the forgoing) changes in exchange rates or the action of any Government or Authority.
9.2 If the purchase price at the date of delivery shall be higher than the price at the date of the Order Acknowledgement, the Customer may within seven calendar days after receipt of notice of the adjusted price by the Customer and provided that the goods are not scheduled for production, in production, manufactured or in transit terminate the contract to which these terms relate with respect to such goods and/or goods thereafter to be delivered under the terms hereof without further obligation or liability on the part of either party.
10.0 NON CONFIRMED AGREEMENTS
Any Agreements, arrangements or otherwise varying or supplementing the terms and conditions in this agreement must be confirmed in writing by an authorised official of the company otherwise such alterations will be deemed null and void. This clause also relates to any agreements outside of these terms and conditions which also require ratification in writing.
11.0 INTELLECTUAL PROPERTY, COPYRIGHT AND PATENTS
The Company retains all Intellectual Property, Copyrights, Patents and the right of legal protection of registered designs in its drawings, specifications, documents etc... appended to quotations forwarded to Customers for their personal use only. They may neither be copied in whole or in part nor made accessible to third parties without the Company’s express written consent.
12.0 HEALTH AND SAFETY AT WORK
The Customer will ensure that the goods are properly and safely used and stored in accordance with any instructions that may have been supplied by the Company and with good trade practice and that they will be safe and without risk to health or safety when used.
Any notice or direction to be served by any party hereto or any other party hereto shall unless otherwise stated, be sufficiently served if delivered by hand or post by prepaid registered post to the last known address of the person to be served and any such notice shall be deemed to have been served at the time of delivery or three business days after the time of posting as the case may be and for the purposes of this clause the expression business day shall mean a day upon which the associated banks are open for business in Dublin.
Any provision of this contract which is prohibited or unlawful or unenforceable under any applicable law shall (to the extent required by such law) be ineffective without modifying the remaining provisions so that the contract shall be binding and enforceable in accordance with these terms.
15.0 GOVERNING LAW
This contract shall be governed and construed in all respects in accordance with the laws of the Republic of Ireland and all contracts between the Customer and the Company shall be deemed to be made in the District Court Area of Bray.