General Terms & Conditions
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms and Conditions the following expressions have the following meanings: Company: AP-Concept Ltd, 1 Abbey Wood Road, Kings Hill, West Malling, ME19; Contract: the Order and the Seller’s acceptance of the Order;
Goods: any goods agreed in the Contract to be bought by the Company from the Seller (including any part or parts of them). All references in these conditions to 'Goods' shall include any related services;
Order: the Company’s written instruction to supply the Goods, incorporating these conditions; Seller: the person, firm or company who accepts the Company’s Order.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 A reference to one gender includes a reference to the other gender.
1.4 Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.4, these conditions are the only conditions upon which the Company is prepared to deal with the Seller and they shall govern the Contract to the entire exclusion of all other terms or conditions.
2.2 Each Order for Goods by the Company from the Seller shall be deemed to be an offer by the Company to buy Goods subject to these conditions and no Order shall be accepted until the Seller either expressly by giving notice of acceptance, or impliedly by fulfilling the Order, in whole or in part accepts the offer.
2.3 No terms or conditions endorsed upon, delivered with or contained in the Seller’s quotation, acknowledgement or acceptance of order, specification or similar document shall form part of the Contract and the Seller waives any right which it otherwise might have to rely on such terms and conditions.
2.4 These conditions apply to all the Company’s purchases and any variation, waiver, alteration or modification to these conditions shall have no effect unless expressly agreed in writing and signed by a specifically authorized representative of the Company.
3.1 The Goods shall be of the best available quality, and conform in all respects with the Order and specifications, pictures and samples supplied or advised by the Company to the Seller.
3.2 The Seller warrants that any and all Goods covered by the Order shall be suitable and fit for the use intended by the Company.
3.3 The Seller warrants and guarantees that all Goods and ingredients and components intended for use in the manufacture or conversion of paper or plastics, or as a component of a package or packaging material, are free of all substances and/or additives which are banned in any relevant jurisdictions where the Goods are to be used.
3.4 The Company’s rights under these conditions are in addition to the statutory conditions implied in favour of the Company by the Sale of Goods Act 1979.
3.5 At any time prior to delivery of the Goods to the Company the Company shall have the right to inspect and test the Goods at all times.
3.6 If the results of such inspection or testing cause the Company to be of the opinion that the Goods do not conform or are unlikely to conform with the Order or to any specifications, pictures and samples supplied or advised by the Company to the Seller, the Company shall inform the Seller and the Seller shall immediately take such action as is necessary to ensure conformity and in addition the Company shall have the right to require and witness further testing and inspection.
3.7 Notwithstanding any such inspection or testing, the Seller shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect the Seller’s obligations under the Contract.
3.8 The Company may notify the Seller of any claim for defect within 6 months after receipt by the Company.
3.9 If any of the Goods fail to comply with the provisions set out in condition 3 the Company shall be entitled to avail itself of any one or more remedies listed in condition 14.
3.10 The Company and the Seller may agree in writing to change from time to time the Goods to be supplied under the Order. No additional charge for any additional or different goods will be payable unless provided for in a supplemental written change Order executed by the Company and agreed by the Seller.
3.11 An overrun or underrun of up to 10 per cent will constitute fulfilment of an order unless agreed otherwise by the parties in writing.
4. WARRANTIES AND LIABILITY
4.1 The Seller assigns to the Buyer any warranties made to the Seller by any of its suppliers in connection with any goods or ingredients or components specifically acquired by the Seller for use in furnishing the Goods covered by this Order.
4.2 The Company shall not be responsible for any actions taken or fines or penalties assessed by any governmental agency against shipment of the Goods because of the failure of the Seller to comply with any relevant laws or regulations or with a notification issued to the Seller by any such governmental agency.
4.3 The Seller warrants that all Goods supplied and the operation and installation of the Goods by the Seller will comply with all prevailing electrical, environmental and health and safety regulations and standards.
4.4 The Seller warrants that performance of work under the Order will conform with all applicable employment laws including anti-discrimination and child labour laws.
5.1 The Seller shall keep the Company and its customers indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with:
5.1.1 defective workmanship, quality or materials in relation to any goods supplied;
5.1.2 an infringement or alleged infringement of any intellectual property rights caused by the use, manufacture or supply of the Goods; and
5.1.3 any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by the Company’s employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of the Contract by the Seller.
6.1 The Goods shall be supplied to the Company as agreed in the Order.
6.2 The date for delivery shall be specified in the Order or in accordance with a delivery/collection schedule.
6.3 Unless otherwise stipulated by the Company in the Order, deliveries shall only be accepted by the Company in normal business hours.
6.4 The Seller shall notify the Company promptly of any delays or threatened delays in the performance of the order.
6.5 The Company may from time to time change delivery schedules or direct temporary suspensions of scheduled shipments by means of written or telephone notice to the Seller.
6.6 If the Goods are not delivered on the due date or not in accordance with the attached delivery schedule then, without prejudice to any other rights which it may have, the Company reserves the right to:
6.6.1 cancel the Contract in whole or in part;
6.6.2 refuse to accept any subsequent delivery of the Goods which the Seller attempts to make;
6.6.3 claim damages for any additional costs, loss or expenses incurred by the Company which are in any way attributable to the Seller's failure to deliver the Goods on the due date.
6.7 If the Goods are delivered to the Company in excess of the quantities ordered the Company shall not be bound to pay for the excess and any excess shall be and shall remain at the Seller’s risk and shall be returnable at the Seller’s expense.
The Goods shall remain at the risk of the Seller until delivery to the Company is complete when ownership of the Goods shall pass to the Company.
8.1 The price of the Goods shall be stated in the Order and unless otherwise agreed in writing by the Company.
8.2 No variation in the price or extra charges shall be accepted by the Company unless otherwise agreed in writing between the parties.
9.1 The Buyer shall ensure payment for all accepted goods, in accordance
with payment terms agreed with the Seller.
9.2 The Seller shall invoice the cost of the goods to the Buyer at the price
agreed in the Order.
3.3 The Buyer reserves the right to withhold payment if the agreed goods
are not delivered as per the contract whether due to non-conformance
with the grade specification, nonfulfillment of the contract or if the goods
have been rejected upon or after delivery.
3.4 The Buyer reserves the right to invoice the Seller for any additional
costs incurred as a result of rejected/claimed goods whereby the Seller has
deviated from the specification agreed in the contract.
The Seller shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Seller by the Company or its agents and any other confidential information concerning the Company’s business or its products which the Seller may obtain and the Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Seller’s obligations to the Company and shall ensure that such employees, agents or subcontractors are subject to like obligations of confidentiality as bind the Seller.
11. THE COMPANY'S PROPERTY
11.1 Materials, equipment or any other forms of intellectual property rights in all drawings, specifications and data supplied by the Company to the Seller or not so supplied but used by the Seller specifically in the manufacture of the Goods shall at all times be and remain the exclusive property of the Company but shall be held by the Seller in safe custody at its own risk and maintained and kept in good condition by the Seller until returned to the Company and shall not be disposed of other than in accordance with the Company’s written instructions, nor shall such items be used otherwise than as authorised by the Company in writing.
Any existing or future taxes imposed in respect of the Contract or the manufacture, sale, delivery, transportation or storage of the Goods shall be paid by the Seller or shall be reimbursed by the Seller to the Company, if paid or required to be paid by the Company. The Company shall be entitled to cancel any order for Goods, either wholly or in part, in the event of the Seller's failure to pay any such taxes or reimburse the Company in respect of the same.
13.1 The Company shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Seller written notice whereupon all work on the Contract shall be discontinued.
13.2 The Company shall have the right at any time by giving notice in writing to the Seller to terminate the Contract forthwith if:
13.2.1 the Seller commits a material breach of any of the terms and conditions of the Contract; or
13.2.2 any distress, execution or other process is levied upon any of the assets of the Seller; or
13.2.3 the Seller has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Seller or notice of intention to appoint an administrator is given by the Seller or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Seller or for the granting of an administration order in respect of the Seller, or proceedings are commenced relating any to the insolvency or possible insolvency of the Seller under any UK law or regulation or under any other law or regulation of any other governmental authority; or
13.2.4 the Seller ceases or threatens to cease to carry on its business; or
13.2.5 the financial position of the Seller deteriorates to such an extent that in the opinion of the Company the capability of the Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy; or
13.2.6 any representation made by the Seller is false or misleading.
13.3 The termination of the Contract, however arising, shall be without prejudice to the rights and duties of the Company accrued prior to termination. The conditions which
expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
14.1 Without prejudice to any other right or remedy which the Company may have, if any Goods are not supplied in accordance with, or the Seller fails to comply with, any of the terms of the Contract the Company shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by the Company:
14.1.1 to rescind the Order;
14.1.2 to reject the Goods (in whole or in part) and return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Goods so returned shall be paid forthwith by the Seller;
14.1.3 at the Company’s option to give the Seller the opportunity at the Seller’s expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
14.1.4 to refuse to accept any further deliveries of the Goods but without any liability to the Seller;
14.1.5 to carry out at the Seller’s expense any work necessary to make the Goods comply with the Contract; and
14.1.6 to claim such damages as may have been sustained in consequence of the Seller’s breach or breaches of the Contract.
15. ASSIGNMENT AND DELEGATION
15.1 The Seller shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
15.2 The Company may assign the Contract or any part of it to any person, firm or company.
15.3 The Seller shall not be entitled to delegate any part of its performance under the contract without the prior written consent of the Company.
16. FORCE MAJEURE
16.1 The Company reserves the right to defer the date of delivery or payment or to cancel the Contract or reduce the volume of the Goods ordered if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, accidents or breakdowns, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
16.2 The Seller shall not be excused from the performance of its obligations under the contract following the occurrence or existence of the following events and circumstances: 16.2.1 any adverse change in the cost or availability of raw materials, supplies or semi-processed goods from the date of this order to the delivery date under this order;
16.2.2 fire, floods, explosions, accidents or breakdowns;
16.2.3 riots, strikes, slowdowns or other concerted acts of workmen whether direct or indirect; and
16.2.4 any other cause similar to any of the foregoing.
17.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
17.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect. 17.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
17.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Seller shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
17.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
17.6 These Conditions and the Company's Order and attached delivery schedule constitute the entire agreement between the parties.
17.7 Any notice required or permitted to be given to the Buyer under these Conditions shall be in writing and shall be delivered or sent by pre-paid post sent first class addressed to 1 Abbey Wood Road, Kings Hill, West Malling, ME19 4YT. Any notice to be sent to the Seller shall be served at the address shown on the Order or such other address as may be notified by the Seller for this purpose. Any notice which is delivered shall be deemed to be served when handed to the addressee and any notice sent by pre-paid post first class shall be deemed to be served forty-eight hours after posting.
17.8 The formation, existence, construction, performance validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.