Condizioni / EKB

Papier-Mettler KG | Terms and Conditions of Sale, Delivery and Payment

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1. Scope of application

1.1 All deliveries, services and quotations of the Seller are governed exclusively by the present General Terms and Conditions of Delivery and Sales. The present General Terms and Conditions of Delivery and Sales form a constituent part of all agreements concluded by the Seller with the Seller’s contractual partners (hereinafter also referred to as “Customers”) in respect of all deliveries and services quoted on by the Seller. The present General Terms and Conditions of Delivery and Sales further apply to all future deliveries, services or quotations made to the Customer even if these do not form the object of subsequent separate agreement.

1.2 The General Terms and Conditions of the Customer or of third parties shall not apply, even in cases where the Seller does not separately contradict the validity of such General Terms and Conditions on an individual case basis. Even in circumstances where the Seller makes reference to written documentation containing  General Terms and Conditions of the Customer or of third parties or alluding to such General Terms and Conditions, this shall not constitute agreement with the application of such General Terms and Conditions of the Customer or of third parties.

2. Quotation and conclusion of contract

2.1 All quotations made by the Seller are subject to change and non-binding provided that such quotations are not expressly characterised as binding or do not include a definite deadline for acceptance. The Seller may accept orders within fourteen days of receipt.

2.2 The written purchase agreement including the present General Terms and Conditions of Delivery and Sales shall be the sole basis governing legal relations between the Seller and the Customer. The purchase agreement encompasses all agreements made by the contractual parties with regard to the contract concluded. Verbal commitments made by the Seller prior to the conclusion of the present Agreement are not legally binding, and verbal agreements made by the contractual parties shall be replaced by the written agreement provided that such verbal agreements do not expressly include a proviso that they shall continue to apply.

2.3 Supplements and amendments to agreements made including to the present General Terms and Conditions of Delivery and Sales may be made verbally provided that they are confirmed immediately by e-mail by at least one of the parties.

2.4 Information provided by the Seller with regard to the object of the delivery or service (e.g. weight, dimensions, usage figures, load capacity, tolerances and technical data) and representations of such information (e.g. drawings and diagrams) shall be approximations only unless usability for the contractual purpose requires precise compliance with specific indications. Indications given in this regard are not guaranteed characteristics, but constitute descriptions or features of the delivery or service. Deviations standard to the industry, deviations resulting from legal provisions or representing technical improvements and the replacement of components by others of equal quality shall be permissible provided that these do not impair usability for the contractually stipulated purpose.  

2.5  The Seller shall retain ownership of, or copyright in all quotations and cost estimates made as well as in all drawings, images, calculations, brochures, catalogues, models, tools and other documentation and auxiliary materials made available to the Customer.The Customer shall not make such objects or their contents available to third parties, shall not disclose such objects or their contents to third parties without the express approval of the Seller and shall not use or reproduce such objects or their contents either personally or with the assistance of a third party. At the request of the Seller, the Customer shall return such objects and shall destroy any copies which may have been made where no longer required in the ordinary course of business or where negotiations do not result in the conclusion of a contract.

3. Prices and payment

3.1 Prices shall apply with respect to the scope of service and delivery set out in the order confirmation. Additional or special services such as printing and printing block costs are charged separately. Prices are stated in Euros, ex works and are exclusive of packaging, value-added tax at the statutory rate and, in case of export shipments, customs duties and other public levies.
The Seller is not required to retain printing blocks and printing copy which has become unusable due to customary wear and tear within the scope of use for the contractual purpose.

3.2 Insofar as prices agreed are based on the Seller’s list prices and delivery is scheduled to be performed more than four months after contract conclusion, the Seller’s list prices at the time of delivery shall apply (less any percentage-based or fixed discount).

3.3 Invoice amounts shall be payable within 14 days without deductions provided that nothing to the contrary is agreed in writing. Date of payment is determined by the date on which payment is received by the Seller. Cheques shall not constitute payment until the monies reach our account.
In the event that the Customer fails to make payment when payment falls due, outstanding amounts shall be subject to interest of 5% per annum. This shall be without prejudice to the right to assert a claim for higher interest and for further damages in the case of default of payment. In cases of default of payment, the statutory stipulation pursuant to §§ 286 III and 288 II of German Civil Code (BGB) shall apply, i.e. in particular the amount of penalty interest chargeable shall be 8%9 percentage points above base rate.

3.3a In the event that a cash discount agreement with the Customer is in place, the deduction of a cash discount shall only be granted if no other due invoice amount is outstanding at the time of the expiry of the deadline for the cash discount.

3.4 The setting off of counterclaims of the Customer or the retention of payments in respect of such claims is only permissible if said counterclaims are undisputed or have been established in law. The assertion of rights of retention by commercial enterprises shall otherwise be excluded.

3.5 The Seller shall be entitled to execute or carry out outstanding deliveries or services only against advance payment or provision of securities if, after the conclusion of the contract, the Seller becomes aware of circumstances which may materially impair the credit worthiness of the Customer and which jeopardise the payment of outstanding claims to the Seller by the Customer arising from the respective contractual relationship (including from other individual agreements in respect of which the same General Services Agreement applies).

4 Delivery and delivery time

4.1 Deliveries within Germany will be made from a net goods value of €125 upwards. Such deliveries will be made ex works (EXW Morbach Incoterms 2010). Delivery takes place franco domicileat Seller’s expense (CPT destination place Incoterms 2010) for net goods from a value of €1000 upwards (fees for the dual system of waste disposal are not taken into account in calculating the value of the goods). All deliveries outside Germany will be made ex works (EXW Morbach Incoterms 2010).

4.2 Deadlines and dates set by the Seller shall always only be approximate provided that no fixed deadline or date has expressly been promised or agreed. As soon as dispatch has been agreed, delivery deadlines and dates refer to the time at which goods are handed into the care of the forwarding agent or carrier or other third party commissioned to provide transport.

4.3 Without prejudice to rights regarding default of payment by the Customer, the Seller may require the Customer to grant an extension to delivery and service deadlines or may postpone delivery and services dates by the period in which the Customer fails to meet contractual obligations towards the Seller.

4.4 The Seller shall not be liable for impossibility of delivery or for delays in delivery caused by Acts of God or by other events which were not foreseeable at the time when the contract was concluded and for which the Seller is not responsible (e.g. disruptions to operations of all kinds, difficulties in materials or energy procurement, transport delays, strikes, lawful lockouts,shortage of staff, energy or raw materials, difficulties in obtaining necessary government licences, government measures or failure to deliver, failure to deliver the correct goods or failure to deliver in a timely manner on the part of suppliers). The Seller shall be entitled to withdraw from the contract provided that such events materially hamper delivery or render delivery impossible for the Seller and provided that such a hindrance is not merely of temporary duration. In the case of hindrances of temporary duration, delivery and service deadlines are extended or delivery and services dates are postponed by the period of hindrance plus an appropriate lead time. If it is not reasonable for the Customer to accept deliveries or services as a consequence of delay, the Customer may withdraw from the contract by providing the Seller with an immediate written declaration to this effect.

4.5 The Seller shall be entitled to make partial deliveries if:

• partial delivery is suitable for the Customer within the scope of the intended contractual purpose;
• delivery of the remaining goods ordered is secured and
• no significant additional expenditure or costs arise for the Customer as a result (unless the customer declares willingness to accept such costs).

4.6 In the event that the Seller is in default of provision of delivery or service or provision of delivery or service is impossible for the Seller regardless of reason, liability of the Seller shall be limited to the compensation due pursuant to the provisions of the present General Terms and Conditions of Delivery and Sales.

4.7 Notwithstanding any delay in acceptance, the Seller shall charge the Customer a warehousing fee of €12 per pallet position per month commenced for the further storage of objects of delivery ordered once a period of 6 months has expired.

5. Place of fulfilment, dispatch, packaging, transfer of risk, acceptance

5.1 Place of fulfilment in respect of all duties arising from the contractual relationship shall be Morbach insofar as nothing to the contrary is agreed.

5.2 Nature of dispatch and packaging shall be at the fair and just discretion of the Seller.

5.3 Risk shall be transferred no later than at the time when goods are handed into the care of the forwarding agent or carrier or other third party commissioned to provide transport (whereby such transfer will be determined by the commencement of the loading procedure). The same shall apply in circumstances where partial deliveries take place or where the Seller has assumed responsibility for other services (such as dispatch). In the event that dispatch or transfer is delayed as a consequence of a circumstance caused by the Seller, transfer of risk to the Customer shall take place on the day on which the object of delivery is ready for dispatch and on which the Seller notifies the Customer of such readiness to dispatch.

5.3.a When delivery takes place, Euro Pallets capable of exchange shall be exchanged on an ongoing basis (Cologne Pallet Exchange System).In the event that return of pallets not immediately exchanged does not take place within one month of delivery, the Seller may invoice the Customer for the pallets not exchanged at the current market price plus a processing fee of €40. This also applies to plastic pallets (H1 pallets) insofar as such an exchange regulation has been agreed between the buyer and seller in individual cases.

5.4 Storage costs following transfer of risk shall be borne by the Customer.In the event that storage is provided by the Seller, storage costs shall be €12 per pallet per completed week for each pallet forming part of the objects of delivery to be stored.This shall be without prejudice to the right to assert a claim for and to demonstrate further or lower storage costs.

5.5 The Seller will insure deliveries against theft, breakage, transport, fire and water damage or other insurable risks only at the express wish of the Customer and only at the cost of the Customer.

5.6 As soon as acceptance is required to take place, the object of purchase shall be deemed to have been accepted if:

• delivery has taken place and, insofar as the Seller is also responsible for installation, such installation has been completed;   
• the Seller has notified the Customer of such a circumstance making reference to notional acceptance pursuant to the present clause and has requested acceptance from the Customer;
• 12 [in words, twelve] working days have passed since the delivery or installation or the Customer has commenced use of the object of purchase (for example has commissioned the plant ordered) and in such a case six working days have elapsed since delivery or installation and   
• the Customer has failed to provide acceptance within such a period for a reason other than a defect of which notification has been made to the Seller and which makes use of the object of purchase impossible or materially impairs use of the object of purchase.

6. Proprietary rights

6.1 Printing copy made available by the seller such as drafts, drawings, printing blocks, films, impression cylinders and printing plates shall remain the property of the Seller even if the Customer has made proportionate remuneration in respect of such printing copy. Notwithstanding this, the Customer shall in such cases be entitled to acquire ownership of such property by remunerating the Seller for the proportion of costs incurred by the Seller.

6.2 Any copyright and/or proprietary rights acquired by the Seller in the development and execution of an order shall not be transferred by sale of the object of delivery. This shall also apply in circumstances where the Customer has borne a proportion of costs of development. The Seller shall in particular be entitled to exploit such copyright and/or proprietary rights for orders of third parties.

6.3 Insofar as nothing to the contrary has been agreed, the Seller shall be entitled to attach a company logo or identification number in visible form to objects of delivery manufactured by the Seller.

6.4 Remuneration shall be made for samples, drawings, designs and similar articles expressly ordered or commissioned by the Customer even in circumstances where the main order for which such samples, drawings, designs and similar articles have been prepared is not placed. Ownership is transferred to the Customer when remuneration is made.

6.5 It shall be incumbent upon the Customer to check whether documentation made available by the Customer is in breach of the rights of third parties, in particular copyright and industrial property rights (design patents, patents, registered design rights, trademarks). In the event that a claim for breach of copyright and/or intellectual property rights or for breach of unfair competition law is made against the Seller by a third party due to use, exploitation or reproduction of documentation and/or templates provided by the Customer, the Customer shall support the Seller in defending any such legal claim and shall reimburse the Seller for any damage incurred by the Seller, including lawyer’s fees and court costs.

7. German Waste Management and Product Recycling Act/Packaging Ordinance

7.1 In the event that, in fulfilling an order from the Customer, the Seller applies symbols to products within the scope of a national system within the meaning of the German Packaging Ordinance such as the “Green Dot System”, the Customer shall be deemed to be the initiator of the symbol within the meaning of the German Packaging Ordinance and in this capacity shall be responsible for the direct payment of fees to the national system.
In the event that a claim is made against the Seller by the fact that the Customer is in breach of the German Packaging Ordinance, the Customer shall be required to reimburse the Seller for all expenditure incurred in this regard.

7.2 In the event that the Customer does not participate in the Dual System Germany Recycling Scheme, the Customer shall be required to take back packaging delivered in accordance with the provisions of the German Waste Management and Product Recycling Act and within the meaning of the Packaging Ordinance as amended and to arrange for the recycling of such packaging in the manner prescribed in the Packaging Ordinance. In the event that a duty to take back packaging on the part of the Seller exists on the basis of the Packaging Ordinance, place of fulfilment for return of packaging by the Customer shall be the location of the Registered Office of the Seller. In the event that a culpable breach on the part of the Customer of the responsibilities assumed pursuant to Clauses 1 and 2 above results in the imposition of a fine against the Seller for breach of the Ordinance on the Avoidance of Packaging Waste, the Customer shall be required to indemnify the Seller against the obligation to make such a payment.
In the event that the Seller has already paid such a fine, the Customer shall reimburse this sum to the Seller.

8. Tolerances

8.1 Deviations in weight
Deviations in surface weight shall be tolerated by the Customer to the same extent as the Seller is required to tolerate such deviations pursuant to the General Terms of Delivery of the manufacturer of the materials used.
Insofar as said General Terms of Delivery do not contain any provision to the contrary, the following tolerances shall apply.
a) Paper in relation to agreed surface weight
Up to 39 g/m2                           +/-   10 %
40 - 59 g/m2                              +/-   8 %
60 and more g/m2                      +/-   7 %
b) Plastic films in relation to agreed thickness
Smaller than 15 μm                     +/- 25 %
From 15 μm – 25 μm                 +/- 15 %
More than 25 μm                        +/- 13 %
c) Aluminium film, composite film, cellulose film and other materials in relation to agreed thickness or surface weight (depending on the dimension forming the basis of the agreement – applies individually or as part of another product) 
+/- 10 %

8.2 Deviations in dimension

The following deviations in dimension shall be tolerated by the Customer.
a) Paper and paper combinations
-         Bags
Length                                                          +/- 10 mm
Width for bag widths under 80 mm               +/- 5 %
Width for bag widths 80 mm and more         +/- 2 %
-         Rolls
Width and section length                                +/- 3 mm
Run length                                                     +/- 3 %
-        Formats
Length                                                           +/- 5 mm
Width                                                            +/- 5 mm
b) Plastics and aluminium                                         +/- 10 %
c) The deviations in dimension for a) rolls and formats and b) the materials stated also apply to the position of the print and to the punching and embossment of these materials. A width deviation in dimension of +/- 10 mm applies to the positioning of the print and the punching and embossment for the bags stated under a). Register deviations on printed products cannot be avoided for technical reasons, since such deviations are dependent on the material, model and printing process. Only significant deviations entitle the Customer to make a complaint.

8.3 Deviations in quantity
The Seller has the right to increased and reduced deliveries of up to 20% of the quantity ordered for all production runs. In the case of purchase according to quantity (quantities under 50,000 units) and in the case of special editions with print changes within the edition and for purchase according to weight (for weights under 500 kg), said right extends to up to 30% of the quantity ordered. Delivery takes place with full invoicing of actual quantities supplied.

9. Print and materials

9.1 The Seller uses the customary printing inks for printing. Separate written agreement is required for the fulfilment of special requests regarding the inks, such as a high degree of light resistance, alkali resistance, abrasion resistance, suitability for contact with foodstuffs etc.
No guarantee can be undertaken for the light resistance of the material and printing inks used   by dint of the fact that suppliers of raw materials and inks also provide no such guarantee. Neither can any guarantee be provided for the abrasion resistance of the printing inks.
The Seller reserves the right to minor deviations in colours insofar as such discrepancies are customary in the trade. Such deviations do not entitle the Customer to refuse to accept the goods or to a price reduction. Test prints will be submitted before printing at the express request of the Customer or if deemed necessary by the Seller. Said test prints (e.g. proof, cromalin, offset proof etc.) are not produced using the flexo-print process, and significant deviations from the subsequent production print run cannot therefore be avoided in some cases.On-press proof prints requested by the customer shall be invoiced separately according to cost incurred.

9.2 The Seller is unable to provide any guarantee for migrations of softeners or similar migration effects with plastic products and for the resultant consequences. Notwithstanding this and insofar as the Seller is liable, the provisions relating to material defects contained within the present provisions shall apply.

9.3 The Seller shall not be responsible for the consequences of errors in the Original artwork (incl. electronic data and data files) supplied to him by the customer for the purpose of printing the uniform product code or other similar codes (for example QR codes). The Seller shall further not be responsible for difficulties which may occur as a result of the use of the imprinted code or for the consequences of such difficulties. Original artwork supplied by the customer shall also be understood to include proofs of printing works approved by the customer which contain a uniform product code. The customer is solely accountable for the content of the code. Therefore, should the supplier have to generate a new code for technical reasons (ie. size, legibility) the customer is still responsible to check the code.

9.4 The EAN barcode is printed according to the current state of technology whilst according due consideration to the CCG’s relevant rules of application (see also the Series of Publications on Co-organisation, Booklet 2, The EAN Barcode). Further commitments, in particular statements regarding reading results at retail cash tills, cannot be given due to any influence the Customer may exert on the bar codes after delivery and in the absence of any standardised measuring and reading technology. The same applies to the legibility of similar codes (eg. QR Codes), as their legibility depends on the software (ie. Computer programme, App) or hardware (ie. mobile telephone, smart phone, reader device, PC) used.

9.5 The Seller shall not be liable for any defects arising as a result of any printing plates and printing copy supplied by the customer and/or by the Customer’s subcontractors or vicarious agents. The customer is responsible to ensure that all submitted artwork is virus protected with the latest version of software and that all data is protected. The supplier is permitted to make a copy.
The Customer shall bear any associated additional costs incurred should the Seller discover text or picture errors during production and stop or interrupt production on account of such errors.

9.6 In the absence of any specific instructions given by the Customer, orders shall be executed using materials customary in the trade and in accordance with established manufacturing procedures. The suitability of the material for foodstuffs must be expressly clarified with the Seller if the packaging is to be used for this purpose. Subsequent complaints about defects regarding the effect of packaging on the product it contains and vice versa cannot be submitted in circumstances where the Customer fails to make mention of the specific characteristics of said product and/or use for foodstuffs and has not afforded the Seller the opportunity to make a statement in this regard. Such instructions and statements shall be made in writing.

9.7 The Seller exercises due care and attention in the selection of recyclable raw materials. Notwithstanding this, recycled film and recycled paper may exhibit variations in surface characteristics, colour, purity, odour, and physical values from batch to batch. Said variations do not constitute an entitlement on the part of the Customer to submit notification of defect. The Seller agrees, however, to cede to the customer any guarantee and/or compensation claims towards suppliers due to the quality of the recycled film and the recycled papers used.

10. Guarantee, material defects

10.1 The guarantee period shall be one year following delivery and one year from acceptance insofar as acceptance is required.
Notwithstanding this, the parties are aware that products may be disposable products and that the lifetime of packaging material, especially when special adhesives or biodegradable products are used, may, by the dint of the nature of the product, be significantly under one year.

10.2 Objects delivered shall be subjected to careful inspection immediately after delivery by the Customer or by third parties appointed by the Customer. Such articles shall be deemed to have been approved if the Seller does not receive a written notice of defect within seven working days with regard to obvious defects or with regard to other defects which were apparent following careful and immediate inspection of the goods or within seven days of the discovery of the defect or otherwise does not receive such a written notice of defect within seven working days after the discovery of the defect or after any earlier point in time at which the defect was discernible during normal use of the object of delivery without a more in-depth inspection. The article forming the object of complaint shall be returned to the Seller carriage prepaid upon the request of the Seller. In the event that the Customer wishes to return the article forming the object of complaint to the Seller, the Customer shall afford the Seller the prior opportunity of visually examining the object of delivery on site within an appropriate deadline before return takes place. The Seller shall reimburse the costs of the cheapest form of shipment in the case of a justified notice of defect. This shall not apply in circumstances where the object of delivery is at a location other then the location of intended use.

10.3 In the case of material defects to articles delivered, the Seller shall be required and entitled to choose between rework of defect or replacement delivery and shall do so within an appropriate deadline. The Seller may reject rework of defect and instead opt for replacement delivery in the event that rework of defect would incur a disproportionately high cost. In the event of failure of rework of defect or replacement delivery, i.e. impossibility, unreasonableness, refusal or inappropriate delay of rework of defect or replacement delivery, the Customer may withdraw from the contract or reduce the purchase price accordingly.

10.4 In the event that a defect is attributable to the Seller, the Customer may require the payment of compensation in accordance with the conditions set out within the present provisions.

10.5 In the case of defects to components from other manufacturers which the Seller is unable to remedy due to licensing or actual reasons, the Seller may choose to act on behalf of the Customer in asserting guarantee claims against the manufacturer and supplier or to cede such claims to the Customer. Guarantee claims against the Seller in the case of such defects only exist pursuant to other provisions or in accordance with the present General Terms and Conditions of Delivery and Sales if assertion in court of the claims hereinabove stated against the manufacturer and supplier has failed or has no prospect of success due to reasons such as insolvency. The period of limitation of relevant guarantee claims of the Customer against the Seller shall be suspended during the period of the legal dispute.

10.6 The guarantee shall lapse if the Customer amends the object of delivery without the consent of the Seller or arranges for third parties to make such an amendment and thus renders rework of defect impossible or unreasonably difficult. In each case, the Customer shall bear the additional costs incurred as a result of the amendment.

10.7 Deliveries of used goods agreed with the Customer on an individual case basis shall take place with the exclusion of any guarantee for material defects.

11. Liability for compensation due to a culpable act

11.1 The present Section limits the liability of the Seller for compensation, regardless of the legal basis for such liability, in particular as a result of impossibility, delay in delivery, defective or wrong shipment, breach of contract, breach of obligations during contract negotiations and unlawful actions insofar as such occurrences are the result of a culpable act.

11.2 The occurrence of a delay in delivery is determined in accordance with the statutory stipulations.Notwithstanding this, a warning from the Customer shall be required in every case.

11.2a The Seller shall not be liable in cases of ordinary negligence on the part of the Seller’s institutions, legal representatives, employees or other vicarious agents insofar as no breach of material contractual duties takes place. Cardinal contractual duties are the requirement to make timely delivery of products which are free from material defects and advisory, protective and custodial duties aimed at facilitating use of the object of delivery by the Customer in accordance with the contract, the protection of life and health of the staff of the Customer or the protection of the Customer’s property from material damage.

11.3 Insofar as the Seller is liable for compensation on the basis of the above, such liability shall be limited to such damages which the Seller has foreseen as a possible consequence of contractual breach at the time of conclusion of contract or to such damages as the Seller ought to have been able to foresee with the exercising of customary due care and attention. Compensation shall only be payable for indirect damages and consequential damages which are the result of defects of the object of delivery insofar as such damages are to be typically expected in the case of proper use of the object of delivery.

11.4 In the case of liability for ordinary negligence, the duty of the Seller to pay compensation in respect of damage to property and resultant further damage to assets is limited to an amount of €10,000,000 per incidence or occurrence of damage (corresponding to the current coverage level of the Seller’s product liability or third party liability insurance) even in cases of breach of material contractual duties.

11.5 The above exclusions to liability apply in equal measure to the institutions, legal representatives, employees and other vicarious agents of the Seller.

11.6 Insofar as the Seller provides technical information or acts in an advisory capacity and such information or advisory services do not from part of the contractually agreed scope of services due, such information and advisory services shall be provided free of charge and with the exclusion of any liability.

11.7 Insofar as a claim is exerted against the Seller for the breach of proprietary rights of third parties, the Customer shall not be deemed to have furnished evidence of such a legal defect until a judgement in law has been passed in this matter. The above regulation shall be without prejudice to the right of the Customer to announce legal proceedings against the Seller.

11.8 The Seller accepts no liability for proper use by the Customer of products delivered.

11.9 The limitation of the present Section do not apply to liability of the Seller for intent, for guaranteed product characteristics, for injury to life, or health or for damages pursuant to the Product Liability Act.

12. Retention of title

12.1 The purpose of the retention of title provision set out below is to secure all existing, current and future claims of the Seller against the Customer arising as a result of the supply relationship between the contractual partners.

12.2 The goods delivered to the Customer by the Seller shall remain the property of the Seller until full payment of all secured claims. Goods and all products covered by the present Clause governing retention of title are referred to below as “goods subject to reserved ownership”.

12.3 The Customer shall keep goods subject to reserved ownership in safe custody free of charge for the Seller.

12.4 The Customer shall be entitled to process and sell goods subject to reserved ownership within the normal course of business until such time as enforcement of retention of title takes place (12.9).Pledging of goods subject to reserved ownership or relinquishment of such goods as collateral is not permitted.

12.5 In the event that goods subject to reserved ownership are processed by the Customer, the parties agree that such processing takes place on behalf of and for the account of the Seller in the Seller’s capacity as manufacturer and that the Seller directly acquires ownership of the property or, if processing takes place using materials from more than one owner or if the value of the product thus processed is higher than the value of the goods subject to reserved ownership, the Seller acquires co-ownership (fractional ownership) of the product thus newly created in the ratio of the value of the goods subject to reserved ownership compared to the value of the product thus newly created. In the event that no such acquisition of ownership takes place for the Seller, the Customer hereby transfers future ownership or co-ownership of any product newly created in the ratio stated above to the Seller for the purpose of collateral.In the event that goods subject to reserved ownership are combined or inseparably mixed with other goods to create a single product and in the event that one of the other products is deemed to be the main product, the Customer shall, insofar as the main product belongs to the Customer, transfer to the Seller proportional co-ownership of such a single product to the Seller in the ratio stated in Clause 1 above.

12.6 In the event that the goods subject to reserved ownership are resold, the Customer hereby assigns to the Seller by way of security the future claim thus arising against the purchaser, and, in the case of co-ownership by the Seller of the goods subject to reserved ownership, hereby assigns to the Seller the relevant proportional co-ownership share. The same shall apply in respect of further claims replacing the goods subject to reserved ownership or in respect of other claims established with regard to the goods subject to reserved ownership such as insurance claims or claims arising from impermissible acts in the case of loss or destruction. The Seller provides the Customer with the revocable authorisation to collect claims ceded to the Seller on the Customer’s own behalf. The Seller may only revoke such an authorisation in the case of enforcement of right of retention of title.

12.7 In the event that third parties seek to avail themselves of goods subject to reservation of ownership, in particular within the context of seizure of goods, the Customer shall notify such third parties of the ownership of the Seller without delay in order to facilitate assertion of ownership rights by the Seller. Insofar as such a third party is not able to reimburse the Seller for any court or out-of-court costs incurred in this regard, the Customer shall be liable to the Seller for such costs.

12.8 The Seller shall release goods subject to reserved ownership or products or choose to release claims taking the place of goods subject to reserved ownership on request insofar as the value of such goods exceeds the amount of claims secured by more than 20%.

12.9 In the event that the Seller withdraws from the contract as a result of conduct in a manner contrary to the contract by the Customer (enforcement), in particular default of payment, the Seller shall be entitled to take possession of the goods subject to reserved ownership.

13. Final provisions

13.1 The Seller may choose the location of the Seller’s Registered Office or the location of the Customer’s Registered Office as place of jurisdiction for all disputes which may arise from the business relations between the Seller and the Customer. The location of the Seller’s Registered Office is the sole place of jurisdiction for claims made against the Seller. The present provision is without prejudice to compulsory statutory stipulations regarding exclusive places of jurisdiction.

13.2 Relations between the Seller and the Customer are solely governed by the law of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 is excluded.

13.3 In the event that one of the provisions hereinabove contained should be invalid either in whole or in part, this shall be without prejudice to the validity of the remaining provisions. Insofar as the contract or the present General Terms and Conditions of Delivery and Sales shall contain any gaps in provision, the parties agree that such gaps shall be filled with legally valid provisions which the contractual partners would have agreed in accordance with the economic objectives of the contract and in accordance with the purpose of the present General Terms and Conditions of Delivery and Sales had they been aware of any such gap in provision.

13.4 The Customer is aware that the Seller stores data from the contractual relationship pursuant to § 28 of the German Data Protection Act for the purpose of data processing and is further aware that the Seller reserves the right to pass on such data to third parties insofar as necessary for the fulfilment of the contract (e.g. insurance companies).

Papier-Mettler United Kingdom | Terms and Conditions of Sale

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STANDARD TERMS AND CONDITIONS

FOR THE SALE OF GOODS

1. Application of Conditions
1.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any quotation or offer of the Seller which is accepted by the Buyer, or any order of the Buyer which is accepted by the Seller,
1.2 These Conditions shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.

2. Interpretation
2.1 In these Conditions:-

"Business Day"  means any day other than a Saturday, Sunday or bank holiday;

"the Buyer"       means the person who accepts a quotation or offer of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller;

"the Contract"   means the contract for the purchase and sale of the Goods under these conditions;

"these                   means the standard terms and conditions of sale set out in
Conditions"        this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller;

"the Delivery       means the date on which the Goods are to be delivered as
Date"                stipulated in the Buyer's order and accepted by the Seller;

"the Goods"       means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions;

"month"            means a calendar month;

"the Seller"       means Papier-Mettler UK Ltd,  company registered in England under 4266100 and includes all employees and agents of Papier-Mettler UK Ltd.

"tolerances"      means all technical tolerances for the Goods, as such in length, thickness, gauge, material composition, quality, as stated in the quotation or in this condition.

"writing"           includes any communications effected by telex, facsimile transmission, electronic mail or any comparable means.

2.2 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.

2.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.

3. Basis of Sale
3.1 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing.  In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed. Deviations from the agreed Contract shall be admissible in order to facilitate the performance of delivery and supply of the Goods.
3.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
3.3 Sales literature, price lists and other documents issued by the Seller in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance.  An order placed by the Buyer may not be withdrawn cancelled or altered prior to acceptance by the Seller and no contract for the sale of the Goods shall be binding on the Seller unless the Seller has issued a quotation which is expressed to be an offer to sell the goods or has accepted an order placed by the Buyer by whichever is the earlier of:-
3.3.1 the Seller's written acceptance;
3.3.2 delivery of the Goods; or
3.3.3 the Seller's invoice.
3.4 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.


4. Orders and Specifications

4.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller's authorised representative.

4.2 The specification for the Goods shall be those set out in the Seller's quotation unless varied expressly in the Buyer's order, if formally accepted by the Seller.
If no tolerances are set in the quotation or the tolerances stated are less than those tolerances stated under 4.3, the tolerances according to 4.3 shall apply.

4.3 During the manufacture of paper and plastic packaging it is quite normal for a very small quantity of products to be faulty, therefore we reserve the right to refuse a complaint to a maximum quantity of 5% of the final manufactured volume caused by a rejection on process or print. Should there be a complaint (faulty product) on a part delivery, it is not permitted to reject a whole delivery if the faulty goods can be differentiated from the non-faulty goods by reasonable methods at the cost of the supplier.

In the case of all finally manufactured products, the supplier is entitled to supply either a tolerance of +/- 10 % of the ordered quantity. The final quantities delivered will be charged in full.

For paper packaging the following tolerances apply:

Width: +/- 5 %;
Depth: +/- 5 %;
Gauge: +/- 5 %;
Material thickness: +/- 5 %;
Material weight: +/- 5 %.

For plastic packaging the following tolerances apply:
Width: +/- 3 mm or 3 %, whichever is the greater;
Depth: +/- 3 mm or 3 %, whichever is the greater;
Gauge:+/- 10 %;
Quantity: +/- 10 %.

The Goods will only be supplied in the minimum call-off units or beyond that in packaging units as stated in the Seller's quotation or as agreed between the parties. 

4.4 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance.

4.5 The Buyer shall call off the minimum quantity of purchase as stated in the Seller’s quotation within a maximum period of six months after a sales contract is agreed. The Seller reserves the right to charge for storage costs in excess of the 6 month stockholding period.

4.6 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller on the terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.


5. Price

5.1 The price of the Goods shall be as agreed between the parties. If the parties agree to a price adjustment clause, such a clause shall prevail.

5.2 Where the Seller has quoted a price for the Goods, the price quoted shall be valid for 7 days only or unless another time has been specified by the Seller in the quotation.

5.3 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation currency regulation, alteration of duties, significant increase in the costs of labour, materials, especially raw materials such as polyethylene granulate, or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

5.4 Except as otherwise stated under the terms of any quotation, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are inclusive of the Seller's charges for packaging and transport, unless otherwise agreed, as far as the single call-off meets the requirements of the minimum call-off volume as in point 4.4.

5.5 The price is exclusive of any applicable value added tax excise, sales or taxes or levies or environmentally based taxes of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods, which the Buyer shall be additionally liable to pay to the Seller.


6. Payment

6.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall invoice the Buyer for the price of the Goods on or at any time after shipment or delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.

6.2 The Buyer shall pay the price of the Goods (less any discount or credit formally allowed by the Seller, but without any other deduction credit or set off) within 30 days of the date of the Seller's invoice or otherwise in accordance with such credit term as may have been agreed in writing between the Buyer and the Seller in respect of the Contract.  Payment shall be made on the due date notwithstanding that delivery may not have taken place and/or that the property in the Goods has not passed to the Buyer.  The time for the payment of the price shall be of the essence of the Contract.  Receipts for payment will be issued only upon request.

6.3 All payments shall be made to the Seller as indicated on the form of acceptance or invoice issued by the Seller.

6.4 The Seller is not obliged to accept orders from any customer or buyer who has not supplied the Seller with references satisfactory to the Seller; if at any time the Seller is not satisfied as to the creditworthiness of the Buyer it may give notice in writing to the Buyer that no further credit will be allowed to the Buyer in which event no further goods will be delivered to the Buyer other than against cash payment and notwithstanding Clause 6.2 of these conditions, all amounts owing by the Buyer to the Seller shall be immediately payable in cash.


7. Delivery

7.1 Delivery of the Goods shall be made by the Seller delivering the Goods to the place in the United Kingdom specified in the Buyer's order and/or the Seller's acceptance as the location to which the Goods are to be delivered by the Seller or, if no place of delivery is so specified, 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.
7.2 The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Seller in writing.  The Goods may be delivered by the Seller in advance of the Delivery Date upon giving reasonable notice to the Buyer.
7.3 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.
7.4 If the Buyer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Seller shall be entitled upon given written notice to the Buyer to store or arrange for the storage of the Goods and then notwithstanding the provision of Condition 10.1 of these Conditions risk in the Goods shall pass to the Buyer, delivery shall be deemed to have taken place and the Buyer shall pay to the Seller all costs and expenses including storage and insurance charges arising from such failure.


8. Non-Delivery

8.1 If the Seller fails to deliver the Goods or any of them on the Delivery Date other than for reasons outside the Seller's reasonable control or the Buyer's or its carrier's fault:-
8.1.1 if the Seller delivers the Goods at any time thereafter the Seller shall have no liability in respect of such late delivery;
8.1.2 if the Buyer gives written notice to the Seller within 5 Business Days after the Delivery Date and the Seller fails to deliver the Goods within 15 Business Days after receiving such notice the Buyer may cancel the order and the Seller's liability shall be limited to the excess (if any) of the cost of the Buyer (in the cheapest available market) of similar goods to those not delivered over the price of the Goods not delivered.

9. Inspection/Shortage

9.1 The Buyer is under a duty whenever possible to inspect the Goods on delivery or on collection as the case may be.

9.2 Where the Goods cannot be examined the carriers note or such other note as appropriate shall be marked “not examined”.

9.3 The Seller shall be under no liability for any damage or shortages that would be apparent on reasonable careful inspection if the terms of this clause are not complied with and, in any event will be under no liability if a written complaint is not delivered to the Seller within 10 Business days of delivery detailing the alleged damage or shortage. Visible transportation damages or visible shortages such as missing boxes or pallets shall be noted on the delivery note upon receipt; otherwise the Seller shall be under no liability.

9.4 In all cases where defects or shortages are complained of the Seller shall be under no liability in respect thereof unless an opportunity to inspect the Goods is supplied to the Seller before any use is made thereof or any alteration or modification is made thereto by the Buyer.

9.5 Subject to condition 9.3 and condition 9.4, the Seller shall make good any shortage in the Goods and where appropriate replace any goods damaged in transit as soon as it is reasonable to do so, but otherwise shall be under no liability whatsoever arising from such shortage or damage.


10. Risk and Retention of Title

10.1 Risk of damage to or loss of the Goods shall pass to the Buyer at:
10.1.1 in the case of Goods to be delivered at the Seller's premises, the time when the Seller notifies the Buyer that the Goods are available for collection; or
10.1.2 in the case of Goods to be delivered otherwise than at the Seller's premises, the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has dispatched the Goods.
10.1.3 In both cases, the Buyer shall insure such Goods at its replacement value and the Buyer shall forthwith, upon request, provide the Seller with a certificate or other proof of such insurance.

10.2 The ownership of the Goods shall remain with the Seller until payment in full has been received by the Seller for these goods and any other goods supplied by the Seller and the Buyer has repaid all funds owed to the Seller, regardless of how the debt was caused.

10.3 Title to the Goods shall not pass to the Buyer but shall be retained by the Seller until the contract price has been paid to the Seller in full by the Buyer. Until such time as title in the Goods has passed to the Buyer:

- the Seller shall have absolute authority to retake, sell or otherwise deal with or dispose of all or any part of the Goods in which title remains vested in the Seller;
- for the purpose specified above, the Seller or any of its agents or authorised representatives shall be entitled at any time and without notice to enter upon any premises in which the goods or any part thereof is installed, stored or kept, or is reasonably believed so to be;

- the Seller shall be entitled to seek a court injunction to prevent the customer from selling, transferring or otherwise disposing of the Goods.

Payment shall not be withheld on account of any claim the Buyer may have against the Seller.

Where the Seller recovers possession of a consignment of Goods of which its title has not yet passed to the Buyer, the re-possession shall be without prejudice to the rights of the Seller to sue for the Purchase Price under this clause.

10.3 Until full payment has been made to the Seller in accordance with these Conditions and the title of Goods has passed to the Buyer, the Buyer shall be in possession of the Goods as bailee for the Seller and the Buyer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Seller and shall insure the Goods against all reasonable risks.
10.4 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 money owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
10.5 The Seller reserves the right to repossess any Goods in which the Seller retains title without notice. The Buyer irrevocably authorises the Seller to enter the Buyer’s premises during normal business hours for the purpose of repossessing the Goods in which the Seller retains title and inspecting the Goods to ensure compliance with the storage and identification requirements of sub-clause 10.4.
10.6 The Buyer’s right to possession of the Goods in which the Seller maintains legal and beneficial title shall terminate if;
10.6.1 The Buyer commits or permits any material breach of his obligations under these Conditions;
10.6.2 The Buyer enters into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with his creditors;
10.6.3 The Buyer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;
10.6.4 The Buyer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Buyer, notice of intention to appoint an administrator is given by the Buyer or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer.


11. Assignment

11.1 The Seller may assign the Contract or any part of it to any person, firm or company.

11.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.


12. Defective Goods

12.1 If on delivery any of the Goods are defective in any material respect and either the Buyer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery "condition and contents unknown" the Buyer gives written notice of such defect to the Seller within three Business days of such delivery, the Seller shall at its option:-
12.1.1 replace the defective Goods within 15 Business days of receiving the Buyer's notice; or
12.1.2 refund to the Buyer the price for the goods which are defective;
but the Seller shall have no further liability to the Buyer in respect thereof and the Buyer may not reject the Goods if delivery is not refused or notice give by the Buyer as aforesaid.

12.2 No Goods may be returned to the Seller without the prior agreement in writing of the Seller.  Subject thereto any Goods returned which the Seller is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at the Seller's sole discretion the Seller shall refund or credit to the Buyer the price of such defective Goods but the Seller shall have no further liability to the Buyer.

12.3 The Seller shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow the Seller's instructions (whether oral or in writing), misuse or alteration of the Goods without the Seller's approval, or any other act or omission on the part of the Buyer, its employees or agents or any third party. The parties are aware that packaging products are single use products unless otherwise stated in the Seller’s quotation.

12.4 Subject as expressly provided in these Conditions, and except where the Goods are sold under a consumer sale, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

12.5 Where the Goods are sold under a consumer sale the statutory rights of the Buyer are not affected by these Conditions.

12.6 Except in respect of death or personal injury caused by the Seller's negligence, or as expressly provided in these Conditions, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law or under statute, or under the express terms of the Contract, for any direct or consequential loss or damage sustained by the Buyer (including without limitation loss of profit or indirect or special loss), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its servants or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer.

12.7 The Buyer shall be responsible to ensure that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Buyer is in compliance with all applicable statutory handling and sale of the Goods by the Buyer is carried out in accordance with directions given by the Seller or any competent governmental or regulatory authority and the Buyer will indemnify the Seller against any liability loss or damage which the Seller might suffer as a result of the Buyer's failure to comply with this condition.


13. Buyer's Default

13.1 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:-
13.1.1 cancel the order or suspend any further deliveries to the Buyer and charge the Buyer with the full sales price as stated in the quotation for all remaining volumes of the Goods that are not yet called off ;
13.1.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
13.1.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of two per cent per annum above National Westminster Bank plc base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

13.2 This condition applies if:-
13.2.1 the Buyer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract; or
13.2.2 the Buyer becomes subject to an administration order or makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or
13.2.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
13.2.4 the Buyer ceases, or threatens to cease, to carry on business; or
13.2.5 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

13.3 If Condition 13.2 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.


14. Limitation of Liability

14.1 Subject to condition 7, condition 8 and condition 13, the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
14.1.1 any breach of these conditions;
14.1.2 any use made (including but not limited to modifications) or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
14.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

14.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

14.3 Nothing in these conditions excludes or limits the liability of the Seller:
14.3.1 for death or personal injury caused by the Seller's negligence; or
14.3.2 for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
14.3.3 for fraud or fraudulent misrepresentation.

14.4 Subject to condition 14.2 and condition 14.3:
14.4.1 the Seller's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and

14.4.2 the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.


15. Confidentiality, Publications and Endorsements

15.1 The Buyer undertakes to the Seller that:-
15.1.1 the Buyer will regard as confidential the contract and all information obtained by the Buyer relating to the business and/or products of the Seller and will not use or disclose to any third party such information without the Seller's prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of the Buyer's default;
15.1.2 the Buyer will not use or authorise or permit any other person to use any name, trademark, house mark, emblem or symbol which the Seller is licensed to use or which is owned by the Seller upon any premises note paper visiting cards advertisement or other printed matter or in any other manner whatsoever unless such use shall have been previously authorised in writing by the Seller and (where appropriate) its Licensor;
15.1.3 the Buyer will use all reasonable endeavours to ensure compliance with this Condition by its employees, servants and agents.

15.2 This Condition shall survive the termination of the Contract.


16. Communications

16.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax or sent by electronic mail:
16.1.1 in the case of communications to the Seller to its registered office or such changed address as shall be notified to the Buyer by the Seller; or
16.1.2 in the case of the communications to the Buyer to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Seller by the Buyer.


17. Force Majeure

17.1 In the event that either party is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control including but not limited to war, national emergency, flood, earthquake, strike or lockout (subject to Sub-clause 17.2) the party shall not be deemed to be in breach of its obligations under this Agreement. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations.
17.2 Sub-clause 17.1 shall not apply with respect to strikes and lockouts where such action has been induced by the party so incapacitated.
17.3 Each party shall be liable to pay to the other damages for any breach of this Agreement and all expenses and costs incurred by that party in enforcing its rights under this Agreement.
17.4 If and when the period of such incapacity of the Buyer exceeds 6 months then the Seller shall have the right to terminate this Agreement.


18. Waiver

No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.


19. Severance

If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.


20. Third Party Rights

A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.


21. Governing Law and Jurisdiction

The Contract shall be governed by the laws of England and the parties agree to submit to the exclusive jurisdiction of the English courts.