CONDITIONS OF SALE

1. Application

These Conditions apply to all sales of goods by Europak Marketing Limited ("the Seller") to any purchaser ("the Buyer") and shall prevail over and apply to the exclusion of any terms or conditions contained or referred to in the Buyer's order or in correspondence or elsewhere or implied by trade custom practice or course of dealing unless specifically agreed to and confirmed in writing by a director or other authorised representative of the Seller. Any purported provisions to the contrary are hereby excluded.

2. Quotations and Acceptance

1. Quotations given by the Seller are based on costs current at the date of quotation and may be withdrawn or revised at any time prior to the Seller's acceptance of the Buyer's order.
2. Acceptance of the Buyer's order shall be effective only upon the Seller's submission to the Buyer of a written Order Acknowledgment form duly countersigned by a director or an authorised representative of the Seller.
3. Acceptance of the Buyer's order under Condition 2.2 shall be conditional upon the Seller being satisfied as to the Buyer's credit. The Seller will advise the Buyer if it is not so satisfied. If no agreement is reached regarding credit arrangements the Seller may withdraw from the contract without liability or obligation.

3. Variations and Cancellation

1. Accepted orders may not be varied or added to without the specific written agreement of a director or authorised representative of the Seller. The Seller shall not be required to agree to any proposed variation or addition but if it is prepared to do so this shall be on the basis that the Buyer shall pay all and any additional charges in respect of the variation or addition.
2. Accepted orders may not be cancelled in whole or in part by the Buyer without the specific written agreement of a director or authorised representative of the Seller. Where the Seller agrees to cancellation of any order or any part of an order the Buyer will indemnify the Seller against all loss, costs and damage (including loss of profit) which results therefrom.

4. Prices

1. The prices payable for goods shall be those stated in the Seller's Order Acknowledgement. Stated prices apply only to the stipulated quantities. The Seller may at any time revise stated prices to take into account changes in costs occurring between the date of the Order and the dispatch of the goods including (without limitation) costs of any materials carriage labour or overheads the increase or imposition of any tax duty or other levy and any variation in exchange rates.
2. Unless otherwise specified VAT and any other tax or charges or duties payable by the Buyer shall be added to the price.
3. Unless otherwise specified in the Order Acknowledgement from the Seller will charge for delivery other than at the Seller's works and then only within England and Wales.

5. Terms of Payment

1. Subject (where applicable) to Condition 7 payment of invoices shall unless otherwise specified by the Seller in writing or provided in these Conditions be made within 30 days of the date of invoice. Time shall be of the essence.
2. Where goods are delivered by instalment each instalment delivered shall be regarded as a separate contract and may be invoiced and shall be paid for separately.
3. Any extension of credit allowed to the Buyer may be changed or withdrawn by the Seller at any time at its sole discretion.
4. The Seller reserves the right to charge interest on overdue accounts at the rate of 3% over Barclays Bank Plc base rate to run from the due date for payment thereof until receipt by the Seller of the full amount whether before or after judgement.
5. Invoices shall be payable and be paid in full without any deduction or set off.

6. Delivery

1. Whilst every effort will be made to meet delivery dates mentioned in any quotation Order Acknowledgement from or elsewhere such dates are approximate only and not of any contractual effect and the Seller shall not incur any liability by reason of failure to deliver on any particular date or dates. No delivery shall be regarded as overdue unless the Buyer has requested delivery by notice in writing to the Seller and 28 days have elapsed since such notice was given.
2. The Seller reserves the right to deliver goods in one or more instalments. Where goods are delivered by instalment no default in respect of any one instalment shall release the Buyer from its obligations in respect of any other instalment.
3. Delivery shall be at the Seller's premises unless otherwise stipulated or agreed by the Seller.
4. Without prejudice to the Seller's other rights if the Buyer refuses or fails to take delivery of goods tendered in accordance with the contract or requests the Seller to postpone the delivery of goods which are ready for delivery the Seller shall be entitled to payment in full for the goods so tendered or ready for delivery as if delivery had been effected. The Seller shall be entitled to store at the risk of the Buyer any goods of which the Buyer refuses or fails to take delivery or the delivery of which is postponed and the Buyer shall in addition to the purchase price pay all costs of such storage and any additional insurance transportation and handling costs incurred as a result of such refusal or failure. The Seller shall without prejudice to its other rights be entitled after the expiration of one month from the date upon which the price became payable to dispose of the goods in such manner as the Seller may determine and the Buyer undertakes to procure the release of any intellectual property rights it or its customers may have in such goods to enable them to be sold without restriction.

7. Export Sales

1. In any case where goods are sold CIF or FOB or on the basis of other international trade term the meaning of such term contained in Incoterms as revised from time to time shall apply except where inconsistent with any of the provisions contained in these Conditions.
2. Unless otherwise agreed the price of the goods shall be secured by an irrevocable letter of credit satisfactory to the Seller established by the Buyer in favour of the Seller immediately upon receipt of the Seller's Order Acknowledgement and confirmed by a United Kingdom Bank acceptable to the Seller. The letter of credit shall be for the contract price inclusive of any tax or duty payable by the Buyer and shall be valid for at least six months or such longer period as shall have been estimated by the Seller for delivery. The Seller shall be entitled to payment on presentation to such United Kingdom Bank of the documents specified by the Seller or as herein stipulated.
3. Should the Buyer fail when requested by the Seller and within the time specified by the Seller to take any action necessary on its part for delivery and/or shipment of the goods then:-
1. the Seller shall be entitled by way of delivery to store the goods in a warehouse at the expense and risk of the Buyer,
2. the price shall become immediately payable,
3. if payment is secured by letter of credit the Seller shall be entitled to payment on presentation of the copy sales invoice and warehouse receipt, and
4. the Seller shall be entitled after the expiration of three months from the date upon which, the price became payable to dispose of the goods in such manner as the Seller may determine without accounting to the Buyer therefore.

8. Section 32(2) of the Sale of Goods Act 1979 shall not apply. The Seller shall not be required to give the Buyer the notice specified in Section 32(3) of that Act.

9. Risk and property

9.1 Risk of damage to or loss of the Goods shall pass to the Buyer:

1. 9.1.1 in the case of Goods to be delivered at the Seller's premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
2. 9.1.2 in the case of Goods to be delivered otherwise than at the Seller's premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.

9.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.

9.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property, but the Buyer may resell or use the Goods in the ordinary course of its business.

9.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller may at any time require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

9.5 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 moneys owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable.

10. Lien

The Seller shall have a lien on all undelivered goods which the Buyer agrees to buy from the Seller for all monies due from the Buyer whether under this or any other contract between the Buyer and the Seller.

11. Variations

The Seller shall be deemed to have fulfilled its contractual obligations in respect of any delivery though the quantity may be up to 5% more or less than the quantity specified in the contract and in such event the Buyer shall pay for the actual quantity delivered.

12. Third Party Rights

1. The Buyer shall indemnify the Seller against any and all liabilities claims losses and costs incurred by or made against the Seller as a direct or indirect result of the carrying out of any work required to be done on or to the goods or on or to tools for or otherwise in connection with the manufacture of the goods in accordance with the requirements or specifications of the Buyer involving any infringement or alleged infringement of any rights of or any damage or injury to any third party.
2. No condition warranty or representation whether express or implied is given by the Seller that the goods will not infringe the rights of any third party when exported to or used or resold in any country outside the United Kingdom. The Buyer shall be solely liable for establishing whether goods may lawfully be so exported used or resold and shall indemnify the Seller against any and all liabilities claims losses and costs arising by reason of any infringement or alleged infringement of third party rights by reason of any such export use or resale.
3. No condition warranty or representation whether express or implied is given by the Seller that the goods will not infringe the rights of a third party in the United Kingdom unless the Buyer has specifically commissioned the Seller to check and report on any competing rights.

13. Specifications

1. Unless expressly agreed in writing by the Seller all drawings, designs, descriptions, specifications and particulars of weights and dimensions submitted by the Seller are approximate only and the Seller shall have no liability in respect of reasonable deviations therefrom. The Seller accepts no responsibility for any errors, omissions or other defects in any drawings, designs, descriptions or specifications not prepared by or on behalf of the Seller and the Seller shall be indemnified by the Buyer against any and all liabilities and expenses incurred by the Seller arising therefrom. The colour of the goods shall be subject to reasonable variation.
2. If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with, or paid or agreed to be paid by the Seller in settlement of, any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Buyer's specification.
3. The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or E.U. requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance.

14. Tooling

1. Where the contract provides for payment by the Buyer towards tool costs such payment shall be made in the amount(s) and on the date(s) specified in the Order of Acknowledgement form but in the absence of provision in the Order Acceptance such payment shall be made as to one third of the total amount on acceptance of the order and as to the balance on samples being produced and approved by the Buyer.
2. If the Buyer requests modifications in tools after the Buyer's order has been accepted the Seller shall advise the Buyer whether it agrees to make the modification requested and if so of any increase in the tool costs or any change in the date on which the tool will be available. The Seller may at its discretion invoice and require payment of increased tool costs at the time the Seller agrees to carry out the modification.
3. All tools made or provided by the Seller shall remain the property of the Seller notwithstanding any contribution by the Buyer to the costs thereof. Such tools may not be withdrawn from the Seller's possession. No rights are granted to the Buyer in respect of any technical design features which are the property of the Seller and which may be incorporated in tools.
4. Unless otherwise stated in writing by the Seller tools remain at the risk of the Seller and the Seller shall be responsible for day to day maintenance thereof. When the Buyer is responsible for maintenance costs such maintenance shall be carried out by the Seller and charged to the Buyer at the Seller's normal rates. Invoices for maintenance costs shall be immediately due and payable. The cost of replacement or refurbishment of tools required for the supply of goods to the Buyer where this becomes necessary through fair wear and tear is chargeable to the Buyer.
5. The Seller may destroy tools which have remained unused for two years.

15. Drawings Moulds Jigs and Design Work

1. All drawings, sketches, silk screens, line films, negatives, printing plates and technical documents supplied to the Buyer ("Drawings") are submitted in confidence and shall not be copied, reproduced, transmitted or communicated to a third party without the Seller's written consent. All Drawings together with all copyright and other rights therein shall be and remain the exclusive property of the Seller save only to the extent that they incorporate copyright material of the Buyer or of any third party.
2. All moulds, dies, printing screens and jigs and all copyright and other rights therein shall remain the exclusive property of the seller whether or not a charge is made towards their cost. Alterations made at the Buyer's request will be at the Buyer's expense and risk.
3. All design work and, artwork carried out by the Seller for the Buyer and all samples supplied to the Buyer will be invoiced to the Buyer 30 days after production or supply thereof.

16. Warranty and Liability

1. It shall be the sole responsibility of the Buyer to ensure that the composition and specification of the goods is appropriate for use with the products of the Buyer or its customers and to carry out all analysis and tests necessary to ensure this is the case. No warranty representation or undertaking is given by the Seller that the goods are suitable for use with any particular product or for any particular purpose.
2. Subject to the other provisions of this agreement and save where the Seller offers an express written warranty for specific goods on alternative terms or where Condition 14.9 applies the Seller warrants that the goods will be free from defects of workmanship design or materials for a period of three months from the date of delivery. The Buyer shall inspect the goods promptly following delivery. No claims will be accepted under this warranty unless alleged defects are notified to the Seller within seven days of delivery in the case of defects apparent on inspection and within seven days of the defect becoming apparent in the case of other defects and in any event prior to the expiry period of three months.
3. The Seller shall not be liable to the Buyer:-
   16.1 for shortages in quantity delivered unless the Buyer notifies the Seller of any claim for short delivery within seven days of receipt of the goods.
   16.2 for damage to or loss of the goods or any part thereof in transit (where the goods are carried by the Seller's own transport or by a carrier on behalf of the Seller) unless the Buyer shall notify the Seller of any such claim within seven days of receipt of the goods or fourteen days of the date of despatch shown in the Seller's advice notice whichever shall be earlier.
   16.3 for defects in the goods caused by any act, neglect or default of the Buyer or of any third party.
4. Where the Seller is found to be liable under the warranty in Condition 15.2 or for the shortages, damage or loss referred to in Condition 15.3 the sole responsibility of the Seller shall be at its option to make good any shortage or non delivery and/or as appropriate replace or repair any goods found to be damaged or defective and/or to refund to the Buyer the net price paid for the damaged, defective or undelivered goods. Goods which are the subject of a claim must be stored free of charge by the Buyer pending inspection by the Seller.
5. The Seller's aggregate liability to the Buyer whether for negligence breach of contract misrepresentation or otherwise shall in no circumstances exceed the cost of the defective, damaged or undelivered goods determined by net price invoiced to the Buyer in respect of any occurrence or series of occurrences. In no case will the Seller have any liability for indirect or consequential loss or loss of profit.
6. The Seller's prices are determined on the basis of the limits of liability set out in these Conditions. The Buyer may by written notice to the Seller request the Seller to agree a higher limit of liability provided that either:
7. Insurance cover can be obtained therefore in which case the Seller shall effect insurance up to such limit and the Buyer shall pay upon demand the amount of any and all premiums but so that the maximum amount which the Buyer shall be entitled to recover from the Seller shall be limited to any amount received pursuant to such insurance; or
8. The price for the goods is increased by such amount as the Seller shall designate to reflect the additional risk borne by the Seller.
9. Subject to the foregoing and to Condition 15.8 all conditions warranties and representation expressed or implied by statute of common law or otherwise in relation to the goods are hereby excluded and the Seller shall be under no liability to the Buyer for any loss damage or injury direct or indirect resulting from defective material faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of the Seller its employees or agents.
10. The Seller shall accept liability for death or personal injury caused by the negligence of the Seller save where Condition 15.9 applies.
11. Where the contract between the Seller and the Buyer is an international supply contract within the meaning set out in Section 26 Unfair Contract Terms Act 1977 the Seller shall not give the warranty in Condition 15.2 and shall not accept any liability under Condition 15.8 and the Buyer shall indemnify the Seller against any and all claims howsoever arising out of or in relation to the goods supplied to the Buyer.

17. Packaging

1. The Buyer shall meet the cost of any packaging pallets or other containers which are stated by the Seller to be non-returnable.
2. Where packaging, pallets or other containers are stated by the Seller to be returnable the Seller will be entitled to charge the Buyer for them and will only afford credit to the Buyer for such returnable items if they are returned to the Seller in good condition carriage paid by the Buyer within three months of the date of delivery or collected by the Seller in such condition. The Seller shall have discretion as to whether such returnable items should be returned to the Buyer or collected by the Seller.

18. Licences and Consents.

If any licence or consent of any government or other authority shall be required for the acquisition, carriage or use of the goods by the Buyer the Buyer shall obtain the same as its own expense and if necessary produce evidence of the same to the Seller on demand. Failure so to do shall not entitle the Buyer to withhold or delay payment of the price. Any additional expenses or charges incurred by the Seller resulting from such failure shall be for the Buyer's account.

19. Force Majeure

1. The Seller shall not be in breach of its obligations or liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of goods by the seller being prevented hindered or delayed by reason of circumstances or events beyond the Seller's reasonable control including but not limited to Act of God war riot strike lock-out trade dispute or labour disturbance accident breakdown of plant or machinery fire flood storm difficulty or increased expense in obtaining workmen materials or transport or other circumstances affecting the supply of the goods or of raw materials therefore by the Seller's normal source of supply or the manufacture of the goods by the Seller's normal means or the delivery of the goods by the Seller's normal route or means of delivery.
2. In the event of any such circumstances or events any period for delivery shall be extended by such time as the Seller may reasonably require.
3. If due to such circumstances or events the Seller has insufficient stocks to meet all its commitments the Seller may apportion available stocks between its customers at its sole discretion.

20. Insolvency and Default

If the Buyer enters into a deed of arrangement or became bankrupt or compounds with its creditors or if a receiving order is made against it or if (being a company) an order is made or a resolution is passed for the winding up of the Buyer (otherwise than for the purposes of amalgamation or reconstruction) or if a receiver or administrator is appointed of any of the Buyer's assets or undertaking or if circumstances arise which entitle the Court or a creditor to appoint a receiver administrator or manager or which entitle the Court to make a winding up order or if the Buyer takes or suffers any similar action in consequence of debt or commits any breach of this or any other contract between the Seller and the Buyer the Seller may without prejudice to any of its other rights stop any goods in transit and/or suspend further deliveries and/or determine the rights of the Buyer under Condition 8 and/or by notice in writing to the Buyer determine the contract.

21. General

1. Failure by the Seller to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
2. This contract may not be assigned by the Buyer without the prior written consent of the Seller.
3. Notices shall be deemed to have been duly given if sent by prepaid first class post or facsimile transmission to the party concerned at its last known address. Notices sent by post shall be deemed to have been given three days after despatch and notices sent by facsimile transmission on the date of despatch. If notice is given by e-mail it shall in the absence of being shown not to have been received be deemed received the next business day after despatch.
4. This contract shall be governed by and construed in all respects in accordance with the Laws of England and the parties agree to submit to the non-exclusive jurisdiction of the English Courts.