1. Interpretation
1.1 In these Conditions the following words shall have the following meanings:
“Buyer”: the person, firm or company who purchases Goods and/or Services from Origin.
“Business Day”: means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Conditions”: the standard terms and conditions set out in this document as amended from time to time in accordance with condition 2.2 and (unless the context otherwise requires) any special terms and conditions agreed in writing between Origin and the Buyer.
“Contract”: the contract between Origin and the Buyer for the supply of Goods and/or Services, in accordance with the Conditions.
“Force Majeure Event”: has the meaning given in condition 12.
“Goods”: any goods (including any part or parts of them) set out in the Order.
“Incoterms” or “Incoterm”: Incoterms 2020 as published by the International Chamber of Commerce.
“Order”: the Buyer’s order for the supply of Goods and/or Services as set out in the Buyer’s written acceptance of Origin’s quotation, or such other document as may be agreed in writing by Origin from time to time.
“Origin”: Origin Packaging Ltd of Melton House, Jackson Way, Melton, North Ferriby, HU14 3HJ.
“Services”: any services, including but not limited to printing, spraying, etching or any other treatment in relation to the Goods, to be supplied to the Buyer by Origin as set out in the Order.
2. Application of Conditions
2.1 The Conditions cancel and supersede any earlier conditions of sale of Origin and shall govern the Contract to the exclusion of any terms or conditions which the Buyer seeks to impose or incorporate under any purchase order, confirmation of order, specification (save for any specification agreed pursuant to clause 2.5) or other document, or which are implied by law, trade, custom, practice or course of dealing, and the Buyer waives any right which it might have to rely on any such terms and conditions.
2.2 No variation to the Contract or any representation about the Goods and/or the Services shall have effect unless expressly agreed in writing and signed by a duly authorised representative of Origin.
2.3 Each Order for Goods and/or Services by the Buyer from Origin constitutes an offer by the Buyer to purchase Goods and/or Services subject to the Conditions.
2.4 No Order placed by the Buyer shall be deemed to be accepted by Origin until a written acknowledgement of Order is issued by Origin or (if earlier) Origin delivers the Goods to the Buyer or commences performance of the Services at which point and on which date the Contract shall come into existence.
2.5 The Buyer shall ensure that the terms of its Order and any applicable specification submitted by the Buyer and agreed to in writing by Origin, in each case are complete and accurate. Where the Buyer supplies artwork, the Buyer shall ensure that the artwork is in all respects accurate and is supplied with all relevant pantone colours. Origin shall not be liable to the Buyer (i) if any such terms, specification or artwork are not complete and accurate or (ii) for any deviations in the Goods from any such specification or artwork insofar as such deviation was present in any related proof or sample of the Goods approved by the Buyer prior to delivery.
2.6 Any quotation given by Origin shall not constitute an offer, and is only valid for all the Goods and Services referred to in the quotation and, unless otherwise specified by Origin in the quotation, only for a period of 30 days from its date of issue, provided that Origin has not previously withdrawn it.
2.7 Orders accepted by Origin may not be cancelled by the Buyer without the prior written consent of Origin.
3. Description
3.1 The description of the Goods and/or Services shall be as set out in Origin’s quotation.
3.2 Any samples, drawings, descriptive matter, specifications and advertising issued by Origin and any descriptions, sizes, measurements and illustrations contained in Origin’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract nor have any contractual force, and Origin shall be entitled to correct any error without liability to the Buyer.
3.3 The sale of Goods shall not be a sale by sample.
3.4 The Buyer shall satisfy itself as to the suitability of (i) the Goods for any purpose for which the Buyer intends to use the Goods and (ii) any Services that the Buyer orders in relation to the Goods.
3.5 Origin reserves the right to amend the specification for the Goods and/or Services after acceptance of the Buyer’s Order (a) if required by any applicable statutory or regulatory requirements, or (b) in any other case, only provided that such change does not materially alter the characteristics of the relevant Goods and/or Services.
3.6 Where the specification of the Goods requires Origin to carry out any special or custom manufacturing process or requires any Services to be performed by Origin:
3.6.1 Origin agrees to use all reasonable endeavours to ensure that the surface of the Goods is suitable for such process or Services, but shall not be liable to the Buyer if the surface of the Goods proves to be unsuitable as a result of any coating applied to the Goods by the manufacturer, or any contamination of the surface of the Goods, or where the surface is unsuitable due to the contents of the Goods; and
3.6.2 the Buyer agrees that the quantity of the Goods to be delivered by Origin may be up to 10% more or less than the quantity ordered, to allow for overproduction or wastage during the performance of the relevant process/Service. Where Origin is performing more than one such process or Service in relation to the Goods, the Buyer agrees that the quantity of the Goods to be delivered by Origin may further deviate by up to 10% more or less each time such a process or Service is performed in relation to the Goods, to allow for overproduction or wastage during the performance of each such process/Service. In all such cases, a pro rata adjustment shall be made to the relevant invoice corresponding to the relevant overproduction or wastage (and the Buyer agrees to pay the adjusted sum in accordance with condition 7 below).
4. Delivery
4.1 Buyers in the UK: Unless otherwise agreed in writing by Origin, Origin shall deliver or arrange delivery of the Goods to the Buyer’s address as specified in the Order or such other place agreed in writing with the Buyer (“Delivery Location”). Delivery of the Goods shall be deemed completed on the unloading of the Goods at the Delivery Location.
4.2 Buyers outside the UK: Origin shall deliver or arrange delivery and transport of the Goods in accordance with the terms of the Incoterm agreed in writing with the Buyer. Risk in the Goods shall pass, and delivery of the Goods shall be deemed completed, in accordance with the terms of the agreed Incoterm.
4.3 Origin shall perform any Services in respect of the Goods prior to the Goods being dispatched by Origin for delivery.
4.2 Any date specified by Origin for delivery of the Goods and/or performance of the Services is an estimate only and time for delivery of the Goods and/or performance of the Services shall not be of the essence. If no date has been so specified, delivery of the Goods and/or performance of the Services will be within a reasonable time. Where Origin agrees to change the specification or quantity of Goods and/or Services ordered, Origin shall be entitled to adjust the delivery date accordingly.
4.3 Origin shall not be liable for any breach of the Contract or any delay or failure in delivery of the Goods and/or performance of the Services that is caused by a Force Majeure Event or the Buyer’s failure to provide Origin with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods or performance of the Services.
4.4 Subject to the other provisions of the Conditions, Origin shall not be liable for any loss (including but not limited to loss of profit and consequential loss), costs, damages, charges or expenses caused directly or indirectly by any failure or delay in the delivery of the Goods and/or performance of the Services nor will any delay or failure entitle the Buyer to terminate or rescind the Contract.
4.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or Origin is unable to deliver the Goods on time due to vehicles being unduly delayed at the point of delivery or because the Buyer has not provided appropriate instructions, information, documents, licences or authorisations, then:
4.5.1 delivery of the Goods and performance of the Services shall be deemed to have been completed at the time that Origin first attempted to deliver the Goods (at which time risk in the Goods will pass to the Buyer and the price shall become immediately due and payable); and
4.5.2 Origin may store the Goods until the Buyer takes physical possession of the Goods and the Buyer will be liable for all related costs and expenses (including without limitation demurrage, storage and insurance). Without prejudice to Origin’s right to recover from the Buyer any sums due to Origin, if the Buyer has not taken possession of the Goods within 14 days from the date upon which the price became due and payable Origin may dispose of the Goods in such manner as Origin may determine and charge the Buyer for any shortfall below the price of the Goods.
4.6 Origin may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay or failure in delivery or claim by the Buyer in relation to any one or more instalment shall not entitle the Buyer to cancel any other instalment or treat the Contract as a whole as repudiated.
4.7 Where risk in the Goods remains with Origin during transit to the Buyer any liability of Origin for Goods damaged in transit shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods provided that the Buyer marks the carrier’s delivery receipt as “Goods damaged in transit” and gives written notice setting out details of the damage to Origin within 3 Business Days of the date of delivery of the Goods.
5. Non-Delivery
5.1 The quantity of any consignment of Goods as recorded by Origin upon despatch from Origin’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 Origin shall not be liable for any non-delivery of Goods unless written notice is given to Origin within three Business Days of the estimated date of delivery supplied by Origin.
5.3 Origin shall not be liable for any shortfall in the delivery of Goods unless written notice is given to Origin within three Business Days of delivery.
5.4 Any liability of Origin for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
5.5 Any liability of Origin for any shortfall in the delivery of the Goods shall be limited to making up the shortfall within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6. Price
6.1 Unless otherwise agreed in writing by Origin the price for the Goods and any Services shall be the price set out in Origin’s quotation or, if no price is quoted, the price set out in Origin’s price list in force at the date of delivery.
6.2 The price for the Goods and the Services shall be exclusive of any value added tax and other taxes at the prevailing rate and all costs and charges in relation to packing, loading, unloading, carriage, duty and insurance of the Goods which the Buyer shall pay in addition at the same time as the price following a related invoice from Origin.
6.3 Origin reserves the right to increase the price of the Goods and/or the Services, by giving notice to the Buyer at any time before delivery, to reflect any increase in the cost of the Goods and/or the cost of performance of the Services to Origin that is due to;
6.3.1 any factor beyond the control of Origin (including but not limited to currency exchange fluctuations, increases in taxes and duties, increases in labour, materials and other manufacturing costs);
6.3.2 any request by the Buyer to change the delivery date(s), quantities, specification(s) or types of Goods or Services ordered; or
6.3.3 any delay caused by any instructions of the Buyer in respect of the Goods or the Services or failure of the Buyer to give Origin adequate or accurate information or instructions in respect of the Goods or the Services.
7. Payment
7.1 Origin may invoice the Buyer for the Goods and the Services on or at any time after the despatch of the Goods.
7.2 Subject to condition 8.11 and unless otherwise notified in writing by Origin to the Buyer, full payment of the price for the Goods and the Services and any other charges and sums due under the Contract is due in pounds sterling by bank transfer within 30 days following the date of Origin’s invoice (or such other period as may be agreed between the parties in writing). Time for payment shall be of the essence. No payment shall be deemed to have been received until Origin has received cleared funds.
7.3 The Buyer shall make all payments due under the Contract without any deduction by way of set-off, counterclaim, discount, abatement, withholding or otherwise (other than any deduction or withholding of tax as required by law).
7.4 If the Buyer fails to pay Origin any sum due pursuant to the Contract by the due date, then, without limiting Origin’s rights and remedies under the Contract, Origin shall be entitled to:
7.4.1 suspend performance of Origin’s obligations under the Contract or under any other contract between Origin and the Buyer; and/or
7.4.2 charge Buyer interest on such sum from the due date for payment at the annual rate of 3% above base lending rate of Lloyds Bank plc from time to time, accruing on a daily basis until payment is made, whether before or after any judgment. Alternatively, Origin shall be entitled to charge the Buyer interest and compensation in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended; and/or
7.4.3 recover from the Buyer such legal costs as are incurred by Origin in the recovery of sums due and owing to Origin.
7.5 Origin may at any time, without limiting any other rights or remedies it may have, set off any liability of the Buyer to Origin against any liability of Origin to the Buyer, whether such liability is present or future, liquidated or unliquidated, under the Contract or otherwise.
8. Risk/Ownership
8.1 The Goods shall be at the risk of the Buyer from the time of delivery.
8.2 Ownership of the Goods shall not pass to the Buyer until the earlier of:
8.2.1 the time that Origin receives payment in full (in cash or cleared funds) for:
a) all sums payable in respect of the Goods and the Services including any interest; and
b) all other sums which are, or which become due to Origin from the Buyer on any account including any interest on such sums,
in which case ownership to the Goods shall pass to the Buyer at the time of payment of all such sums; and
8.2.2 the time that the Buyer resells the Goods, in which case ownership to such Goods shall pass to the Buyer at the time specified in condition 8.4.
8.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:-
8.3.1 store the Goods separately to other goods of the Buyer and any third party in a way that they remain readily identifiable as Origin’s property;
8.3.2 not destroy, deface, obscure or remove any identifying mark or packaging on or relating to the Goods;
8.3.3 maintain the Goods in satisfactory condition and keep them insured for their full price against all risks and hold the proceeds of insurance on trust for Origin and not mix them with any other money, nor pay the proceeds into an overdrawn bank account;
8.3.4 notify Origin immediately if the Buyer becomes subject to any of the events listed in condition 8.5; and
8.3.5 give Origin such information as Origin may require from time to time relating to:
(a) the Goods; and
(b) the ongoing financial position of the Buyer.
8.4 Subject to condition 8.5, the Buyer may resell at full market value or use the Goods in the ordinary course of the Buyer’s business (but not otherwise) before ownership has passed to it. However, if the Buyer resells the Goods before that time:
8.4.1 the Buyer does so as principal and not as Origin’s agent; and
8.4.2 title to the Goods shall pass from Origin to the Buyer immediately before the time at which resale by the Buyer occurs.
8.5 Without limiting Origin’s other rights or remedies, the Buyer’s right to possession, use and resale of the Goods before ownership has passed to the Buyer shall terminate immediately and all sums shall become due and payable immediately, and the Buyer agrees that Origin shall have the right to rescind or terminate the Contract and/or to suspend any further deliveries under the Contract if any of the following events, or Origin reasonably believes that any of the following events will, happen:
8.5.1 the Buyer has a bankruptcy order made against it or makes an arrangement or composition with its creditors or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors or (being a body corporate) convenes a meeting of creditors or enters into liquidation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder, or a resolution is passed or a petition presented for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer, or any analogous procedure is commenced in relation to the Buyer in any other relevant jurisdiction; or
8.5.2 the Buyer encumbers or in any way charges any of the Goods or suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it;
8.5.3 the Buyer fails to observe or perform any of its obligations under the Contract or any other contract between Origin and the Buyer;
8.5.4 the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
8.5.5 the Buyer’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.
8.6 Origin shall be entitled to recover payment for the Goods and the Services notwithstanding that ownership of any of the Goods has not passed from Origin.
8.7 Origin may at any time before ownership to the Goods passes to the Buyer, require the Buyer to deliver up all Goods in the Buyer’s possession which have not been resold or irrevocably incorporated into another product.
8.8 The Buyer grants Origin, its agents and employees an irrevocable license at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
8.9 Where Origin is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by Origin to the Buyer in the order in which they were invoiced to the Buyer.
8.10 Termination of the Contract shall not affect either party’s rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract that existed at or before the date of termination.
8.11 All sums payable to Origin under the Contract shall become due immediately upon termination of the Contract despite any other provision and, in respect of Goods supplied and Services performed for which no invoice has been submitted, Origin shall submit an invoice which shall be payable by the Buyer immediately upon receipt.
8.12 Any provision of the Contract that expressly or by implication is intended to come into or continue in force after termination shall remain in full force and effect.
9. Warranty
9.1 Origin warrants (subject to the other provisions of the Conditions) that:
9.1.1 upon delivery the Goods will conform in all material respects with the manufacturer’s specification for the Goods, subject to any qualification contained in the specification or the quotation; and
9.1.2 the Services will be performed with reasonable care and skill and upon completion will comply in all material respects with any specification agreed in writing by Origin with the Buyer.
9.2 Origin shall not be liable for a breach of the warranty in condition 9.1 unless:
9.2.1 the Buyer gives written notice of any defect to Origin within three Business Days of delivery of the Goods; and
9.2.2 Origin is given a reasonable opportunity of examining the Goods and the Buyer (if asked to do so by Origin) returns the Goods to Origin’s place of business at the Buyer’s expense for the examination to take place there.
9.3 Origin shall not be liable for a breach of the warranty in condition 9.1 if:
9.3.1 the Buyer makes any further use of the Goods after giving notice of any defect; or
9.3.2 the defect arises because the Buyer failed to follow Origin’s instructions as to the storage, use or maintenance of the Goods or (if there are none) good trade practice; or
9.3.3 the defect arises as a result of Origin following any drawing, design or specification given by the Buyer; or
9.3.4 the Buyer alters or repairs the Goods or attempts to rectify the Services without the written consent of Origin; or
9.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal working conditions; or
9.3.6 the Goods or Services differ from their description and/or any applicable specification as a result of changes made as referred to in condition 3.5 above.
9.4 Subject to conditions 9.2 and 9.3, if any of the Goods and/or Services do not conform with the warranty in condition 9.1 Origin shall, at its option, repair or replace such Goods (or the defective part) or rectify such Services, or refund the price of such Goods and/or Services at the pro rata Contract rate, and in each case shall have no further liability for breach of the warranty in condition 9.1.
9.5 The Conditions shall apply to any repaired or replacement Goods supplied by Origin and/or any Services re-performed or rectified by Origin.
10. Limitation of Liability
10.1 Subject to the Conditions, the following provisions set out the entire financial liability of Origin (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
10.1.1 any breach of the Contract;
10.1.2 use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
10.1.3 any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
10.3 Nothing in the Conditions excludes or limits the liability of Origin for:
10.3.1 death or personal injury caused by Origin’s negligence or the negligence of Origin’s employees, agents or subcontractors;
10.3.2 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;
10.3.3 fraud or fraudulent misrepresentation; or
10.3.4 any other matter in which it would be unlawful for Origin to exclude or attempt to exclude its liability.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 10.4
10.4 Subject to condition 10.3:
10.4.1 Origin shall not be liable to the Buyer for any:
a) pure economic loss;
b) loss of profits;
c) loss of or damage to goodwill;
d) loss of sales or business;
e) loss of agreements or contracts;
f) loss of revenue;
g) production downtime;
h) loss of anticipated savings;
i) loss of use or corruption of software, data or information; or
j) any type of indirect or consequential or inconsequential loss or damage, costs, expenses or other claims for consequential compensation,
in each case whatsoever (howsoever caused) which arise out of or in connection with the Contract, including but not limited to any claim under contract or under tort (including negligence) or breach of statutory duty; and
10.4.2 in any event, Origin’s total liability to the Buyer for any claim arising under or in connection with the Contract, whether arising in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, shall in all circumstances be limited to the price of the Goods and/or the Services the subject of a valid claim.
10.5 This condition 10 shall survive the termination of the Contract.
11. Designs and Tooling
Unless otherwise agreed in writing by Origin, all intellectual property rights arising out of or in connection with the Services (including, but not limited to, all designs and tooling created by Origin or by any third party for Origin and all copyright, design rights and other intellectual property rights in such designs and tooling) shall belong to and remain with Origin.
12. Force Majeure
Origin reserves the right to defer the date of delivery of the Goods and/or performance of the Services or to terminate the Contract or to reduce the volume of the Goods and/or scope of Services ordered by the Buyer (without liability to the Buyer) if Origin is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Origin including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, acts of terrorism, protests, fire, explosion, flood, epidemic, pandemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials (in each case, a “Force Majeure Event”).
13. General
13.1 The Buyer shall not assign, transfer, mortgage, charge, sub-contract or deal in any other manner with any of its rights or obligations under the Contract or any part of it without the prior written consent of Origin.
13.2 Origin shall be entitled to assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all of its rights and obligations under the Contract or any part of it to any person, firm or company.
13.3 Subject to conditions 13.1 and 13.2, nothing in the Contract confers or purports to confer on any third party any benefit or any right to enforce any of the terms of the Contract.
13.4 The Buyer shall not use Origin’s name, logo or other intellectual property rights in advertising or publicity without Origin’s prior written consent.
13.5 Each party shall keep the terms of the Contract and any information of a confidential nature which the other party discloses to it or which it otherwise obtains in connection with the Contract, confidential (whether or not such information is expressly stated to be confidential) and will not use any such information for any purpose other than the performance of its obligations and the exercise of its rights under the Contract.
13.6 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidability, unenforceability or unreasonableness be deemed severable and deleted, and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.7 Failure or delay by Origin in exercising, or a single or partial exercising by Origin of, any right or remedy will not be construed as a waiver of that right or remedy nor shall it prevent or restrict the further exercise of that or any other right or remedy.
13.8 Any waiver by Origin of any breach of, or any default under, any provision of the Contract by the Buyer will only be effective if given in writing and shall not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
13.9 Any notice required or permitted to be given by either party to the other under the Conditions shall be in writing addressed to that other party at its 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 notice.
13.10 Each party acknowledges that in entering into the Contract it does not rely on any statement, promise, 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 or negligent misstatement based on any statement in the Contract.
13.11 The Contract constitutes the entire agreement between the parties in respect of its subject matter and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and undertakings between the parties, whether written or oral, relating to its subject matter.
13.12 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts, save that nothing in this condition 13.12 shall limit the right of Origin to bring proceedings in any other court of competent jurisdiction.