The Customer’s attention is particularly drawn to the provisions of clause 13 (Limitation of liability).
The following definitions and rules of interpretation apply in this agreement.
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9:00am to 5:00pm on any Business Day. Called Off Goods: Goods shipped by the Supplier in response to a Call Off Request.
Call Off Request: the Customer’s request (in writing or by phone, email or fax) for Goods to be shipped.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 17.8.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Contract Start Date: the contract start date as set out in the Written Acceptance.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Deliverables: the deliverables set out in the Order.
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: has the meaning given to it in clause 16.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, which are agreed in writing (including email) by the Customer and the Supplier.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Maximum Stockholding Level: the maximum volume of Goods as set out in the Written Acceptance.
Minimum Contract Term: the minimum contract term as set out in the Written Acceptance, commencing on the Contract Start Date.
Minimum Stockholding Level: the minimum volume of Goods as set out in the Written Acceptance.
Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form, or the Customer’s written acceptance (including email) of the Supplier’s quotation, or as requested by the Customer by telephone, or as submitted by the Customer via the Supplier’s website or online portal, or the Written Acceptance or overleaf, as the case may be.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services provided in writing (including by email) by the Supplier to the Customer.
Stock Report: a statement setting out:
(a) any Goods in the Customer’s possession as at the Stock Report Date;
(b) any Goods delivered to the Customer during the month preceding the Stock Report Date (or since the preceding Stock Report Date, if shorter);
(c) any Goods identified in the previous Stock Report requiring restocking that have not yet been restocked (if applicable); and
(d) any Goods that have become Used Goods during the month preceding the Stock Report Date (or since the preceding Stock Report Date, if shorter). Stock Report Date: the date to which the Stock Report has been prepared.
means the document prepared by the Supplier and identified as the Stockholding Agreement.
Supplier: Maxpack Group Ltd (company number: 11961124) trading as Maxpack.
Supplier Materials: has the meaning given in clause 8.1(h).
Used Goods: Goods that have been removed, used, disposed of, are not in their original packaging, are not (in the Supplier’s absolute discretion) in a re- saleable condition or are not in the possession of the Customer.
Written Acceptance: the Supplier’s written acceptance (including by email) of the Customer’s Order.
1.2 Interpretation:
(a) A person includes a natural person, corporate or unincorporated body(whether or not having separate legal personality).
A reference to a party includes its successors and permitted assigns.
A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
A reference to writing or written includes fax but not email (save where expressly permitted by these Conditions).
Any reference in this agreement to a volume of Goods shall be a reference to the volume of each individual type of Goods (identified by a stock reference or stock number if applicable).
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues a Written Acceptance at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 If the Written Acceptance references:
(a) “DFSM Free Stock” part 1 and part 2 of these terms and conditions shall apply;
(b) “DFSM Stock Holding” part 1 and part 3 of these terms and conditions shall apply; and
(c) “DFSM Call Off” part 1 and part 4 of these terms and conditions shall apply,
2.4 If the Written Acceptance does not reference “DFSM Free Stock”, “DFSM Stock Holding” or “DFSM Call Off” only Part 1 of the terms and conditions shall apply.
2.5 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.7 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue, unless withdrawn earlier by the Supplier.
2.8 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1 The Goods are described in the Goods Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier 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 costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4.1 The Supplier shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note which shows the material details of the Order; and
(b) it states any requirement for the Customer to return any packaging material to the Supplier. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location).
4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods, nor shall any delay entitle the Customer to terminate or rescind their Order and/or Contract unless such delay exceeds three months from the approximate delivery date.
4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.6 If the Customer fails to take delivery of the Goods at any time, then except where such failure is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the
Goods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the Business Day following the day on which the Supplier attempted delivery of the Goods; and
(b)the Supplier shall store the Goods until physical delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten Business Days after the goods are deemed to have been delivered in accordance with clause 4.6 (a) the Customer has not taken physical delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.8 If the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them but the Supplier shall make a pro rata adjustment to the invoice for the Goods.
4.9 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract.
Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
The Supplier warrants that on delivery the Goods shall: conform in all material respects with their description and any applicable Goods Specification; and be free from material defects in design, material and workmanship.
Subject to clause 5.3, the Supplier shall, at its option, repair or replace any defective Goods, or refund the price of the defective Goods in full if: the Customer gives notice in writing that the Goods do not comply with the warranty set out in clause 5.1 by the earlier of the expiry of:
12 months following completion of the delivery of the relevant Goods; and
14 days following discovery that the Goods do not comply with the warranty set
out in clause 5.1;
the Supplier is given a reasonable opportunity of examining such Goods; and (c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost.
5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow the Supplier’s and/or product manufacturer’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;
(c) the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by or agreed with the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(f) the Goods differ from their description or any applicable Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6.1 The risk in the Goods shall pass to the Customer on completion of delivery (or deemed delivery).
6.2 Subject to clause 6.5, title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
6.3 Subject to written (including by email) notification within 48 hours of delivery with details of the nature and extent of any damage, the Supplier may at their absolute discretion replace any Goods which, in the Supplier’s reasonable opinion, have been damaged prior to delivery.
6.4 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 14.2(b) to clause 14.2(d); and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.5 Subject to clause 6.6, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier 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 Supplier’s agent; and
(b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
6.6 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 14.2(b) to clause 14.2(d), then, without limiting any other right or remedy the Supplier may have:
(a) the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services that the Supplier has specified but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
8.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in any Service Specification and any Goods Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(f) comply with all applicable laws, including health and safety laws;
(g) prepare the Customer’s premises for the supply of the Services;
(h) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
(i) comply with any additional obligations as set out in any Service Specification and any Goods Specification.
8.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
(c) the Customer shall reimburse and indemnify the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
9.1 The price for Goods:
(a) shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier’s published price list as at the date of delivery;
(b) includes any discount (where applicable);
(c) shall be exclusive of a £12.95 administration charge where the Order value is less than £150, which shall be invoiced to the Customer at the discretion of the Supplier;
(d) where the delivery location is within a 50 mile radius of the Supplier’s premises, shall be inclusive of all costs and charges of packaging, insurance, transport of the Goods; and
(e) where the delivery location is outside of a 50 mile radius of the Supplier’s premises, shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer at the discretion of the Supplier.
9.2 The charges for Services shall be calculated on a time and materials basis:
(a) the charges shall be calculated in accordance with the Supplier’s daily fee rates, as set out in its current price list at the date of the Contract;
(b) the Supplier’s daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
(c) the Supplier shall be entitled to charge an overtime rate of the daily fee rate plus 5% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 9.2(b); and
(d) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
9.3 The Supplier reserves the right at any time to increase the charges for the Services or the price of the Goods in line with or to reflect:
(a) the percentage increase in the Retail Prices Index;
(b) the percentage increase in the Platts Materials Tracker;
(c) such other index of the Supplier’s choice (acting reasonably);
(d) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(e) any request by the Customer to change the delivery date(s), quantities or types of Goods and/or Services ordered, or the Goods and/or Service Specification; or
(f) any delay caused by any instructions of the Customer in respect of the Goods and/or Services or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods and/or Services, such increase to take effect on the Supplier giving written notice (including by email) to the Customer thereof.
9.4 In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery unless otherwise agreed in writing (including email) between the Customer and the Supplier. In respect of Services, the Supplier may invoice the Customer on completion of the Services or monthly in arrears or as otherwise agreed in writing (including email).
9.5 Subject to clause 9.6 and unless any other payment schedule is agreed in writing (including email) between the Supplier and the Customer, the Customer shall pay each invoice submitted by the Supplier:
(a) in respect of Goods, within 28 days of delivery of the Goods;
(b) in respect of Services, within 28 days of the date of the invoice for the Services;
(c) in pounds sterling; and
(d) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
9.6 Without prejudice to any other right or remedy of the Company, any payment by the Customer, which results in a cheque being referred to the drawer for whatever reason, will incur a charge of £50.00 plus VAT per cheque payable by the Customer
9.7 The Supplier may, at any time, require the Customer:
(a) to make full or a part payment in respect of the Goods and/or Services in advance of delivery or commencement of the Services (as the case may be); or
(b) to advance adequate security (in the Supplier’s opinion) for the payment of any amounts due, or to become due under the Contract.
9.8 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.9 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 14 (Termination), the Customer shall pay:
(a) interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.9 will accrue each day at 4% a year above the Royal Bank of Scotland’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
(b) all costs incurred by the Supplier, their agents or subcontractors in recovering any amount under this agreement should payment not be made by the Customer in accordance with clause 9.5, including but not limited to letter before action costs of £30.00 and debt collection agents fees of 20% of the overdue amount.
9.10 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10.1 Without prejudice to the statutory rights of the Customer or the other terms of this agreement:
(a) excluding Goods which are not included in the Supplier’s catalogue and have been obtained by the Supplier at the request of the Customer (which will be subject to clause 10.1(b)), any Goods returned where Orders are placed via mail, phone, fax or the internet, which have been cancelled within seven days of delivery of the Goods, will be refunded in full; and
(b) all other return/refund requests are at the absolute discretion of the Supplier, and the Supplier reserves the right to deduct a 20% re-stocking charge from any return/refund request which is granted.
10.2 All Goods must be returned unused, in their original packaging and in a re- saleable condition (to be determined in the Supplier’s absolute discretion) and the Customer will be responsible for the costs of returning the Goods to the Supplier. Costs of delivery to the Customer (if any) will not be refunded.
11.1 All Intellectual Property Rights in or arising out of or in connection with the Goods or Services shall be owned by the Supplier.
11.2 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
12.1 Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2.
12.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
13.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
13.2 Subject to clause 13.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) any indirect or consequential loss.
13.3 Subject to clause 13.1, the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, shall in no circumstances exceed an amount equal to the aggregate price of the Goods and Services to which the losses relate.
13.4 In the event that the limitation on liability set out in clause 13.3 is found by any court, tribunal or administrative body of competent jurisdiction to be illegal, invalid, void, voidable, unenforceable or unreasonable then subject to clause 13.1, the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the Contract shall in no circumstances exceed an amount equal to 150% of the aggregate price of the Goods and Services to which the losses relate.
13.5 In the event that the limitations on liability set out in clauses 13.3 and 13.4 are found by any court, tribunal or administrative body of competent jurisdiction to be illegal, invalid, void, voidable, unenforceable or unreasonable then subject to clause 13.1, the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the Contract shall be limited to the amount that the Supplier is able to recover from its insurers in respect of the losses claimed.
13.6 The Supplier shall not be liable for any advice it gives to the Customer, unless such advice is approved in writing by a director of the Supplier. Any advice approved by a director of the Supplier, shall always be subject to the limitations of liability in this clause 13.
13.7 The following, are to the fullest extent permitted by law, excluded from the contract:
(a) all warranties, conditions and terms implied by statute or common law (save for the terms implied by the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982);
(b) the terms implied by sections 13 to 15 of the Sale of Goods Act 1979; and
(c) the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982.
13.8 This clause 13 shall survive termination of the Contract.
14.1 Without affecting any other right or remedy available to it, the Supplier may terminate the Services by giving the Customer not less than 3 months’ written notice.
14.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
(d) the Customer’s financial position deteriorates to such an extent that in the terminating party’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
(e) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(f) there is a change of control of the Customer.
14.3 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 14.2(b) to clause 14.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
15.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract; and
(c) the Supplier may, without notice, withdraw any credit facility that has been made available to the Customer.
15.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
15.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control, including but not limited to acts of God, war, strikes, lockouts, trade disputes, fire, flood, riots or storms (Force Majeure Event).
17.1 Assignment and other dealings
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
17.2 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or by email (if expressly permitted in respect of the notice of communication in question) to such email address as notified by a party to the other party from time to time.
(b) Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or, if sent by fax or email (if expressly permitted in respect of the notice of communication in question), at 9:00 am on the next Business Day after transmission.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
17.3 Severance. If any provision or part-provision of the Contract 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 clause shall not affect the validity and enforceability of the rest of the Contract.
17.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
17.6 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
17.7 Third parties rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
17.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
17.9 Governing law. The Contract and any dispute or claim (including non- contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
17.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
Where there is any conflict between the terms of Part 1 and Part 2 of these terms and conditions, the terms and conditions of Part 2 shall prevail.
2.1 The Goods shall be provided in accordance with the terms of Part 1 of these terms and conditions, subject to the specific terms and conditions set out in this Part 2 of these terms and conditions.
2.2 The Supplier and Customer may agree, at any time, in writing (including by email) to vary any Minimum Stockholding Level, Maximum Stockholding Level and/or Minimum Contract Term. Such variation shall have no effect unless expressly approved by the Supplier in writing (including by email).
3.1 The Goods shall be stored at the Delivery Location and no Goods shall be stored at or moved to any other place except with the Supplier’s prior written consent.
3.2 The Supplier may inspect the Delivery Location during Business Hours with reasonable notice.
3.3 The Customer shall ensure that they:
(a) maintain the Delivery Location throughout the term of this agreement in such manner that it remains suitable to store the Goods; and
(b) store the Goods at the Delivery Location in such a manner as to protect them from damage or deterioration.
3.4 If a Stock Report identifies that the volume of Goods in the Customer’s possession at the Stock Report Date is below the Minimum Stockholding Level, the Supplier shall as soon as is reasonably possible, and in any event within 90 days of the Stock Report Date, deliver to the Customer a volume of Goods required to bring the volume of Goods up to at least the Minimum Stockholding Level (as at the Stock Report Date) but not exceed the Maximum Stock Holding Level.
3.5 Any Goods delivered by the Supplier to the Customer pursuant to the terms of Part 2 of these terms and conditions shall be deemed to form part of the Order.
4.1 The Goods shall at all times be subject to the direction and control of the Supplier, and the Customer shall immediately return any Goods that have not been paid for on demand by the Supplier.
4.2 The Customer shall bear the risk of loss and any expense of returning any Goods.
5.1 At least once a month (unless agreed otherwise in writing including by email) and on the termination of this agreement for any reason:
(a) the Customer shall give the Supplier all such assistance and access to the Delivery Location, Goods and records as the Supplier shall require to comply with clause 5.1(b);
(b) the Supplier shall prepare a Stock Report; and
(c) the Customer shall, acting in good faith, approve the contents of the Stock Report within 7 days of the Stock Report being prepared by the Supplier, failing which the Stock Report shall be deemed to be approved by the Customer within 14 days of the preparation of the Stock Report by the Supplier.
5.2 Once the Stock Report has been approved (or deemed to be approved) by the Customer, the Supplier shall invoice the Customer for all of the Used Goods set out in that Stock Report.
5.3 The Customer shall pay all invoices in full and in cleared funds within 28 days of the date of each invoice. Payment shall be made to the bank account nominated in writing by the Supplier.
The Customer shall make available to the Supplier on request all digital and printed records and reports relating to the Goods and allow its authorised officers to have access to them during Business Hours and to take copies of them as required.
The Customer shall:
(a) keep the Goods insured for their full price against all risks with an insurer that is reasonably acceptable to the Supplier from the date of their delivery to the Delivery Location;
(b) obtain an endorsement of the Supplier’s interest in the Goods on its insurance policy; and
(c) on request allow the Supplier to inspect during Business Hours the Goods and the insurance policy.
8.1 On termination of this agreement the Customer shall:
(a) immediately pay for any Goods held at the Delivery Location or other premises of the Customer;
(b) return to the Supplier all equipment, materials and property belonging to the Supplier and supplied to the Customer in connection with this agreement;
(c) erase all the Supplier’s confidential information from its computer systems (to the extent possible), and on request certify in writing it has complied with this requirement.
8.2 The Supplier may enter any premises of the Customer or of any third party where the Goods are stored to recover them, if the Supplier fails to comply promptly with its obligations under clause 8.1.
This agreement shall commence on the Contract Start Date and shall continue for the Minimum Contract Term unless otherwise terminated in accordance with the terms of this agreement.
Where the Supplier has agreed to enter into a Stockholding Agreement, this Part 3 – DFSM Stock Holding shall apply.
Where there is any conflict between the terms of Part 1 and Part 3 of these terms and conditions, the terms of Part 3 shall prevail.
2.1 The Goods shall be provided in accordance with the terms of Part 1 of these terms and conditions, subject to the specific terms and conditions set out in this Part 3 of these terms and conditions.
2.2 The Supplier and Customer may agree, at any time, in writing (including by email) to vary any Minimum Stockholding Level, Maximum Stockholding Level
and Minimum Contract Term. Such variation shall have no effect unless expressly approved by the Supplier in writing (including by email).
3.1 The Supplier agrees to use reasonable endeavours to maintain the volume of Goods between the Minimum Stockholding Level and the Maximum Stockholding Level during the Minimum Contract Term.
3.2 The Supplier shall not deliver the Goods until the Supplier has received a Call Off Request.
3.3 Upon receipt of a Call Off Request, the Goods subject to the Call Off Request shall be deemed to form part of the Order and the Supplier shall deliver the Called Off Goods to the Customer in accordance with the terms and conditions of this agreement.
3.4 A Call Off Request shall not exceed the Minimum Stockholding Level without the Supplier’s written permission (including by email). Such permission is at the Supplier’s absolute discretion.
3.5 Once a Call Off Request has been issued, the Customer agrees not to issue a further Call Off Request until the Supplier has had a reasonable opportunity to re-stock the Goods up to the Minimum Stockholding Level.
3.6 At the end of the Minimum Contract Term or on termination of the agreement for any reason, the Customer shall be deemed to have served a Call Off Request for all remaining Goods held by the Supplier up to the Maximum Stockholding Level.
4.1 The Supplier shall invoice the Customer in respect of the Called Off Goods, on or any time after delivery.
4.2 The Customer shall pay all invoices in full and in cleared funds within 28 days of the date of each invoice. Payment shall be made to the bank account nominated in writing by the Supplier.
This agreement shall commence on the Contract Start Date and shall continue for the Minimum Contract Term unless otherwise terminated in accordance with the terms of this agreement.
Where the Supplier has agreed to supply the Goods pursuant to Call Off Requests, this Part 4 – DFSM Call Off shall apply.
1. Interpretation
Where there is any conflict between the terms of Part 1 and Part 4 of these terms and conditions, the terms of Part 4 shall prevail.
The Goods shall be provided in accordance with the terms of Part 1 of these terms and conditions, subject to the specific terms and conditions set out in this Part 4 of these terms and conditions.
3.1 The Supplier shall not deliver the Goods until the Supplier has received a Call Off Request.
3.2 Upon receipt of a Call Off Request, the Goods subject to the Call Off Request shall be deemed to form part of the Order and the Supplier shall deliver the Called Off Goods to the Customer in accordance with the terms and conditions of this agreement.
3.3 At the end of the Minimum Contract Term or on termination of this agreement for any reason, the Customer shall be deemed to have served a Call Off Request for any remaining Goods that are the subject of the Order but that have not yet been delivered to the Customer.
4.1 The Supplier shall invoice the Customer in respect of the Called Off Goods, on or any time after delivery.
4.2 The Customer shall pay all invoices in full and in cleared funds within 28 days of the date of each invoice. Payment shall be made to the bank account nominated in writing by the Supplier.
This agreement shall commence on the Contract Start Date and shall continue for the Minimum Contract Term unless otherwise terminated in accordance with the terms of this agreement.
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3 January 2024
4 July 2023
