Terms and Conditions

SUPPLY OF GOODS AGREEMENT

CONTRACT DETAILS

This Contract is made up of the following:

(a) The Contract Details.

(b) The Conditions.

If there is any conflict or ambiguity between the terms of the documents listed in paragraph 1, a term contained in a document higher in the list shall have priority over one contained in a document lower in the list.

This Contract has been entered into on the date stated at the beginning of it.

CONDITIONS

Interpretation

Definitions

Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Commencement Date: the date when the customer has paid for the goods.

Conditions: these terms and conditions set out in 1 to 11 (inclusive).

Contract: the contract between Lincpak Limited and the Customer for the sale and purchase of the Goods in accordance with the Contract Details, the Schedules and these Conditions.

Delivery Date: the date specified for delivery of an Order in accordance with 3.

Delivery Location: the address for delivery of the Goods, as set out in the Order.

Force Majeure Event: events, circumstances or causes beyond a party’s reasonable control.

Goods: the goods (or any part of them), as set out in the Sales Order.

Order: an order for the Goods submitted by the Customer in accordance with 3.

Price: the price for the Goods, as set out in the Contract Details.

Specification: the specification for the Goods (if any), including any related plans and drawings that are agreed by the Customer and Lincpak Limited as set out in the Order.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.

Interpretation:

a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
any phrase introduced by the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
a reference to writing or written includes emails.

Commencement and term

This Contract shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with its terms.

Orders

Lincpak Limited may accept or decline Orders at its absolute discretion. Lincpak Limited may, at its discretion, accept an amendment to an Order by the Customer.
Lincpak Limited shall assign an order number to each Order it accepts and notify the order number to the Customer. Each party shall use the relevant order number in all subsequent correspondence relating to the Order.
After confirming an Order, Lincpak Limited shall as soon as practicable and in any event within 7 Business Days inform the Customer of Lincpak Limited’s estimated delivery date for the Order.
The Customer is responsible for ensuring that Orders and any applicable Specification are complete and accurate. The Customer shall give Lincpak Limited all necessary information relating to the Goods that Lincpak Limited reasonably requires in order to fulfil each Order.

The Goods

Any samples, drawings, descriptive matter, or advertising produced by Lincpak Limited and any descriptions or illustrations contained in Lincpak Limited’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Lincpak Limited against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and other professional costs and expenses) suffered or incurred by Lincpak Limited in connection with any claim made against Lincpak Limited for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Lincpak Limited’s use of the Specification. This 4.2 shall survive termination of the Contract.
Lincpak Limited reserves the right to amend any specification for the Goods including any Specification if required by any applicable statutory or regulatory requirements.

Delivery

Lincpak Limited shall ensure that:

each delivery of Goods is accompanied by a delivery note that shows the order number, the type and quantity of Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the relevant Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
if Lincpak Limited requires the Customer to return any packaging materials to Lincpak Limited, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Lincpak Limited shall reasonably request. Returns of packaging materials shall be at Lincpak Limited’s expense.

Lincpak Limited is delivering the Goods (as set out in the Order):

Lincpak Limited shall endeavour to deliver Goods to the Delivery Location on the relevant Delivery Date; and
Delivery is completed on the completion of unloading of the Goods at the Delivery Location.

If the Customer is collecting the Goods (as set out in the Order):

Lincpak Limited shall endeavour to have Goods ready for collection at the Delivery Location on the relevant Delivery Date; and
Delivery is completed on the completion of loading of the Goods at the Delivery Location.
the Customer shall collect Goods from the Delivery Location within three Business Days of Lincpak Limited notifying the Customer that they are ready.

Delivery Dates are approximate only, and the time of delivery is not of the essence. Lincpak Limited shall not be liable for any delay in delivery of any Goods that is caused by:

a Force Majeure Event; or
the Customer’s failure to provide Lincpak Limited with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

Lincpak Limited shall have no liability for any failure to deliver Goods to the extent that such failure is caused by:

a Force Majeure Event; or
the Customer’s failure to provide Lincpak Limited with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

If 10 Business Days after the day on which Lincpak Limited attempted to make delivery of Goods OR notified the Customer that Goods were ready for collection (as applicable) the Customer has not taken delivery of OR collected (as applicable) those Goods, Lincpak Limited may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods, or charge the Customer for any shortfall below the price of the Goods.
If Lincpak Limited delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
Lincpak Limited may deliver Orders by instalments, which shall be invoiced for separately. The Customer may not cancel an instalment because of any delay in delivery or defect in another instalment.

Quality and fitness for purpose

Lincpak Limited warrants that, the Goods shall:

conform in all material respects with their description;
be free from material defects in design, material and workmanship; and
be fit for any purpose held out by Lincpak Limited.

Subject to 6.3, if:

the Customer gives notice in writing to Lincpak Limited during the warranty period, that some or all of the Goods do not comply with the warranties set out in 6.1;
Lincpak Limited is given a reasonable opportunity of examining such Goods; and
the Customer (if asked to do so by Lincpak Limited) returns such Goods to Lincpak Limited’s place of business at Lincpak Limited’s cost,

Lincpak Limited shall, at its option, repair or replace any Goods that are found to be defective, or refund the price of such defective Goods in full.

Lincpak Limited shall not be liable for Goods’ failure to comply with the warranties set out in 6.1 if:

the Customer makes any further use of such Goods after giving notice of defects in accordance with 6.2;
the defect arises because the Customer failed to follow Lincpak Limited’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;
the defect arises as a result of Lincpak Limited following any drawing, design or specification supplied by the Customer;
the Customer alters or repairs such Goods without the written consent of Lincpak Limited;
the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
the Goods differ from their description (or any Specification) as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

Lincpak Limited’s only liability to the Customer if the Goods fail to comply with the warranties set out in 6.1 is as set out in this 6.
The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
The terms of the Contract shall apply to any repaired or replacement Goods supplied by Lincpak Limited.

Title and risk

Risk in Goods shall pass to the Customer on completion of loading (where the Customer is collecting the Goods) OR unloading the Goods (where Lincpak’s delivering the Goods) at the Delivery Location.
Title to Goods shall only pass to the Customer once Lincpak Limited receives payment in full (in cash or cleared funds) for them.
Until title to the Goods has passed to the Customer, the Customer shall:

store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Lincpak Limited’s property;
not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
give Lincpak Limited such information as Lincpak Limited may reasonably require from time to time relating to:

the Goods; and
the ongoing financial position of the Customer.

Lincpak Limited may recover Goods in which title has not passed to the Customer. The Customer irrevocably licenses Lincpak Limited, its officers, employees and agents, to enter any premises of the Customer (including with vehicles), in order to satisfy itself that the Customer is complying with the obligations in 7.3, and to recover any Goods in which property has not passed to the Customer.
Lincpak Limited may at any time after delivery elect to transfer title in the Goods to the Customer, in which case the Customer shall immediately pay the Price to the Seller.

Product recall

If the Customer is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any Goods from the market (Recall Notice) it shall immediately notify Lincpak Limited in writing enclosing a copy of the Recall Notice.
Unless required by law, the Customer may not undertake any recall or withdrawal without the written permission of Lincpak Limited and only then in strict compliance with Lincpak Limited’s instructions as to the process of implementing the withdrawal.

Price and payment

The Customer shall pay for Goods in accordance with this 9.
The Price excludes:

the costs of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer in addition to the Price; and
amounts in respect of VAT, which the Customer shall additionally be liable to pay to Lincpak Limited at the prevailing rate (if applicable), subject to the receipt of a valid VAT invoice.

(Subject to clause 9.6 and any contrary agreement in the Order) Lincpak Limited may invoice the Customer for the price of Goods plus VAT at the prevailing rate (if applicable) on or at any time after Lincpak Limited has informed the Customer it is ready and willing to deliver the Goods OR has informed the Customer that the Goods await collection. Lincpak Limited shall ensure that the invoice includes the date of the Order, the Customer’s order number, Lincpak Limited’s VAT registration number, and any supporting documentation that the Customer may reasonably require.
The Customer shall pay invoices in full in cleared funds within 7 days of receiving a Sales Order. Payment shall be made to the bank account nominated in writing by Lincpak Limited.
All amounts due under this agreement from the Customer to Lincpak Limited shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). Lincpak Limited may at any time, without limiting any of its other rights or remedies, set off any amount owing to it against any amount payable by Lincpak Limited to the Customer.

Limitation of liability

The limits and exclusions in this clause reflect the insurance cover Lincpak Limited has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess liability.
Nothing in this Contract shall limit or exclude Lincpak Limited’s liability for:

death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
fraud or fraudulent misrepresentation;
breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
defective products under the Consumer Protection Act 1987; or
any matter in respect of which it would be unlawful for Lincpak Limited to exclude or restrict liability.

Subject to 10.2:

Lincpak Limited shall not be liable to the Customer, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and

General

Force majeure. (With the exception of the Customer’s obligations under Clause 9) neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event.
Assignment and other dealings.

The Customer shall not assign, transfer, charge, subcontract, delegate, 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 Lincpak Limited.
Lincpak Limited may at any time assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights under this agreement.

Confidentiality.

Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by 11.3(b). For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
Each party may disclose the other party’s confidential information:

to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this 11.3; and
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.

Entire agreement.

This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract 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.
Severance. 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 clause shall not affect the validity and enforceability of the rest of the Contract.
Notices.

Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
A notice or other communication shall be deemed to have been received: if delivered by hand, when left at the address referred in 11.8(a); 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 email, one Business Day after transmission.
The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
Governing law. This Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales.
Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.