TERMS AND CONDITIONS
The following standard terms and conditions of sale (these “Terms and Conditions") shall govern all transactions between the Seller and the Buyer, including FSC (“Forest Stewardship Council”) certified transactions, except as otherwise specifically agreed in writing by the Seller and the Buyer. By placing an order with the Seller, the Buyer is deemed to have accepted these Terms and Conditions.
- 1.1 In these Terms and Conditions, the following words shall have the following meanings:
"Buyer" " means the person or company named as
the Buyer in any Offer, Sales Order or Contract;
"Contract" " means the agreement for the purchase
and sale of the Goods based on the relevant Sales Order, subject to these Terms and Conditions;
“Delivery” means when the Buyer takes receipt of
the Goods whether by delivery or collection at either the Buyer’s or Seller’s premises or any other place set out in the relevant Sales Order;
"Goods" " means the goods (including any instalments or parts)
which the Seller is to supply;
"Offer" " means the non-binding terms on which the
Seller has offered to sell the Goods to the Buyer, including an estimate price which may or may not at the sole discretion of the Seller form the basis of an Order;
"Proforma Invoice/Sales Order" means the Seller's acceptance of the Buyer's order subject to these Terms and Conditions, which may be titled “Proforma Invoice” or “Sales Order”;
“Purchase Order/Order Confirmation” means
the Buyer’s acceptance of the Seller’s offer subject to these Terms and Conditions, which may be titled “Purchase Order” or “Sales Order”;
"Seller"" means PG PAPER COMPANY LTD. registered in Scotland No. SC256809.
- 1.2 The headings in these Terms and Conditions do not form part of these Terms and Conditions and shall not affect their interpretation.
2. Offers and Prices
- 2.1 An Offer must be in writing (including via fax or email) and is for information only. An Offer is only binding on the Seller (subject to clause 2.2) if and to the extent that it is incorporated in a Proforma Invoice/Sales Order. There is no requirement for an Offer to be made prior to the Buyer and Seller agreeing a Proforma Invoice/Sales Order.
- 2.2 An Offer from the Seller remains open for an order until the Seller provides notice to the Buyer that the Offer is no longer valid. No order whether orally or in writing submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed and accepted in writing by a Proforma Invoice/Sales Order issued by an authorised representative of the Seller
- 2.3 For the Delivery of Goods in the UK, to UK resident customers, a Purchase Order/Order Confirmation submitted by the Buyer may be accepted by the
Seller as acceptance of the Offer unless queried by the Seller within 72 hours.
- 2.4 The Seller reserves the right to revise Proforma Invoice/Sales Orders. Prices in Proforma Invoice/Sales Orders are only subject to change upon written notice from the Seller. These include, but are not limited to, fuel, freight and haulage surcharges.
- 2.5 The price for the Goods on any Offer or Proforma Invoice/Sales Order shall be exclusive of any value added tax or other tax, duty or surcharge which may lawfully be levied at the time of despatch or the date of invoice.
- 2.6 Any samples, drawings, descriptive matter or advertising issued by the Seller and any descriptions of the Goods are for the sole purpose of giving an approximate idea of the Goods. They shall not form part of the Contract or have any contractual force.
- 3.1 All payments due by the Buyer will be paid at latest on the date specified on the relevant invoice or Proforma Invoice/Sales Order. The Seller reserves the right to require a proportion of the sale price prior to the Buyer taking Delivery of the Goods. In such circumstances, the relevant proportion will be set out in the Proforma Invoice/Sales Order and the outstanding balance will be set out in the invoice associated with the Goods on the Buyer taking Delivery. In the event that Delivery of Goods is split into two or more deliveries, invoices shall be issued in respect of each Delivery, unless otherwise agreed in the Proforma Invoice/Sales Order.
- 3.2 The Seller may charge the Buyer interest on each unpaid invoice at a rate of 8% above the base rate of the Bank of England from time to time on the overdue account. The Buyer must repay all relevant Legal and Debt recovery costs arising from unpaid invoices. Time of payment shall be of the essence of the Contract.
- 3.3 All payments shall be made without deductions or set-offs for counterclaims, unless the Buyer’s claim is undisputed or has otherwise been resolved finally through court action, arbitration or by mutual agreement between the Buyer and the Seller.
- 3.4 If any monies due to the Seller are not paid as required by clauses 3.1 to 3.3 of these Terms and Conditions or the Buyer becomes insolvent, or if an order is made or a resolution is passed for the winding up of the Buyer (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator or administrative receiver is appointed in respect of the whole or any part of the Buyer’s assets or business, or if the Buyer makes any composition with its creditors or takes or suffers any similar or analogous action (to any of the actions detailed in this clause 3.4) in consequence of debt in any jurisdiction, or if the Seller reasonably considers that any of the foregoing events is about to occur in relation to the Buyer, the Seller shall be entitled, without prejudice to any other right it may have against the Buyer, to suspend performance of any Contract and upon giving notice in writing to treat any such Contract as at an end.
- 3.5 Except in the event of the Seller’s breach of these Terms and Conditions, all payments made by the Buyer prior to the Buyer taking Delivery of the Goods shall be non-refundable. For the avoidance of doubt, no breach of these Terms and Conditions by the Seller which is caused by the Buyer’s non-compliance with these Terms and Conditions (including any failure to make payment or accept Delivery) shall require the Seller to return any such sum.
- 3.6 If the Seller does not receive the Buyer’s approval within two working days of sending out required documentation, any subsequent changes thereafter will be subject to a $250 surcharge per document, plus any extra charges as levied by any Third Parties. No documentation will be sent forward until these charges are cleared or agreed. Any incurred charges will be invoiced separately
- 4.1 Time of Delivery of any Goods is not of the essence. The Seller shall endeavour to maintain quoted Delivery and shipment dates, but such dates are not to be treated as terms of the Contract and the Seller will not be responsible for any loss or damage which may result from late Delivery. The Goods may be delivered by the Seller in advance of any quoted Delivery date upon giving reasonable notice to the Buyer.
- 4.2 Any complaint of short Delivery or damage to Goods in transit must be notified to the Seller within 5 days of Delivery of any of the Goods, providing sufficient detail of the complaint, along with photographic evidence of any damaged Goods. The Seller will then have 3 months inspect the Goods, during which time the Buyer will not be entitled to use the delivered Goods subject to insurance and delivery terms agreed in the Proforma Invoice/Sales Order.
- 4.3 The Buyer is not entitled to reject the Goods. If the quantity or quality of Goods delivered is incorrect, then a pro-rata adjustment shall be made to the invoice by the Seller to reflect the quantity of suitable Goods actually delivered.
- 4.4 If any Goods are ready for Delivery and the Buyer fails to take Delivery as per the Proforma Invoice/Sales Order, the Seller shall be entitled to:
- 4.4.1 invoice such Goods forthwith and charge for all costs incurred by the Seller as a result of the Goods not being delivered. Such costs shall include (without limitation) all port charges, handling and storage, detention and demurrage costs, from the date of invoice to the date when the Buyer takes Delivery or the Seller disposes of the Goods; and
- 4.4.2 if the Buyer fails to take Delivery within the timescales set out in the relevant Proforma Invoice/Sales Order, treat the Contract as at an end and without prejudice to any other right it may have against the Buyer, resell the Goods and (after deducting all storage and selling expenses) account to the Buyer for any excess above or recover from the Buyer any shortfall below the amount due to the Seller under the Contract and any other contract.
- 4.5 5 If the Contract provides for Delivery by instalments, each instalment shall be deemed to be the subject matter of a separate Contract and non-Delivery or delay of any instalment shall not affect any other part of the Contract nor entitle the
Buyer to repudiate or rescind the Contract or reject any other instalment.
- 4.6 If the Buyer is in material breach of its obligations under these Terms and Conditions, the Seller may prevent Delivery from taking place, even where the Goods are in transit.
- 4.7 Where the Buyer’s breach of these Terms and Conditions causes delay in Delivery and the rate of exchange is less favourable to the Seller on the date of actual Delivery than at the date of Official Order Acceptance, the Seller may issue a revised invoice for a price based on the more recent rate of exchange.
- 4.8 In the event that the Buyer requests a change in the method or location of Delivery between the time that the completed Proforma Invoice/Sales Order is issued and the agreed date for Delivery, then the Buyer is responsible for all costs associated with such changes and the Seller will provide a separate invoice for such costs as required.
- 4.9 In the event that the Seller is unable to supply the Goods, the Seller will notify the Buyer as soon as reasonably possible. In such circumstances, the Seller may terminate the Contract without liability, and this will be detailed in the relevant notice.
5. Acceptance of Goods
- Where any valid claim based on such defect or failure is notified to the Seller in accordance with these Terms and Conditions the liability of the Seller shall be limited to the refund of monies (or a proportional part thereof) paid for the Goods or to the replacement of the Goods (or the part in question). For the avoidance of doubt, if the Buyer does not so notify the Seller in accordance with clause 4.2, the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as the Goods had been delivered in accordance with the Contract.
- 6.1 All warranties, conditions or other terms whether regarding fitness for purpose, performance, use, quality or merchantability or otherwise of the Goods, whether express or implied, by statute (including, without limitation, sections 13 to 15 of the Sale of Goods Act 1979), common law trade usage or otherwise howsoever are hereby excluded to the fullest extent permitted by law.
- 6.2 Except in respect of death or personal injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer for any consequential loss or damage (which expression shall include all loss of profit, income, use, production time, contracts and goodwill whatsoever, whether foreseeable or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arises out of or in connection with the supply of the Goods or their use or resale by the Buyer.
- 6.3 The Seller does not give or accept any warranty or condition that the Goods are suitable for any purpose or conditions notwithstanding that such purpose or conditions may be known to the Seller, and in ordering the Goods the Buyer shall be deemed to be relying entirely on his own skill and judgement and not that of the Seller or any agent of the Seller.
7. Property and Risk
- 7.1 All risks in the Goods shall pass to the Buyer:
- 7.1.1 in the case of Goods to be delivered to the Buyer, whether at the Buyer’s premises or another agreed location set out in the Proforma Invoice/Sales Order, the risk shall pass subject to the Incoterms as agreed in the Proforma Invoice/Sales Order;
- 7.1.2 where the Buyer undertakes to collect Goods from either the Seller’s premises, or another location named in the Proforma Invoice/Sales Order, the risk shall pass subject to the Incoterms as agreed in the Proforma Invoice/Sales Order.
- 7.2 The Goods shall remain the property of the Seller and no property in or title to the Goods shall 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 supplied by the Seller to the Buyer. Until that time the whole right, title and interest in and to the Goods shall remain in the Seller.
- 7.3 Until the time when the Seller has received payment in full for the Goods the Buyer shall hold the Goods for the benefit of the Seller.
- 7.4 So long as the Buyer holds the Goods for the benefit of the Seller, the Buyer shall keep those Goods separate from any goods that are the property of the Buyer or any third party in such a manner that clearly distinguishes them as the property of the Seller.
- 7.5 Without prejudice to any other rights the Seller may have, the Seller may at any time before the property in the Goods has passed to the Buyer recover or resell the Goods or any of them so as to discharge any sums owed by the Buyer to the Seller which are wholly or partly overdue, and the Seller, its servants or agents may, so as to verify the Buyer's compliance with the obligations set out in clause 7.4 and to exercise its rights under this clause, enter with or without vehicles upon the premises where the Goods are situated for the purposes of such recovery, resale or examination of the Goods.
- 7.6 If the Goods are resold to any sub-buyer before property in the Goods has passed to the Buyer, then the Seller acquires ownership either of the proceeds of sale or of the right to sue the sub-buyer for the proceeds of sale.
- 7.7 The Buyer shall ensure that the Goods are not incorporated in, mixed with, or used as part of other goods ("New Goods") before payment for the Goods has been made to the Seller. If such incorporation or mixing takes place the property in those Goods which remain identifiable and/or severable from such New Goods shall be and shall remain with the Seller until payment has been made or the New Goods have been sold as aforesaid and all the Seller's rights hereunder in the Goods shall extend to such identifiable or severable parts of the New Goods.
- 7.8 Each of the foregoing clauses of this clause 7 shall so far as the context permits be read and construed independently of the other clause so that if one or more should be held to be invalid for any reason then the remaining clauses shall be valid to the
- extent that they are not held to be so invalid.
8. Lien and Title
- 8.1 The Seller shall be entitled to a general lien over all property owned by the Buyer in the Seller's possession (including any Goods for which the Buyer may have paid in full) until all sums due or owing from the Buyer on any account shall have been satisfied in full. In any of the events set out in clause 3.4 of these Terms and Conditions the Seller shall be entitled to sell all or part of such property and (after deducting all reasonable expenses including the expenses of sale) shall account to the Buyer for any excess of the proceeds of sale above or recover from the Buyer any shortfall of the proceeds of sale below the amount due to the Seller on any account.
- 8.2 Seller reserves title to all Goods delivered by it to the Buyer until the Buyer has paid the purchase price for the Goods and fulfilled any other contractual obligations. As long as title is reserved, Buyer is obliged to treat and store the Goods with due care. During the term of the reservation of title, Buyer may not pledge the reserved Goods to any party or transfer ownership of the Goods to any third party for security purposes. Any action taken by third parties with respect to the reserved Goods must promptly be notified to the Seller.
- No order which has been accepted by the Seller and no Contract may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including but not limited to the cost of shipment, storage and the cost of all labour and materials used or acquired for the purposes of completing the Contract), damages, charges and expenses incurred by the Seller in pursuance of the Order or as a result of the cancellation.
- The Buyer agrees to indemnify the Seller against any damages, losses, costs, claims or expenses incurred by the Seller towards a third party arising out of or in connection with the Goods supplied by the Seller or their operation or use and whether arising by reason of the negligence of the Seller or otherwise (save for death or personal injury arising as a result of the Seller's negligence).
11. Export Terms
- 11.1 In these Terms and Conditions, "lncoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of lncoterms shall have the same meaning in these Terms and Conditions, but if there is any conflict between the provisions of lncoterms and these Terms and Conditions, these Terms and Conditions shall prevail.
- 11.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 11 shall (subject to alternative agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Terms and Conditions.
- 11.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
- 11.4 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller's premises or other Delivery location named in the Proforma Invoice/Sales Order.
The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment or In respect of any damage during transit.
- 12.1 By ordering any Goods from the Seller the Buyer will be deemed to agree that these Terms and Conditions take precedence over any other conditions contained in any letter, order or the like received by the Seller in connection with the Goods so ordered.
- 12.2 No failure or delay by a party to exercise any right or remedy provided under these Terms and Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- 12.3 Any notice required or permitted to be given by either party to the other under these Terms and Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
- 12.4 If any provision or part-provision of these Terms and Conditions 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 clause shall not affect the validity and enforceability of the rest of the Terms and Conditions.
- 12.5 No one other than a party to the Contract shall have any right to enforce any of its terms.
- 12.6 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.
- 12.7 The Buyer may not 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.
- 12.8 All decision related to this sale are negotiated, authorised, signed and processed in the UK.
13. Force Majeure
- 13.1 Neither party shall be in breach of these Terms and Conditions nor liable for delay in performing, or failure to perform, any of its obligations under this these Terms and Conditions if such delay or failure result from a force majeure event being an event beyond either party’s reasonable control. If the period of delay or non-performance continues for 6 months, the party not affected may terminate its Contract by giving 14 days written notice to the affected party.
14. Governing Law and Jurisdiction
- 14.1 The interpretation of these Terms and Conditions and of any Contract will be governed by Scots Law.
- 14.2 Subject to clause 14.3, the parties submit to the exclusive jurisdiction of the Scottish Courts to settle any dispute (including non-contractual disputes or claims).
- 14.3 If agreed in writing by the Buyer and the Seller, disputes may be resolved by way of English language alternative dispute resolution or arbitration in another jurisdiction.