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For our general Terms and Conditions of Sales please see below;
Terms and Conditions of Sale
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 terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller.
1.4 “Contract” means the contract between the Seller and the Buyer or the Consumer and the Buyer as the case may be for the sale of the Goods in accordance with these Conditions.
1.5 “Consumer” means an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession.
1.6 "Delivery date" means the date specified by the Seller when the Goods are to be delivered.
1.7 "Goods" means the articles which the Buyer agrees to purchase from the Seller as set out in the Seller’s quotation or the Buyer’s order.
1.8 “Specification” means any specification for the Goods, including any related plans, drawings, and dimensions that are agreed in writing between the Seller and the Buyer.
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 or which are implied by trade, custom, practice or course of dealing.
2.2 The Seller shall sell and the Buyer will buy Goods in accordance with (a) the written quotation of the Seller which is accepted by the Buyer or (b) any written order of the Buyer accepted by the Seller in writing, subject to these Conditions which will govern the Contract to the exclusion of all other terms and conditions. In either case, the Contract will come into existence at the point of acceptance of the quotation or order (as applicable).
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. The Buyer is responsible for ensuring that the content of its order, and any applicable specification, is complete and accurate.
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.
2.7 Save where the same is agreed by the Seller in writing as forming part of a Specification, any samples, drawings or advertising produced by the Seller and any descriptions or illustrations contained in the Seller's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They do not form part of the Contract nor have any contractual force.
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 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 and payable by the Buyer 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, and save where Goods are ordered via the Sellers website and paid for at the time of such order, 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 any time 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 Where the Buyer is a new customer of the Seller and has applied for credit in accordance with the Seller’s policy governing the same, payment for the first order of the Goods must be made in advance of delivery to the bank account detailed on the Seller’s pro forma invoice. For the avoidance of doubt, the Seller reserves the right to reject the Buyer’s application for credit for any reason whatsoever. Where the Buyer’s application for credit has been accepted by the Seller, the Buyer must make subsequent payments in accordance with the Seller’s credit policy.
5.4 Save as in accordance with clause 5.3, the Buyer shall pay the Seller’s invoice in full and in cleared funds 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 for payment is of the essence.
5.5 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 Seller’s invoice in full 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.
5.6 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, such interest accruing on a daily basis from the due date until actual payment of the overdue amount whether before or after judgment and the Buyer shall pay the interest together with the overdue amount.
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.
5.6 The Buyer will pay all amounts due to the Seller under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any
KILBY PACKAGING - TERMS & CONDITIONS OF SALE
deduction or withholding required by law). The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.
6.1 Delivery of Goods shall be made by the Buyer collecting the Goods at the Seller’s premises within three days 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. 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 cancel any other instalment, or to terminate the Contract as a whole.
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 and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods.
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.
7.2 Notwithstanding 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 in which case title to the Goods will pass to the Buyer at the time of payment of all such sums.
7.3 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.
7.4 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.
7.5 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.
7.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller but if the Buyer does so all monies owed by the Buyer to the Seller shall forthwith become due and payable
7.7 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 in accordance with any Specification or any process is to be applied to the Goods by the Seller or subcontractor appointed by the Seller, the placing of an order by the Buyer for the Goods shall constitute acceptance and approval by the Buyer of such Specification and/or process.
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 To the extent that the Goods are to be manufactured in accordance with a Specification or any other design or material supplied by the Buyer, the Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Seller's use of the Specification of the manufacture of Goods to that Specification. This clause 8.3 shall survive termination of the Contract.
9.1 Subject to the following conditions the Seller warrants that on delivery the Goods will correspond in all material respects with any agreed Specification and shall be free from material defects in material and workmanship..
9.2 The above warranty is given by the Seller subject to the following conditions:-
9.2.1 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.
9.2.2 the Seller will not accept any liability for any defect arising:-
126.96.36.199 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.
188.8.131.52 because the Buyer failed to follow the Seller's oral or written instructions as to the storage, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
184.108.40.206 where the Buyer alters or repairs the Goods without the written consent of the Seller;
220.127.116.11 as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
9.2.3 the Seller will not accept any liability for any breach of the above warranty where the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
9.3 Subject to clause 9.2, the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:-
9.3.1 the Buyer gives notice in writing to the Seller within three Business Days of delivery or, where such defect is not discoverable on reasonable inspection, within a reasonable time after discovery of the defect, that some or all of the Goods do not comply with the warranty set out in clause 9.1;
9.3.2 the Seller is given a reasonable opportunity of examining such Goods; and
9.3.3 the Buyer (if asked to do so by the Seller) returns such Goods to the Seller's place of business at the Buyer's cost,
and the Seller shall have no further liability to the Buyer in respect of such Goods.
10.1 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.
10.2 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 10.1 above and at the Buyer’s cost returns such Goods to the Seller in accordance with clause 10.1 above.
10.3 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.
10.4 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.
10.5 After acceptance the Buyer shall not be entitled to reject any Goods which are not in accordance with the Contract.
11. General Liability
11.1 Nothing in these Conditions shall limit or exclude the Seller’s liability for any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
11.2 Subject to clause 11.1:-
11.2.1 the Seller shall under no circumstances be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any damage, loss of profit, or any indirect or consequential loss arising under or in connection with the Contract including the use or resale of the Goods by the Buyer; and
11.2.2 the Seller's total liability to the Buyer in connection with the Contract shall under no circumstances exceed the price of the Goods.
11.3 In the event of any breach of the Contract by the Seller the remedies available to the Buyer shall be limited to damages.
12. Insolvency or other defaults of the Buyer
If the Buyer fails to make payments for the Goods in accordance with the Contract or commits any other breach of the Contract 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.
13. Contracts with Consumers
13.1 The Consumer may not cancel any Contract for any personalised or made to measure Goods, such as those created with reference to a Specification.
13.2 Subject to clause 13.1, where Goods are purchased by a Consumer, the Consumer has the right to cancel a Contract by notifying the Seller within 14 calendar days of when the Consumer received the Goods. The Consumer must return the Goods to the Seller immediately, in the same condition as the Consumer received them (including any instructions and
accessories) and at the Consumer’s own cost and risk. The Seller strongly recommends that returns are sent by recorded delivery or some other tracked delivery system. The Consumer must pay the cost of returning the Goods to the Seller unless they are faulty, are not the goods that the Consumer ordered or otherwise do not conform with the terms of the Contract. Once the Seller has received the Goods back, the Consumer will receive a full refund, or if preferred, an exchange. Details of this statutory right and an explanation of how to exercise it are provided on the Seller’s website at www.kilby.co.uk/help/statutoryrights .
13.3 The Seller will deliver the Goods to the Consumer within 30 calendar days of the date set out in the Contract.
13.4 The Seller will take reasonable steps to meet the delivery date set out on the Contract or as otherwise agreed by the Seller in writing. However, occasionally delivery may be affected by factors beyond the Seller’s control and so cannot be guaranteed. The Seller will let the Consumer know if it becomes aware of an unexpected delay and will arrange a new delivery date with the Consumer. The Consumer may cancel the Contract if the delay means that it will be more than 30 calendar days from the date set out in the Contract before the Consumer receives the Goods.
13.5 The Seller shall use the Consumer’s personal information to:
13.5.1 to supply the Goods to the Consumer;
13.5.2 to process the Consumer’s payment for the Goods;
13.5.3 if the Consumer gave consent for the Seller to do so during the order process, to provide the Consumer with information about similar products that the Seller provides, but such information may be stopped at any time by the Consumer requesting that the Seller does so.
14. 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.
15. 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 exclusive jurisdiction of the English Courts.
No waiver or forbearance by the Seller whether express or implied in enforcing any of its rights under the Contract shall prejudice its right to do so in the future.
Any notices required or permitted to be given by either party to the other under the 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.
18. Third party rights
No one other than a party to the Contract shall have any right to enforce any of its terms.
If any provision or part provision of the Contract (including these Conditions) is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this condition shall not affect the validity and enforceability of the rest of the Contract.
Kilby Packaging 2017. Kilby Packaging is the trading name of John Kilby & Son Ltd