TERMS AND CONDITIONS OF SALE
The conditions below (the “Conditions”) set out the only terms on which AM Packaging Limited, trading as AMP Automation (“AMP”) is prepared to sell certain goods and/or services (the “Goods” and/or “Services” respectively) as described in the quotation or acknowledgement of order issued by AMP or as may be agreed by AMP with the person, firm or company that has requested them (the “Buyer”). In these Conditions: “Contract” means any contract for the sale of Goods and/or Services; “Order” means an order placed by the Buyer for Goods and/or Services; and “IPR” means any intellectual property rights of any nature including without limit inventions, patents, utility models, design rights, copyright, know how, trade secrets, confidential information, trade marks, service marks, trade names and goodwill.
- Formation of Contracts and Orders
- All quotations and offers for the Goods and/or Services are made and Orders are accepted subject to and shall be deemed to incorporate the Conditions and they shall apply to all Contracts to the exclusion of any other terms and conditions including without limit those which the Buyer purports to apply under any Order. Any quotation issued by AMP will be valid for a period of 6 weeks from its date provided that AMP has not previously withdrawn it, or unless stated otherwise on the quotation. Variations to the terms of any Contract will only be effective if agreed in writing and signed by a duly authorised officer of AMP.
- All Orders shall be deemed to be an offer and shall only be deemed accepted by AMP upon, and no Contract will come into existence until, the earlier of the issue of a written acknowledgement of order by AMP or delivery of the Goods or performance of any Services.
- AMP may modify the specification of Goods or Services without notice provided that such modification does not materially affect the performance of the Services or the Goods. The Contract is not a contract for sale of goods by description. All descriptive matter, specifications and advertising issued by AMP is solely aimed at giving an approximate idea of the Goods and/or Services described in them, they will not form part of the Contract.
- Any Order accepted by AMP may only be cancelled or varied by the Buyer with the prior written consent of AMP and on terms that the Buyer shall indemnify AMP in full against all losses (including loss of profit), costs, damages, charges and expenses incurred (directly or indirectly) by AMP as a result of such cancellation or variation.
- Delivery and Non-Delivery
- Delivery times/dates named/accepted by AMP are given in good faith but are an estimate only. Time of delivery of Goods or provision of Services is not of the essence. Subject to Condition 9.a), AMP shall not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by failure (for any reason) to meet the delivery time/date stated/agreed (even if caused by AMP’s own negligence), further, the Buyer shall have no right to cancel the Contract in the event of such a failure.
- Services will be provided and Goods delivered ex-works (as defined in Incoterms 2020) the premises of AMP or as stated in AMP’s quotation or acknowledgement of order or if one is not issued as agreed by AMP. Delivery shall be deemed to take place when AMP notifies the Buyer that the Goods are ready for collection and unless otherwise agreed in writing by AMP. It is a condition of the Contract that the Buyer will collect the Goods within 7 days of such notice. Section 32(3) of the Sales of Goods Act 1979 shall not apply.
- If AMP agrees to arrange for carriage and/or insurance of the Goods then the Buyer shall indemnify AMP against all costs and/or expenses that AMP incurs in arranging for carriage and insurance of the Goods (including without limit, export and/or import duties and costs of packaging, loading and/or unloading), such costs and/or expenses to be paid by the Buyer when it is due to pay for the Goods.
- AMP may deliver Goods in instalments and perform Services in sections in any sequence. Deliveries of further instalments and performance of further sections may be withheld until the Goods and/or Services comprised in earlier instalments and/or sections have been paid for in full. Default by AMP, howsoever caused, in respect of one or more instalments and/or sections shall not entitle the Buyer to terminate the relevant Contract as a whole.
- If: the Buyer fails or refuses to accept delivery of any Goods when they are ready for delivery in accordance with the relevant Order; or AMP agrees (at it’s sole discretion) to postpone delivery of the Goods at the request of the Buyer; or the Buyer fails to provide any instructions, consents or authorisations required to enable the Goods to be delivered on the due date; then risk (but not title) in the Goods shall pass to the Buyer, delivery of the Goods shall be deemed to have taken place, AMP shall be entitled to increase the price to cover any resulting increased costs and AMP may store or arrange for storage of such Goods and charge the Buyer for all related costs and expenses (including storage and insurance) and may sell such Goods after 28 days after such failure or refusal and deduct any monies payable to AMP by the Buyer from the sale proceeds and account to the Buyer for any excess or charge the Buyer for any shortfall below the Contract price.
- Upon delivery to the Buyer, all Goods should be examined. AMP shall not be liable for any shortages in, or non-delivery of, Goods unless the same is notified by the Buyer to AMP (together with all specific details) in writing within 30 days of the actual or anticipated date of delivery (as relevant). Subject to such notice being provided AMP shall, if it is satisfied that any Goods have not been delivered and the cause thereof being beyond the reasonable control of AMP, at its sole discretion, either arrange for delivery as soon as reasonably possible or give credit to the Buyer for such Goods.
- Installation on Site
Where AMP agrees to provide installation services (which shall be at an additional cost) then the Buyer shall at its own expense:
- provide access to, clear and prepare the site (including proper foundations), unload the Goods and move the Goods to the place where they are to be installed and provide adequate electricity and such other utilities, services and facilities as are necessary to enable AMP to carry out such installation and/or work expeditiously and without interruption;
- provide AMP’s engineers with good quality accommodation, reasonable subsistence, all necessary transport costs and free access to telephone and e-mail facilities;
- obtain any and all necessary licences, permits and approvals as are necessary for the installation or work as required.
- Force Majeure
In the event that AMP is prevented or delayed in or from carrying out its obligations under the Contract as a result of any cause beyond its control such as but not limited to: acts of God; governmental intervention or restriction, import or export regulations; war; riots; strikes or trade disputes (including by and with AMP’s own employees); power failure; inadequate performance of, failure of or incorrect processing by computer systems; fire; flood; default of suppliers or sub-contractors, or breakdown of plant, machinery or vehicles then AMP shall be relieved of its obligations and liabilities under the Contract for as long as such fulfilment is prevented.
- Risk of damage to or loss of the Goods shall pass to the Buyer upon delivery or at the notified time for delivery if the Buyer fails for whatever reason to take delivery of the Goods at the notified time.
- Title to the Goods (both legal and equitable) shall remain with AMP until full payment with cleared funds of all monies due from the Buyer to AMP under all contracts between AMP and the Buyer has been made, or title is properly vested in some other person by the operation of any statute.
- Until title to the Goods passes, the Buyer shall hold the Goods on a fiduciary basis as AMP’s bailee and must store the Goods (at no cost to AMP) such that they are easily identifiable as the property of AMP and must not destroy or deface any identifying marks on the Goods or their packaging; and must keep the Goods insured on AMP’s behalf for the full price of the Goods against “all risks” to the reasonable satisfaction of AMP and produce the policy of insurance to AMP upon request and must hold all proceeds of such insurance on trust for AMP and shall not mingle them with any other money nor pay the proceeds into an overdrawn bank account.
- Until title to the Goods passes, the Buyer shall still be entitled to re-sell, use or otherwise dispose of the Goods in the ordinary course of its business provided that the Buyer shall ensure that the entire proceeds arising by virtue of any such sale, use or disposal shall be at least equivalent to the purchase price of those goods and shall be held in trust for AMP and shall not be mixed with any other monies or paid into any other overdrawn bank account and shall at all times be identifiable as monies belonging to AMP.
- If payment becomes overdue, AMP may while the owner of the Goods (without prejudice to its other rights) demand the immediate return of the Goods at any time and the Buyer must comply with (and bear the cost of) such demand immediately. If the Buyer fails to return such Goods, AMP or its successors in title, and their respective employees and agents, may enter the Buyer’s premises (with or without vehicles) during normal business hours to remove the Goods (the cost of which shall be borne by the Buyer) and/or may sell or otherwise deal with the Goods.
- If the Buyer sends and goods to AMP for refurbishment or repair, AMP shall have a general and particular lien over the goods until all claims and money payable by the Buyer to AMP on any account whatsoever has been received in full. If the Buyer fails to satisfy any lien within a reasonable time from the date of notice of exercise then the Goods may be sold in or towards satisfaction of every such lien and AMP will account to the Buyer for any excess. The Buyer shall be responsible for the insurance of any goods to which he holds title whilst they are at AMP’s premises for refurbishment or repair.
- Prices will be invoiced at the quoted level provided that the quotation is accepted within 6 weeks of its date however AMP reserves the right to increase the price if and to the extent of any new/additional VAT, customs duties, shipping charges or insurance premiums which become payable by AMP in respect of the Goods/Services which are the subject of the quotation and which arise after the issue of the quotation.
- Unless otherwise agreed in writing by AMP prices set out in any of AMP’s price lists, quotations and acknowledgement of order are ex-works (as defined in Incoterms 2020) and exclusive of any value added, purchase or other taxes and any costs of carriage, legislation of shipping documents, certification, bank confirmation or collection, package and insurance and any export or custom duties which shall be payable in addition to the price when the price is due.
- Unless otherwise agreed in writing by AMP the supply of Services by AMP will be charged at AMP’s hourly rate prevailing from time to time together with any additional charges for accommodation, motoring expenses, air and shipping rates.
- Without prejudice to Condition 7.b) and 13, AMP shall be entitled to invoice the Buyer for the Goods or Services at any time after delivery of the Goods and/or performance of the Services provided that if delivery of Goods and/or performance of Services is postponed at the request or by the default of the Buyer then AMP may submit its invoice at any time after the Goods are ready for delivery and/or Services are ready for performance or would have been ready in the ordinary course but for the request or default on the part of the Buyer.
- Unless otherwise agreed in writing the Buyer shall pay the price as follows:
- 50% deposit at the time it places an Order
- 30% ten weeks after placing the order
- 15% before despatch and following successful FAT test at AMP
- 5% after successful commissioning and handover
All payments to be made within 7 days of the due date
- Payment shall only be deemed received by AMP from the Buyer upon receipt by AMP of cleared funds. Payment shall be made in full without any deduction, set off or abatement on any grounds. AMP may appropriate any payment made by the Buyer to any outstanding invoice. AMP may bring an action for the price of the Goods even though the property in them may not have passed to the Buyer.
- Time for payment of the Contract price (including, without limit, any costs or charges payable pursuant to Condition 2.c) shall be of the essence. The Buyer shall indemnify AMP against all expenses and legal costs incurred by AMP in recovering overdue amounts. Interest shall be payable by the Buyer on overdue amounts (before as well as after judgement) at the annual rate of 3 per cent above the base lending rate of the Lloyds Bank Plc from time to time on the outstanding amount until the Contract price and/or such costs and/or charges are paid in full. AMP reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 2013.
- Quality and Tests
- The Buyer is relying on its own skill and judgement in relation to the Goods and Services irrespective of any knowledge of AMP or its servants, agents or employees or as to the purpose for which the Goods and Services are supplied or performed or their suitability and it is the Buyer’s responsibility to ensure that the specification of the Goods and Services ordered are suitable and adequate for their intended purpose.
- The Buyer shall within 21 days of delivery of the Goods operate the Goods in the proper and normal manner for a 7 day period (the “Trial Period”). If any defect in the Goods becomes apparent in the Trial Period then Conditions 8.c) d) and e) shall apply. The Trial Period is solely aimed at testing the quality of the Goods and the Buyer acknowledges and agrees that AMP shall not be liable for any loss in production arising from use of the Goods during the Trial Period.
- Subject to Conditions 8.d) and e) AMP warrants that
- all new Goods shall upon delivery and for a period of 12 months thereafter be of satisfactory quality and be reasonably fit for any purpose for which they are commonly supplied, provided that they are used for a maximum period of 8 hours per day, 5 days per week. Any additional usage over and above this threshold shall reduce the 12 month warranty period on a pro rata basis.;
- all Services shall be carried out with reasonable skill and care.
All conditions, warranties or other terms whether express or implied, statutory or otherwise, inconsistent
with this Condition 8.c), are hereby expressly excluded to the fullest extent permitted by law.
- The warranty given in Condition 8.c) will not apply:
- i) where the defect complained of arises from any drawing, design, specification or IPR supplied by the Buyer or arises from fair wear and tear, wilful damage, the Buyer’s negligence, abnormal working conditions, or misuse or alteration or repair of the Goods without AMP’s approval or arises from any failure to follow AMP’s instructions (whether oral or in writing or whether relating without limit to the operation, use or maintenance of the Goods), or misuse or alteration or repair of the Goods without AMP’s approval;
- if AMP or its agents is not given a reasonable opportunity to safely inspect the Goods;
- if the total price for the Goods or Services has not been paid by the due date for payment;
- to any parts, materials or equipment not manufactured by AMP, in respect of which the Buyer shall only be entitled to the benefit of any warranty or guarantee as is given by the manufacturer to AMP.
- The obligations of AMP under the Contract are limited such that in the event of a breach by AMP of the warranties in Condition 8.c) or any defect in any Goods or Services AMP shall only be obliged (and shall have no further liability in contract, negligence or otherwise for any defect in quality of the Goods and/or Services or fitness for purpose of the Goods) at its option either to credit the price (if already paid) attributable to the faulty Goods or Services or repair, rectify or replace the faulty Goods or Services provided that such Goods are returned to AMP in their delivered state at the Buyer’s expense if so requested by AMP within 7 days from the date of their delivery. Where applicable, any replacement Goods will be guaranteed on the terms set out in this Condition 8 for the unexpired portion of the appropriate warranty period.
- Nothing in these Conditions shall exclude or limit the liability of AMP for death or personal injury caused by AMP’s negligence or fraudulent misrepresentation.
- AMP shall not be liable to the Buyer in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof for any, (i) economic loss of any kind whatsoever, (ii) loss of profit, business contracts, revenues or anticipated savings, (iii) damage to the Buyer’s reputation or goodwill, (iv) loss resulting from any claim made by any third party, or (v) special, indirect or consequential loss or damage of any nature whatsoever.
- Without prejudice to Condition 8.e), 9.a) and 9.b) AMP’s liability in contract, tort, (including negligence or breach of statutory duty) or otherwise arising by reason of or in connection with the Contract shall be limited to the greater of the Contract price or the amount received by AMP for the claim under its insurance policy covering such risks provided that nothing in this Condition shall oblige AMP to obtain any insurance or claim upon any insurance which it holds. The Buyer acknowledges that delay in notifying any claim may prevent AMP recovering any money under such policy.
- The Buyer warrants that the use by AMP of any IPRs, designs, specifications, drawings or other materials or information of any nature provided to AMP by the Buyer pursuant to an Order shall not infringe any third party’s IPRs. If any claim is brought or threatened against AMP in respect of such an infringement AMP shall be entitled to suspend carrying out further work to the Buyer, and the Buyer shall indemnify AMP against all actions, claims, costs, demands, expenses and liabilities of whatsoever nature suffered or incurred by AMP as a result of any such claim or threatened claim brought against AMP.
- No action, claim or demand arising out of or in connection with the Contract may be brought by the Buyer against AMP more than 1 year after the cause of action has occurred.
- Intellectual Property Rights and Confidentiality
- The Buyer shall not, under any circumstances acquire any right in or to any of the IPRs subsisting in, resulting from or relating to the Goods or Services, or any designs, technical information, documents, drawings and/or specifications relating thereto unless otherwise expressly agreed by AMP in writing. If the Buyer shall in any way acquire any such rights then the Buyer shall immediately inform AMP and shall forthwith take such steps as may be required by AMP to assign such rights or vest such title in AMP.
- AMP shall have the right to apply any trade marks, trade names and/or service marks to the Goods. The Buyer acknowledges that no rights are granted to the Buyer by the use by the Buyer of such trade marks, trade names and/or service marks. The Buyer shall not deface, remove or obliterate any trade marks, trade names or logos applied by AMP on or in relation to the Goods.
- The Buyer shall keep confidential and not use, without the prior written consent of AMP, all or any information supplied by AMP to the Buyer or disclosed to or obtained by the Buyer pursuant to or as a result of the Contract, and shall not divulge the same to any third party except to the extent that any such information is or becomes public through no fault of the Buyer, or disclosure of the same is required by law or by any other governmental or other regulatory body.
Without prejudice to any of its other rights AMP may immediately terminate the Contract and demand payment of any amount due or accruing to AMP whether under the Contract or otherwise, re-sell the Goods and/or withhold or cancel any deliveries if any of the following occurs or is likely to occur:
- the Buyer is in breach of any of its obligations under the Contract which, if capable of remedy, the Buyer has not remedied within 30 days of receiving written notice from AMP; or
- the Buyer enters into or any steps are taken in preparation for any form of insolvency including without limit liquidation, bankruptcy, receivership, administrative receivership, voluntary arrangement or is unable to pay its debts as they fall due or the Buyer suffers a distress or execution or other legal process to be levied or enforced or sued upon or against any part of its property, assets or revenue which is not discharged or stayed within 7 days or the Buyer ceases or threatens to cease to carry on business.
- The failure to exercise or delay in exercising by AMP of a right or remedy provided by the Contract or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies.
- The Buyer shall not be entitled to assign or sub-contract any of its rights or the obligations under the Contract, without the prior written consent of AMP. AMP may assign, license or sub-contract all or any part of its rights or obligation under the Contract without the Buyer’s consent.
- The Contract shall be construed in accordance with and governed in all aspects by English Law and the Buyer submits to the exclusive jurisdiction of the English Courts.
- Export Sales
Notwithstanding any other Condition, where Goods are sold for export outside the United Kingdom:
- the Uniform Laws on International Sales Act 1967 shall not apply and AMP shall be under no obligation to give notice under Section 32(3) of the Sales of Goods Act 1979;
- Section 26(3) of the Unfair Contract Terms Act 1977 shall apply and notwithstanding Condition 8.a) all liabilities for injury or death arising directly from the use of the Goods are expressly excluded;
- The Buyer shall be responsible for complying with any legislation or regulations governing the export of the Goods from the United Kingdom and governing the importation of the Goods into the country of destination and for the payment of any duties or taxes on them.