In these conditions of sale (“Conditions”)
(i) “Seller” means Piroto Labelling Limited;
(ii) “Buyer” means the person firm or company who places an order with the Seller for the manufacture and/or supply of any Goods;
(ii) “Goods” means all Goods (including but not limited to labels) sold or supplied by the Seller to the Buyer.
(b) Exclusion of Terms Inconsistent Herewith
These conditions shall apply to all sales of Goods by the Seller to the Buyer to the exclusion of all other conditions that the Buyer may purport to apply whether in its order for Goods or otherwise. If the terms and conditions stated in the Buyer’s order contain a provision(s) purporting to exclude these conditions the Seller’s acceptance or acknowledgement of the Buyer’s order shall constitute a counter offer incorporating these Conditions and the Buyer shall be deemed to have accepted these Conditions unless it notifies the Secretary of the Seller at its registered office to the contrary in writing within three days of the date of the Sellers acknowledgement of the Buyers order.
(c) Variation and Waiver
No variation cancellation or waiver of these conditions shall be valid unless made in writing and signed by a Director of the Seller.
2. Extent of Contract
The Buyer must notify the Seller within three days of the date of the Sellers acknowledgement if such acknowledgement does not accurately confirm the Buyers order failing which the Buyer shall be bound by the terms of the acknowledgement.
All offers, estimates, quotations, and price lists sent or provided by the Seller to the Buyer are without engagement and all orders require the Sellers acceptance in writing in a document clearly entitled ‘order acknowledgement’ to create a legally binding contract. Where the Seller has not previously had dealings with the Buyer or where the Buyer wishes to increase or extend its credit facilities with the Seller, then any such acceptance shall nevertheless be subject to the Buyer’s credit status being approved or re-approved (as appropriate) and in such circumstances the Seller reserves the right to cancel orders without liability should the Seller subsequently determine (in its absolute discretion) that the Buyer’s credit status is inadequate.
4. Label Designs
No responsibility is accepted for any Goods to the extent they comply with any design or specification supplied by the Buyer or by a third party on the Buyer’s behalf. Such exclusion applies to the quality and/or fitness for purpose of any materials used in the manufacture of the labels and also regarding any breaches of third party intellectual property rights. The Buyer must ensure that any such designs or specifications do not infringe any copyright design rights or other such rights belonging to any third party and shall indemnify the Seller against any costs claims or demands resulting from any alleged infringement of any such rights.
5. Materials and Adhesives
The materials and adhesives to be used on any Goods shall either be those specified by the Buyer or alternatively (in the event that the Buyer has not specified any materials or adhesives to be used) those considered by the Seller to be the most suitable for use in the particular circumstances in which the Buyer notifies the Seller that the Goods are intended to be used provided always that in the event that the Buyer does not notify the Seller how the Goods are intended to be used, the Seller shall be entitled to assume that the Goods will not be used in any unusual circumstances (e.g. extremes of heat or humidity, or in circumstances where they may come into contact with other materials that may damage the Goods or where the Goods may damage or contaminate those other materials). Where the Buyer specifies the materials and adhesives to be used in the manufacture of any Goods, the Buyer accepts that it is its sole responsibility to ensure that such materials and adhesives will be suitable given the intended use of such Goods.
6. Credit Accounts
The Seller may at its discretion grant the Buyer credit facilities which, if so granted, may be subject to such conditions as the Seller may from time to time deem appropriate, (including but not limited to a condition that one or more directors or other persons associated with the Buyer provide personal guarantees). The Seller will require suitable references to be provided before considering any application for credit facilities (usually consisting of two approved trade references). The Buyer authorises the Seller to carry out such checks concerning the Buyer’s financial status as it may deem appropriate at any time (and from time to time) including carrying out checks via credit checking and/or credit reference agencies. The Seller reserves the right in its absolute discretion, and without being required to provide any reason for doing so, to cancel the Buyer’s credit facilities at any time.
7. Proofs, Samples and Trial Products
(a) Proofs of the intended design of finished Goods (including any written explanations which form part of such proofs) and/or samples of any materials to be used in the manufacture of any Goods, and/or trial or experimental samples of finished Goods (“Trial Products”), may be submitted by the Seller to the Buyer from time to time for the Buyer’s approval in writing. By approving any such proofs, samples of materials and/or Trial Products (including any approval communicated by means of fax or email), the Buyer acknowledges and accepts that:
(i) it has fully considered all such proofs (including any written explanations which form part of such proofs), samples of materials and/or Trial Products and is confirming that they fully meet its requirements and specifications;
(ii) that it has subjected the said samples of materials and/or Trial Products to proper and adequate testing procedures to ensure that they are suitable for the Buyer’s intended use;
(iii) it does not require any further details or samples concerning any of the same;
(iv) the Seller shall not be liable for any errors in such proofs, samples of materials and/or Trial Products which the Buyer may subsequently notice;
(v) in the event that it is necessary to prepare any additional or replacement proofs, samples of materials and/or Trial Products because the Buyer subsequently wishes to alter any designs, materials or method of manufacture used in the same, any additional work shall be charged extra.
(b) When style, type, layout, design or method of manufacture of any Goods is left to the Seller’s judgement, changes to the same subsequently made by the Buyer shall be charged extra.
8. Preliminary Work
Where the Seller develops and/or manufactures any Trial Products for the Buyer, the Seller shall have no liability if such Trial Products prove to be unsatisfactory and/or unsuitable during any testing of the same. In the event that the Buyer has agreed to pay the Seller for developing and manufacturing any Trial Products, the price agreed for such work (and for the materials used) shall be payable notwithstanding that such Trial Products prove to be unsatisfactory and/or unsuitable during any testing of the same. The Seller shall be permitted a reasonable period of time in which to develop and/or manufacture any Trial Products and time shall not be of the essence.
9. Estimated Delivery Dates
9.1 Any dates quoted for delivery are estimates only. The Seller shall not be required to provide any estimated delivery date until all proofs, samples of materials and/or Trial Products have been finally approved by the Buyer in accordance with clause 7 above. Any estimated delivery date given by the Seller prior to final approval of all proofs, samples of materials and/or Trial Products shall not be binding on the Seller. In respect of any estimated delivery date which is given by the Seller after the final approval of all proofs, samples of materials and/or Trial Products, or where an estimated delivery date is given in respect of a repeat order where no further approvals are required, the Seller shall use reasonable commercial endeavours to deliver the Goods by such date and time shall not be of the essence in this respect.
9.2 If the Seller fails to deliver any Goods within 14 days of any estimated delivery date which has been given the Buyer shall be entitled to serve notice on the Seller requiring the Goods to be delivered by the date specified in such notice (being a date no earlier than 14 days after the date of service of such notice). If the Seller fails to deliver all or substantially all the Goods by the date specified in that notice the Buyer may cancel its order for those Goods (but not any other order that it may have placed with the Seller for other Goods). In the event of such cancellation then save as set out in clause 9.3 the Seller shall reimburse the price (if any) already paid for such Goods and shall be deemed to have released the Buyer from the obligation to pay the price for such Goods. In such circumstances the Seller shall have no further liability whatsoever to the Buyer in respect of any losses or liability that may arise due to the late or non-delivery of those Goods.
9.3 The Buyer acknowledges that in some instances the Seller may be required to purchase materials to manufacture the Goods. If the Buyer cancels its order for the Goods pursuant to clause 9.2 then the following will apply:
(a) the Seller will use reasonable endeavours to cancel its order for the materials concerned and/or to return the materials to the supplier of the same in each case on the basis that it is released from the obligation to pay for those materials;
(b) in the event that the Seller is unable to cancel its order for the materials concerned on the basis set out in (a) above then notwithstanding that the Buyer has cancelled its order for the Goods concerned pursuant to clause 9.2, the Seller shall be entitled to invoice the Buyer for, and the Buyer shall pay the Seller for, the cost of those materials and the cost of delivering the same to the Buyer; and
(c) upon payment of the invoice referred to in (b) above the Seller shall deliver the said materials to the Buyer.
10. Expedited Despatch
Should despatch of the Goods be required sooner than the time normally required for their proper production, every effort will be made to ensure that the Goods are produced free from defects but reasonable allowance must be made by the Buyer in such cases and in particular reasonable allowance must also be made in the event that, because of the urgency of the situation, the Seller uses different materials (including inks) than those that it may have previously used in the manufacture of similar Goods. Should such despatch necessitate overtime being worked by members of the Seller’s staff or other additional costs being incurred a charge will be made to cover the increased cost unless otherwise agreed in writing by the Seller.
11. Quantity Despatched
Every reasonable endeavour will be made to deliver the correct quantity of Goods ordered but owing to the difficulty of producing exact quantities a margin of 10% shall be permitted for overs or shortages. In the event that the Seller shall manufacture more than the quantity of Goods ordered it shall be entitled to charge for the excess up to the said permitted level of 10%. In the event that the Seller shall manufacture less than the quantity of Goods ordered it shall only charge for the quantity actually manufactured provided always that if the Buyer shall have already paid for the full quantity of such Goods a credit note will be issued in respect of the shortfall.
12. Partial Delivery
The Seller shall have the right to deliver the Goods ordered in one or more batches and to invoice the Buyer for such each batch so delivered on the same terms and conditions set forth herein. Each delivery, part delivery and part performance shall be deemed to represent a separate contract and failure of any delivery, part delivery or part performance shall not vitiate any contract in respect of any other delivery, part delivery or part performance.
13. Delivery of the Goods
All Goods will be delivered to the address specified as the delivery address in the Seller’s order acknowledgement. Unless the Seller otherwise agrees in writing the address for delivery of the Goods shall be premises occupied by and under the immediate control of the Buyer. The Buyer shall be obliged to accept or, where the Goods are to be delivered to an address not under the immediate control of the Buyer, shall procure that the person having control of such premises accepts delivery of all Goods tendered for delivery between the hours of 8.30 am and 5.30 pm Monday to Friday (excluding bank holidays) notwithstanding that the Buyer (or where applicable, the person having control of such premises) may be unaware that the Seller (or its delivery agent) intends to deliver the Goods on the particular day in question or at the time in question. In the event that the Buyer (or where applicable, the person having control of such premises) refuses or is unable (for whatever reason) to accept delivery of any Goods during such hours then without prejudice to the Seller’s right to claim damages, the Seller shall be entitled to charge the Buyer the costs incurred in re-delivering the Goods at a later time or date, or to suspend delivery of the Goods or to treat the contract as repudiated with regard to those Goods or to store the Goods at the expense and risk of the Buyer until they are collected by the Buyer or to do any combination of the foregoing.
14. Loss or Damage in Transit and Non-Delivery of the Goods
(a) No claim in respect of any alleged shortages in the quantity of Goods delivered will be considered by the Seller unless the Buyer makes a claim in writing addressed to the ‘Managing Director’ of the Seller at its registered office and providing full details of the alleged shortages within three days of receipt of the Goods.
(b) The Buyer shall ensure that an inspection of the packaging in which the Goods are delivered to the Buyer is carried out at the time of delivery and that any damage revealed by such inspection (or which should have been revealed by such inspection) is noted on the carrier’s consignment note or, in the absence of a consignment note, are notified by the Buyer to the Seller both by email and in writing addressed to the ‘Managing Director’ of the Seller at its registered office within three days of receipt of the Goods. No claim in respect of any alleged damage to the Goods caused during transport will be considered by the Seller unless the Buyer complies with the provisions of this clause.
(c) No claim in respect of the alleged non-delivery of all the Goods in a consignment will be considered by the Seller unless the Buyer makes a claim in writing addressed to the ‘Managing Director’ of the Seller at its registered office within three days of receipt of the Seller’s or the carrier’s delivery notification.
15. Defective Goods
(a) Subject to the provisions set out in clauses 4, 5, 7, 10, 14 and 17 of these Conditions and subject further to the provisions and limitations set out in this clause 15, the Seller warrants that all Goods supplied to the Buyer will be of satisfactory quality at the time of delivery and (subject to the provisions set out in those clauses) reasonably fit for their intended use.
(b) Any complaint that the Goods were not of satisfactory quality at the time of delivery or unfit for their intended use must be made in writing addressed to the ‘Managing Director’ of the Seller at its registered office within twenty-eight days of receipt of the Goods by the Buyer. The Seller shall have no liability in respect of any defects or claims notified after the expiration of that period.
(c) If in the opinion of the Seller the said complaint is justified, it shall have the option (in its absolute discretion) of either replacing the defective Goods or crediting the Buyer with the value of the defective Goods.
(d) Save as stated in these Conditions all express or implied conditions and warranties, statutory or otherwise, are hereby expressly excluded provided always that nothing in these Conditions shall affect any liability which the Seller may incur for death or personal injury resulting from negligence, or any other liability which may not be limited or excluded at law.
(e) Without prejudice to the provisions set out above it is specifically provided and agreed that the Seller’s maximum liability arising under or out of any claim or claims relating to the quality or fitness for purpose of any Goods supplied, or the failure of any Goods to comply with any description or specification for the same, however and whenever such claims may arise (and including but not limited to claims for breach of contract, breach of statutory duty or under the law of negligence) shall not in any circumstances exceed in aggregate the price payable for those Goods.
(f) Without prejudice to the above the Seller shall not be liable for any consequential or indirect losses, damage or injury howsoever caused (including but not limited to loss or profit or income or damage to reputation or goodwill, or loss of business opportunities) which arise out of or in connection with the sale of the Goods to the Buyer or any claims of the type specified in (e) above.
16. Standing Matter and Printers Materials
The Seller shall be entitled to dispose of all works prepared for the Buyer or in respect of the Goods supplied to the Buyer, 24 months after the order is executed unless written arrangements are made to the contrary. In the latter event the Seller shall be entitled to charge the Buyer a fee for retaining the works unless any other arrangement has been made. Ownership of plates, cylinders, cutters and tooling remains at all times with the Seller.
17. Buyers Property
All drawings, designs and other items which may be supplied by the Buyer to the Seller at any time shall be held by the Seller at the Buyer’s risk. Where materials are supplied by the Buyer for use in the Goods reasonable care will be taken to secure the best results but no responsibility will be accepted for imperfect work caused by defects in or unsuitability of materials so supplied.
All drawings specifications and illustrations contained in any of the Seller’s catalogues sales or promotional literature or elsewhere are included as a guide only and unless specifically stated to the contrary shall not form part of the contract with the Buyer in respect of any Goods to be supplied.
19. Property and Risk Ownership
(a) Notwithstanding that the delivery of any Goods may have occurred, the ownership of all Goods sold or supplied by the Seller to the Buyer shall not pass from the Seller until:
(i) the Buyer shall have paid the price for the Goods plus VAT in full; and
(ii) no other sums whatever shall be due from the Buyer to the Seller.
(b) Until ownership of the Goods passes to the Buyer in accordance with clause 19(a) above the Buyer shall hold the Goods and each of them on a fiduciary basis as bailee for the Seller and shall store the Goods or shall procure that the Goods are stored (in each case at no cost to the Seller) separately from all other goods in its possession (or, where appropriate, separate from all other goods which are in the possession of the person having control of the premises at which the Goods are being stored from time to time) and marked in such a way that they are clearly identified as the Seller’s property.
(c) 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 ownership of 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.
(d) The Seller shall be entitled to recover the price for the Goods (plus VAT) notwithstanding that ownership of any of the Goods has not passed from the Seller.
(e) Until such time as ownership of the Goods passes from the Seller the Buyer shall upon request forthwith deliver up such of the Goods as remain tin the Buyer’s possession or under its control. If the Buyer fails to do so the Seller may enter upon any premises owned occupied or controlled by the Buyer (or to which the Buyer has access) where the Goods are situated and repossess the Goods. On the making of such request the rights of the Buyer under clause 19(c) shall cease. In the event that the Goods are stored at any premises which are not under the immediate control of the Buyer (including the Buyer’s customers premises), the Buyer shall procure that the Seller shall at all time have access to such premises for the purposes of exercising the rights contained in this clause 19(e).
(f) The Buyer shall not pledge, mortgage or charge by way of security 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.
The risk in the Goods shall pass to the Buyer on delivery to the Buyer or the Buyers carrier or agent.
20.1 Subject to clauses 20.2, the price payable for any Goods ordered by the Buyer shall be the price stipulated by the Seller in its order acknowledgement. Any prices specified are exclusive of VAT which shall be charged in addition at the rate prevailing at that time. A surcharge shall be placed on any order for delivery outside the UK.
20.2 Notwithstanding that the Seller may have entered into a binding contract with the Buyer to supply Goods at a particular price, the Seller shall be entitled to vary that price in the circumstances set out in clauses 20.3 and 20.4:
20.3 If the price payable by the Seller for the materials used in the manufacture of any particular Goods have (in aggregate) increased by more than 5% since the date on which the Buyer and Seller entered into a contract for the supply of those Goods or, if later, since the last increase in the price for those Goods, the Seller shall be entitled to increase the price payable for those Goods by a corresponding amount provided always that prior to implementing any price increase pursuant to this clause 20.2(a) the Seller shall use reasonable endeavours to source suitable alternative materials at a lower price from another supplier and (if such alternative materials are available at a lower price) shall propose to the Buyer to use those alternative materials in the manufacture of such Goods instead of those then currently being used. In the event that the Buyer requests the Seller to use those alternative materials (or any other alternative materials that the Buyer may specify):
(a) the provisions of clauses 4, 5 and 7 shall apply (with such modifications as may be reasonably necessary to apply to this clause) in respect of those alternative materials; and
(b) the Seller shall be entitled to amend the estimated delivery date for Goods manufactured using those alternative materials where necessitated due to the longer time that it takes to obtain supplies of such alternative materials.
20.4 Where the Seller and the Buyer have entered into a contract for the supply of Goods which is of indeterminate duration the Seller shall be entitled to amend the price payable for such Goods being supplied under that contract by giving the Buyer written notice to that effect at least 6 months in advance of such price increase taking effect or, if shorter, by giving the Buyer written notice to that effect such period of time in advance of the price increase taking effect which is equal to the period of time required to terminate that contract without cause.
21. Carriage and Method of Freight
Carriage will be charged extra at cost unless otherwise stated in writing or unless the Goods are to be delivered within the UK and have a value of over £100 (One hundred pounds) excluding VAT as indicated.
In the event that the Seller affords credit terms to the Buyer then unless otherwise agreed in writing by the Seller full payment for the Goods shall be made 30 days following the date of the invoice. Time of payment shall be the essence in respect of such payment.
In default of payment on the due date the Seller shall be entitled (without prejudice to any other rights it may have):
(a) to charge the Buyer interest on the overdue payment at the rate of 2% per month compound or pro rata per diem from the date payment was due until the date payment is made to the Seller;
(b) to charge the Buyer all costs, expenses and other charges incurred by the Seller in collecting or in attempting to collect the debt from the Buyer, the minimum such charge being £10.00;
(c) to immediately suspend delivery of any other Goods ordered by the Buyer from the Seller;
(d) to suspend or cancel all or any credit terms that the Buyer may have previously afforded to the Seller and to seek immediate payment of all sums outstanding at that such time;
(e) to cancel all outstanding orders and/or contracts for Goods or to require payment prior to delivery of any outstanding orders;
(f) to require the Buyer forthwith to reimburse the Seller all costs and expenses incurred by the Seller in procuring any raw materials to manufacture any goods for the Buyer.
All payments shall be made in Sterling (unless stated otherwise in the Seller’s order acknowledgement) to the Seller at its registered office or to the third party charged with collecting the debt.
23. Illegal Matter
The Seller shall not be required to print any matter which in its unrestricted opinion is or may be of an illegal libellous or improper nature or an infringement of the proprietary or other rights of any third party or otherwise unsuitable for any reasons for publication. The Buyer shall indemnify the Seller from and against all claims and demands brought against the Seller relating to the nature of the matter printed, or its form or content. The indemnity shall extend to any amounts paid in settlement of any claim and all legal and other costs incurred by the Seller in defending any such claim or which it pays to any other party to any legal proceedings or threatened proceedings.
No cancellation or variation of an order by the Buyer shall be effective unless accepted in writing by an authorised representative of the Seller. The Seller reserves the right in its absolute discretion to refuse to accept such cancellation or variation, or alternatively to accept cancellation or variation subject to such conditions as the Seller may stipulate.
Acceptance by the Seller of any cancellation or variation shall in any event be subject to payment by the Buyer of such cancellation or variation charges as the Seller shall deem appropriate. Such charges shall take into account expenses incurred and commitments made by the Seller and all other losses due to such cancellation or variation.
25. Force Majeure
Should any event occur whether at the Seller’s premises or otherwise which is beyond the control of the Seller (including but not limited to industrial action or dispute (including strike or lockout) shortage of materials, action of a governmental or other competent authority, or accident) and the manufacture or supply of the Goods is prevented or delayed, then:
(a) Without prejudice to its rights in the event of breach of contract by the Buyer, the Seller reserves the right to suspend delivery or other performance of the Seller’s obligations under any contract relating to the sale or supply of any Goods and to cancel unfulfilled parts of any such contract in whole or in part and in the event of the Seller exercising any such right the Seller’s liability shall be limited to the repayment to the Buyer (without interest) of any part of the purchase or contract price or charge already received by the Seller and attributed to any unfulfilled or cancelled part of such contract less any expenses incurred by the Seller to the date of cancellation in part performance of such contract;
(b) If such prevention or delay continues for three months or more the Seller or the Buyer may elect to cancel any unfulfilled or cancelled part of any contract relating to the sale or supply of any Goods.
The Buyer hereby acknowledges that the copyright in the drawings specifications and other literature supplied by the Seller and the design rights and copyright in all Goods manufactured by the Seller shall rest in the Seller.
27. Alterations to and Withdrawals of Specification
If for any reason the Seller is unable to continue manufacturing Goods for the Buyer which are of the same designs and/or specification as those previously agreed with, or manufactured for, the Buyer, the Seller reserves the right to cease supplying such Goods, or to alter the designs and/or specification of such Goods (including by substituting alternative materials) in such manner as the Seller may decide in its reasonable discretion. Save where circumstances prevent it from doing so, the Seller will endeavour to give the Buyer reasonable notice of any such cessation or alterations but the Seller shall have no liability whatsoever for any disruption, inconvenience or losses that the Buyer may suffer or incur as a consequence of such cessation or alterations.
No waivers by the Seller in respect of any breach by the Buyer shall operate as a waiver in respect of any subsequent breach.
29. Minimum Order Charge
Owing to the high cost of such orders the Seller reserves the right to impose a minimum order charge on all orders of less than £100 (One hundred pounds) excluding VAT as indicated.
Any provision(s) of these conditions which in any way now or subsequently contravenes the law shall be deemed severable and shall not affect any other provision(s) herein.
31. Errors and Omissions
Notwithstanding that the Seller may have entered into a binding contract with the Buyer in respect of the supply of any Goods, the Seller shall be entitled to correct any errors or omissions that would be obvious to any experienced buyer or seller of goods similar to the Goods.
32. Jurisdiction and Governing Law
Any contract of which these conditions form part shall be governed by the laws of England and the Buyer hereby submits to the jurisdiction of the English courts.
33. Entire Agreement
The Buyer acknowledges that it has not relied upon any oral representation made to it by the Seller or its employees or agents.
The clause headings herein shall not affect the interpretation of these conditions.