1.1 In these Conditions:
'Buyer' means the person whose order for the goods is accepted by Polyseam;
'Conditions' means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any Purchase Schedule to these Conditions and/or any special terms and conditions agreed in writing between The Buyer and Polyseam;
'Confidential Information' means in whatever form or medium, any and all business, financial, technical, product, marketing and staff information relating to either party and all information of a confidential nature which has been acquired by either party about the other party and/or given by one party to the other party and/or generated by one of the parties using the other party's Confidential Information;
'Contract' means the contract for the purchase and sale of the Goods;
'Goods' means the goods (including any instalment of the goods) which Polyseam is to supply in accordance with these Conditions;
'House Brand' means the Goods supplied by Polyseam using its own labeling, packaging and branding;
'Intellectual Property Rights' means any patent, copyright, database right, design right (registered and/or unregistered), trademark (registered and/or unregistered), know how, Confidential Information or other industrial or intellectual property right whether existing now or in the future, wherever existing in the world together with the right to apply for protection of the same; and
'Polyseam' means Polyseam Limited (Company No. 2839491).
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.
2. Duration and Purchase Obligations
2.1 If the Buyer is purchasing Goods under the House Brand the following provisions of this Section 2 shall not apply.
2.2 This Contract takes effect from the date of signature and will remain in force for the period set out in the Purchase Schedule to these Conditions and then continue in force unless terminated in accordance with these Conditions or by either party serving 6 months notice in writing on the other party to end this Contract at any time after the period set out in the Purchase Schedule to these Conditions.
2.2 The Buyer shall purchase at least the minimum number of units per annum of each of the Goods as specified in the Purchase Schedule attached to these Conditions.
2.3 On condition of the Buyer's undertaking to purchase the Goods pursuant to clause 2.2 Polyseam agrees to hold in stock the empty packaging and materials and finished Goods required specifically to satisfy the minimum purchase obligations of the Buyer and Polyseam will endeavour to hold the minimum amount of such items in stock as reasonably possible to satisfy this obligation.
2.4 Upon termination of this Contract for any reason Polyseam may invoice the Buyer for all the empty packaging and materials and finished Goods currently held in stock by Polyseam pursuant to clause 2.3, at cost price in respect of empty packaging and materials and the price in accordance with these Conditions in respect of finished Goods, whether or not the Buyer takes delivery of them. Such invoice shall be due for immediate payment.
2.5 If the Buyer fails to take delivery of any empty packaging and materials and/or finished Goods invoiced pursuant to clause 2.4 within 14 days of termination:
(a) Polyseam shall be entitled but not obliged to sell any empty packaging and materials and/or finished Goods to any purchaser at its sole discretion irrespective of any trade marks or other identifying marks of the Buyer; and
(b) the Buyer shall indemnify and keep indemnified in full Polyseam against any and all losses, damages, costs and expenses (including without limitation legal expenses) awarded against or incurred by Polyseam as a result of holding such unused stock.
3. Basis of Sales
3.1 Polyseam shall sell and the Buyer shall purchase the Goods in accordance with any order of the Buyer which is accepted by Polyseam, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such order is made or purported to be made by the Buyer.
3.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representative of the Buyer and a director of Polyseam.
3.3 Polyseam's employees or agents are not authorised to make any representations concerning the Goods or their storage, application or use unless confirmed by Polyseam in writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed, and Polyseam shall not be liable for any such advice or recommendation which is not so confirmed.
3.4 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 Polyseam shall be subject to correction without any liability on the part of Polyseam.
3.5 The Goods supplied will be in the Buyer's or a third parties own label or will be of a House Brand. Any packaging, labels raw materials etc. that are specific to the Buyer's label and that become redundant or obsolete as a result of the Buyer ceasing to buy the Goods or delisting the Goods will be charged to the Buyer at cost plus the cost of handling, warehousing and disposal.
4. Orders and Specifications
4.1 No order submitted by the Buyer shall be deemed to be accepted by Polyseam unless and until confirmed in writing by Polyseam's authorised representative.
4.2 The Buyer shall be responsible to Polyseam for ensuring the accuracy of the terms of any order (including any applicable specification and/or artwork) submitted by the Buyer, and for giving Polyseam any necessary information relating to the Goods within a sufficient time to enable Polyseam to perform the Contract in accordance with its terms.
4.3 The quantity, quality and description of and any specification for the Goods shall be those set out in Polyseam's order acknowledgement which shall be deemed to incorporate product data sheets provided by Polyseam. These specify the relevant tolerances and limits for the Goods. A certificate of conformity or analysis can be forwarded to the Buyer if required.
4.4 If the Goods are to be manufactured or any process, artwork or packaging is to be applied to the Goods by Polyseam in accordance with a specification or specific instructions submitted by the Buyer or to be produced by Polyseam and approved by the Buyer:
(a) the Buyer shall provide Polyseam with all necessary artwork, instructions or specifications as is reasonably required by Polyseam to enable Polyseam to satisfy the Buyer's order for the Goods;
(b) the Buyer acknowledges that the production lead times for the first order of any Goods which require the approval, agreement or supply of any artwork, instructions or specification by the Buyer may vary dependent on the Buyer's own response time to such approval, agreement or supply request; and
(c) Polyseam shall be entitled to invoice the Buyer separately for any initial set-up production costs involved in the preparation of packaging, labels and/or artwork as is required to enable Polyseam to provide the Goods in accordance with any agreed specification and may at its option require payment of such invoice in advance of commencing or incurring such initial set-up production costs.
4.5 The Buyer shall indemnify and keep indemnified Polyseam in full against any and all losses, damages, costs and expenses (including without limitation legal expenses) awarded against or incurred by Polyseam in connection with or paid or agreed to be paid by Polyseam in settlement of any claim for infringement of any Intellectual Property Rights whatsoever of any other person which results from Polyseam's use of or compliance with the Buyer's specification or specific instructions.
4.5 Polyseam reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements or, where the Goods are to be supplied to Polyseam's specification, which do not detrimentally affect their quality or performance.
4.6 No order which has been accepted by Polyseam may be cancelled by the Buyer except with the agreement in writing of Polyseam and on terms that the Buyer shall indemnify and keep indemnified Polyseam in full against any and all losses (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Polyseam as a result of cancellation.
5. Price of the Goods
5.1 The price of Goods shall be Polyseam's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in Polyseam's published price list current at the date of acceptance of the order. Unless otherwise specified in writing by Polyseam all prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by Polyseam without giving notice to the Buyer.
5.2 Polyseam 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 Polyseam which is due to any factor beyond the control of Polyseam (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any changes in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give Polyseam adequate information or instructions.
5.3 Unless otherwise agreed in writing between the Buyer and Polyseam, all prices are given by Polyseam on both an "ex works basis" and a "goods delivered basis" and the Buyer shall be liable to pay Polyseam's charges applicable to the delivery basis specified in the Buyer's order as accepted by Polyseam. If the Buyer does not specify in its order the basis on which it is to receive the Goods it will be deemed to have specified "goods delivered basis" and will be liable to accept delivery of the Goods and pay Polyseam's charges accordingly. Polyseam shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979 where applicable.
5.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay Polyseam.
6. Terms of payment
6.1 Subject to any special terms agreed in writing between the Buyer and Polyseam, Polyseam shall be entitled to invoice the Buyer for the price of the Goods:
(a) on or at any time after collection of the Goods (i.e. where the Goods are supplied on an ex-work basis) and the Buyer has been notified that the Goods are ready for collection; or
(b) where Polyseam agrees in writing to deliver the Goods otherwise than on an ex-works basis or to arrange delivery, upon despatch of the Goods from Polyseam's premises.
6.2 Unless otherwise agreed in writing the Buyer shall pay the price of the Goods without any other deduction within 30 days from the month end of the date of Polyseam's invoice, and Polyseam shall be entitled to recover the price, not withstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract.
6.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to Polyseam, Polyseam shall be entitled to:
(a) cancel the Contract or suspend any further deliveries to the Buyer;
(b) appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and Polyseam) as Polyseam may think fit (not withstanding any purported appropriation by the Buyer); and
(c) charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent per annum above HSBC Bank plc's base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6.4 Polyseam reserves the right at any time at its discretion to demand security for payment before commencing or continuing with the Contract or delivering the Goods.
6.5 Polyseam reserves the right to exercise a lien over all or any goods of the Buyer in the possession of Polyseam whether or not due payment has been made for such goods (or work carried out on them) in respect of the unpaid price (together with VAT thereon where applicable) of any Goods or any other monies owing to Polyseam.
7.1 Delivery of the Goods shall be made by Polyseam delivering the Goods to that place specified on the order acknowledgement form or by the Buyer collecting the Goods at Polyseam's premises at any time after Polyseam has notified the Buyer that the Goods are ready for collection. 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 payments of any duties on them.
7.2 The Buyer shall be responsible for arranging for the inspection of the Goods at Polyseam's premises before shipment. Polyseam shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
7.3 Any dates quoted for delivery of the Goods are approximate only and Polyseam 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 Polyseam in writing. The Goods may be delivered by Polyseam in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
7.4 Where delivery of the Goods is to be made by Polyseam in bulk, Polyseam reserves the right to deliver up to 5 per cent more or 5 per cent less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.
7.5 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Polyseam 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.
8. Risk and property
8.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
(a) in case of Goods to be collected from Polyseam's premises, at the time when Polyseam notifies the Buyer that the Goods are available for collection; or
(b) in the case of Goods to be delivered otherwise than at Polyseam's premises at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when Polyseam has tendered delivery of the Goods.
8.2 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 Polyseam has received in cash or cleared funds payment in full of the price of the Goods and all other goods sold and/or agreed to be sold by Polyseam to the Buyer for which payment is then due.
8.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as Polyseam'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 Polyseam's property, but shall be entitled to (resell or) use the Goods in the ordinary course of it's business.
8.4 Until such time as the property in the Goods passes to the Buyer Polyseam shall be entitled at any time to require the Buyer to deliver up the Goods to Polyseam 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.
8.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Polyseam, but if the Buyer does so all the monies owing by the Buyer to Polyseam shall (without prejudice to any other right or remedy of Polyseam) forthwith become due and payable.
9. Intellectual Property and Confidentiality
9.1 The Buyer shall not make any modification to the Goods or their packaging, nor alter, remove or tamper with any trade marks used on or in relation to the Goods.
9.2 All Intellectual Property Rights arising from or in relation to the House Brand are, and shall remain, the property of Polyseam.
9.3 All documentation, specifications and artwork provided by the Buyer to Polyseam for use on or in relation to the Goods and the packaging for the Goods (and the Intellectual Property Rights in it) are, and shall remain, the property of the Buyer.
9.4 On condition that Polyseam is paid in full by the Buyer all Intellectual Property Rights in the Goods and/or their packaging which have been specifically designed or developed by Polyseam for the Buyer at the Buyer's request and/or in accordance with the Buyer's specification and/or artwork (not including any Intellectual Property Rights in respect of any production methods, equipment, skill or know-how used in the development or production of such Goods and/or packaging) shall be owned by the Buyer absolutely.
9.5 Each party agrees with the other that it will keep all Confidential Information of the other party confidential and will not use or disclose such Confidential Information other than in the proper performance of this Contract or unless it is required to be disclosed as a matter of law.
10. Warranties and Liability
10.1 Subject to the conditions set out below Polyseam warrants that the Goods will correspond with their specification at the time of delivery.
10.2 The above warranty is given by Polyseam subject to the following conditions:
(a) Polyseam shall be under no liability in respect of any defect in the Goods arising from any drawing, design, formulation or specification supplied by the Buyer or Polyseam's compliance with the Buyer's specific instructions in respect of the Goods;
(b) Polyseam shall be under no liability in respect of any defect arising from wilful damage, negligence, abnormal working conditions, failure to follow Polyseam's instructions (whether oral or in writing), misuse or alteration or repair of the Goods without Polyseam's approval including the use of reworked materials in the Buyer's manufacturing process;
(c) Polyseam 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; and
(d) the above warranty does not extend to materials not manufactured by Polyseam, 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 Polyseam.
10.3 Subject as expressly provided in these Conditions all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
10.4 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods shall (whether or not delivery is refused by the Buyer) be notified to Polyseam within 48 hours from date of delivery or where such defect was not apparent on reasonable inspection or in the event of any failure of the Goods to correspond with specification within 48 hours after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify Polyseam accordingly, the Buyer shall not be entitled to reject the Goods and Polyseam 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.
10.5 Where any valid claim in respect of any Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to Polyseam in accordance with these Conditions, Polyseam shall be entitled to replace the Goods free of charge or, at Polyseam's sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but Polyseam shall have no further liability to the Buyer.
10.6 Except in respect of death or personal injury caused by Polyseam's negligence, Polyseam shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage, for any loss of profit, costs, expenses or other claims for compensation whatsoever (whether caused by negligence of Polyseam, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer.
10.7 Subject to clause 10.6, the entire liability of Polyseam under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.
10.8 Polyseam 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 Polyseam's obligations in relation to the Goods, if the delay was due to any cause beyond Polyseam's reasonable control. Without prejudice to the generality of the foregoing, strikes, lockouts or other industrial actions or trade disputes (whether involving employees of Polyseam or a third party) and difficulties in obtaining raw materials, labour, fuel, parts or machinery shall be regarded as causes beyond Polyseam's reasonable control.
11.1 Either partymay terminate this Contract immediately on written notice if:
(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within a period of 30 days after receipt of notice in writing requiring it to do so;
(b) the other party 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);
(c) the other party has an encumbrancer take possession, or a receiver be appointed, of any of its property or assets;
(d) the other party ceases, or threatens to cease, to carry on business;
(e) the other party fails to make any payment when due; or
(f) it reasonably apprehends that any of the events mentioned above is about occur in relation to the other party and notifies the other party accordingly.
11.2 If Polyseam has the right to terminate this Contract then, without prejudice to any other right or remedy available to it:
(a) Polyseam may withhold delivery of any undelivered Goods and stop any Goods in transit without liability to the Buyer;
(b) Polyseam may terminate the Buyer's right to re-sell and retain possession of any of the Goods owned by Polyseam;
(c) Polyseam may enter the Buyer's premises or any other premises where the Goods are or may be stored and may repossess and sell or dispose of any Goods owned by Polyseam to discharge any sums owed by the Buyer to Polyseam under the Contract or any other agreement with the Buyer; and
(d) all monies owed by the Buyer to Polyseam shall immediately become due and payable notwithstanding any previous agreement or arrangement to the contrary.
12. Export terms
12.1 In these Conditions 'Incoterms' means the international rules for the interpretation of trade terms of the International Chamber of Commerce as 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.
12.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 12 shall (subject to any special terms agreed in writing between the Buyer and Polyseam) apply notwithstanding any other provisions of these Conditions.
13. Entire Agreement
13.1 This Contract including any attached Purchase Schedule constitutes the entire agreement between the parties and supersedes any previous agreement between the parties relating to its subject matter.
13.2 The parties agree that they have not entered into this Contract in reliance on any promise, assurance, representation, warranty, details and/or specification (whether in writing or not) that is not expressly set out in the Contract. Nothing in this Contract shall exclude liability for any fraudulent statement and/or act made prior to the date of this Contract.
14.1 This Contract is personal to the Buyer and the Buyer shall not assign, transfer, dispose of or sub-contract (or purport to do any of the above in respect of) the benefit or burden of any of its rights or obligations under this Contract without the prior written consent of Polyseam.
15.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or other such address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
15.2 No waiver by Polyseam 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.
15.3 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 reminder of the provision in question shall not be affected.
15.4 All third party rights are excluded and no third party shall have any right to enforce this Contract.
15.5 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.