Terms & Conditions

1. DEFINITION OF TERMS

In these conditions the following expressions shall have the following meanings:

“the Company” means Berlin Packaging UK Ltd;

“the Customer” means any company, firm, individual or any agent thereof from whom an order is received;

“Commissioning” means tests on completion of installation of Goods to demonstrate to the Customer that the Goods are sound and functioning to mechanical and electrical specification.

“Completion of the Contract” means, where the Contract is for the sale of Goods only, the date on which the Goods are delivered and otherwise the date on which the Company issues an acceptance request form or on such other date as the Company notifies the Customer that Commissioning is completed;

“Confirmation of Order” the Company’s acceptance of the Customer’s Order for the Goods, which may vary or extend these terms and conditions;

“the Contract” means the agreement between the Customer and the Company for the supply of Goods and or Services subject to these conditions and any Special Terms and including the Quality Statement (if any);

“the Goods” means the products, goods, equipment, apparatus, machinery, parts and other items or materials or any part thereof to be supplied by the Company to the Customer which are listed in the Company’s confirmation of order form;

“Order” means the Customer’s order for the Goods, whether by purchase order form, acceptance of quotation, in any medium including email;

“Quality Statement” means any quality statement submitted to the Customer by the Company either within the Confirmation of Order or otherwise;

“Services” means all works and services specifically stated in the Confirmation of Order form to be performed by the Company;

“the Site” means the place where Services are to be carried out by the Company together with so much of the surrounding areas as the Company requires for use in connection with Services;

“Special Terms” means any terms agreed by the parties in writing or included in the Company’s Confirmation of Order form.

2. LAW

The Contract shall be governed, performed and construed according to the Laws of England and, subject to condition 22 below, the parties submit to the exclusive jurisdiction of the English courts.

3. INTERPRETATION

The headings shall not affect the interpretation of these conditions and where appropriate the singular shall include the plural and the plural the singular. In the event of any conflict between any Special Terms and these general terms, the Special Terms shall prevail.

4. QUOTATION

(i) A quotation by the Company is not an offer. Quotations are subject to withdrawal or revision at any time before acceptance of the Customer’s Order by the Company.

(ii) Each Order for Goods and/or Services by the Customer is an offer by the Customer to purchase the Goods and/or Services subject to these Conditions.

(iii) No Order submitted by the Customer is accepted by the Company until the Company confirms its written acceptance on the Company’s Confirmation of Order form or (if earlier) the Company delivers the Goods or supplies the Services to the Customer.

5. PRICE VARIATION

(i) The prices quoted in the Company’s quotation are related to the costs to the Company at the date of quotation. If such costs shall be increased for whatever reason including any rise in the costs of labour or in the cost of material or transport or by reason of any additional expenses imposed on the Company by the enactment of any Acts of Parliament, Order, Regulation or Bylaws the Company shall be entitled to increase the price in the quotation at any time before Completion of the Contract by the amount of such increase. Where no written acknowledgement is given the price payable by the Customer is the price current at the date the Goods are delivered or the date the Services are performed.

(ii) Should any of the Goods be manufactured abroad or Services supplied by a foreign sub-contractor the quoted price will be based on rates of exchange specified in the quotation or if not so specified is based on the official rate of exchange at the date appearing on the face of the quotation. If before Completion of the Contract variations either by rise or fall occur in these rates of exchange the Contract price may be amended accordingly.

(iii) The quoted price excludes value added tax which must be paid to the Company at the appropriate rate applicable to the Goods and Services provided in accordance with current legislation.

(iv) If, as a result of the imposition of, or a change to, a duty, tax or levy imposed on imports and exports of the Goods, or any raw materials or components used by the Company to manufacture the Goods, or any products into which the Goods are to be incorporated in conjunction with which the Goods are to be commercially exported, or fluctuations in foreign exchange rates, or increases in labour, materials and other manufacturing costs, there is an increase in the Company’s costs in performing the Contract of at least 10% since the price for the Goods was last agreed, then the Company may negotiate an amendment to the price for the Goods, giving details of the relevant impact. If the parties fail to agree a variation of the price arising from the relevant client then either party may terminate the Contract by giving written notice to the Customer.

(v) Unless otherwise stated the price stated is ex-works the Company’s UK premises and the Customer shall pay the costs of delivery from those premises, including pallet charges, which shall be non-refundable.

6. SPECIFICATIONS, REPRESENTATIONS, ETC.

(i) All descriptive literature including specifications drawings and particulars of dimensions and weights submitted with quotations are approximate only and the descriptions and illustrations contained in the Company’s catalogues price lists and other advertising matter are intended merely to present a general idea of the matters described therein and none of these contain any warranties or representations or shall form part of the Contract.

(ii) The Company’s calculations, data, specifications, designs, drawings, descriptions, and promotional material, particulars of weights, rating, standard statements or other similar matter relating to the Goods are approximate only and do not form part of the Contract unless otherwise stated. Neither adherence to a particular shade of colour nor perfect consistency of colour can be guaranteed by the Company, a reasonable variation is to be permissible. The Customer’s attention is also drawn to the Quality Statement.

(iii) No employee of the Company is authorised to make any contractual statement warranty or representation concerning the Goods or Services and the Customer shall not be entitled to rely or seek to rely upon any such statement warranty or representation (except where made fraudulently).

(iv) Where the Goods are manufactured or where standard goods of the Company are altered in either case in accordance with information, drawings or instructions supplied by the Customer:-

  • a) no guarantee or warranty is given by the Company as to the practicability, efficiency, safety or otherwise of the Goods;
  • (b) the Customer shall indemnify the Company against all liability incurred by the Company as a result of:-
  • (1) the Goods infringing any intellectual property right (including patents, unregistered or registered design rights and copyright) belonging to any third party or any statutory provision; or
  • (2) any impracticability, inefficiency, lack of safety or defect in the Goods where any of these is due wholly or partly to faults or omissions in any such information, drawings or instructions;
  • (c) all work (including design drawings) and any idea, invention or improvement made by or on behalf of the Company pursuant to the Customer’s commission and all intellectual property rights therein (including any design right in a design created by the Company) shall belong to the Company; and
  • (d) the Company shall not be liable to the Customer in respect of any loss, damage or claim incurred by or made against the Customer if any Goods infringe any third party’s intellectual property right (including patents, registered and unregistered design rights and copyright).

(v) Any drawings sent to the Customer for approval shall be deemed to have been approved by the Customer unless they are returned to the Company with comments or queries within ten working days or as otherwise stated from date of submission.

(vi) All plans, drawings, specifications and other written technical material forming part of the Company’s quotation or supplied in connection with the Contract shall remain the property of the Company and shall not be copied or disclosed to third parties without the prior written consent of the Company.

(viii) Quantities of Goods supplied in bulk such as labels or other printed material, closures etc., shall be subject to a tolerance either way of 10 per cent and the Customer shall pay for the actual quantities of Goods delivered.

7. TOOLING, MOULDS AND JIGS

(i) Where the Contract provides for payment by the Customer towards the tool costs such payment shall be made in the amount(s) and on the date(s) specified in the Confirmation of Order but in the absence of a provision in the Confirmation of Order such payment shall be made as to one half of the total amount on acceptance of the order and as to the balance on samples being produced and approved by the Customer.

(ii) If the Customer requests modification in the tools after the Customer’s order has been accepted the Company shall advise the Customer whether it agrees to make the modifications requested and if so of any increase in the tool costs or any change in the date on which the tool will be available. The Company may at its discretion invoice and require payment of the increased tool cost at the time the Company agrees to carry out the modification.

(iii) All tools made or provided by the Company shall remain the property of the Company notwithstanding any contribution by the Customer to the costs thereof. Such tools may not be withdrawn from the Company’s possession. No rights are granted to the Customer in respect of any technical design features which are the property of the Company and which may be incorporated in tools.

(iv) Unless otherwise stated in writing by the Company tools shall remain at the risk of the Company and the Company shall be responsible for the day to day maintenance thereof. Where the Customer is responsible for maintenance costs such maintenance shall be carried out by the Company and charged to the Customer at the Company’s normal rates. Invoices for maintenance costs shall be immediately due and payable. The cost of replacement or refurbishment of tools required for the supply of goods to the Customer where this becomes necessary through fair wear and tear is chargeable to the Customer.

(v) The Company may destroy tools that have remained unused for three years but will give the Customer three months’ notice in writing before destroying any tools.

(vi) All moulds, dies, printing screens and jigs and all copyright and other rights therein shall remain the exclusive property of the Company whether or not a charge is made to the Customer towards their cost. Alterations made at the Customer’s request shall be at the Customer’s expense and risk.

8. APPLICABLE CONDITIONS

(i) The Customer accepts that these conditions together with any Special Terms shall govern relations between itself and the Company to the exclusion of any other terms including conditions, warranties or representations, written or oral, express or implied, even if contained in any of the Customer’s documents which purport to provide that the Customer’s own terms shall prevail, and these conditions together with any Special Terms and the confirmation of order form constitute the entire agreement between the parties for the supply of Goods and/or Services.

(ii) In the case of any conflict between these conditions, any Special Terms and the Quality Statement, the order of priority shall be as follows: (1) Special Terms, (2) Quality Statement and (3) these conditions.

(iii) No person has any authority to make orally on behalf of the Company any addition to or variation or qualification of these Conditions and no such addition variation or qualification shall have any effect unless agreed in writing by the parties. (iii) A notice or other document to be given under this Agreement shall be in writing and shall be deemed to have been duly given if left at or sent by:-

  • (a) First class post or express or air mail; or
  • (b) Registered post
  • (c) Email
  • (d) Facsimile

in the case of the Customer, to the Customer’s address on the order form and, in the case of the Company, to its registered office address.

9. DELIVERY OF THE GOODS

(i) Delivery will be made at the address agreed between the Customer and the Company or, if not agreed by the parties, to the Customer’s address on the order form.

(ii) Unless the Customer gives notice that it is arranging for the Goods to be collected and the Goods are collected by or on behalf of the Customer within 7 days of such notice the Company shall arrange for transportation and delivery of the Goods to the Customer’s premises at the Customer’s expense. Such delivery shall be made within a reasonable time of the Customer’s order, but time shall not be of the essence in respect of that delivery. If the Customer fails to accept delivery of the Goods for a reason other than that the Goods are defective, the Company may make such arrangements to deliver into a warehouse or store as the Company thinks fit and all extra costs thereby incurred by the Company shall be paid by the Customer. The Customer will, if the Contract provides for any payment contingent on delivery, make such payment as if delivery had been made at such times as the Company was first ready to do so.

(iii) The Company may at any time following the Customer’s failure to accept delivery notify the Customer of the Company’s intention to sell or otherwise dispose of the Goods after the expiry of a period of not less than one month from the date of the notice. Any such sale by the Company may be on a forced sale basis. The Customer shall be liable to the Company for the costs and expenses incurred by the Company in connection with such forced sale or disposal and the cost of storage of the Goods in the meantime and shall reimburse the Company such costs and expenses forthwith upon demand.

(iv) Unless otherwise expressly provided in the Contract the Customer shall be responsible for off-loading the Goods. Any extra costs incurred by the Company arising from inadequate facilities for delivering or off-loading or from delay in providing the same shall be paid by the Customer.

(v) The Customer shall examine the Goods forthwith following collection or delivery of the Goods as the case may be and within 3 days thereof the Customer shall notify the Company in writing (including by fax or email) of any defects in the Goods together with details of the defects and shall notify the Company of any short or over-delivery. The Customer shall permit all such defective Goods to be inspected by the Company. In the absence of the receipt of such notice by the Company any claim by the Customer for damage, shortages or non-delivery is deemed to have been waived.

(vi) The Company shall in its sole discretion be entitled to have manufactured the Goods by instalments and to make available the Goods for collection or delivery as the case may be in such instalments subject to these conditions. Unless otherwise agreed in writing, where the Goods are to be delivered or Services are to be performed in instalments, each delivery or performance shall be a separate contract and failure by the Company to deliver or perform any one or more of the instalments in accordance with these conditions or any claim by the Customer in respect of any one or more instalment shall not entitle the Customer to treat the Contract as a whole as repudiated.

(vii) The Company will use reasonable commercial endeavours to have manufactured the Goods by any time or date agreed with the Customer but time of manufacture, collection or delivery as the case may be shall not be of the essence of the Contract. Any date specified by the Company for completion of the manufacture of the Goods or for collection or delivery is approximate only and in the event of the Company’s failure to meet such date for any reason the Company shall not be liable for any loss or damage suffered by the Customer as a result nor shall this constitute a breach or repudiation of the Contract.

(viii) Where the Confirmation of Order allows for delivery of Goods in instalments (whether pursuant to the call-off terms in condition 23 or otherwise), the provision of this condition 8 shall apply to each individual delivery and the Company shall be entitled to invoice for each delivery separately, payment of each such invoice to be governed by condition 16. The Customer shall not withhold payment of any invoice as a result of any alleged defect or default in respect of another delivery.

(ix) Where Goods are supplied in bulk (such as labels or other printed materials, closures etc), the Company may deliver up to ten percent more or less than the quantity ordered, in which case the quantity so delivered shall be deemed to be the quantity ordered and the Customer shall pay for the actual quantity delivered.

10. VARIATION, ADDITIONS AND OMISSIONS

(i) The Company may vary the design or construction of the Goods or Services using reasonable skill at any time prior to the Completion of the Contract provided that such variation will not alter substantially the performance or specification of the Goods.

(ii) The Company shall use all reasonable endeavours to comply with any reasonable requests by the Customer to modify the Goods or Services (whether by way of additions omissions substitutions alterations or otherwise) but in so doing may alter the price or the delivery dates or stipulate such other conditions as in its discretion the Company may consider reasonable and all extra costs arising by reason of delay to the Completion of the Contract resulting directly or indirectly from such modifications shall be payable by the Customer. The Company reserves the right to suspend the supply of the Goods or installation of Services until the Customer has agreed to the terms of any modifications.

11. SUB-CONTRACTING

The Company shall be entitled to sub-contract or assign all or any of its obligations under the Contract.

12. SITE SERVICES

The Customer will ensure at its own cost during supply of Services on the Site that:

(i) Such equipment, services, including safety services, consumable stores, roadways, heating, telephone, toilets, canteen and medical services, water, power, lighting, product, suitable personnel and any other facilities required by the Company are provided at such times as the Company shall require.

(ii) Secure dry premises for storage for the Company’s use are available.

(iii) Free and unobstructed access at all times to the Site is available to the Company, including possession of acceptably prepared working areas, within such time scales as required by the Company.

(iv) All structural alterations to buildings and foundations (including foundations and supports for machinery) together with any cleaning, lifting, moving, strengthening and protection work which the Company advises are necessary are executed by the Customer in a proper workmanlike manner and at such times as the Company shall require.

13. INSTALLATION AND COMMISSIONING

(i) Installation and Commissioning Services will be provided where applicable as detailed in the Company’s quotation. If installation and Commissioning is provided for a fixed fee but is prolonged for any reason outside the Company’s control and, as a result, the work of the Company’s employees is suspended or increased or the Company incurs any additional costs, a prolongation fee may be charged by the Company to the Customer.

(ii) On completion of the Commissioning and the issue by the Company of a hand over certificate which may detail minor items to be completed the Customer shall be deemed to have taken over and become responsible for the Goods including the operation, cleaning and maintenance of such Goods.

(iii) The Customer shall not use the Goods until Commissioning has been completed.

(iv) Any additional tests requested by the Customer on completion of the Commissioning and the conditions under which they will be conducted must be agreed in writing by the Company.

14. HEALTH AND SAFETY

Where the Goods are manufactured or supplied by the Company it shall ensure that it complies with all its duties and obligations under the Health and Safety at Work etc. Act 1974 (the Act) according to its interpretation of the Act. Any additional work required to meet the requirements of the Act (as interpreted by the Customer) or specified by the local factory inspector will be charged extra. Save as aforesaid the Company shall not be responsible for ensuring that any applicable statutory safety and environmental requirements which relate to the use of the Goods or Services by the Customer are satisfied and no warranty or representation is given by the Company in this respect.

15. RISK AND TITLE AND LIEN

(i) Where the Company arranges for transportation and delivery of the Goods to the Customer’s premises the Goods are at the risk of the Customer from the time of delivery. Where the Customer gives notice that it is arranging for the Goods to be collected and the Goods are collected by or on behalf of the Customer, the Goods are at the risk of the Customer from the time of collection.

(ii) Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:

  • (a) the Goods; and
  • (b) all other sums which are or which become due to the Company from the Customer on any account.

(iii) Until ownership of the Goods has passed to the Customer, the Customer shall:

  • (a) hold the Goods on a fiduciary basis as the Company’s bailee;
  • (b) 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;
  • (c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
  • (d) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Customer shall produce the policy of insurance to the Company.

(iv) Subject to condition 15(v), the Customer may recall or use Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. However, if the Customer resells the Goods before that time:-

  • (a) it does so as principal and not as the Company’s agent; and
  • (b) Title to the Goods shall pass from the Company to the Customer immediately before the time at which resale by the Customer occurs.

(v) The Customer’s right to possession of the Goods shall terminate immediately if:

  • (a) the Customer 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 and/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 Customer or notice of intention to appoint an administrator is given by the Customer 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 Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
  • (b) the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
  • (c) the Customer encumbers or in any way charges any of the Goods.

(vi) The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.

(vii) The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.

(viii) Where the Company is unable to determine whether any Goods are the goods in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer.

(ix) On termination of the Contract, howsoever caused, the Company’s (but not the Customer’s) rights contained in this condition 15 shall remain in effect.

(x) The Company shall be entitled to exercise a general lien or right of retention on all Goods or any part thereof in the Company’s possession which are the Customer’s property for any sums whatsoever due to the Company and pursuant to such lien or right to the Company shall be entitled without notice to the Customer to sell all or any part of such Goods or part thereof privately or by auction or otherwise and keep the proceeds of the sale in diminution of such sums and of all costs and expenses incurred by the Company in effecting the said sales. Any balance remaining thereafter shall be remitted to the Customer by the Company.

16. TERMS OF PAYMENT

(i) The Customer shall pay the price of the Goods in the currency specified. All cheques and bills must be cleared on or before the due date for payment.

(ii) Deposits and staged payments (in particular but not limited to orders for machinery) are payable upon demand. For all new Customers the first order is required to be paid when the relevant order is placed. Invoices are payable by the end of the month following the month of invoice unless other terms of payment are accepted in writing.

(iii) All payments made by the Customer shall be made without any deduction or deferment in respect of any disputes or claims whatsoever and/or in respect of any taxes imposed by or under the authority of any government or public authority.

(iv) If payment is not made within the stipulated time interest on any outstanding balance will be charged at the rate of 2 per cent per month calculated on a daily basis without prejudice to the Company’s right to receive payment within the stipulated period.

(v) If the Customer delays making payment under the terms of the Contract the Company may suspend work or delivery until such payment is made and the Company shall be entitled to increase the Contract price to cover any extra expense incurred thereby.

(vi) The Company is entitled to set off sums owed by the Company to the Customer against sums owed by the Customer to the Company.

(vii) If the Company is not satisfied for whatever reason that the Customer is sufficiently credit worthy the Company at its sole discretion shall be entitled to suspend manufacture and despatch the remainder of the Goods and/or treat the contract as repudiated and/or sell any of the Goods in its possession and the Customer shall indemnify the Company for any loss or damage which the company suffers as a result without prejudice to any other rights of the Company hereunder.

(viii) All prices are stated exclusive of VAT or other sales taxes.

17. FORCE MAJEURE

If the Company is prevented or delayed from or in performing any of its obligations under the Contract by force majeure, which shall include but not be limited to any act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, inability to obtain raw materials, epidemic or pandemic energy or other supplies, labour disputes of whatever nature whether or not by or involving employees of the Company, or other circumstances beyond the control of the Company then the Company may give notice in writing to the Customer of the circumstances constituting force majeure and of the obligation, performance of which is thereby delayed or prevented, and shall thereupon be excused from compliance with such obligation for as long as such circumstances may continue.

18. CANCELLATION

If the Customer gives notice in writing of its cancellation of all or part of its order for the Goods or Services the Customer shall forthwith upon demand reimburse the Company the costs or expenses which it has incurred in dealing with the order prior to its receipt of the notice of cancellation.

19. PERFORMANCE AND COMPATABILITY

(i) The Company will accept no liability for failure to attain any performance figures it quotes unless they have been specifically guaranteed subject to any tolerances specified or agreed. The Company shall at all times be given reasonable time and opportunity to rectify its performance before the Customer becomes entitled to make any claim.

(ii) The Customer assumes responsibility that Goods ordered by the Customer are sufficient and suitable for its purposes save so far as its stipulations are in accordance with the Company’s advice given in writing.

(iii) Where the Customer has ordered Goods, or more than one type of Goods, from the Company with the intention of integrating them together and/or with other products, the Company shall have no liability for any compatibility issues arising from the use of the Goods together with any other products or any contents used within them, save to the extent that as part of the Services the Company has carried out verification tests about such compatibility and has confirmed to the Customer that the Goods are so compatible.

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE FOLLOWING CONDITIONS

20. DEFECTS LIABILITY

(i) Subject to the terms of this clause the Company will replace, or at its option, repair any part of the Goods manufactured by the Company and rectify any part of Services executed by the Company which may prove defective through faulty design, materials or workmanship within six calendar months of delivery based on single shift operation upon the Customer giving to the Company immediate written notice of such fault in design, materials or workmanship.

(ii) The above warranty shall only apply provided that:-

  • (a) Defective parts are returned to the Company or, if that is not feasible, the Company is given all reasonable facilities for repair, inspection and testing;
  • (b) The Customer shall have complied with the terms of payment and all other conditions of the Contract and the Goods shall, where relevant, have been operated and maintained in accordance with the instructions provided by the Company;
  • (c) No replacement, repair or rectification is made or attempted without the Company’s prior written approval;
  • (d) The defect does not arise because the Customer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice.

    • (iii) Replacement parts are supplied free of charge but the Customer shall bear the cost of delivery (including the cost of returns to manufacturer) and labour.

    (iv) Goods supplied but not manufactured by the Company are sold subject to such guarantees as are offered by the Company’s suppliers and in such cases the Company’s liability to the Customer is limited to such rights and remedies as the Company may itself be able to exercise under the terms of the Company’s agreements with its suppliers.

    (v) Save as provided in this condition 20 the Company shall be under no liability whatsoever in regard to the Goods or Services and the provisions of this condition 20 shall exclude any warranty or condition which might but for this condition be implied by statute, common law, custom or otherwise and the Company shall be under no further or other liability whatsoever in respect of loss or damage caused directly or indirectly by any failure or defect in the design, performance, quality or condition of the Goods or Services, even if the same frustrates further performance of the Contract. In any event the Company’s liability in respect of the Goods or Services proving defective shall be limited to the cost of replacement, repair or rectification in accordance with the previous provisions of this Clause 20.

    (vi) Subject to condition 20(viii), the Company’s total liability to the Customer including liabilities in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall not exceed 100% of the total payments made to the Company by the Customer for the Goods.

    (vii) Subject to condition 20(viii), the following types of loss are wholly excluded:

    • (i) Loss of profits;
    • (ii) Loss of sales or business;
    • (iii) Loss of contracts or agreements;
    • (iv) Loss of anticipated savings;
    • (v) Loss of use or consumption of software, data or information;
    • (vi) Loss of damage to goodwill; and
    • (vii) Indirect or consequential loss

    (viii) Nothing in these Conditions shall limit the Company’s liability for death or personal injury caused by the Company’s negligence or for fraudulent misrepresentation.

    (ix) The Company shall so far as appropriate use its best endeavours to assign to the Customer the benefit of any warranty which the Company may have from suppliers of components and parts for the Goods or from sub-contract manufacturers of the Goods or Services.

    21. LIABILITY FOR ACCIDENTS AND DAMAGE

    The Customer shall indemnify the Company in respect of any loss, injury, damage, expense or claim of whatsoever nature and howsoever arising out of the Goods or Services or their storage, installation, use, operation or maintenance save to the extent that the same is caused by the negligence of the Company, its servants or agents including the Company’s sub-contractors.

    22. EXPORT TERMS

    (i) 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 in these Conditions 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.

    (ii) Where the Goods are supplied for export from the United Kingdom the provisions of this condition 21 shall (subject to any Special Terms agreed between the Company and the Customer) apply notwithstanding any other provisions of these conditions.

    (iii) The Customer shall be responsible for complying with any legislation or regulations governing the import of the Goods into the country of destination and for the payment of any duties thereon.

    (iv) Unless otherwise agreed in writing between the Customer and the Company the Goods shall be delivered FOB the air or sea port of shipment and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.

    (v) Unless otherwise agreed by the parties the price of Goods for export sales shall be secured by an irrevocable letter of credit satisfactory to the Company established by the Customer in favour of the Company immediately on receipt of the Company’s Confirmation of Order and confirmed by a United Kingdom bank acceptable to the Company. The letter of credit shall be for the contract price inclusive of any tax or duty payable by the Customer and shall be valid for at least 6 months or such longer period as shall be instructed by the Company for delivery. The Company shall be entitled to payment on presentation to such United Kingdom bank of the documents specified by the Company.

    23. CALL-OFF TERMS

    (i) Where the Confirmation of Order provides for the Customer calling off stocks of Goods ordered over a period of time then:

    • (a) the Customer contracts for the supply of all of the Goods held in stock pursuant to the Order (and not only those called-off by the Customer);
    • (b) If the Confirmation of Order provides for any Goods to be called-off at particular times (“Call-Off Interval Date”) during the call-off period then the Company shall be entitled to invoice for all of such Goods undelivered on the relevant Call-Off Interval Date, and to charge the Customer for the costs of storing those Goods after relevant Call-Off Interval Date, at the rates set out in the Confirmation of Order or (if none are so set out) such reasonable rates as the Company shall determine; and
    • (c) at the end of the call-off period stated in the Confirmation of Order the Company shall be entitled to invoice for all Goods undelivered at the end of the Call-Off Longstop Date, and to charge the Customer for the costs of storing those Goods after the end of the Call-Off Longstop Date, at the rates set out in the Confirmation of Order or (if none are so set out) such reasonable rates as the Company shall determine; and
    • (d) for the avoidance of doubt, in the case of both (b) and (c) above, any delay or failure by the Company to invoice the Customer for the relevant amounts shall not constitute a waiver of the Company’s rights to do so, and the Company’s right to charge for storage pursuant to this condition shall commence on the Call-Off Interval Date or Call-Off Longstop Date (as appropriate), notwithstanding that the Company may not have invoiced for the relevant Goods PROVIDED THAT the Customer may require the Company on, or at any time after the Call-Off Interval Date or Call-Off Longstop Date (as appropriate) to deliver such undelivered Goods from that instalment or call-off period, in which case the Company shall promptly deliver such Goods to the Customer and submit an invoice for them.
    • (e) The Customer’s obligation to pay for the relevant Goods and the associated storage charges shall arise whether or not the Customer wishes to take delivery of them or actually takes delivery of them. In the case of undelivered Goods, the Company shall be entitled to sell or dispose of them pursuant to condition 9(iii).

      • 24. ARBITRATION

      If at any time any dispute or difference whatsoever shall arise under or in connection with the Contract including its validity, construction and performance either party may give to the other notice in writing of such dispute or difference with short particulars of each point at issue and of its intention to submit the same to arbitration. Such dispute or difference shall then be referred to the decision of an arbitrator in England to be agreed on by the Customer and the Company or, failing agreement within fourteen days of either party having given to the other the name of a suggested arbitrator, such arbitrator to be appointed on the request of either party by the President for the time being of the Law Society.

      25. NON-SOLICITATION

      (i) For the duration of this Contract and for one year after, the Customer shall not (except with the prior written consent of the Company) solicit (with a view to offering employment) or otherwise seek to entice away from the employment of the Company any personnel who have been engaged in the provision of Services at the Site. For the avoidance of doubt, this restriction does not prevent employment arising genuinely from public advertisement placed by the Customer or a request for employment initiated exclusively by the employee.

      (ii) The restriction set out in condition 25(i) is considered reasonable by the Customer and it acknowledges that the provisions of condition 25 are necessary for the protection of the proprietary and commercial interests of the Company.

      (iii) In the event of breach by the Customer of condition 25(i), the Customer shall pay to the Company immediately upon receipt of a written demand (and without prejudice to any other rights and remedies available to the Company) a sum equivalent to 50% of the gross annual salary (calculated as at the date of termination) of the relevant employee.

      26. GENERAL

      (i) Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company, whether or not under the Contract.

      (ii) If any provision of the Contract is found by any competent authority to be invalid, unenforceable or unreasonable, it shall be severed from the remainder of the Contract which shall continue in full force and effect.

      (iii) Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract is not a waiver of any of its rights under the Contract.

      (iv) Any waiver by the Company of any breach by the Customer is not a waiver of any subsequent breach.

      (v) The Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract.