Trigon Packaging Terms and Conditions
TERMS AND CONDITIONS OF SALE AND SUPPLY THE CUSTOMER'S ATTENTION IS SPECIFICALLY DRAWN TO ARTICLES 5.6 and 9
1. In these terms and conditions (the “Terms”) the following definitions shall have the following meanings:
- The “Company” shall mean Trigon Packaging Limited (Registered No: 8551583) having a registered office at Trigon Packaging, Unit 11, Ladford Fields, Seighford, ST18 9QE
- “Customer” shall mean the entity named in the order who has agreed to purchase the Goods in accordance with the order.
- The “Goods” shall mean any item of whatsoever nature or part thereof or service which is to be sold or supplied by the Company in accordance with the order, including all labelling and packaging.
2. Order and Acceptance
- All orders placed by the Customer shall specify the name or description of the Goods, the quantity required and the preferred delivery date.
- These Terms shall apply exclusively to any and all orders placed with the Company by Customer. Customer acknowledges that these Terms shall govern the relationship between the parties hereunder.
- Any modification to these Terms will be binding only if executed in writing and signed by a Director of the Company.
- Should the Customer choose to cancel an order placed with the Company (other than as a result of the Company’s breach of these terms or as a result of negligence on behalf of the Company) the Customer shall be liable for all costs, losses and expenses incurred in preparing the order up until the date of cancellation.
- At its absolute discretion, the Company shall be entitled to accept or reject any order received from the Customer, and shall be entitled to extend or discontinue the range of Goods or any part thereof prior to the acceptance of any order, provided that the Company shall promptly notify the Customer of any such acceptance, rejection, extension or discontinuance.
3. Estimates and Pricing
- Unless otherwise stated in writing, the prices estimated or quoted to the Customer by the Company are exclusive of delivery, freight and insurance charges, VAT and other applicable taxes, duties or levies of any kind whatsoever, all of which are payable by the Customer in addition to the price.
- Prices are based on, inter alia, the cost of materials, labour, transport, import duties and levies, currency exchange rates and statutory obligations ruling at the date of the Company's acceptance of the Customer's order and if, before delivery, there occurs any increase for any reason beyond the control of the Company in the cost to the Company of supplying the Goods, including (without limitation) a change to any of the above matters, or in the event that the Company agrees to the Customer modifying the conditions of any contract between the parties to which these Terms apply, the Company shall be entitled to adjust the price of the Goods by a reasonable amount, providing that notice of such modification is made promptly to the Customer.
- The price to be paid by the Customer for the Goods may be adjusted by the Company in its absolute discretion (which discretion shall not be subject to review) at any time prior to the acceptance of the Customer's order upon notice being given by the Company to the Customer.
- In addition to the price quoted for the Customer order, the Customer agrees to pay for any excess quantity of Goods supplied up to a maximum excess of 10% (20% for small orders, where expressly noted on the quotation) of the quoted order quantity at the quoted price.
- The time of payment shall be of the essence of any contract to which these Terms apply. Unless otherwise expressly stated, payment shall be due thirty (30) days from the date of invoice. Payments shall be made by the Customer in such currency as shall be agreed between the parties by bank transfer to such bank account as the Company may from time to time notify in writing to the Customer.
- Without prejudice to any other rights or remedies the Company may have, failure by the Customer to pay the price or part thereof or other monies payable pursuant to an order placed in accordance with these Terms shall entitle the Company, at the Company's sole discretion, to charge in addition to any monies due hereunder, interest at a rate per annum of four (4) per cent above the Bank of England base rate, calculated on a daily basis from the date the payment became due until the date payment is made.
- The Company may at its discretion require full or partial payment of the quoted price of the Goods plus any appropriate additional charges, or the provision of security for payment in respect of the same by the Customer in a form acceptable to the Company.
- Delivery shall take place on despatch of the Goods to the Customer from the Company's premises for delivery to the Customer's premises as instructed to the Company, unless otherwise agreed in writing by the Company.
- The Goods may be delivered by the Company in advance of the quoted delivery date, provided that reasonable notice of such early delivery has been given to the Customer.
- Although dates for delivery are given in good faith, such dates are indicative only and time of delivery shall not be of the essence. The Company shall use reasonable efforts to deliver orders as soon as reasonably practicable and to inform the Customer if there may be delays in delivery of the Goods and, when possible, the reasons for and the anticipated length of the delay.
- If the Company is unable to deliver the Goods or any part thereof by the agreed delivery date, the Company shall not be liable to the Customer for any delay caused as a result of the failure to deliver provided that if the Company fails to deliver the Goods within six (6) weeks, the Customer shall have the right to terminate the contract and receive a refund of all monies paid to the Company in respect of the Goods to be delivered pursuant to that contract.
- The Customer agrees to accept delivery of the Goods at or around the agreed time and at the point of delivery specified, in accordance with these Terms and the order. Should the Customer fail to accept delivery, the Customer shall reimburse the Company for any costs or expenses (including without limitation any re-delivery and storage costs) incurred by the Company as a result of the Customer failing to accept delivery or failing to provide the Company with instructions and/or documentation adequate to effect successful delivery of the Goods.
- The Customer agrees to inspect the Goods upon delivery and inform the Company in writing within five (5) days of delivery if the Goods or any part thereof are delivered in a damaged or defective state, or that there is any shortfall or omission in any delivery. For the avoidance of doubt, no consideration will be given to any claim made in respect of damaged or defective goods or shortfall or omission in delivery if made outside of the stated five (5) day period and if not submitted to the Company in writing (see Section 9.2 for procedure). Any shortfall in the quantity of the Goods delivered or any omission from that stated in any contract to which these Terms apply shall not give rise to a right to claim damages for breach of Contract solely as a result of such shortfall or omission, but the Customer shall only be obliged to pay at the contract rate for the quantity of the Goods delivered.
- Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one of the instalments in accordance with the contract governing any order or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat any other contract with the Company as repudiated.
- All Goods supplied by the Company shall be at the Customer's risk immediately following delivery of the Goods to the Customer in accordance with Article 5.1. The Customer shall be responsible for maintaining appropriate insurance for the Goods that have been delivered against all usual risks and shall procure that the Company's interest (see Article 6.1) is noted on any relevant policy.
- All Goods supplied to the Customer or at the Customer's direction shall remain the sole and absolute property of the Company, notwithstanding delivery and installation, until:
- payment in full for all the Goods has been received in cash or cleared funds by the Company; and
- all accounts due from the Customer to the Company have been paid in full, and until such time the Customer shall hold the Goods to the order of the Company
- Until such time as the Company has been paid in full pursuant to Article 6.1, the Customer shall ensure that all Goods are stored separately and in such a way as to be readily identified as the property of the Company and easily removable by the Company. The Customer shall ensure that the Goods are properly maintained in the condition in which they were delivered and shall make good any damage or deterioration.
- In the event of non-payment (in whole or in part) by the Customer by the due date, the Company shall be entitled, in addition to its other rights and legal remedies, during normal business hours, to enter upon any land or premises where the Goods may for the time being be, and recover possession of the Goods or any part thereof. The Company may take such measures as may be reasonably necessary to enter such land or premises and remove the Goods.
- Even if property in the Goods may not have passed to the Customer, the Company may maintain an action for the price of the Goods once payment has become due to the Company, provided that property shall pass to the Customer once full payment pursuant to Article 5 has been made to the Company.
- The Customer shall leave in position and not cover, deface or erase any notices or other marks (including without limitation serial numbers and notices that a trade mark, design, patent or copyright relating to the Goods is owned by the Company or a third party) which the Company may place on or affix to the Goods.
- The Customer shall not use any trademark of the Company on its notepaper or in any other way other than in relation to the Goods in respect of which the Customer has used such trademark. In particular, but without limitation, the Customer shall not in any of its stationery nor by any sign at its premises or other use indicate that it is in any way connected with the Company other than (if such be the case) that it is an authorised Customer of the Goods.
- The Customer acknowledges that all intellectual property rights in the Goods do and shall continue to belong to the Company and the Customer agrees that it will not infringe any of the Company's intellectual property rights. In addition, the Customer agrees to notify the Company as soon as it becomes aware of any third party infringement of the Company’s intellectual property rights. For the avoidance of doubt, no licence is granted to any foreground or background intellectual property rights.
- The Company warrants to the Customer that Goods delivered to the Customer will correspond with the specification under which they were sold, subject always to recognised industry standard tolerances, details of which will be supplied on request.
- The Company warrants to the Customer that Goods delivered to the Customer will correspond with the specification under which they were sold, subject always to recognised industry standard tolerances, details of which will be supplied on request.
- All samples, illustrations, colour, drawings and diagrams in the Company's catalogues, trade literature, website and/or other published matter are of a generally informative nature and approximate only and are subject to change without notice and none of these shall form part of any contract or give rise to any independent or collateral liability of whatsoever nature on the part of the Company.
- There shall be no express or implied condition or warranty that the Goods supplied shall exactly conform to the order and the Customer shall have no right to reject the Goods if they are substantially in accordance with the order or if the Customer can reasonably make use of the same.
- Subject to Article 9.4, the liability of the Company in respect of any of the warranties given in Article 8, or any defect in or failure of any Goods supplied, or any shortage in quantity of Goods (subject to Article 9.2), or for any loss, injury or damage attributable directly or indirectly thereto, shall be limited to (at the Company’s option):
- repairing defects or failures in the Goods and making good the Goods by replacement and delivering the repaired Goods to the Customer (at the Company's expense), provided that the Company shall not be liable for the cost of any work or labour involved in fitting or refitting the Goods or any part thereof; or
- refunding any sums paid to the Company by the Customer for the Goods, provided that the Company is reasonably satisfied that such defects or failure arose solely from the faulty design of the Goods, defective materials or workmanship and that the Company shall not be liable in respect of defects to, or failure of the Goods caused by misuse or neglect of the Customer, accident or wear and tear
- If the Goods or any part thereof fails, is defective or does not comply with the warranties or if there is any shortfall in delivery in excess of a standard quantity variation of 10% (20% for small orders where expressly noted on the quotation) of the quantity stated on the order:
- In accordance with Section 5.6, the Customer shall notify the Company immediately in writing on discovery and in any case within five (5) days of receipt of the Goods, setting out details of the problem, the Goods affected and the order number and shall take any measures which the Company reasonably requests to prevent further problems or to minimise the damage; and
- the Customer shall (if the Company so requests) return the Goods to the Company or its nominated representative (and the Company shall pay the reasonable costs of the return transport provided that it has been given prior notice of, and agreed to such costs, such agreement not to be unreasonably withheld or delayed).
- Subject to Article 9.6.1, the Customer acknowledges that it has not relied on and shall not rely on any oral statement or representations made by the Company or by its employees, agents or servants and the Customer acknowledges that it has only and will only rely on written data and specifications provided by the Company.
- The Customer agrees that the Company shall not be liable:
- for the cost of substitute Goods;
- for any indirect loss (other than any provided for under Article 9.1;
- for any loss of production;
- for any loss of profit or goodwill suffered or incurred by the Customer or any third parties;
- for any costs, claims, expenses, loss or damage in excess of the contract price for the Goods;
- for any claim relating to the Goods or any part thereof, unless such claim is made in writing within five (5) days from delivery of the Goods;
- in respect of any alterations made to the Goods other than those made by the Company or its subcontractors;
- where the Goods have been combined with or incorporated into other goods; or
- for any loss or damage arising from the Customer's design error or the Customer choosing the Goods that are wrong or unsuitable for its (or a third party where acting as a distributor) purposes, save where the loss or damage arises solely out of the Company's negligence.
- Except as otherwise provided in these Terms, all representations, guarantees, undertakings, conditions or warranties, express or implied, in tort or contract, statutory or otherwise, in relation to the Goods are hereby expressly excluded to the extent so permitted by law.
- For the avoidance of doubt, nothing in these Terms shall exclude or restrict the Company’s liability:
- for any fraudulent misrepresentation made to the Customer on which the Customer relied in entering into any contract made under these Terms;
- in relation to any mandatory (non-excludable) implied conditions as to title in the Goods; or
- to any person for death or personal injury to that person resulting from the Company's negligence; or
- under the Consumer Protection Act 1987 (or any replacement or re-enactment thereof) to a person who has suffered damage (as defined therein) caused wholly or partly by a defect in the Goods or to a dependant or relative of such a person.
- The Customer acknowledges that:
- the price of the Goods is based on the limitations of liability set out in this Article 9 and it is open to the Customer to agree to pay a higher price on the basis that the Company accepts greater levels of liability;
- the Company has specifically notified it of the existence and extent of the limitation of liability and afforded it an opportunity of withdrawing from the contract after such notification, and this Agreement, including all the exclusions, has been fully negotiated;
- it is neither reasonable not practicable for the Company to be expected to be aware of any potential indirect losses which might arise from the supply of the Goods to the Customer or of all the end-uses to which the Goods will be put;
- the Company is unable to obtain insurance providing unlimited cover for its full potential liability to its clients and such insurance as is available to the Company is more expensive than insurance cover available to the Customer to cover loss or damage to the Customer, which insurance cover the Customer should or ought reasonably to maintain in any event.
- The Customer shall ensure that the Goods or any part thereof supplied to its customers are fit for any particular purpose for which the Goods are being bought, whether or not that purpose is one for which the Goods are commonly supplied. The Customer accepts that all risk shall be with the Customer in respect of third party claims and shall release the Company from any liability in respect of implied warranties for fitness for purpose. The Customer shall limit its liability towards its Customers to no greater extent than it has been limited by the Company under this Agreement. The Customer acknowledges that this clause is required because the Company will not be involved in the sale of the Goods to the Customer's customers.
- The Customer shall (and shall ensure that any third party to whom the Goods or any part thereof may subsequently be supplied) comply with all instructions and recommendations of the Company in relation to the installation, storage, supply, maintenance and use of the Goods, and, except to the extent any of these are caused by the negligence of the Company, the Customer shall keep the Company duly and effectually indemnified against all costs, claims demands, expenses and liabilities of whatsoever nature and wheresoever arising, including, without limitation, claims for expenses incurred and loss of profit which may be made against the Company or which the Company may sustain, pay or incur arising out of or in connection with the Customer's failure so to comply and/or to ensure that any third party to whom any Goods have subsequently been supplied so complies.
- In the event that:
- there is any default or breach of an of the obligations of the Customer under these Terms, including without limitation any failure to make any payments due under any contract to which these Terms apply;
- the Customer shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy or if any petition or receiving order is presented or made against the Customer or if any order resolution or petition to wind-up the Customer shall be passed or presented or a receiver, manager or administrative receiver of all or any assets of the Customer shall be appointed, or if the Customer becomes insolvent or undergoes any similar or analogous process in any jurisdiction;
- the ability of the Customer to carry out its obligations under these Terms is prevented or hindered or substantially interfered with for any reason (whether or not within the control of the customer);
- there is a material change in the control or ownership of the Customer;
- then, without prejudice to any other remedies the Company might have, outstanding unpaid invoices rendered by the Company in respect of the Goods shall become immediately payable by Customer and (except where the Company exercises its rights under Articles 11.2.1, 11.2.2 or 11.2.3) invoices in respect of the goods ordered prior to termination but for which an invoice has not been submitted, shall be payable immediately upon submission of the invoice and the Company shall be entitled to:
- refuse to make delivery or any further consignment of the Goods or any part thereof agreed to be supplied, including cancelling any outstanding delivery or stopping in transit the Goods or any part thereof; and/or
- cancel or suspend any contract to which these Terms apply (either in whole or in part) by notice in writing to the Customer; and/or
- sell or otherwise dispose of the Goods or any part thereof which are the subject of any order by the Customer and apply the proceeds of the sale to the overdue payment
- In the event any contract to which these Terms apply is terminated by the Company under Article 11.1 or cancelled by the Customer (other than as a result of negligence on behalf of the Company), the Customer shall indemnify the Company against all losses arising out of such cancellation or termination. Such losses shall be deemed to include loss of profits, the cost of work in progress, labour costs and the cost of any materials or components purchased by the Company for use in manufacturing the Goods for the Customer which were not so used and which the Company will be unable to use in future in the production or manufacture of any other Goods.
- Termination of any contract to which these Terms apply shall be without prejudice to all rights accrued in favour of either party prior to the date of such termination.
- The Customer may not assign or transfer or purport to assign or transfer any contract to which these Terms apply or the benefit thereof to any person.
- The Company shall however be entitled to assign or transfer any of its rights or obligations which accrue under any contract to which these Terms apply.
- If the Company is prevented from fulfilling any order or contract within a reasonable time by force Majeure, it will notify the Customer of the delay. The Company shall be under no liability to the Customer and shall be entitled to extend the time or times for delivery or otherwise for performing such contract for so long as such cause of prevention or delay shall continue.
- In the event of force majeure continuing for a period of more than twelve (12) weeks, both the Customer and the company shall have the right on giving notice to the other to terminate any Contract to which these Terms apply.
- For the purpose of these Terms "force majeure" shall be deemed to be any cause affecting the performance of these Terms arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the Company.
- Except in so far as the context otherwise requires, each provision herein shall be construed as independent of every other provision, and if any other provision hereof is or becomes partially or totally invalid or unenforceable then the validity and enforceability of the remaining provisions shall not be affected.
- These Terms constitute the whole agreement and understanding between the parties and supersede all prior discussions and agreements (whether oral or written) between the parties and/of their agents or advisers.
- A failure by either party to exercise or enforce any right conferred upon it by these Terms shall not be deemed to be a waiver of such right or operate so as to bar the exercise or enforcement thereof at any subsequent time or times.
- Any notice to be given under these Terms shall be given by delivering the same personally in writing or by sending the same by registered post or by facsimile transmission to the address of the other party set out in the order, or to the address referred to under Article 1 of these Terms, or to such other address as maybe notified by that other for this purpose to the party seeking to give such notice.
- Any notice given pursuant to Article 17.1 sent by registered post shall be deemed delivered until three (3) days after despatch. When such notice is sent by facsimile transmission, it shall be deemed to be delivered on the day of transmission, provided, in all cases, that the party giving the notice proves either that the registered envelope containing the notice was correctly addressed, or proves the date, time and correct number of the facsimile transmission.
- The Customer shall at all times use its best endeavours to keep any confidential information relating to the Goods or to the business of the Company confidential, whether such information is disclosed to it by the Company or whether it comes to the knowledge of the Customer by other means and whether or not it is expressly stated to be confidential or marked as such, and not to disclose it to any other person and shall not use any such confidential information for any purpose other than the performance of its obligations under these Terms provided that this restriction shall not extend to any confidential information which:
- the Customer is required to disclose to any governmental or other authority or regulatory body
- is at the date of the contract to which these Terms apply, or becomes thereafter, public knowledge through no fault of the Customer; or
- can be shown by the Customer, to the reasonable satisfaction of the Company, to have been known to the Customer prior to its being disclosed to the Customer by the Company.
- Nothing in these Terms shall be taken to constitute a partnership or the relationship of employer and employee between the parties hereto.
- Any contract to which these Terms apply (and these Terms) shall be governed by and construed in accordance with the laws of England and Wales and the Company and the Customer submit to the exclusive jurisdiction of the English Courts. If any dispute or difference arises out of or in connection with these Terms, the parties shall, with the assistance of the Centre for Effective Dispute Resolution (CEDR), seek to resolve the dispute or difference amicably by using an alternative dispute resolution ("ADR") procedure acceptable to both parties before pursuing any other remedies available to them. The parties will bear the costs of the ADR equally. Should either party fail or refuse to agree to or participate in the ADR procedure, or in the event the dispute or difference is not resolved to the satisfaction of both parties within thirty (30) days after it has arisen, the dispute or difference shall be referred to arbitration: (a) The arbitration shall be held in London; (b) The sole arbitrator (the "Arbitrator") shall be appointed by the parties or, if failing agreement, by the Chartered Institute of Arbitrators (c) The procedure shall be agreed by the parties or, failing agreement, shall be determined by the Arbitrator; (d) If either party fails to comply with any procedural order made by the Arbitrator, the Arbitrator shall have power to proceed in the absence of that party and deliver the award.
6. Transfer Of Title
7. Intellectual Property
9. Limitations of Liability
11. Default and insolvency of the Customer
13. Force Majeure
15. Entire Agreement
19. Other Provisions
Law, Arbitration and Mediation
VAT Number 182793276 Trigon company number 08551583 Companies register office is unit 11 ladfordfields