Terms and Conditions
1.1 In this agreement, “us/we” means the officers, employees and/or agents of PRAg Limited and/or such of its subsidiary undertakings, parent undertakings and any subsidiary undertakings of such parent undertakings all as defined in section 1159 of the Companies Act 2006 registered in England and Wales. “You” means the customer named in the sale documents, and where relevant your officers, employees and/or agents and any company within your group. “Our” and “your” shall be construed accordingly.
1.2 These terms and conditions as amended by us and notified to you from time to time form the basis of your agreement with us “agreement” or “contract” and will prevail in the event of inconsistency with any other terms and conditions.
1.3 Our agreement with you is formed when we accept expressly or impliedly and verbally or in writing your order, howsoever placed, for goods and /or services “goods”. We may indicate this by issuing an acknowledgement, performing a service, effecting delivery in the manner requested or otherwise agreeing your requirements or making arrangements for delivery or collection.
1.4 Nothing shall prevent us from declining to accept or process any order without attributing reason and we accept no liability for any claims, loss of profits, depletion of goodwill or damage whether direct, consequential or anticipated suffered as a result.
1.5 In this agreement, “sale documents” means any acknowledgments, letters, invoices and/or other documents relating to your order that have not been superseded by replacement terms.
1.6 Where the word “includes, “including” or “in particular” is used in this agreement, it is deemed to have the words “without limitation” following it. Where the context permits, the words “other” and “otherwise” are illustrative and shall not limit the sense of the words preceding them.
1.7 References to sections are to the sections and subsections of this agreement.
1.8 Any obligation in this agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
2. DESCRIPTION OF GOODS
2.1 The quantity and description of the goods is as set out in the sale documents or otherwise agreed between us and you before delivery.
2.2 Each line of goods listed for dispatch in your order or agreed verbally with us shall represent a separate contract, which shall be satisfied by delivery of the goods to the agreed delivery point or collection point during the delivery period, as defined in section 6.2.
3.1 Our obligation to deliver the goods under this agreement will be fulfilled by delivery of between 5% more the “upper tolerance” and 5% less the “lower tolerance” together the “tolerance” than the quantity of the goods specified in this agreement. Where the word “about” is used in any sale document, it shall be deemed to be a reference to the tolerance, and in any case the tolerance shall apply even if that word is absent.
3.2 You must pay the price by quantity agreed for the goods actually delivered, save that if we deliver goods in excess of the upper tolerance, you have the right to reject the excess, which you shall be deemed to have waived if a notice of rejection is not received by us within 7 days of delivery.
3.3 Subject to the provisions of section 12, where an order is purported to have been fully delivered but is of an amount less that the lower tolerance, we will, where practicable and on receipt of notice accompanied by documentary evidence from you of such shortfall within 7 days of delivery, schedule a further delivery to bring the total goods delivered within the tolerance.
4.1 Save as set out in section 4.2, we accept no liability to you or any third party to recycle or recover the containers or stillages “packaging” in which goods are delivered.
4.2 We may, upon request, where practicable, and on receipt of such security deposit as we consider appropriate from time to time, supply you with re-usable packaging, in which event you may:
4.2.1 keep the packaging for your own use, forfeiting any deposit paid; or
4.2.2 return the packaging to us in satisfactory condition at your expense for:
220.127.116.11 a refund of your deposit; or
18.104.22.168 re-use at no extra charge with your next order.
5.1 The price is the price set out in any sale documents or otherwise agreed between us and you, as amended by us from time to time in accordance with this section 5 or section 6.5 “price”. The price is exclusive of VAT, other taxes, duties, levies or any other payments whatsoever and howsoever imposed upon the goods “charges”, all of which we may pass on to you at the rate prevailing on the date of our invoice. In particular, we reserve the right to apply a credit charge to each invoice, which may at our discretion be deducted for prompt payment. Any reference in these terms to the price shall, where applicable, be deemed to include the charges.
5.2 If a force majeure event occurs, you agree that we shall be entitled at our discretion and without notice to increase the price to cover any charges or increases in the costs we pay to have the goods produced and delivered to you by reason of such force majeure event occurring. We reserve the right to invoice you at the price ruling on the date of actual delivery or collection.
6. DELIVERY AND COLLECTION
6.1 In this agreement, “delivery” of goods shall where appropriate include collection of the goods and performance of the services and “delivered” shall be construed accordingly.
6.2 Subject to section 12, we shall deliver the goods or to have them available for collection from such dockyard, stores or other premises “delivery point” or “collection point” on such dates as we may advise, during the hours of 0800 to 1600 Monday to Friday excluding bank holidays or at such other times subject to surcharge as we may agree “delivery period”.
6.3 Delivery shall be deemed to take place when the goods are unloaded at the delivery point or, if collected, by you or on your behalf, immediately before loading at the collection point.
6.4 Where goods are to be collected, we may at our option and at your risk provide such plant, power or labour excluding specialist lifting equipment as is required for loading or uploading the goods and/or provide assistance with the loading of goods onto the collection vehicle.
6.5 If you fail to collect all or any of the goods or take delivery of the goods when offered within the delivery period and otherwise fail to make reasonable attempts to arrange a new delivery period with us within a reasonable period of time, then without prejudice to any other right or remedy available to us, we may without accepting any obligation to do so:
6.5.1 charge you for any additional costs including insurance of demurrage, haulage and storage until actual delivery;
6.5.2 invoice you for the price of the goods;
6.5.3 deliver the goods on the terms and conditions and at the price prevailing at the time of actual delivery, which may be different from those prevailing at the time of your order;
6.5.4 sell the goods to another customer at the best readily obtainable price, charge you a cancellation fee and after deducting all reasonable costs of sale and /or storage retain any excess over the agreed price and charge you any shortfall below that price; and/or
6.5.5 deliver substitute goods to you from a different cargo, batch or brand and charge you the price per quantity prevailing at our option at the time that those goods were ordered or at the price prevailing on delivery.
7. YOUR SAFETY OBLIGATIONS
Upon placing an order with us and at all times thereafter, you warrant that you have made all necessary arrangements for the safe carriage, handling and storage of the goods which may include regulated materials or substances in accordance with all applicable laws and industry codes of practice from time to time and that you are not the subject of any enforcement, prohibition stop, remediation, improvement or any other notice from the Environment Agency, Health and Safety Executive, Local Authority or any other enforcement authority, with regard to any breach or alleged breach of any such laws.
8. OWNERSHIP & RISK
8.1 Risk of loss or damage to the goods shall pass to you on delivery and where you fail to take delivery of or collect the goods during the delivery period, risk shall pass to you on expiry of the delivery period except where goods are delivered for collection from ship, risk shall pass when the goods are unloaded from the ship and the international commercial INCO terms for cost, insurance and freight CIF shall apply to this agreement.
8.2 Title to the goods shall remain with us until you have paid for all the goods in full together with VAT and any other sums due in respect of them.
8.3 Following delivery and until title to the goods has passed to you, you shall:
8.3.1 make all necessary arrangements for the safe handling and storage of the goods which may included regulated harmful substances in accordance with section 7; and
8.3.2 keep any unused goods in satisfactory condition and fully insured against all risks and, wherever reasonably possible at no cost to us, store such goods separately from all other goods in your possession whether belonging to you or to a third party and label them or mark them in such a way that they remain readily identifiable as our property.
8.4 Where your right to possession of the goods has terminated in accordance with section 9.7, you grant us an irrevocable licence which shall not be affected by the appointment of a liquidator, receiver, administrative receiver, administrator, or manager to enter premises on which the goods are stored at any time on reasonable notice to recover them without notice.
8.5.1 Where you have not paid for the goods within any agreed credit period and they become mixed with other like goods, you agree that we may at our option and without prejudice to our right to demand or sue for payment recover an equal quantity of like goods held by you.
9. PAYMENT TERMS
9.1 We will invoice for the goods on or before delivery. Unless we agree alternative payment or credit terms with you in writing, you must pay for the goods at the agreed price on or before the date specified in the invoice or, where no date is specified, within 14 days of delivery the “due date”.
9.2 Payment must be made by cheque, direct debit or electronic funds transfer to such bank accounts as we may notify to you from time to time.
9.3 Where we incur bank charges due to there being insufficient funds in your account to honour a payment, howsoever made, these charges will be invoiced separately or incorporated into the next invoice we issue. We reserve the right to charge a small administration fee for this.
9.4 If payment has not been made by the due date, we shall charge you interest calculated and compounded on a daily basis on such portion of the price and any other monies that remain due at an annual rate of 4% above the base rate of Lloyds Banking Group Plc from time to time in force, from the due date until the date that we receive payment from you.
9.5 You shall not be entitled by reason of any set-off, counter-claim, abatement, or other similar deduction other than to the extent permitted by statute and common laws of England and Wales to withhold payment of any amount due to us.
9.6 Notwithstanding any previous arrangement to the contrary, you must immediately return in a condition acceptable to us or pay for any goods that have been delivered and pay for any others held in transit to your order where:
9.6.1 you announce that you ceasing to trade other than for legitimate reasons e.g. retirement;
9.6.2 you suspend or announce an intention to suspend payment to us or a third party;
9.6.3 you notify any of your creditors that you are unable to meet your debts as they fall due;
9.6.4 you call or convene a creditors’ meeting, become insolvent or bankrupt, or pass a resolution and/or apply to the court for winding up; and/or
9.6.5 you being a company appoint or have appointed any type of receiver, liquidator, administrator or manager, or make or enter into any composition or arrangement with creditors other than for the purpose of reconstruction or amalgamation; and/or
9.6.6 you seek to encumber or in any way charge any of the goods.
9.7 If you fail to comply with section 9.6, your right to possess the goods shall terminate and, notwithstanding your other obligations to us, we may enter your premises and recover the unpaid for goods in accordance with sections 8.4 and 8.5.
9.8 Without prejudice to other rights and remedies available to us, we may cancel or suspend deliveries under any contract between us and you where payment under this or any other contract is overdue or where an agreed credit limit has been exceeded “outstanding payment” until all such outstanding payments have been received.
9.9 We reserve a lien upon and the right to sell or dispose of any goods under any contract between us and you whether appropriated to it or not in satisfaction of any outstanding payments, and where the condition of the goods to be sold falls below the standard acceptable to us, we may sell such quantity of goods as required to repay the outstanding payments.
10. LIMITATION OF LIABILITY YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS SECTION
10.1 Unless specifically agreed by us to suit you needs, goods are not sold as fit for any particular purpose and all warranties, conditions and representations in relation to the goods, whether express or implied by statute, common law or otherwise, are excluded to the fullest extent permitted by UK and EEC legislation and regulations.
10.2 The goods supplied under this agreement may consist of regulated chemicals and other materials or substances that are dangerous or hazardous. It shall be your responsibility to observe any instructions for use supplied with the goods and you are advised to read section 8 ownership and risk and ensure that you are able to comply before delivery of the goods.
10.3 The goods may be affected by factors beyond our control, including force majeure events, storage, handling, use or , where appropriate, the manufacture and/or mixing of the goods supplied. Except to the extent caused solely by our negligence or wilful default, we accept no liability for any loss or damage whether direct, consequential or anticipated caused to or by the goods, howsoever arising, or for any difference in ingredients or the proportion of ingredients between the goods supplied and those advertised.
10.4 Subject always to section 10.3, where you have ordered another manufacturer’s branded goods, we accept no greater liability that that which is accepted by the manufacturer itself.
10.5 Occasionally, we may offer you advice about our products and services. You agree that such advice is given in good faith and without any liability on our part.
10.6 Subject to section 10.7, our total liability in contract and in tort including for negligence, breach of statutory duty or wilful default arising in connection with this agreement shall at all times be limited to the price payable under this agreement.
10.7 Nothing in this agreement shall operate to exclude or limit our liability for death or personal injury caused by our negligence, fraud or for any other liability which cannot be excluded or limited under the laws applicable to this agreement.
11.1 All claims based upon defects of quantity, quality or condition that ought to be apparent upon reasonable examination of the goods on delivery must be notified to us immediately by telephone, fax or email and written confirmation with documentary evidence of all such claims must be sent for receipt by us within 7 days of the actual date of delivery or collection.
11.2 All claims other than those in section 11.1 must be made in writing and sent for receipt by us within 28 days of the actual date of delivery or collection.
11.3 Time shall be of the essence in the making of all claims.
11.4 We reserve the right to off-set or reduce any amount you owe us under this or any other contract against any claim you may have against us under this or any other contract.
12. FORCE MAJEURE
12.1 We shall have no liability to you for any failure or delay in performing our obligations under this agreement attributable to any act, event, omission or accident beyond our reasonable control Force Majeure Event, including: act of God; war, terrorism, riot or civil unrest; malicious damage; compliance with any local or international law, order or direction; fire; unfavourable weather; strikes, lockouts and workforce disputes; default of suppliers or sub-contractors; failure of a utility service; failure of computers, plant or machinery; breakdown of transport including sinking of ship; or lack of availability or economic viability of any materials, supplies or fuel required for or in connection with the manufacture or delivery of the product.
12.2 Where a force majeure event lasts for more that 28 consecutive days from the end of the delivery period or subject to section 12.3 beyond expiry of the notice referred to in this section
12.2.1 we may at out option further extend the delivery period by up to 14 days “extension” or cancel the contract or any unfulfilled part thereof, by giving you written notice to that effect.
12.3 Where delivery remains delayed on expiry of any extension, you may cancel the contract or any unfulfilled part thereof that is not already in transit by giving us written notice to that effect.
12.4 Where the contract or any unfulfilled part thereof is cancelled in accordance with section 12.2 or 12.3 above, we will confirm this to you as soon as possible and refund any monies that you have already paid us in respect thereof. You shall not be entitled to compensation.
12.5 Nothing in this condition shall relieve you of your obligation o pay for goods and /or services that have been delivered in full or in part.
If any section of this agreement is held to be unenforceable, it shall be deemed to be severed from and not affect nor impair the enforceability of any other section of this agreement and, we and you shall use all reasonable endeavours to replace it with an enforceable substitute provision that gives effect in so far as possible to the meaning behind the severed provision.
14. RIGHTS OF THIRD PARTIES
Any person who is not a party to this agreement shall not have any rights under or in connection with it by virtue of the Contracts Rights of Third Parties Act 1999.
15. GOVERNING LAW & ARBITRATION
This agreement shall be governed by and construed in accordance with English Law. Any dispute or difference arising out of or in connection with this agreement shall be finally resolved by an arbitrator under the London Court of International Arbitration LCIA rules in force at the time. In default of your and our agreement, the LCIA shall appoint an arbitrator, the seat of the arbitration shall be London and the language of the arbitration shall be English.
Your mobile number may be kept on record and used to contact or send Marketing material. Calls may also be recorded for training purposes and kept as a record to be used in the future if necessary.