Terms and Conditions
Terms and Conditions
Definitions
1.1 "Seller" means John Kilby and Son Limited trading as Kilby Packaging.
1.2 “Buyer” means the person who buys or agrees to buy Goods from the Seller.
1.3 "Conditions" means the conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller.
1.4 "Delivery date" means the date specified by the Seller when the Goods are to be delivered.
1.5 "Goods" means the articles which the Buyer agrees to purchase from the Seller.
2. Basis of Sale
2.1 These conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms of conditions including any terms or conditions which the Buyer may purport to apply under any purchase order confirmation of order or similar document.
2.2 The Seller shall sell and the Buyer will buy Goods in accordance with the quotation of the Seller which is accepted by the Buyer or any written order of the Buyer accepted by the Seller subject to these terms and conditions which will govern the contract to the exclusion of all other terms and conditions.
2.3 All orders of Goods will be deemed to be an offer by the Buyer to purchase Goods pursuant to these conditions and no variation of conditions shall be binding unless agreed in writing by the Seller.
2.4 The placing of an order by the Buyer shall be deemed conclusive evidence of the Buyer’s acceptance of these conditions.
2.5 The Seller’s agents are not authorised to make representations concerning the Goods unless confirmed by the Seller in writing. The Buyer acknowledges this and waives any right to claim for breach of representations not so confirmed.
2.6 Any advice or recommendation by the Seller or the Seller’s agent to the Buyer or the Buyer’s agents as to storage, application or use of Goods, which is not confirmed in writing by the Seller is followed at the Buyer’s own risk and the Seller shall not be liable for such advice/recommendations. No warranty is given that the Goods will be fit for a particular purpose or of a particular quality nor shall any term warranty or condition to the effect that Goods are fit for any particular purpose or of a particular quality be implied into the Contract.
3. Orders and Specification
3.1 No orders for non-stock or manufactured items submitted by the Buyer either pursuant to any quotation or otherwise shall be deemed to be accepted by the Seller until and unless confirmed in writing by the Seller.
3.2 All orders are accepted subject to the necessary materials being available, in circumstances where the necessary materials are unavailable the Seller will as soon as practical give written notice to the Buyer. On giving such notice the Seller shall repay to the Buyer any sums paid in respect of the price of Goods that the Seller is unable to supply. The Seller shall not be liable for any loss or damage whatever arising from the Seller’s inability to supply due to the unavailability of necessary materials.
3.3 The Buyer will be responsible to the Seller for ensuring the accuracy of the terms of any order submitted by the Buyer and for giving the Seller any information in time to enable the Seller to perform the contract in accordance with its terms.
3.4 The quality, quantity, description and specification for the Goods shall be those set out in the Seller’s quotation or the Buyer’s order, and agreed by the Seller.
3.5 No order for non-stock or manufactured items accepted by the Seller can be cancelled by the Buyer.
3.6 In any circumstances where the Buyer cancels the order the Buyer shall indemnify the Seller in full against all loss, costs, damages, charges and expenses incurred by the Seller as a result of such cancellation.
4. Price of Goods
4.1 The price of the goods shall be the Seller’s quoted price providing that the Buyer accepts the Seller’s quotation within 30 days or if otherwise agreed in writing. The Seller may, by giving notice to the buyer at any time up to 7 days before delivery, increase the price of goods to reflect any increase in the cost to the Seller which is due to factors occurring after the making of the contract of sale which are beyond the reasonable control of the Seller (including without limitation, foreign exchange fluctuations, the cost of labour and materials and other manufacturing costs). Provided that with the exception of orders for goods which are not normally stocked by the seller, the Buyer may cancel this contract within 7 days of any such notice from the Seller.
4.2 Prices shall be (unless otherwise agreed) quoted exclusive of VAT and other applicable taxes or impositions which shall be due at the rate prevailing at the date of supply. Except as stated otherwise under the terms of any quotation or otherwise agreed in writing between the Buyer and the Seller all prices are given by the Seller on an ex-works basis and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises the Buyer shall be obliged to pay the Seller’s charges for transport, packaging and insurance as notified by the Seller to the Buyer at the date of quotation.
5. Terms of Payment
5.1 Subject to any terms agreed in writing between the Buyer and the Seller the Seller shall be entitled to invoice the Buyer for the price of the Goods before, on, or after the time of delivery. If the Buyer is to collect the Goods and fails to do so or wrongfully refuses to take delivery the Seller shall be entitled to invoice the Buyer for the price where it has not already done so anytime after the Seller has notified the Buyer that the Goods are ready for collection or the Seller has tendered delivery of the Goods.
5.2 Where the contract provides for delivery by instalments, invoices may be rendered separately for each instalment at the option of the Seller.
5.3 The Buyer shall pay the price of the Goods by the last day of the month following the month in which the Seller’s invoice was raised not withstanding that delivery may not have taken place and that 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.
5.4 Where Goods are to be delivered outside of the United Kingdom the Seller will notify the Buyer of the date when the Goods will be ready for despatch and the Buyer will pay the full price of the Goods by irrevocable letter of credit in London in Sterling at the rate of exchange prevailing at the date of the invoice prior to delivery of the Goods taking place.
5.5 If the Buyer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.5.1 cancel the contract and suspend any further deliveries.
5.5.2 appropriate any payment made by the Buyer to such of the Goods as the Seller thinks fit.
5.5.3 charge the Buyer interest on the amount unpaid at the rate of 8% per annum above the Bank of England base rate for time to time until payment in full is made.
5.5.4 recover from the Buyer by way of damages any loss or expenses which the Seller may suffer or incur by reason of the Buyer’s default including any legal or other recovery costs which may be incurred by the Seller as a consequence of the Buyer’s breach of contract
6. Delivery
6.1 Delivery of Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or if some other place for delivery is agreed by the Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of Goods are approximate only and the Seller shall not be liable for the consequences of any delay in the delivery of the Goods, howsoever caused. Any time for delivery given by the Seller is an estimate only and time for delivery shall not be of the essence unless previously agreed by the Seller in writing, and any delay shall not constitute a breach of contract by the Seller or entitle the Buyer to repudiate the contract.
6.3 Where the Goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by the Seller 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.
6.4 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery without prejudice to any other rights or remedies of the Seller the Seller may:
6.4.1 Store the Goods until actual delivery and make a reasonable charge for or recover the costs of storage and insurance until actual delivery.
6.4.2 Resell the Goods at the best price readily obtainable and account to the Buyer for any excess over the price under the contract or charge the Buyer for any shortfall below the price under the contract together with any costs incurred by the Seller by such a resale.
6.5 The Seller shall not be liable for any loss or damage whatsoever due to failure by the Seller to deliver the Goods or any of them promptly or at all.
6.6 Notwithstanding that the Seller may have delayed or failed to deliver the Goods or any of them promptly the Buyer shall be bound to accept delivery and to pay for the Goods in full providing that delivery shall be tended at any time within two months of the delivery date.
7. Risk and Property
7.1 Risk of damage and loss shall pass to the Buyer:
7.11 in the case of Goods to be delivered at the Seller’s premises at the time the Seller notifies the Buyer that they are ready for collection.
7.1.2 in the case of Goods delivered elsewhere than at the Seller’s premises at the time of delivery to the Buyer or to any carrier or agent acting on behalf of the Buyer, or if the Buyer wrongfully fails to take delivery at the time when the Seller has tendered delivery of the Goods.
7.1.3 not withstanding delivery and passing of risk in the Goods or any other provision of these conditions, property and title in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds the full price of the Goods and all other Goods agreed to be sold to the Buyer by the Seller for which payment is then due and of all sums whatever that shall be due from the Buyer to the Seller.
7.1.4 until such time as the property passes to the Buyer the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and any third party. The Buyer shall store the Goods at no cost to the Seller, separately from all other Goods in its possession and mark in such a way that they are clearly identified as the Seller’s property. The Buyer will also arrange adequate insurance in respect of the Goods.
7.1.5 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 Buyers 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 property in 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 be kept separate from any money or property of the Buyer or any third party and shall be at all material times identified as the Seller’s money.
7.1.6 until such time as the property and the Goods passes to the Buyer the Seller shall be entitled at any time to require that the Buyer delivers up the Goods to the Seller and if the Buyer fails to do so forthwith to enter upon any premises owned occupied or controlled by the Buyer where the Goods are situated and repossess the Goods. On the making of such request the rights of the Buyer under clause 7.1.5 shall cease.
7.1.7 the Buyer shall not be entitled to pledge or in anyway charge by way of security for any indebtedness any of the Goods which remain the property of the Seller but if the Buyer does so all monies owed by the Buyer to the Seller shall forthwith become due and payable
7.1.8 the Buyer shall insure and keep insured the Goods to the full price against all risks to the reasonable satisfaction of the Seller until the date that the property in the Goods passes from the Seller, and shall whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
8. Special Designs and Specifications
8.1 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller or subcontractor appointed by the Seller in accordance with a design or specification prepared by the Seller in accordance with the Buyer’s requirements, the placing of an order by the Buyer for the Goods shall constitute acceptance and approval by the Buyer of such designs and all specifications.
8.2 Where the Seller notifies the Buyer at the date of order that the goods required by the Buyer are not goods which the Seller normally holds in stock. The Buyer shall not thereafter be entitled to cancel the order or refuse to take delivery of the goods.
8.3 Subject to the following conditions the Seller warrants that the Goods will correspond with any agreed design and/or specification prepared by the Seller or submitted by the Buyer. The above warranty is given by the Seller subject to the following conditions:-
8.3.1 no warranty is given that the Goods will be fit for any particular purpose, and no term, warranty or condition to the effect that Goods are fit for any particular purpose shall be implied into the contract
8.3.2 the Seller will not accept any liability for any defect arising from the drawings, design or specification supplied by the Seller and approved by the Buyer or any drawing, design or specification supplied by the Buyer to the Seller.
8.3.3 the Buyer will indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with any claim for infringement of any patent, copyright, design, trade mark or any other intellectual rights of any person which results from the Sellers use of the Buyer’s design or specification.
9. Acceptance
9.1 The Buyer shall be deemed to have accepted the Goods unless it provides the Seller with written notice of rejection of the Goods within three days of the date of delivery and returns the rejected Goods to the Seller at the Buyer’s expense within ten days thereafter and if no written notice has been received and/or the goods returned within these times the Goods shall be deemed to be in accordance with the contract and free from any defect or damage which would be apparent on a reasonable inspection of the Goods.
9.2 If the Buyer properly rejects any of the Goods which are not in accordance with the contract the Buyer shall nonetheless pay the full price of such Goods unless the Buyer promptly gives notice of rejection to the Seller as set out in clause 9.1 above and at the Buyer’s cost returns such Goods to the Seller in accordance with paragraph 9.1 above.
9.3 No Goods delivered to the Buyer which are in accordance with the contract will be accepted for return without the prior written approval of the Seller on terms to be determined at the absolute discretion of the Seller.
9.4 Goods returned without prior written approval from the Seller may without prejudice to any rights or remedies which the Seller may have at the Seller's absolute discretion be returned to the Buyer or stored at the Buyer's cost or resold by the Seller and any costs or losses incurred by the Seller recovered from the Buyer.
9.5 After acceptance the Buyer shall not be entitled to reject any Goods which are not in accordance with the contract.
10. General Liability
10.1 Any claim by the Buyer which is based on any defect in quality or condition of the Goods or their failure to correspond with the specifications shall be notified to the Seller within three days of delivery (whether or not delivery is refused by the Buyer) or where the defect is not discoverable on reasonable inspection within a reasonable time after discovery of the defect or failure. If delivery is not refused and the Buyer does not notify the Seller accordingly the Buyer shall not be entitled to reject the Goods and the Seller 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.
10.2 Where Goods are shown to be defective at the time of delivery by reason of faulty workmanship or materials the Seller shall at it’s sole discretion be entitled to repair or at the option of the Seller replace the Goods free of charge but the Seller shall have no further liability to the Buyer.
10.3 Except for death and personal injury caused by the Seller’s negligence the Seller shall not be liable to the Buyer by reason of any representation, condition or term, or any implied warranty or duty at common law for any lawful damage whether direct, indirect or inconsequential caused by or arising out of the Goods supplied by the Seller whatsoever whether or not due to the negligence of the Seller its employees or agents or otherwise which arises out of or in connection with the supply of the Goods and their use or resale by the Buyer except as expressly provided by these conditions.
10.4 In the event of any breach of this contract by the Seller the remedies for the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the price of the Goods.
11. Insolvency or other defaults of the Buyer
If the Buyer fails to make payments for the Goods in accordance with this contract of sale or commits any other breach of this contract of sale or if any distress or execution shall be levied upon any of the Buyer’s Goods or if the Buyer offers to make any arrangement with its creditors or commits an act of bankruptcy or if any petition for bankruptcy is presented against the Buyer, or the Buyer is unable to pay its debts as they fall due, or if being a limited company any resolution or petition to wind up the Buyer shall be passed or presented, or if a receiver administrator administrative receiver or manager shall be appointed over the whole or part of the Buyers business, or the Buyer shall suffer any similar proceedings under foreign law all sums outstanding in respect of the Goods shall become payable immediately. The Seller may in its absolute discretion or without prejudice to any rights which it may have suspend all future deliveries of Goods to the Buyer and or terminate the contract without liability upon its part and/or prejudice to the exercise any of its rights pursuant to clause 7 above.
12. Force Majeure
The Seller shall not be liable to the Buyer or be deemed to be in breach of contract by reason of any delay in performing or failure to perform any of the Seller’s obligations in relation to Goods if the delay or failure was due to any cause beyond the Seller’s reasonable control.
13. Proper Law of the Contract
The contract shall be governed by the Law of England and Wales, and all disputes arising under the contract shall be submitted to the jurisdiction of the English Court.
14. Waiver
No waiver or forbearance by the Seller whether express or implied in enforcing any of its rights under this contract shall prejudice it’s right to do so in the future.
15. Notices
Any notices required or permitted to be given by either party to the other under this contract shall be in writing and addressed to the other party at its registered office or principal place of business or at such other address as may be agreed by the parties.
Kilby Packaging 2003. Kilby Packaging is the trading name of John Kilby & Son Ltd
JOHN KILBY & SON LIMITED
TERMS AND CONDITIONS OF SALE
Telephone: +44 (0)1564 823176 Fax: +44 (0)1564 826725 sales@kilby.co.uk