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Manufacturers of Polythene Packaging

DUO PLASTICS LTD

TERMS AND CONDITIONS OF SALE AND SUPPLY

Version 300710


1 Order and Acceptance

2 Estimates and Prices

3 Payment

4 Delivery

5 Transfer of Property

6 Intellectual Property Rights

7 Warranties

8 Limitations of Liability

9 Degradable Film

10 Indemnity

11 Default and Insolvency or the Customer

12 Assignment

13 Force Majeure

14 Severability

15 Entire Agreement

16 Waiver

17 Notices

18 Confidentiality

19 Other Provisions

20 Law

 

Definitions

In these terms and conditions ("Conditions") the following words and expressions shall have the following meanings:-

the Goods: means any item of whatsoever nature or part there of or service which is to be sold or supplied by the Company including any labelling and packaging as described in the order;

the Customer or the Buyer: means the person named in the order who buys or has agreed to buy the Goods;

the Company or the Seller: means Duo Plastics Ltd, registered number 2260922 whose registered office is at Vickers Street, Miles Platting, Manchester, M40 8PU.

1 ORDER AND ACCEPTANCE

1.1 All orders placed by the Customer shall specify the names of the Goods, the quantity required and the preferred delivery date.

1.2 The Company contracts for the sale of the Goods subject to these Conditions only. Any other terms and conditions (including but not limited to those in the Customer's order or enquiries) inconsistent with these Conditions shall be of no effect subject to clause 1.3 below.

1.3 Any modification to these Conditions will be binding only if it is evidenced in writing signed by a director of the Company and the Customer and such evidence contains a specific reference to these Conditions being modified.

1.4 If the Company does agree to the Customer cancelling a contract of order (other than as a result of the Company's breach or negligence) it shall be a condition of that consent that the Customer will reimburse the Company in respect of all losses and expenses suffered by the Company arising out of or in connection with such cancellation.

1.5 The Company shall be entitled in its absolute discretion to accept or reject any order received from the Customer and from time to time to extend or discontinue the range of the 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.

2 ESTIMATES AND PRICES

2.1 Unless otherwise stated in writing, the prices estimated or quoted by the Company are exclusive of 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.

2.2 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 but are subject to amendment by the Seller on or at any time after acceptance to meet any rise in costs and if, before delivery, there occurs any increase, for any reason 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 terms of any contract to which these Conditions apply, the Company shall be entitled to adjust the price of the Goods by a reasonable amount to take account .

2.3 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.

2.4 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% of the order quantity stated at the quoted price, unless otherwise acknowledged in writing on the quotation.

2.5 The Seller shall be entitled to charge VAT payable whether or not included on the quotation or invoice.

2.6 Where the Buyer supplies materials, adequate quantities shall be supplied to cover spoilage.

2.7 Unless Artwork and/or Printing Plates are fully charged they remain the property of the Seller. All designs submitted by the Seller remain the Seller's copyright.

2.8 Printing stereos will only be held for a maximum of 4 years and will be destroyed if not used within 4 years.

2.9 The Seller's decision on all matters relating to the settlement of claims shall be final and the Seller may at his option either replace any goods which he finds to be faulty or pay or allow to the Buyer a reasonable sum not exceeding in any event the invoice value of the faulty goods. Complaints in respect of alleged faulty goods shall not be a ground for withholding payment by the Buyer of his accounts and shall not give any right of set-off against payments due from the Buyer to the Seller.

3 PAYMENT

3.1 The time of payment shall be of the essence of any contract to which these Conditions apply. Unless otherwise expressly stated, payment shall be due on or before the last day of the month following the date of invoice. Such 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.

3.2 Without prejudice to any other rights the Company may have, failure to pay the price or part thereof or other monies payable by the Customer pursuant to these Conditions shall entitle the Company, at the Company's sole discretion, to charge in addition to any monies due hereunder interest on the outstanding amount at the statutory rate per annum of 8 per cent above the base rate from time to time of the Company's bankers calculated on a daily basis from the date the payment became due until the date payment is made.

3.3 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.

4 DELIVERY

4.1 Where goods are sold "Ex works", delivery occurs and the risk in the goods shall pass at the time of collection from the Company's premises in accordance with these Conditions unless otherwise agreed in writing by the Company. Although dates for collection are given in good faith, these are indicative only and time shall not be of the essence. The Company will make all reasonable efforts to notify the Customer wherever possible if the time of collection is delayed.

4.2 Where goods are sold "Delivered Duty Unpaid", the delivery occurs and the risk in the goods passes at the time the goods are delivered onto the Customer's premises. The Company shall use reasonable efforts to deliver orders as soon as reasonably practicable in accordance with the agreed delivery date and to inform the Customer if there may be any delays in delivery of the Goods and, wherever possible, the reasons for and the anticipated length of the delay.

4.3 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 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.

4.4 The Customer shall accept delivery of the Goods at the agreed time and point of delivery in accordance with these Conditions and 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 such instructions and/or documentation as it shall require in order to effect delivery of the Goods.

4.5 The Customer agrees to inspect the Goods upon delivery and inform the Company in writing if the Goods or any part thereof is delivered in a damaged or defective state or of any shortfall or omission in any delivery within 7 days of delivery. Any shortfall in the quantity of the Goods delivered or any omission from that stated in any contract to which these Conditions 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.

4.6 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.

4.7 Failure on the part of the Seller to deliver within the time stated shall not entitle the Buyer to any claim upon the Seller by reason of such failure. The Seller will not accept cancellation if the goods are in the course of being manufactured or in transit.

4.8 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 Conditions 4.1 or 4.2. The Customer shall maintain appropriate insurance for the Goods that have been delivered against all usual risks and shall procure that the Company's interest is noted on any relevant policy.

5 TRANSFER OF PROPERTY

5.1 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

a) Payment in full for all the Goods has been received in cash or cleared funds by the Company; and

b) All accounts due from the Customer to the Company have been paid in full,

5.2 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 Condition 3.1.

5.3 The Customer shall ensure that all Goods are stored separately and in such a way as to be readily identifiable 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.

5.4 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 all other rights 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.

5.5 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 Condition 5.1 has been made to the Company.

6 INTELLECTUAL PROPERTY RIGHTS

6.1 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.

6.2 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 otherwise 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.

6.3 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.

7 WARRANTIES

7.1 The Company warrants to the Customer that all Goods delivered to the Customer will correspond in all material respects with the specification under which they were sold, subject always to the Company's standard tolerances, which are for length and width ± 5%, for quantities ± 10% with ± 10% for colour work and for thickness ± 10%. Unless otherwise acknowledged.

7.2 The Company makes no warranty to the Customer who is dealing as a distributor that the Goods will be fit for the purpose for which a third party customer might use them, specifically excluding any implied terms as to fitness for purpose under the Sale of Goods Act 1979. Such distributor agrees that it is its responsibility to ensure that the correct product is supplied to a third party for use and that the distributor shall be responsible for making such enquiries of the third party customer as are necessary so that the Goods which are not fit for a third party's purpose are not sold.

7.3 All samples, illustrations, colours, drawings and diagrams in the Company's catalogues, trade literature and 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.

7.4 There shall be no express or implied condition or warranty that the Goods supplied will 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.

7.5 Recycled or re-granulated material is sold as sub-standard grade material. This grade is not suitable for food use or delicate articles. The company will not be held responsible for complaints arising from the use of this grade.

8 LIMITATIONS OF LIABILITY

8.1 Subject to the provisions of Condition 8.4, the liability of the Company in respect of any breach of the warranties given in Condition 7, or any defect in or failure of any Goods supplied, or any shortage in quantity of Goods (subject to clause 8.2), or for any loss, injury or damage attributable directly or indirectly thereto shall be limited to (at the Company's option):-

a) repairing defects or failures in the Goods or 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

b) 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.

8.2 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% or a where expressly noted on the order acknowledgement of the quantity stated on the order:-

a) the Customer shall notify the Company immediately in writing on discovery and in any case within 7 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

b) 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).

8.3 Subject to Condition 8.6.(a), 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.

8.4 The Customer agrees that the Company shall not be liable:-

a) for the cost of substitute Goods;

b) for any indirect loss (other than any provided for in Condition 8.1);

c) for any loss of production;

d) for any loss of profit or goodwill suffered or incurred by the Customer or any third parties;

e) for any costs, claims, expenses, loss or damage in excess of the contract price for the Goods;

f) for any claim relating to the Goods or any part thereof, unless such claim is made within 7 days from delivery of the Goods;

g) in respect of any alterations made to the Goods other than those made by the Company or its subcontractors;

h) where the Goods have been combined with, or incorporated into, other goods;

i) 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 purposes, save where the loss or damage arises solely out of the Company's negligence.

8.5 Except as otherwise provided in these Conditions, 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.

8.6 For the avoidance of doubt, nothing in these Conditions shall exclude or restrict the Company's liability:-

a) for any fraudulent misrepresentation made to the Customer on which the Customer relied in entering into any contract made under these Conditions; or

b) in relation to any mandatory (non-excludable) implied conditions as to title in the Goods; or

c) to any person for death or personal injury to that person resulting from the Company's negligence; or

d) 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.

8.7 The Customer acknowledges that:-

a) the price of the Goods is based on the limitations of liability set out in this Condition 8 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 or to enter into a similar contract with another supplier without this limitation;

b) 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;

c) 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;

d) 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 that 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.

8.8 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 lie with the Customer in respect of third party claims and shall release the Company from any liability in respect of implied warranties for fitness of 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.

9 DEGRADEABLE FILM

9.1 The information we give is based on the results of tests carried out by the degradable masterbatch suppliers. We cannot accept any responsibility for the rate of degradation as this will vary depending on the conditions in which the film is exposed. A technical data sheet from the masterbatch suppliers can be forwarded upon request.

10 INDEMNITY

10.1 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 fully 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.

11 DEFAULT AND INSOLVENCY OR THE CUSTOMER

11.1 In the event that:

a) there is any default or breach of any of the obligations or the Customer under these Conditions, including without limitation any failure to make any payments due under any contract to which these Conditions apply;

b) 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;

c) the ability of the Customer to carry out its obligations under these Conditions is prevented or hindered or substantially interfered with for any reason (whether or not within the control of the customer);

d) there is a material change in the control or ownership of the Customer.

11.2 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 Conditions 10.2.(a), 10.2.(b) or 10.2.(c) 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:-

a) 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

b) cancel or suspend any contract to which these Conditions apply (either in whole or part) by notice in writing to the Customer; and/or

c) 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.

d) In the event any contract to which these Conditions apply is terminated by the Company under Condition 10.1 or cancelled by the Customer (other than as a result of the Company's breach of negligence), 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.

11.3 Termination of any contract to which these Conditions apply shall be without prejudice to any rights accrued in favour of either party prior to the date of such termination.

12 ASSIGNMENT

12.1 The Customer may not assign or transfer or purport to assign or transfer any contract to which these Conditions apply or the benefit thereof to any person.

13 FORCE MAJEURE

13.1 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 performing such contract for so long as such cause of prevention or delay shall continue.

13.2 In the event of force majeure continues for a period of more than 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 Conditions apply.

13.3 For the purpose of these Conditions "force majeure" shall be deemed to be any cause affecting the performance of these Conditions arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the Company.

14 SEVERABILITY

14.1 Except in so far as the context otherwise requires, each provision herein shall be construed as independent of every other provision, and if any provision, hereof is or becomes partially or totally invalid or unenforceable then the validity and enforceability of the remaining provisions shall not be affected.

15 ENTIRE AGREEMENT

15.1 These Conditions constitute the whole agreement and understanding between the parties and supersede all prior discussions and agreements (whether oral or written) between the parties and/or their agents or advisers.

16 WAIVER

16.1 A failure by either party to exercise or enforce any right conferred upon it by these Conditions shall not be deemed to be a waiver of such right or operate to bar the exercise or enforcement thereof at any subsequent time or times.

17 NOTICES

17.1 Any notice to be given under these Conditions shall be given by delivering the same personally or by sending the same by registered post or by facsimile transmission to the address of the other party set out in the order referred to on page 1 of these Conditions or to such other address as may be notified by that other for this purpose to the party seeking to give such notice.

17.2 Any notice given pursuant to Condition 16.1 shall be deemed when sent by registered post (and in the absence of evidence of earlier receipt) to be delivered 3 days after despatch and shall be deemed when sent by facsimile transmission to be delivered on the day of transmission provided that the party giving the notice proves that the registered envelope containing the notice was correctly addressed or proves the date, time and correct number of the facsimile transmission.

18 CONFIDENTIALITY

18.1 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 Conditions provided that this restriction shall not extend to any confidential information which :-

18.2 the Customer is required to disclose to any governmental or other authority or regulatory body:

18.3 is at the date of contract to which these Conditions apply, or becomes thereafter, public knowledge through no fault of the Customer; or

18.4 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.

19 OTHER PROVISIONS

19.1 Nothing in these Conditions shall be taken to constitute a partnership or the relationship of employer and employee between the parties hereto.

19.2 Failure by Seller to exercise or enforce any rights hereunder shall not be deemed to be a waiver of such rights nor operate so as to bar the exercise of that breach at any time or times thereafter and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.

19.3 Except in relation to any member of Sellers group (which for the purposes of this condition 18.3 shall mean in relation to Seller, Seller and every other company which from time to time is a subsidiary or holding company of Seller or a subsidiary of any such holding company and "subsidiary" and "holding company" have the meaning given to them by Section 736 and 736A of the Companies Act 1985) who shall be entitled to enforce the benefit of the Contract, a person who is not a party to the Contract (including any employee, officer, agent, representative or subcontractor of either party) shall have no right, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise, to enforce any provisions of the Contract.

19.4 Where a person who is not a party to the Contract (including any employee, officer, agent, representative or subcontractor of either party) has a right to enforce any provisions of the Contract under Section 1 of the Contracts (Rights of Third Parties) Act 1999, the parties to the Contract may vary or terminate the Contract by agreement between them without requiring the consent of that person and need not, comply with Section 2(1) of the Contracts (Rights of Third Parties) Act 1999.

19.5 If any sums are due to Buyer from Seller, Seller shall be entitled to exercise the right to set-off such sums against any payments due to seller from Buyer under or in relation to this Contract or any other contract. Buyer shall not be entitled to apply any amount due to it by Seller under the Contract in or towards payment of any sum owing by Buyer to Seller in relation to any matter whatsoever.

19.6 The contract sets out the entire agreement and understanding between Buyer and Seller in connection with the sale of the goods and shall supersede and replace all documentation previously issued by the Seller purporting to set out its terms and conditions for the sale of the goods.

20 LAW

20.1 Any contract to which these Conditions apply (and these Conditions) shall be governed by and construed in accordance with the laws of England and the Company and the Customer submit to the exclusive jurisdiction of the Courts of England.

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