1.1 In these Terms, the following definitions apply:
BUSINESS DAY: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
CONTRACT: the contract between Foilco and the Customer for the sale and purchase of the Goods in accordance with these Terms.
CUSTOMER: the person or firm to whom or which Foilco wishes to provide the Goods and which wishes to purchase the Goods from Foilco as detailed in the Proposal.
DELIVERY LOCATION: Foilco’s Premises or such other location as may be advised by Foilco to the Customer.
FOILCO: Foilco Limited, a company incorporated and registered in England and Wales with company number 02140459 and whose registered office is at Foilco’s Premises.
FOILCO’S PREMISES: Enterprise Way, Lowton St Marys, Warrington, Cheshire, WA3 2BP.
FORCE MAJEURE EVENT: events, circumstances or causes beyond its reasonable control including but not limited to, Acts of God, flood, drought, earthquake or other natural disaster, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations, nuclear, chemical, biological contamination or sonic boom, epidemic or pandemic, any law or any action taken by a Government or a public authority including without limitation imposing an export or import restriction, quota or prohibition, and the collapse of buildings, fire, explosion or accident and in the case of Foilco a failure of its suppliers or subcontractors.
INTELLECTUAL PROPERTY RIGHTS: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
GOODS: the goods (or any part of them), which shall primarily be foils or foil-based items, machines, packaging and associated consumables as set out in the Order, having been referred to initially within the Proposal and detailed within the Specification.
LOSS: actions, awards, charges, claims, compensation, costs, damages, demands, expenses, fees, fines, liabilities, losses, penalties, proceedings and settlements, and Losses shall be construed accordingly.
ORDER: the Customer’s order for the Goods, as set out in the Customer’s written acceptance of the Proposal.
PROMOTIONAL MATERIALS: Foilco’s catalogues, brochures, websites or such other applicable sales or promotional literature, materials or publications.
PROPOSAL: Foilco’s quotation or proposal (whether in writing or given orally) to provide the Goods to the Customer, which is based on the Specification and which incorporates these Terms.
SPECIFICATION: any specification for the Goods, including any related plans and drawings that is agreed by the Customer and Foilco.
TERMS: these terms and conditions as amended from time to time.
1.2 In these Terms, the following rules of interpretation apply: (a) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted. (b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. (c) a reference to writing or written includes emails.
2.1 These Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Provided always that Foilco may withdraw or otherwise amend the Proposal at its absolute discretion, where applicable the Proposal shall remain valid for a period of 30 days from the date specified on it (Order Period). If the Customer accepts the position set out in the Proposal, it shall be required to raise an Order within the Order Period.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Terms and shall not incorporate any other terms and conditions beyond those set out in the Contract. The Customer is responsible for ensuring and warrants that the terms outlined in the relevant published price list and where applicable, the Proposal and the Order and any applicable Specification are complete and accurate.
2.3 Foilco may reject the Order at its absolute discretion and for any reason whatsoever and the Order shall only be deemed to be accepted when Foilco’s authorised representative issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 Once accepted, the Order may not be cancelled by the Customer except with the prior agreement of Foilco in writing. Without prejudice to any further terms that may be agreed between the parties, any such agreement is on the basis that the Customer shall indemnify Foilco full against all Losses (which for the purpose of this clause shall include the cost of labour and materials, loss of profit, loss of business, loss of goodwill, loss of business opportunity, loss of anticipated saving and any other indirect, special or consequential loss) incurred by Foilco as a result of such cancellation.
2.5 Any samples, drawings, descriptive matter or advertising produced by Foilco and any descriptions or illustrations contained in the Promotional Materials 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 Foilco’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by Foilco in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
3.1 The Goods are described in the Promotional Materials as modified or supplemented by any applicable Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Foilco, keep Foilco indemnified and hold Foilco harmless from and against all Losses (including any direct, indirect or consequential Losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Foilco in connection with any claim made against Foilco for actual or alleged infringement of any Intellectual Property Rights whether or not registered arising out of or in connection with Foilco’s use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 Foilco reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements from time to time or to improve the Goods where to do so would not have a material adverse effect on the Customer.
3.4 If for any reason beyond its control, Foilco is unable to supply a particular item of Goods, Foilco will notify the Customer of such. Foilco will use reasonable endeavours to replace it with an item of equivalent or superior standard and value.
3.5 All foil-based items that are produced by Foilco are tested for colour matching in D65 light as part of Foilco’s quality control management process.
4.1 Foilco shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, all relevant Customer and Foilco reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 Unless otherwise agreed, delivery shall be on the basis of: (a) EXW (Delivery Location) (Ex Works Incoterms 2020) where the final destination for the Goods is in the United Kingdom; and (b) DAP (Delivery Location) (Delivered at Place Incoterms 2020) where the final destination for the Goods is outside of the United Kingdom.
4.3 In making physical delivery of the Goods at the Delivery Location, the Customer shall provide Foilco, or any agent or courier instructed on its behalf, with safe and unrestricted access to, movement around and egress from the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Foilco 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 Foilco with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. Foilco may in advance of the proposed delivery date deliver the Goods by giving reasonable notice of the same to the Customer.
4.5 If the Customer fails to take or accept delivery of the Goods then, except where such failure or delay is caused by a Force Majeure Event or Foilco’s failure to comply with its obligations under the Contract: (a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Foilco notified the Customer that the Goods were ready; and (b) Foilco shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.6 If ten Business Days after the day on which Foilco notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted actual delivery of them, Foilco 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.
4.7 Foilco may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel that or any other instalment.
5.1 Foilco warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period), the Goods shall: (a) subject to the Customer’s warranty at clause 2.3, conform in all material respects with their description and the Specification; (b) be free from material defects in design, material, and workmanship; (c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and (d) be fit for any purpose held out by Foilco.
5.2 Subject to clause 5.3, if: (a) the Customer gives notice in writing to Foilco during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1; (b) Foilco is given a reasonable opportunity of examining such Goods; and (c) the Customer (if asked to do so by Foilco) must return such Goods in the same condition that they were delivered to the Customer, to Foilco’s Premises at the Customer’s cost (such reasonable return costs to be refunded to the Customer if the Goods are found not to comply with the warranty set out at clause 5.1, Foilco shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in addition to any reasonable return costs in accordance with clause 5.2(c).
5.3 Foilco shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events: (a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2; (b) the defect arises because the Customer failed to follow Foilco’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; (c) the defect arises as a result of Foilco following any drawing, design or Specification supplied by the Customer; (d) the Customer alters or repairs such Goods without the written consent of Foilco; (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 the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements or for their improvement under clause 3.3.
5.4 Except as provided in this clause 5, Foilco shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 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.
5.6 These Terms shall apply to any repaired or replacement Goods supplied by Foilco.
6.1 The risk in the Goods shall pass to the Customer in accordance with clause 4.4.
6.2 Title to the Goods shall not pass to the Customer until Foilco receives payment in full (in cash or cleared funds) for the Goods and any other goods that Foilco 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.
6.3 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 Foilco’s 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 Foilco immediately if it becomes subject to any of the events listed in clause 8.2; (e) give Foilco such information relating to the Goods as Foilco may require from time to time; and (f) not grant any pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of Foilco
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Foilco receives payment for the Goods. However, if the Customer resells the Goods before that time: (a) it does so as principal and not as Foilco’s agent; and (b) title to the Goods shall pass from Foilco to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Goods passes to the Customer the Customer breaches any of its obligations under clause 6.3 or clause 8.1, or becomes subject to any of the events listed in clause 8.1, then, without limiting any other right or remedy Foilco may have: (a) the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and (b) Foilco may at any time: i. require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and ii. 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.
7.1 The price of the Goods shall be the price set out in the Proposal.
7.2 Foilco 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 any: (a) factor beyond Foilco’s control (including foreign exchange fluctuations, increases in taxes and duties (which shall include import and export duties), and increases in labour, materials and other manufacturing costs); (b) request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or (c) delay caused by any instructions of the Customer or failure of the Customer to give Foilco adequate or accurate information or instructions.
7.3 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 Foilco 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.
7.4 Foilco may invoice the Customer for the Goods to be supplied at any time after the Goods are made after the Goods are made available to the Customer for collection or delivery, regardless of whether the Customer collects or accepts delivery of the Goods.
7.5 The Customer shall pay each invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Foilco. Time for payment is of the essence.
7.6 If the Customer fails to make any payment due to Foilco under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Foilco may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Foilco to the Customer.
8.1 Without limiting its other rights or remedies, Foilco may terminate the 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 5 Business Days of being notified in writing to do so; (b) repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to perform the Contract; or (c) becomes subject to any of the events listed in clause 8.2.
8.2 For the purposes of clause 8.1, the relevant events are: (a) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply; (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), 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 commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; (d) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or (e) the Customer’s financial position deteriorates to such an extent that in Foilco’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and (f) the Customer (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing their own affairs or becomes a patient under any mental health legislation.
8.3 Without limiting its other rights or remedies, Foilco may suspend provision of the Goods under the Contract or any other contract between the Customer and Foilco if the Customer becomes subject to any of the events listed in clause 8.2(a) to clause 8.2(f), or Foilco 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.
8.4 Without limiting its other rights or remedies, Foilco 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.
8.5 On termination of the Contract for any reason the Customer shall immediately pay to Foilco all of Foilco’s outstanding unpaid invoices and interest.
8.6 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
8.7 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9.1 Nothing in these Terms shall limit or exclude Foilco’s liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (b) fraud or fraudulent misrepresentation; or (c) any matter in respect of which it would be unlawful for Foilco to exclude or restrict liability.
9.2 Subject to clause 9.1: (a) Foilco shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any: i. loss of profit; ii. loss of goodwill; iii. loss of business; iv. loss of business opportunity; v. loss of anticipated saving; vi. loss or corruption of date or information; or vii. any indirect, special or consequential Loss, that arises under or in connection with the Contract; and (b) Foilco’s total liability to the Customer in respect of all other Losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total price of the Goods paid or payable by the Customer to Foilco under the Contract.
10.1 All Intellectual Property Rights subsisting in any Goods supplied to the Customer by or on behalf of Foilco arising out of or in connection with the Contract shall remain vested in and belong to Foilco absolutely.
10.2 Foilco makes no warranty and provides no assurance to the Customer that the Goods shall not breach the rights (including Intellectual Property Rights) of any third parties.
11.1 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.
11.2 Foilco shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations.
11.3 If a Force Majeure Event prevents, hinders or delays Foilco’s performance of its obligations for a continuous period of more than thirty days, the Customer may terminate the Contract immediately by giving written notice to Foilco and source the Goods from a third party supplier.
12.1 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, except as permitted by clause 12.2.
12.2 Each party may disclose the other party’s confidential information: (a) 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 clause 12; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 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 agreement.
13.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be: (a) 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 (b) sent by email to contact details specified in the Proposal or Order or otherwise as notified previously by that party.
13.2 Any notice shall be deemed to have been received: (a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; (b) 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 at the time recorded by the delivery service; or (c) if sent by email, at 9.00 am on the next Business Day after transmission.
13.3 This clause does not apply to service of any proceedings or other documents in any legal action, or where applicable, any arbitration or other method of dispute resolution.
14.1 Assignment and other dealings. (a) Foilco may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with (Transfer) all or any of its rights or obligations under the Contract. (b) The Customer may not Transfer any or all of its rights or obligations under the Contract without the prior written consent of Foilco.
14.2 Entire agreement. (a) 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. (b) 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.
14.3 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14.4 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 11 exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.5 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.
14.6 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms as though it were a party to it and the provisions of the Contracts (Rights of Third Parties) Act 1999 are hereby excluded to the fullest extent permitted by law.
14.7 Multi-tiered dispute resolution procedure. If a dispute arises out of or in connection with this Contract or the performance, validity or enforceability of it (Dispute) then, except as expressly provided in this Contract, the parties may at their discretion follow the procedure set out in this clause: (a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, employees at management level (or the nearest equivalent) of the parties shall attempt in good faith to resolve the Dispute; and (b) if the management level employees are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the directors of the parties who shall attempt in good faith to resolve it. (c) If the directors of the parties are for any reason unable to resolve the Dispute within 30 days of it being referred to them and the Customer is not registered in the United Kingdom, the parties will attempt to settle it by mediation. (d) The parties shall have recourse to mediation in accordance with in accordance with the Rules, which are deemed to be incorporated by reference into this clause. (e) If the Dispute is not settled by mediation within 30 days of the commencement of the mediation, or such further period as the parties shall agree in writing, the Dispute shall be submitted to the International Court of Arbitration of the ICC whose seat shall be London and shall be finally settled under the Arbitration Rules, by one or more arbitrators appointed in accordance with the Arbitration Rules. The Emergency Arbitrator Provisions under the Arbitration Rules shall not apply. (f) This clause 14.7 takes the form of an arbitration agreement and is governed by the law of England and Wales. (g) The language to be used in the mediation and in the arbitration shall be English. (h) If the directors of the parties are for any reason unable to resolve the Dispute within 30 days of it being referred to them and the Customer is registered in the United Kingdom, the parties may commence court proceedings under clause 14.9 in relation to the whole or part of the Dispute.
14.8 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.
14.9 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 of formation.