LEEWAYS PACKAGING SERVICES LIMITED
TERMS AND CONDITIONS OF BUSINESS
The customer’s attention is drawn in particular to the provisions of clause 10.
1. Interpretation
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 8.30 am to 5.00 pm on any Business Day, except for Friday which is the period from 8.30 am to 4.00 pm.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 15.4.
Contract: the contract between Leeways and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from Leeways.
Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Leeways: Leeways Packaging Services Limited (registered in England and Wales with company number 01030853).
Leeways’ Premises: Leeways Distribution Centre, Laymore Road, Forest Vale Industrial Estate, Cinderford GL14 2YH.
Order: the Customer’s order for the Goods, as set out in: (i) the Customer’s purchase order form; or (ii) the Customer’s written acceptance of Leeways’ quotation.
Specification: any specification for the Goods, including any related plans and drawings, set out in the Order.
1.2 Interpretation:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to legislation or a legislative provision: (i) is a reference to it as amended or re-enacted; and (ii) includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes email.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when Leeways issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.5 Any samples, drawings, descriptive matter or advertising produced by Leeways and any descriptions or illustrations contained on Leeways’ website or in Leeways’ catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 A quotation for the Goods given by Leeways shall not constitute an offer. A quotation shall only be valid for a period of 28 days from its date of issue.
3. Goods
3.1 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Leeways 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 and other reasonable professional costs and expenses) suffered or incurred by Leeways in connection with any claim made against Leeways for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Leeways’ use of the Specification. This clause 3.1 shall survive termination of the Contract.
3.2 Leeways reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and Leeways shall notify the Customer in any such event.
4. Customer’s Goods
4.1 Except where it is otherwise specifically agreed, all goods in which the Customer has ownership rights (‘Customer’s Goods’) which are sent to Leeways’ premises shall remain entirely at the Customer’s risk at all times and in all respects including transport to and from Leeways’ premises and whilst held on Leeways’ premises, and Leeways accepts no liability for any loss of or damage in relation to the Customer’s Goods however arising. The Customer shall arrange for insurance cover for the Customer’s Goods.
4.2 The Customer shall indemnify Leeways 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 and other reasonable professional costs and expenses) suffered or incurred by Leeways in connection with any claim made against Leeways for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Customer’s Goods or the packaging. The indemnity under this clause 4.2 shall extend to include any packaging process which Leeways may implement if such process has been specified or approved by the Customer. This clause 4.2 shall survive termination of the Contract.
5. Cancellation of Orders
5.1 Any Order accepted by Leeways in accordance with clause 2.3 cannot be cancelled by the Customer unless agreed in writing by Leeways. Where Leeways agrees to cancel an Order in accordance with this clause 5.1, the Customer shall keep Leeways indemnified in full and hold Leeways harmless against all loss (including, without limitation, loss of profit), costs (including, without limitation, the cost of all labour and materials used), damages, charges and expenses incurred by Leeways as a result of cancellation.
6. Storage and delivery
6.1 Leeways shall store the Goods at Leeways’ Premises until actual delivery takes place. The first 12 weeks of storage shall be provided by Leeways free of charge (‘Free Storage Period’). Upon expiry of the Free Storage Period:
(a) the Customer shall accept actual delivery of the Goods; or
(b) Leeways shall continue to store the Goods until actual delivery takes place, and shall charge the Customer for all related costs and expenses (including insurance).
6.2 Leeways shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note that shows the date of the delivery, all relevant Customer and Leeways reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable) and any special storage instructions (if any); and
(b) if Leeways requires the Customer to return any packaging materials to Leeways, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Leeways shall reasonably request. Returns of packaging materials shall be at Leeways’ expense.
6.3 Delivery of the Goods shall be completed either:
(a) upon the commencement of the Goods being loaded onto a carrier’s vehicle at Leeways’ Premises (or such other location as may be advised by Leeways prior to delivery); or
(b) if Leeways act as the carrier, upon the commencement of the unloading of the Goods at the delivery location specified in the Order (or such other location as the parties may agree).
6.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Leeways shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Leeways with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
6.5 If Leeways fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Leeways shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Leeways with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
6.6 Leeways may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
7. Quality
7.1 Leeways warrants that on delivery the Goods shall:
(a) conform in all material respects with their description and any applicable Specification; and
(b) be free from material defects in design, material and workmanship.
7.2 Subject to clause 7.3, if:
(a) the Customer gives notice in writing to Leeways within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 7.1; and
(b) Leeways is given a reasonable opportunity of examining such Goods;
Leeways shall, at its option, repair or replace the defective Goods (or part thereof), or refund the price of the defective Goods (or part thereof).
7.3 Leeways shall not be liable for the Goods’ failure to comply with the warranty set out in clause 7.1 if:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 7.2;
(b) the defect arises because the Customer failed to follow Leeways’ 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;
(c) the defect arises as a result of Leeways following any drawing, design or specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of Leeways;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from their description and any applicable Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
7.4 Except as provided in this clause 7, Leeways shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 7.1.
7.5 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.
7.6 These Conditions shall apply to any repaired or replacement Goods supplied by Leeways.
8. Title and risk
8.1 The risk in the Goods shall pass to the Customer on completion of delivery.
8.2 Title to the Goods shall not pass to the Customer until the earlier of:
(a) Leeways receives payment in full (in cash or cleared funds) for the Goods and any other goods that Leeways has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 8.4.
8.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Leeways’ property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify Leeways immediately if it becomes subject to any of the events listed in clause 13.1(b) to clause 13.1(d); and
(e) give Leeways such information as Leeways may reasonably require from time to time relating to: (i) the Goods; and (ii) the ongoing financial position of the Customer.
8.4 Subject to clause 8.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Leeways receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as Leeways’ agent; and
(b) title to the Goods shall pass from Leeways to the Customer immediately before the time at which resale by the Customer occurs.
8.5 At any time before title to the Goods passes to the Customer, Leeways may:
(a) by notice in writing, terminate the Customer’s right under clause 8.4 to resell the Goods or use them in the ordinary course of its business; and
(b) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
8.6 Leeways shall have a lien upon all Goods and Customer’s Goods in its possession in respect of amounts due and owing by the Customer to Leeways. Leeways shall have the right to sell or otherwise dispose of any such Goods and Customer’s Goods on the expiry of 6 calendar months from the date on which amounts owing for Goods become due and payable. Upon expiry of the Free Storage Period Leeways shall have the right to charge for the storage of all such Goods and Customer’s Goods until they are removed or Leeways disposes of them under this clause 8.6. Leeways shall before such sale or disposal give the Customer no less than 14 days written notice of its intention to sell or dispose of the Goods and/or Customer’s Goods. Leeways shall be entitled to retain the proceeds of sale of the Goods and Customer’s Goods to the extent of the amount owing by the Customer both in respect of any work carried out for that Customer and in respect of any storage charges and costs of disposal of such Goods and Customer’s Goods.
9. Price and payment
9.1 The price of the Goods shall be the price set out in the Order.
9.2 Leeways may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond Leeways’ control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give Leeways adequate or accurate information or instructions.
9.3 The price of the Goods:
(a) excludes amounts in respect of value added tax (‘VAT’), which the Customer shall additionally be liable to pay to Leeways at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
9.4 Leeways may invoice the Customer for the Goods on or at any time after the completion of delivery unless otherwise agreed between the parties.
9.5 The Customer shall pay each invoice submitted by Leeways:
(a) within 30 days from the end of the month following the month the invoice is dated unless otherwise agreed between the parties; and
(b) in full and in cleared funds to a bank account nominated in writing by Leeways, and
time for payment shall be of the essence of the Contract.
9.6 If the Customer fails to make a payment due to Leeways under the Contract by the due date, then, without limiting Leeways’ remedies under clause 13, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.6 will accrue each day at 4% a year above the HSBC UK Plc base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.7 All amounts due under the Contract 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).
10. Limitation of liability
10.1 Leeways has obtained insurance cover in respect of certain aspect of its own legal liability for individual claims not exceeding £10,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover Leeways has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess liability.
10.2 References to liability in this clause 10 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
10.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective products under the Consumer Protection Act 1987.
10.4 Subject to clause 10.3, Leeways’ total liability to the Customer shall not exceed the price payable by the Customer under the Contract.
10.5 Subject to clause 10.3, the following types of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
10.6 This clause 10 shall survive termination of the Contract.
11. Customer’s approvals
11.1 Any alterations from the original drawing provided by Leeways and/or after the first approved sample (including alterations in style or construction) shall be subject to additional charges. Drawings and/or samples of all work may be submitted for the Customer’s approval and Leeways accepts no responsibility for any errors in drawings and/or samples which the Customer may have approved. The Customer shall be solely responsible for any design or construction which Leeways executes on the instruction of, or at the request of the Customer, whether the goods shall have been supplied by Leeways or by the Customer, and the Customer is solely responsible for any claim or proceedings made or brought by a third party arising therefrom.
12. Tooling
12.1 Unless otherwise agreed by Leeways in writing, in all circumstances legal title in any tooling shall remain with Leeways. All tooling quoted for shall be paid for in full by the Customer and be held at the Customer’s risk at Leeways’ premises. Any repair, modification or replacement of tooling will be carried out at the Customer’s sole expense after Leeways’ prior written agreement.
12.2 Without prejudice to any other rights or remedies available to us, if the Customer fails to purchase any agreed volume of Goods during the time period agreed with Leeways, the Customer shall be liable to pay Leeways for any amortisation of the tooling outstanding at the end of such time period. Leeways may invoice any sums payable under this clause 12.2, and such invoices will be paid by the Customer in accordance with clause 9.5.
13. Termination
13.1 Without limiting its other rights or remedies, Leeways may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
13.2 Without limiting its other rights or remedies, Leeways may suspend provision of the Goods under the Contract or any other contract between the Customer and Leeways if the Customer becomes subject to any of the events listed in clause 13.1(b) to clause 13.1(d), or Leeways reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
13.3 Without limiting its other rights or remedies, Leeways may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
13.4 On termination of the Contract for any reason the Customer shall immediately pay to Leeways all of Leeways’ outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Leeways shall submit an invoice, which shall be payable by the Customer immediately on receipt.
13.5 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
13.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
14. Force majeure
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 8 weeks, either party may terminate the Contract by giving 5 days’ written notice to the other party.
15. General
15.1 Assignment and other dealings.
(a) Leeways may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, 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 Leeways.
15.2 Confidentiality.
(a) Each party undertakes that it shall not at any time during the Contract and for a period of 2 years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 15.2(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 15.2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
15.3 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
15.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.5 Waiver.
(a) Except as set out in clause 2.4, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
15.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 15.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
15.7 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the email address set out in the Order (or an email address substituted in writing by the party to be served).
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) 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; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
15.8 Third party rights.
(a) The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
15.9 Governing law. The 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.
15.10 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 the Contract or its subject matter or formation.