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
“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 these 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
“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 or Origin Healthcare Services Ltd of Melton House, Jackson Way, Melton, North Ferriby, HU14 3HJ.
“Services” any services, including but not limited to printing, spraying or etching, to be supplied to the Buyer by Origin as set out in the Order.
2. Application of Conditions
2.1 These Conditions shall govern the Contract to the exclusion of any terms or conditions which the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
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 The 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 these 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 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.
2.6 Any quotation given by Origin shall not constitute an offer, and is only valid for a period of 90 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.
3.1 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 or 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.
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 the Goods for any purpose for which the Buyer intends to use the Goods.
3.5 Origin reserves the right to amend the specification for the Goods and/or Services if required by any applicable statutory or regulatory requirements, and Origin shall notify the Buyer in any such event.
3.6 The Buyer acknowledges that Origin is not the manufacturer of the Goods and that Origin will source the Goods from third party suppliers. Where the Services to be performed by Origin comprises printing, spraying or any other treatment in relation to the Goods, Origin agrees to use all reasonable endeavours to ensure that the surface of the Goods is suitable for such printing, spraying or treatment, 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.
3.7 Where the Services to be performed by Origin include printing, spraying or other treatment in relation to the Goods, the Buyer agrees that the quantity of the Goods to be delivered by Origin may be up to 5% less than the quantity ordered, to allow for wastage during the performance of the relevant Service. Where Origin is performing more than one Service in relation to the Goods, the Buyer agrees that the quantity of the Goods to be delivered by Origin may be further reduced by up to 5% each time a Service is performed in relation to the Goods, to allow for wastage during the performance of each such Service.
4.1 Unless otherwise stated, Origin shall deliver or arrange delivery of the Goods to the Buyer’s normal place of business as specified in the Order or such other place agreed in writing with the Buyer (“Delivery Location”). Delivery of the Goods shall be completed on the arrival of the Goods at the Delivery Location.
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 made of the essence by notice. If no date has been so specified, delivery of the Goods and/or performance of the Services will be within a reasonable time. Origin shall not be liable for any delay 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.
4.3 Subject to the other provisions of these Conditions, Origin shall not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods and/or performance of the Services nor will any delay entitle the Buyer to terminate or rescind the Contract.
4.4 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or Origin is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations, risk in the Goods will pass to the Buyer and Origin may store them until actual delivery and the Buyer will be liable for all related costs and expenses (including without limitation 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 delivery 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.
4.5 Origin 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 instalment shall not entitle the Buyer to cancel any other instalment.
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 working 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 working 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.
6.1 Unless otherwise agreed in writing by Origin the price for the Goods and/or the 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/or the Services shall be exclusive of any value added tax and all costs and charges in relation to loading, unloading, carriage and insurance of the Goods which the Buyer shall pay in addition.
6.3 Origin reserves the right to increase the price of the Goods, by giving notice to the Buyer at any time before delivery, to reflect any increase in the cost of the Goods to Origin that is due to;
6.3.1 any factor beyond the control of Origin (including foreign 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 or types of Goods ordered; or
6.3.3 any delay caused by any instructions of the Buyer in respect of the Goods or failure of the Buyer to give Origin adequate or accurate information or instructions in respect of the Goods.
7.1 Subject to condition 7.2, and unless otherwise notified in writing by Origin to the Buyer, payment of the price for the Goods and/or the Services and any other charges and sums due under the Contract is due in pounds sterling within 30 days from 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. All sums payable to Origin under the Contract shall become due immediately upon termination of the Contract despite any other provision.
7.2 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).
7.3 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:
7.3.1 suspend performance of Origin’s obligations under the Contract or under any other contract between Origin and the Buyer; and/or
7.3.2 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
7.3.3 recover from the Buyer such legal costs as are incurred by Origin in the recovery of sums due and owing to Origin.
7.4 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.
8.1 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 Origin receives payment in full (in cash or cleared funds) for:
a) all sums payable in respect of the Goods 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, or
8.2.2 the Buyer resells the Goods, in which case title 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 or 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 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 it becomes subject to any of the events listed in condition 8.5; and
8.3.5 give Origin such information relating to the Goods as Origin may require from time to time.
8.4 Subject to condition 8.5, the Buyer may resell the Goods before ownership has passed to it in the ordinary course of the Buyer’s business (but not otherwise). 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 The Buyer’s right to possession 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
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, or fails to observe or perform any of its obligations under the Contract or any other contract between Origin and the Buyer, or is unable to pay its debts, or the Buyer suspends or ceases to carry on all or a substantial part of its business.
8.6 Origin shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Origin.
8.7 Origin may at any time 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 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.
9.1 Origin warrants (subject to the other provisions of these Conditions) that:
9.1.1 upon delivery the Goods will conform with the manufacturer’s specification for the Goods, subject to any qualification contained in the specification.; and
9.1.2 the Services will be performed with reasonable care and skill and upon completion will comply 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 working days of delivery of the Goods or completion of performance by Origin of the Services; and
9.2.2 Origin is given a reasonable opportunity of examining the Goods and/or alleged defective Services 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, willful damage, negligence or abnormal working conditions; or
9.3.6 the Goods or Services differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
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 shall have no further liability for breach of the warranty in condition 9.1.
9.5 These 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 these 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 these 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 which it would be illegal 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 off 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; or
i) indirect of consequential loss,
whatsoever (howsoever caused) which arise out of any act or omission of Origin under or in connection with the Contract, including but not limited to any claim under contract or under tort (including negligence and breach of statutory duty); and
10.4.2 in any event, Origin’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price of the Goods and/or the Services the subject of a valid claim.
11. Designs and Tooling
Unless otherwise agreed in writing by Origin, all intellectual property rights arising our 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 Service or to cancel 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, fire, explosion, flood, epidemic, 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”).
13.1 The Buyer shall not assign, transfer, 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, subcontract or deal in any other manner with any 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 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 the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.6 Failure or delay by Origin in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
13.7 Any waiver by Origin of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
13.8 Any notice required or permitted to be given by either party to the other under these 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.
13.9 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 13.9 shall limit the right of Origin to bring proceedings in any other court of competent jurisdiction.