Elsham Terms & Conditions

Bemis Elsham Ltd
CONDITIONS OF SALE

1. Definitions and Interpretation
1.1 In these Conditions the following words and expressions shall have the following meanings:

“Affiliate” means any person that directly or indirectly controls, or is controlled by, or is under the common control with, the Seller at any time; and for this purpose control over any person shall mean the power to direct the management or policies of that person;

“Applicable Data Protection and Privacy Laws” means the GDPR and any other applicable national data protection and privacy laws;

“Business Day” means any day (other than a Saturday or Sunday) on which clearing banks are open for business in the capital city of the Seller’s jurisdiction for the transaction of normal banking business;

“Buyer” means the buyer of the Goods and/or Services;

“Conditions” means these conditions of sale;

“Contract” means a legally binding contract between the Seller and the Buyer for the sale and purchase of Goods and/or Services either ordered under a Purchase Order and accepted by the Seller in accordance with Condition 2.5 or agreed between the parties pursuant to a sales contract;

“Data Sheet” means the Seller’s standard data sheet relevant to the Goods on the date of a binding Contract for the Goods;

“Delivery Address” means the address for delivery of the Goods to the Buyer as agreed between the parties;

“Delivery Date” means the delivery date agreed between the parties or if no delivery date is agreed, then within a reasonable time;

“Force Majeure Event” means any event affecting the performance of any provision of the Contract arising from or attributable to acts, events, omissions or accidents which are beyond the reasonable control of the Seller including, but without limitation, any abnormally inclement weather, flood, lightning, storm, fire, explosion, earthquake, subsidence, structural damage, epidemic or other natural physical disaster, unavailability or shortage of raw materials, failure or shortage of power supplies, traffic, road accident, delay of a third party carrier, breakdown of plant and/or machinery, war, military operations, riot, crowd disorder, strike, labour dispute, terrorist action, civil commotion and any legislation, regulation, ruling or omissions (including failure to grant any necessary permissions and the imposition of an export or import restriction, quota or prohibition) of any relevant government, court or authority;

“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);

“Goods” means the Goods detailed in a sales contract or a Purchase Order as accepted by the Seller pursuant to Condition 2.5;

“Intellectual Property Rights” means any patents, trademarks, service marks, registered designs, database rights, applications for any of the foregoing, copyright, unregistered design rights know how and any other similar protected rights in any other country;

“Price” means the price of the Goods and/or Services as agreed in writing between the parties, unless no agreement is reached and/or specified in writing, in which case the price is the Seller’s standard list price at the time of delivery;

“Purchase Order” means the Buyer’s written or oral purchase order;

“Relevant Incoterm” means DAP according to the International Chamber of Commerce Incoterms of 2010.

“Seller” means BEMIS ELSHAM LTD a company registered in England and Wales under number 2702506 whose registered office is at The Flarepath, Elsham Industrial Estate, Brigg, DN20 0SP

“Services” means the services detailed in a sales contract or a Purchase Order as accepted by the Seller pursuant to Condition 2.5 or as otherwise provided by the Seller in connection with the provision of Goods;

“Specification” means the specification of the Goods and/or Services agreed in writing by the parties from time to time;

The terms “Controller”, “Data Subject”, “Personal Data”, “Special Categories of Personal Data” and “Processing” shall have the same meaning as in the GDPR.

2. Formation of Contract

2.1 All quotations, offers and tenders are made by the Seller and all orders for Goods and/or Services are accepted by the Seller subject to these Conditions. These Conditions shall apply to each Contract:

• 2.1.1 even where reference is not expressly made to them, provided that the Buyer has been advised of these Conditions previously by the Seller;
• 2.1.2 to the exclusion of all other terms and conditions of the Buyer including, without limitation, any terms under which a Purchase Order has been issued, any terms referenced in correspondence or elsewhere and any terms implied by trade, custom, practice or course of dealing.

Each Purchase Order constitutes a separate offer by the Buyer to purchase the Goods and/or Services subject to these Conditions.

2.2 If there is a conflict between these Conditions and any other terms of the Seller’s Purchase Order acceptance, such other terms shall prevail.

2.3 Unless otherwise agreed in writing by the Seller, quotations shall only be valid for a period of 30 days from date of issue and may be withdrawn by the Seller by written or oral notice to the Buyer at any time. Any quotation of the Seller does not constitute an offer and shall not be binding on the Seller.

2.4 No Purchase Order shall give rise to a binding contract unless it is accepted by the Seller in accordance with Condition 2.5.

2.5 A Purchase Order shall be deemed accepted on the occurrence of the earlier of:

• 2.5.1 the issue by the Seller of an acceptance or acknowledgement of the Purchase Order;
• 2.5.2 notification to the Buyer that the Goods are ready for delivery or that the Services can be performed; or
• 2.5.3 delivery of the Goods and/or commencement of the Services (or of any part thereof),

and such shall create a binding Contract between the parties.

2.6 The Contract constitutes the entire agreement between the Parties concerning the subject matter of the Contract. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Seller which is not set out in the Contract.

2.7 Any samples, drawings, descriptive matter, or advertising produced by the Seller and any descriptions, data or illustrations contained in the Seller’s catalogues, brochures or technical literature are produced for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. Unless otherwise expressly incorporated into the Contract, they shall not form part of the Contract or have any contractual force.

3. Prices

3.1 Unless otherwise agreed in writing, the Price is inclusive of delivery of the Goods to the Delivery Address (pursuant to the Relevant Incoterm) but is otherwise exclusive of all taxes, charges and duties (including, without limitation, value added tax, sales taxes and import customs, duties and charges) which shall be payable by the Buyer.

3.2 Where the Seller is responsible for carriage of the Goods pursuant to the Relevant Incoterm or as otherwise agreed, carriage will be effected by the Seller’s standard method and means of carriage (unless the Seller has agreed in writing to an alternative method or means). The Buyer shall be liable to the Seller for any increased carriage costs and any demurrage costs incurred by the Seller if the delivery transport is unduly delayed at the Delivery Address.

3.3 The Price may be revised by the Seller to reflect any increases in costs to the Buyer that is due to:

• 3.3.1 any factor beyond the Seller’s control (including, without limitation, foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing or transport costs);
• 3.3.2 any request by the Buyer to change the delivery date, quantities or types of Goods and/or Services ordered, or the Specification; or
• 3.3.3 any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions;
  and any such increase shall be notified to the Buyer before delivery.
• 3.4 Unless otherwise agreed in writing, the Seller reserves the right to charge the Buyer, and the Buyer shall pay the Seller upon invoice, for the reasonable costs and expenses incurred by the Seller in performing trial production runs for the Goods.

4. Payment

4.1 Unless otherwise agreed in writing, payment shall be due and paid by the Buyer via an electronic bank transfer 30 days net from date of the invoice in the currency of the Contract. No payment shall be deemed to have been received until the Seller has received cleared funds. The time for payment shall be of the essence of the Contract and the Buyer shall indemnify the Seller against all costs and losses incurred by the Seller in recovering overdue amounts from the Buyer under the Contract.

4.2 The Seller shall be entitled to submit its invoice upon delivery of the Goods and/or performance of the Services or at any time afterwards, except that where delivery has been postponed at the request of, or by the default of, the Buyer, the Seller may submit its invoice at any time after the Goods are ready for delivery or would have been ready in the ordinary course but for the Buyer’s request or default. The Buyer shall review each invoice promptly upon receipt and shall notify the Seller of any queries, issues or concerns with regard to each invoice within 7 days of receipt.

4.3 Where Goods and/or Services are delivered or performed by instalments the Seller may invoice each instalment separately and the Buyer shall pay such invoices in accordance with these Conditions.

4.4 If at the Buyer’s request or option, the Seller:

• 4.4.1 procures any raw products and materials specifically for the manufacture of the Goods; and/or
• 4.4.2 manufactures Goods for the purpose of creating a buffer stock for the Buyer,

and such raw products and materials and/or buffer stock are not used within 90 days of the Seller’s receipt of the raw products and materials and/or of the manufacture of the buffer stock (as relevant), the Seller reserves the right to invoice the Buyer in full for the costs incurred by the Seller in meeting the Buyer’s request.

4.5 All payments due by the Buyer to the Seller under these Conditions shall be made free of any restriction or condition and without deduction or withholding on account of any other amount and/or claim, whether by way of set-off, discount, abatement counterclaim or otherwise. The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.

4.6 If the Buyer shall default in payment of any amounts due to the Seller (including without limitation the Price), the Seller shall be entitled, without prejudice to any other right or remedy, to do all or any of the following:

• 4.6.1 to suspend any or all further deliveries of Goods and/or performance of the Services under the Contract without notice;
• 4.6.2 to reduce or withdraw any credit amount offered to the Buyer;
• 4.6.3 to charge interest on any amount outstanding at the lower of the rate of 8% per annum above the base rate of the European Central Bank or the maximum interest rate permitted by applicable law, such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount (whether before or after judgment) and is charged as a separate, continuing obligation not merging with any judgement, together with any statutory debt recovery costs;
• 4.6.4 to serve notice on the Buyer requiring immediate payment for all Goods and/or Services supplied by the Seller under the Contract whether or not payment is otherwise due; and
• 4.6.5 to sue for the Price of the Goods and/or Services even though title in the Goods may not have passed to the Buyer.

5. Delivery

5.1 Delivery of the Goods shall take place at the Delivery Address pursuant to the Relevant Incoterm. The Goods are deemed accepted upon such delivery.

5.2 The Delivery Date is an estimate only of the date of delivery of the Goods and/or performance of the Services. The Seller shall have no liability to the Buyer howsoever caused (including without limitation, negligence) for any delay in delivery or performance. The time of delivery is not of the essence of the Contract.

5.3 Delivery of the Goods shall be dependent upon prompt receipt by the Seller of all necessary information, final instructions or approvals from the Buyer, including but not limited to the Buyer’s specification pursuant to Condition 14.

5.4 Where the Goods and/or Services are delivered and/or performed in instalments, each instalment shall constitute a separate contract and failure by the Seller to deliver and/or perform any one or more of the instalments or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat every contract between the Seller and Buyer as repudiated.

5.5 Notwithstanding the foregoing, where delivery or performance is postponed or delayed, otherwise than due to the default of the Seller then:

• 5.5.1 without prejudice to any other rights and remedies available to the Seller, the Buyer shall pay all costs and expenses incurred by the Seller as a result of such postponement or delay (including without limitation a reasonable charges for storage, insurance and transportation);
• 5.5.2 risk of loss or damage to Goods shall transfer to the Buyer on the date that the Goods were first made available for delivery; and
• 5.5.3 the Seller shall be entitled to resell or otherwise dispose of the Goods in any manner it determines if the Goods are not delivered to the Buyer within 1 month of the Goods being ready for delivery.

5.6 The Seller will not be liable for unloading the Goods at the Delivery Address or for placing them in position at the Delivery Address, except if provided otherwise in the Contract.

5.7 Where the Goods supplied under these Conditions are for export from the Seller’s jurisdiction the provisions of this Condition 5.7 shall apply:

• 5.7.1 the Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the destination country and in particular the Buyer shall be solely responsible for obtaining all import authorisations and paying any import duty; and
• 5.7.2 Buyer shall satisfy itself that the Goods conform with the laws and regulations of the destination country and (to the fullest extent permitted by law) the Seller shall have no liability in the event that the Goods do not conform to such requirements

5.8 The Goods and/or Services may be subject to export control laws. The Buyer shall comply with all applicable laws with regard to the export, re-export and resale of any Goods and/or Services (including without limitation US and EU export control laws) and shall indemnify the Seller and keep the Seller indemnified from and against any and all losses, liabilities, costs, claims, demands, expenses and fees (including, but without limitation, legal and other professional fees), actions, proceedings, judgments awarded and damages suffered or incurred by the Seller arising out of or in connection with any breach by the Buyer of this Condition 5.8.

6. Risk and Retention of Title

6.1 Without prejudice to Condition 5.5.2, risk of loss and damage to the Goods shall pass to the Buyer in accordance with the Relevant Incoterm.

6.2 Title to the Goods shall only pass to the Buyer if the Buyer has paid to the Seller all sums (including any default interest) due from it to the Seller under the Contract.

6.3 Without limiting any other right or remedy that the Seller may have, the Seller may recover Goods in respect of which title has not passed to the Buyer at any time (provided that the Goods have not been sold or irrevocably incorporated into another product) and the Buyer hereby irrevocably licenses the Seller, its officers, employees and agents to enter upon any premises in which the Goods are stored, with or without vehicles, for the purpose either of satisfying itself that Condition 6.4 below is being complied with by the Buyer or of recovering any Goods in respect of which title has not passed to the Buyer.

6.4 Until title to the Goods has passed to the Buyer under these Conditions it shall possess the Goods as fiduciary agent and bailee of the Seller and agrees to:

• 6.4.1 store the Goods separately from other goods;
• 6.4.2 ensure that the Goods are clearly identifiable as belonging to the Seller;
• 6.4.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
• 6.4.4 notify the Seller immediately if it becomes subject to any of the events listed in Condition 7.3.2; and
• 6.4.5 give the Seller such information relating to the Goods as the Seller may require from time to time.

During such time as the Buyer possesses the Goods, the Buyer may in the normal course of its business use or sell the Goods as principal (but without committing the Seller to any liability to the person dealing with the Buyer).

7. Cancellation

7.1 Any Purchase Order which has been accepted by the Seller in accordance with Condition 2.5 and/or any Contract may only be cancelled by the Buyer with the written consent of the Seller (unless otherwise stated herein).

7.2 Goods returned to the Seller after delivery (other than in accordance with Condition 9.2) shall not be credited or refunded unless the Seller has given its prior written consent.

7.3 Immediately upon written notice, the Seller may cancel the Contract or suspend all further deliveries under the Contract, without incurring any liability to the Buyer, and all outstanding sums in respect of Goods delivered to the Buyer and Services performed shall become immediately due upon any one of more of the following events:

• 7.3.1 the Buyer is in material breach of any term of the Contract and, if the breach is capable of remedy, the Buyer has failed to remedy the breach within 7 days of a written notice from the Seller requiring it to be remedied;
• 7.3.2 the Buyer (being an individual or firm) becomes bankrupt or goes into sequestration, or (being a partnership) is wound up by the court or becomes bankrupt or goes into partnership administration or sequestration, or (being a body corporate) is wound up by the court or is voluntarily wound up by reason of its inability to pay its debts or an administrator or receiver is appointed of any part or all of its income or assets and in any case if the Buyer enters into any informal or voluntary arrangement with or for the benefit of the general body of creditors of the individual, the partnership or the body corporate (or the Buyer suffers the equivalent of any similar or analogous event in this Condition in any jurisdiction);
• 7.3.3 if in the reasonable opinion of the Seller after an inspection into the Buyer’s financial or trade status or in light of any report considered by the Seller, the Seller at its absolute sole discretion deems that the Buyer may not be able to pay the Price; or
• 7.3.4 the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business.

7.4 Cancellation of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at cancellation and Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.

8. Variations

8.1 No variations to the Contract required by the Buyer shall be binding on the Seller unless agreed by the Seller in writing, including as part of such agreement, any change to the Delivery Date and Price as a result of such change.

8.2 Unless otherwise agreed in writing, the Seller reserves the right (and shall not be in breach of the Contract) to deliver the Goods within the following tolerances:

• 8.2.1 Volume of Goods:
  (a) +/- 10% for Purchase Orders with a volume of Goods greater than 10,000 m²;
  (b) +/- 15% for Purchase Orders with a volume of Goods between 5,000 and 10,000 m²;
  (c) +/- 25% for Purchase Orders with a volume of Goods less than 5,000 m²,
  (and the Buyer shall pay for the quantity delivered);
• 8.2.2 Material thickness +/- 15%.

8.3 The Seller reserves the right to alter the dimensions or composition of the Goods as required to conform to applicable standards, laws or otherwise and within reasonable limits having regard to the nature of the Goods.

9. Warranties

9.1 Subject to the provisions of this Condition 9, the Seller warrants that the Goods and/or Services shall:

• 9.1.1 conform in all material respects with their description and any applicable Specification;
• 9.1.2 be free from material defects in design, material and workmanship.

9.2 Subject to Conditions 9.3 and 9.4 if:

• 9.2.1 the Buyer gives notice in writing to the Seller within a reasonable time of discovery (and in any event within the timescales in Condition 9.3.2) that some or all of the Goods and/or Services do not comply with the warranty set out in Condition 9.1; and
• 9.2.2 the Seller is given a reasonable opportunity of examining such Goods (as relevant); and
• 9.2.3 the Buyer (if asked to do so by the Seller) returns such Goods or the work product of any Services (as relevant) to the Seller’s place of business at the Seller’s cost,
  the Seller shall, at its option, re-perform the Services and/ or repair or replace the defective Goods (as relevant) or refund the price of the defective Goods and/or Services in full.

9.3 To the fullest extent permitted by law, the Seller shall not be liable for any Goods’ and/or Services’ failure to comply with the warranties in Condition 9.1 or for any defect or deficiency of the Goods and/or Services if:

• 9.3.1 the Buyer failed to inspect the relevant Goods within 48 hours of delivery; or
• 9.3.2 the Buyer failed to notify the Seller (pursuant to Condition 9.2.1):
  (a) within 5 Business Days of delivery (or such shorter period as a transport carrier’s conditions require), where the breach or defect should have been apparent upon reasonable inspection upon delivery or performance; or
  (b) within 6 months of the date of delivery for any defect related to a printed Goods, shrink films or tubing; or
  (c) within 12 months of the date of delivery or performance for non-printed Goods or bags, where the defect is not one which should have been apparent upon reasonable inspection upon delivery or performance;
• 9.3.3 the Buyer makes any further use of such Goods after giving notice in accordance with Condition 9.2.1;
• 9.3.4 the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
• 9.3.5 the defect arises as a result of the Seller following any drawing, design or specification supplied by the Buyer;
• 9.3.6 the Buyer alters or repairs such Goods without the written consent of the Seller;
• 9.3.7 the defect arises as a result of fair wear and tear, wilful damage, negligence, misuse, accident or abnormal storage or working conditions; or
• 9.3.8 the Goods and/or Services differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

9.4 To the fullest extent permitted by applicable law and subject to Condition 11.1, except as expressly provided in this Condition 9 the Seller shall have no liability to the Buyer or any third party in respect of the Goods’ and/or Services’ failure to comply with the warranties in Condition 9.1 or for any other defect or deficiency of the Goods and/or Services.

9.5 Except as expressly provided in these Conditions, all warranties, conditions, guarantees and other terms expressed or implied by statute or common law or otherwise (including without limitation as to fitness for purpose, satisfactory quality, compliance with description and sample and non-infringement) are to the fullest extent permitted by law excluded from the Contract.

9.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Seller and re-performed Services.

9.7 The Seller shall not be liable for (and the Buyer shall indemnify the Seller against claims arising from) loss or damage suffered by reason of use of the Goods after the Buyer becomes aware of a defect or after circumstances have occurred which should reasonably have indicated to the Buyer the existence of a defect.

10. Shortages and Non-Delivery of Goods

10.1 The Buyer shall only be entitled to claim for shortages of Goods if:

• 10.1.1 the Buyer inspects the Goods within 48 hours following the date of delivery; and
• 10.1.2 the Buyer notifies the Seller via telephone of the shortage within the 48 hours period specified in Condition 10.1.1, such notice to be confirmed in writing within 7 Business Days.

10.2 The Buyer shall only be entitled to claim for non-delivery of Goods to the Delivery Address if the Buyer notifies the Seller via telephone of the non-delivery within the 5 Business Days of the intended date of delivery notified to the Buyer (or such shorter period as a transport carrier’s conditions require), such notice to be confirmed in writing within 10 Business Days.

10.3 If a claim is not made to the Seller in accordance with the terms of this Condition 10, the Goods shall be deemed to be in all respects in accordance with the Contract (subject to Condition 9) and the Buyer shall be bound to pay for the same accordingly.

11. Exclusion of Liability

11.1 Nothing in these Conditions shall limit or exclude the Seller’s liability for:

11.1 Nothing in these Conditions shall limit or exclude the Seller’s liability for:

• 11.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
• 11.1.2 fraud or fraudulent misrepresentation;
• 11.1.3 for any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.

11.2 Subject to Condition 11.1:

• 11.2.1 the Seller shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:
  (a) loss of profit, loss of anticipated profit, loss of business, loss of contract, overhead recovery, loss of data, loss of production, depletion of goodwill or product recall; or
  (b) any indirect or consequential loss arising under or in connection with the Contract; and
• 11.2.2 the Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Price of the Goods and/or Services.

11.3 The Price is quoted by the Seller on the basis of the limitations of liability set out in these Conditions.

11.4 The Seller shall in no circumstances be liable for the Buyer’s failure to comply with the printing size requirements of mandatory labelling set out in applicable law (including but not limited to EU Regulation 1169/2011 as amended from time to time) and it is the Buyer’s sole responsibility to ensure that the printing designs communicated to the Seller comply with the Buyer’s legal obligations. In particular, it will be the Buyer’s sole responsibility to ensure that any printing artwork designed for application on shrinkable Goods factor in the possible shrinkage of the Goods up to 15% of its size.

12. Data Protection

12.1 In the context of the sale of Goods or Services, including quotations, offers, tenders and other pre-sale and post-sale activities, the Seller will access and otherwise Process, as a Controller, Personal Data, namely the following categories: name and surname, contact details, company name, job title, bank account details and financial information (including VAT number, and credit/income history), transaction history and communications of the following categories of Data Subjects: the Buyer’s business owners, shareholders, company management, employees and sales representative], for the Seller’s own purposes, namely: (i) promotion, quotations, offers and tenders, (ii), sales and purchase order management, (iii) performance of the Contract and services, (iv) customer relationship management, (v) credit collection, (vi) compliance with anti-money laundering and fraud prevention regulations as well as other legal requirements, (vii) accounting and (viii) defence of our interests and claims.

12.2 The Seller may share the Personal Data with its Affiliates, with suppliers that provide services on the Seller’s behalf or help the Seller provide the Goods and Services to the Buyer as well as with other third parties who perform functions for the Seller under their own responsibility as well as government and public authorities, for all the purposes set out in Condition 12.1. Some of these recipients may be located outside the European Union, including in countries which do not provide an adequate level of protection for Personal Data within the meaning of the GDPR.

12.3 The Buyer shall provide all the necessary information required under Applicable Data Protection and Privacy Laws to the relevant Data Subjects and obtain all the necessary consents and authorizations for the Seller to Process such Personal Data for the purposes set out in Condition 12.1.

12.4 The Buyer may receive Personal Data of the Seller’s employees in the context of a sale of Goods or Services, including quotations, offers, tenders and other pre-sale and post-sale activities. The Buyer acknowledges that he is a Controller of that Personal Data within the meaning of the GDPR and warrants that he will comply with Applicable Data Protection and Privacy Laws and be fully responsible and liable for any non-compliance.

13. Confidential Information

13.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, employees, customers, clients or suppliers of the other party or of any Affiliate of the other party except as permitted by Condition 13.2.

13.2 Each party may disclose the other party’s confidential information:

• 13.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract; and
• 13.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

13.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.

14. Intellectual Property Rights

14.1 The ownership of and sole rights to obtain the ownership of all Intellectual Property Rights relating to the Goods and/or the Services shall at all times be vested in the Seller and the Seller shall be responsible for the registration and other protection of such Intellectual Property Rights in the Goods and/or Services as the Seller deems fit.

14.2 The Buyer shall not use the Seller’s name, logo or any other identification marks for the purpose of advertising or publicity without the prior written consent of the Seller.

14.3 If the Goods have been manufactured to the specification or design of the Buyer, to the fullest extent permitted by applicable law, the Buyer shall indemnify the Seller and keep the Seller indemnified from and against any and all losses, liabilities, costs, claims, demands, expenses and fees (including, but without limitation, legal and other professional fees), actions, proceedings, judgments awarded and damages suffered or incurred by the Seller arising out of or in connection with any infringement of any Intellectual Property Rights of any third party where such liability arises as a consequence of the specification or a modification of the specification supplied by the Buyer.

14.4 All claims for alleged infringement of Intellectual Property Rights received by the Buyer relating to the Goods and/or Services must be notified immediately to the Seller. If requested by the Seller, the Seller shall be entitled to have conduct of any proceedings relating to any such claim and the Buyer will provide to the Seller such reasonable assistance as the Seller may request. The cost of any such proceedings will be borne by the Seller.

15. Buyer Specifications

15.1 The Buyer shall be solely responsible for ensuring that all specifications, artwork, drawings, information, advice and recommendations given to the Seller by or on behalf of the Buyer are accurate, correct and suitable. Examination or consideration by the Seller of such specifications, artwork, drawings, information, advice or recommendations shall not of itself limit the Buyer’s responsibility.

15.2 Furthermore, the Seller shall have no liability to the Buyer for any errors in complying with any specification of the Buyer which the Buyer fails to rectify at any proofing stage. Minor deviations from any approved colour or press proves shall not be a breach of the Contract, nor entitle the Buyer to a Price reduction nor allow the Buyer to refuse delivery of the Goods.

15.3 The Buyer shall indemnify the Seller and keep the Seller indemnified from and against any and all losses, liabilities, costs, claims, demands, expenses and fees (including, but without limitation, legal and other professional fees), actions, proceedings, judgments awarded and damages suffered or incurred by the Seller arising out of or in connection with the manufacture of Goods and/or performance of Services by the Seller in accordance with drawings or specifications provided by the Buyer.

16. Force Majeure

16.1 Subject to Condition 11.1, the Seller shall not be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event.

17. Attendance on Site

17.1 If the Seller attends, or arranges for an attendance of a third party to be made, at the Buyer’s premises or the premises of any third party for any reason connected with the Contract, the Buyer shall indemnify the Seller in respect of all claims made or proceedings taken against the Seller (and associated legal costs incurred by the Seller) by any person, including without limitation any employees, representatives or agents of the Seller or the Buyer (or their personal representatives), whether in respect of death, personal injury or damage to property arising directly or indirectly from the attendance at such premises except only in so far as such claims are caused by a negligent act or omission on the part of the Seller.

18. Use of the Goods

18.1 In circumstances in which the Seller supplies Goods to the Buyer for incorporation with, or use ancillary to, any composite or other products to be produced, manufactured, processed or supplied by the Buyer or a third party (“End Product”) then:

18.2 the Buyer shall produce to the Seller upon request copies of all written instructions, information and warnings to be supplied by the Buyer in relation to the End Product (such act shall not itself constitute approval by the Seller of such instructions, information or warnings); and

18.3 the Buyer shall indemnify the Seller for all losses and damages (including costs, expenses and charges for legal actions in which the Seller may be involved) which the Seller incurs for any claims made against the Seller relating to the End Product in circumstances in which the Goods supplied by the Seller are either (i) not the defective part of the End Product, or (ii) are only rendered the defective part or became defective by reason of acts or omissions of the Buyer or a third party or by reason of instructions or warnings given by the Buyer or other supplier of the End Product or (iii) are supplied in accordance with a specification or drawings furnished by, or on behalf of, the Buyer.

18.4 The Buyer acknowledges that it is under a duty to pass on to its customers all instructions, information and warnings supplied to it by the Seller with the Goods.

19. Assignment

19.1 The Contract is entered into between the Seller and the Buyer as principals and the Buyer shall not be entitled to assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Seller.

19.2 The Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

20. Severability

20.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Condition shall not affect the validity and enforceability of the rest of the Contract.

21. Waiver

21.1 A failure by the Seller to exercise, or a delay in exercising, any right or remedy under the Contract shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies which the Seller may otherwise have and no single or partial exercise of any right or remedy under the Contract shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.

21.2 Any waiver by the Seller of a breach of any of the terms of the Contract or of any default under the Contract shall not be deemed a waiver by the Seller of any subsequent breach or default and shall not affect the other terms of the Contract.

22. Third Party Rights

22.1 A person who is not a party to the Contract shall have no rights to enforce its terms.

23. Notices

23.1 Any notice given to a party in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Condition, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
23.2 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 22.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
23.3 The provisions of this Condition shall not apply to the service of any proceedings or other documents in any legal action.

24. Translations

24.1 If these Conditions are translated into any language other than English, the English language version shall prevail.

25. Law and Jurisdiction

25.1 The parties agree that any disputes arising or in any way connected with the subject matter or formation of the Contract (whether of a contractual or tortious nature or otherwise) shall be subject to the laws of England and in the case of proceedings issued against the Seller shall be subject to the exclusive jurisdiction of the English Courts only.

25.2 For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply to the Contract. The international rules for the interpretation of trade terms prepared by the International Chamber of Commerce (Incoterms) shall apply but where they conflict with the Contract, the terms of the Contract shall prevail.