Conditions of Sale
I. These Conditions of Sale (“the Conditions”) shall apply to all transactions (“the Contract”) for the sale of goods (“the Goods”) between Mariner Packaging Company Limited (“the Company”) and [ ] (“the Buyer”) and no variation shall be binding unless agreed in writing between the Company and the Buyer.
2. The price of the Goods (“Price”) shall be the Company’s quoted price. Unless the price for the Goods is stated to be a fixed price the Company shall be entitled upon notice to the Buyer to increase the Price at any time before the Goods are dispatched to reflect the Seller’s required price from time to time and upon receipt of such notice of increase the Buyer shall have the option (exercisable within 4 days of notification of such increase) to cancel any order placed for the Goods.:-
3. Unless otherwise notified to the Buyer, the price shall be exclusive of delivery charges.
4. Unless otherwise agreed, the Price shall become due (whether or not formally demanded) 30 days following Invoice date. The time of payment of the price shall be the essence of the Contract.
5. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall beentitled to:-
a) In its discretion to cease or suspend any further deliveries to the Buyer;
b) Charge the Buyer interest (both before and after judgment) on the amount unpaid at the rate of 4% per annum above Barclays Bank Plc base rate from time to time until payment in full is made, such interest to be compounded at quarterly intervals.
c) Withdraw credit facilities extended to the Buyer and require immediate payment of any and all outstanding invoices issued by the Company to the Buyer whether or not they are due for payment.
6. Time for delivery shall not be the essence unless previously agreed by the Company in writing. Where a date is quoted for delivery the Company will not be under any obligation to deliver by the date specified but will use reasonable endeavours to deliver within a reasonable time thereafter.
7. If the Buyer fails to take delivery of the goods or fails to give adequate delivery instructions to the Company then, without prejudice to any other right or remedy available to the Company, the Company may:-
a) Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage;
b) After a period of 7 days the Buyer fails to take delivery of the Goods without reasonable excuse or reason sell the goods at the best price obtainable and (after deducting reasonable storage and selling expenses) and account to the Buyer for the balance between the Price and such charges or should the case be charge the Buyer the amount of any shortfall.
8. Risk or damage to, or loss of, the Goods shall pass to the Buyer on delivery or, if the Buyer wrongfully fails to take delivery, at the time when delivery is tendered. Notwithstanding delivery and the passing of risk in the Goods and notwithstanding that the Good may no longer be identifiable or have become incorporated in any other goods or objects or any other provisions in the Conditions, the property in the Goods shall not pass to the Buyer until the Company has received payment in full of the Price and of the price of all other goods agreed to be sold by the Company to the Buyer for which payment is then due.
9. Until such time as property in the Goods passed to the Buyer, the Buyer shall hold the goods as the Company’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and any third party and properly stored, protected and insured and identified as the Company’s property and until such time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business but shall account to the Company for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, and shall keep all such proceeds separate from any moneys or property of the Buyer and any third party and, in the case of tangible proceeds, properly stored, protected and insured. 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 Company shall be entitled at any time to require the Buyer to deliver up the Goods to the Company and, if the Buyer fails to do so the Company shall be entitled and permitted forthwith to enter upon any premises of the Buyer or of any third party where the Goods are stored and to take and repossess the Goods.
10. If the Buyer makes any voluntary arrangement with its creditors, becomes subject to an Administration Order, or (being an individual or firm or other incorporated body) becomes bankrupt, or (being a company) 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 Company reasonably apprehends that any of the events mentioned in this clause is about to occur (and notifies the Buyer accordingly) then, without prejudice to any other right or remedy available to the Company shall be entitled to rescind and/or cancel the Contract or cease or suspend any further deliveries without any liability on the part of the Company 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.
11. Except in respect of death or personal injury caused by the Company’s negligence, the Company’s maximum liability for any breach of the Conditions or the Contract shall in all circumstances be limited to the payment of a sum not exceeding the proportion of the net invoice price which is attributable to the Goods which are the subject of the claim and the Company shall not be liable to the Buyer by reason of the breach of any representation, implied warranty condition or other term or any duty at common law or under the express terms of the Conditions for any consequential loss or claim (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever which arise out of, or in connection with, the supply of the Goods or their use or resale by the Buyer or the Company.
12. The Buyer acknowledges that it will inspect the Goods on delivery. The Company shall only accept responsibility for:-
a) Damage to the Goods caused in transit, if the same is externally visible and is notified to the Company and the carrier (if not delivered by the Company) within 4 days of receipt of the goods by the Buyer.
b) An actual or apparent discrepancy between any delivery note and items delivered, if the same is notified to the Company and the carrier (if not delivered by the Company) within 4 days of receipt of the Goods by the Buyer;
c) Non arrival, if the same is notified to the Company within a period of five working days from the date that the Company informed the Buyer that the Goods, or relevant consignment thereof, were dueto arrive. Where the Company accepts responsibility under this Condition it shall replace the items concerned which are proved to the Company’s satisfaction to have been lost or damaged prior to delivery to the Buyer.
13. All finished goods are subject to a plus or minus tolerance of 10% on all dimensions (width, length, thickness and quantity) unless otherwise agreed in writing by the Company.
14. Any claim by the Buyer, which is based on any defect in the quality or condition of the Goods, shall be notified to the Company within 4 days of delivery (where this was not apparent on reasonable inspection) within a reasonable time after discovery of the defect. If the Buyer does not notify the Company as provided herein the Buyer shall not be entitled to reject the goods and the Company shall be under have no liability for any such defect and the Buyer shall be bound to pay the Price as if the Goods had been delivered in accordance with the Contract unless the Company can reasonably verify the validity of the Buyer’s claim.
15. The Conditions and the Contract shall be governed by and constructed in accordance with the Laws of England.
16. In the case of Goods which have been produced to the specification of and/or bear the name of the Buyer or the Buyer’s customer as the case may be (“Own Label Goods”) the Buyer undertakes to purchase at the Price all stocks of Own Label Goods in finished and unfinished form which the Company holds for the purpose of fulfilling any requirement previously intimated to the Company by the Buyer. The Buyer undertakes with the Seller that upon the termination of any contract between it and the Company for the supply of Own Label Goods the Buyer will promptly pay the Price for any stocks of Own Label Goods held by the Company as aforesaid or if no fixed price has been agreed between the Company and the Buyer that the Buyer will promptly pay a reasonable price for the same to be determined in the reasonable opinion of the Company.