Canning Services Standard Terms and Conditions
1.1 Definitions. In these Conditions, the following definitions apply:
A day other than a Saturday, Sunday or public holiday in England when UK clearing banks in the city of London are open for general business.
The canned Liquid produced by the Supplier for the Customer in providing the Services.
The Week during which the Supplier agrees to provide the Services.
The charges payable by the Customer for the supply of the Services in accordance with clause 7.
Has the meaning set out in clause 2.10.
These terms and conditions as amended from time to time in accordance with clause 14.2.
Conditions of Carriage
The terms and condition applicable to the transportation of the Liquid, the Canned Liquid and/ or the Customers packaging materials where a third party haulier is engaged by the Supplier to provide haulage services, as set out in Schedule 1 and as may be amended and updated from time to time.
The contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
The person or firm who purchases the Services from the Supplier.
Any act or omission by the Customer or failure by the Customer to perform any relevant obligation under the Contract including but not limited to the Customer’s obligations under clause 2.13 and clause 4.
The Customer’s Canned Liquid and packaging materials in respect of which the Supplier has agreed to provide the Storage Services.
Has the meaning given in clause 2.15.
The location set out in the Order or as otherwise agreed by the parties.
The deposit payable by the Customer to the Supplier for the Services as detailed on the quotation or as otherwise detailed by the Supplier in writing.
The process carried out by the Supplier following the arrival of the Liquid (with the exception of organic Liquid) at the Supplier’s Premises to measure dissolved oxygen, the PH level of the Liquid, the yeast count (where applicable) and a visual micro activity check.
Intellectual Property Rights
Patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
The labels provided by the Customer to the Supplier to be affixed to cans by the Supplier in carrying out the Services.
The liquid product provided to the Supplier by the Customer and in respect of which the Supplier shall carry out the Services.
Minimum Volume Requirement
1,000 litres of each type of Liquid per Order.
New Account Form
Means the application form to be completed by the Customer and returned to the Supplier before any Order can be placed.
The Customer’s order for the supply of Services, as set out in the Supplier’s Template Order Form as completed by the Customer.
The materials provided by the Supplier to be used to transport the Liquid to the Supplier’s Premises.
Preferred Materials Document
A document prepared by the Supplier providing guidance as to which cans, Pre-printed Cans and materials are suitable for the Services and which will not be accepted by the Supplier, as may be updated from time to time and made available on the Supplier’s website.
Cans to be used in the provision of the Services with the Customer’s label design pre-printed on them.
The services (which may include filtration, carbonating and pasteurisation and the Storage Services), including the provision of the Canned Liquid supplied by the Supplier to the Customer, as set out in the Order.
The description or specification for the Services as detailed in the quotation.
Stock Loss Tolerance
5% of the total volume of the Customer’s Goods stored by the Supplier during a year.
Means the storage of the Customer’s Goods at the Supplier’s warehouse.
UK CAN IT LIMITED (registered in England and Wales with company number 11570037).
Unit 24, Waters Meeting, Britannia Way, The Valley, Bolton, BL2 2HH.
Supplier’s Template Order
The Supplier’s template order form as may be amended from time to time.
The Supplier’s website at https://www.canit.co.uk or as may be updated from time to time.
A consecutive period of seven (7) days, beginning on a Monday.
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not
having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to it as amended or re- enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes email but not fax.
2. ORDER PROCEDURE AND BASIS OF CONTRACT
2.1 Upon receiving an initial request for a quotation for the supply of Services from the Customer, the Supplier shall provide a quotation together with a New Account Form where the Customer has not previously submitted and had a New Account Form approved by the Supplier.
2.2 The Customer shall complete the New Account Form fully and accurately and must return this to the Supplier before placing any Orders.
2.3 The Supplier shall process the New Account Form and may reject it or require re-submission by the Customer if any part is incomplete or inaccurate.
2.4 Once a New Account Form is accepted by the Supplier it shall record the Charges detailed in the quotation provided to the Customer (provided that the quotation is not more than 30 days old, and where it is, the Supplier may amend or update it by notice to the Customer prior to formal acceptance of the New Account Form), which shall apply to any Orders placed by the Customer until such time as the Supplier notifies the Customer in writing of any increase to the Charges. Any new Charges will apply to all Orders placed by the Customer following the date of the notice of the price increase.
2.5 The Customer shall place Orders by completing and submitting in full, the Supplier’s Template Order Form. The Customer warrants that all personnel submitting Orders are duly authorised to bind the Customer.
2.6 The Customer is solely responsible for the completeness and accuracy of the Order and all information and instructions that it gives to the Supplier relating to the Services, and any updates or amendments that the Customer wishes to make to an Order must be accepted by the Supplier in writing in order to be valid. The Customer is liable to the Supplier for any losses, costs, fees expenses or other liability suffered, incurred or agreed to be paid by the Supplier as a result of the Customer providing incomplete or inaccurate information on the Supplier’s Template Order Form or otherwise.
2.7 The Supplier shall review each Order submitted and shall be entitled to reject or require amendments, further details or clarification of each Order at its sole discretion. The Order is only accepted in accordance with clause 2.10.
2.8 The Customer shall provide its Order not less than 6 weeks prior to its preferred Canning Slot but acknowledges that the Supplier cannot guarantee the availability of specific dates.
2.9 The Supplier shall telephone or email the Customer in order to agree a Canning Slot and shall issue an invoice for the Deposit at any time on or following the booking of the Canning Sot.
2.10 The Order shall only be deemed to be accepted by the Supplier when the Supplier books a Canning Slot and the Deposit is paid in full and in cleared funds.
2.11 The Customer acknowledges that its Canning Slot is not booked until the Deposit has been received by the Supplier. The Deposit is non-refundable save as otherwise provided in the Supplier’s quotation.
2.12 The Supplier shall be entitled, without any liability to the Customer whatsoever, to change the Canning Slot at any time up to one week before the start of the booked Canning Slot.
2.13 Unless the Supplier has agreed that the Customer may use its own container and arrange delivery of the Liquid to the Supplier’s Premises, the Supplier shall despatch an Arlington to the Customer’s premises in order to collect the Liquid one week prior to the start of the Canning Slot and the Customer shall ensure:
(a) that the Liquid is ready and suitable personnel are available to transfer the Liquid into the Arlington for return to the Supplier’s Premises on the first day of the Canning Slot; and
(b) that the amount of the Liquid subject to the Order complies with the Supplier’s Minimum Volume Requirement. A failure to do so will incur charges for the Customer as detailed at clause 7.5
2.14 The Supplier shall be entitled, without any liability to the Customer whatsoever, to cancel an Order and/ or terminate the Contract (as applicable) at any time up to 8 (eight) Business Days following the date upon which the Customer submitted the Supplier’s Template Order Form, notwithstanding that the Supplier may have previously accepted the Order. Subject to clause 2.15, any Deposit already paid by the Customer at the point that the Supplier exercises its right to terminate the Contract under this clause will be refunded in full to the Customer as soon as reasonably practicable following termination.
2.15 For the avoidance of doubt, the Supplier reserves the right at its sole discretion to cancel an Order and/ or terminate the Contract (as applicable) (whether or not the Supplier has already begun to provide the Services) if it becomes apparent at any point that the Liquid subject to that Order does not comply with any guidance or instructions issued by the Supplier, or is otherwise not suitable or in such condition so as to enable the Supplier to provide the Services, is defective, unsafe or unusable (Defective Liquid) and the Supplier shall be entitled to:
(a) retain the Deposit on account of the costs incurred by the Supplier in complying with its obligations and fulfilling the Order up to the date of termination and for reserving the Canning Slot;
(b) charge the Customer for any losses, costs, charges, fees, expenses or other liabilities suffered, incurred or agreed to be paid by the Supplier as a result of the Customer providing Defective Liquid (including but not limited to where the Supplier incurs costs due to the Defective Liquid damaging or blocking the filters or other equipment of the Supplier, including the costs of replacing the filters and any production time lost and other liabilities incurred by the Supplier); and
(c) charge the Customer for any additional work undertaken by the Supplier to process the Defective Liquid to ensure that it is within permitted tolerances or otherwise to pass the Healthcheck.
2.16 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.17 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the catalogues, brochures and/or website of the Supplier, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.18 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. SUPPLY OF SERVICES AND CANNED LIQUID
3.1 The Supplier shall use reasonable endeavours to supply the Services and deliver the Canned Liquid to the Customer in accordance with the Contract in all material respects.
3.2 The Supplier shall use reasonable endeavours to provide the Services (with the exception of the Storage Services) during the Canning Slot and, unless the Supplier has expressly agreed that the Customer may collect the Canned Liquid from the Supplier’s Premises, to arrange for delivery of the Canned Liquid to the Delivery Location by the next Business Day following the end of the Canning Slot or on any such other date agreed by the Supplier in writing, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier shall have the right to make any changes to the Services, including by changing any cans provided by the Supplier which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
3.4 Where the Supplier agrees to filter the Liquid as part of the Services (as will be indicated in the Supplier’s Template Order Form), the Customer agrees, acknowledges and accepts that filtration is provided by the Supplier only in 1, 5 or 10 micron and the Supplier does not provide sterile filtration in the normal course.
3.5 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.6 The Supplier shall not be liable for any breach of the warranty set out in clause 3.5 or any breach of its obligations under the Contract in any of the following events:
(a) the breach or defect arises during the loading or unloading of the Customer’s packaging materials, the Liquid and/ or the Canned Liquid by the Customer or its representatives and where the Customer has arranged for the transportation of the Customer’s packaging materials, Liquid and/ or the Canned Liquid, the breach or defect arises during the transportation of the Canned Liquid (including during the loading of the Canned Liquids at the Supplier’s Premises) and the Customer hereby agrees to assume full responsibility for all risk in the Canned Liquids in transit;
(b) the Customer fails to notify the Supplier of any non-delivery, damage to, loss of or mis delivery of the Canned Liquid within the lesser of (I) 2(two) Business Days and (ii) the time limit for claims stipulated by any third party haulier engaged by the Supplier;
(c) the Customer makes any further use of such Canned Liquid (including by continuing to distribute and sell the Canned Liquid) after becoming aware of any defects;
(d) the breach or the defect arises as a result of inappropriate cans selected or provided by the Customer;
(e) the breach or the defect arises because the Customer (or its customers) failed to follow the Supplier’s oral or written instructions as to the transport, storage, use and maintenance of the Canned Liquid or (if there are none) good trade practice regarding the same;
(f) the breach or the defect arises as a result of the Supplier following any Specification supplied by the Customer;
(g) the breach or the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal storage or transport conditions;
(h) the Customer alters such cans and/or the Canned Liquid without the written consent of the Supplier;
(i) the breach or the defect arises as a result of a Customer Default;
(j) the cans and/or the Canned Liquid differs from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
3.7 Except as provided in this clause 3, the Supplier shall have no liability to the Customer in respect of the Canned Liquid’s failure to comply with the warranty in clause 3.5.
3.8 These Conditions shall apply to any replacement Canned Liquid supplied by the Supplier.
4. STORAGE SERVICES
4.1 This clause 4 applies where the Supplier has agreed to provide the Storage Services.
4.2 The Charges for the Storage Services shall be based on pallet space and will be as quoted to the Customer upon request.
4.3 For the avoidance of doubt, the Supplier shall be entitled to invoice for other Services provided (canning, filtration, carbonating and pasteurisation) at the time such Services are fulfilled and the Customer shall be required to pay for such services in accordance with clause 7.7 notwithstanding the fact that the Canned Liquid has not been delivered to the Customer and is being stored by the Supplier.
4.4 In the event of any loss of or damage to the Customer’s Goods whilst in the custody and control of the Supplier as part of the Storage Services;
(a) the Customer shall only be entitled to recover an amount equal to the cost price of the Customer’s Goods as can be evidenced to the reasonable satisfaction of the Supplier; and
(b) the Supplier shall only be liable for loss of or damage to the Customer Goods above the Stock Loss Tolerance for each year.
4.5 The Customer shall notify the Supplier in writing not less than 5 days before it wishes delivery of any of its Customer Goods and shall provide all such information and delivery instructions to enable the Supplier to complete delivery.
4.6 The Customer is responsible for all delivery costs (including transport, packaging and insurance) which shall be invoiced by the Supplier and paid by the Customer in accordance with clause 7.7.
5. OBLIGATIONS OF THE CUSTOMER
5.1 The Customer shall:
(a) ensure that it has provided the Supplier with a sufficient number of the Pre-printed Cans and/ or Labels and any other materials required by the Supplier to provide the Services (including but not limited to any boxes, trays and other packaging materials to be provided by the Customer) not less than two weeks in advance of the Canning Slot to enable the Supplier to carry out the Services. The Supplier may agree that the Pre- printed Cans and/ or Labels and additional materials may be delivered to it at the same time as the Arlington is returned to the Supplier’s Premises in accordance with clause 2.13, however the Customer must notify the Supplier not less than 1 weeks prior to collection of the Arlington if any additional pallets are required for this and agrees that additional costs will be payable. For the avoidance of doubt, the Supplier shall take no responsibility for procuring the Labels and the Customer acknowledges, accepts and agrees that it must make its own arrangements to ensure that the Labels are provided to the Supplier to enable the Supplier to provide the Services;
(b) ensure that it selects or provides to the Supplier the correct specification and size of can as is appropriate for the Liquid being canned and the nature of any Services (including but not limited to hot water pasteurisation) and which correspond with the Supplier’s guidelines provided in the Preferred Materials Document;
(c) ensure that the terms of the Order and any information it provides in the Specification or otherwise to the Supplier in connection with the Services are complete and accurate;
(d) ensure that the Liquid:
(i) is not Defective Liquid and is in a suitable condition to enable the Supplier to provide the Services;
(ii) complies in all respects with any guidance or instructions issued by the Supplier;
(iii) is packaged in the best condition possible in order to aid processing time; and
(iv) complies in all respects with all relevant statutory and regulatory requirements;
(e) be wholly responsible for the selection, quality and fitness for purpose of the Labels (including but not limited to in respect of their adherence to the cans), the Pre-printed Cans and any other materials that it provides to the Supplier and for ensuring that they correspond with the Supplier’s guidelines provided in the Preferred Materials Document;
(f) ensure that the Labels and the design of the Pre-printed Cans comply in in all respects with all relevant statutory and regulatory requirements, and without prejudice to the foregoing, shall ensure that the Labels and the Pre-printed Cans do not contain any material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred or acts of terrorism, menacing, blasphemous or in breach of any third party Intellectual Property Rights;
(g) ensure that the Liquid is delivered to the Supplier’s Premises in accordance with all relevant statutory and regulatory requirements;
(h) co-operate with the Supplier in all matters relating to the Services;
(i) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(j) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start.
5.2 If the performance of the Supplier of any of its obligations under the Contract is prevented or delayed by any Customer Default:
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the performance of the Supplier of any of its obligations; and
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the failure or delay of the Supplier to perform any of its obligations in the Contract.
5.3 The Customer shall be liable to pay to the Supplier, on demand, all costs, fees, expenses, charges or losses sustained or incurred by the Supplier (including any direct, indirect or consequential losses, legal and other professional fees, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Customer’s fraud, negligence, and/ or any Customer Default.
5.4 Without prejudice to the generality of clause 5.3, the Customer acknowledges, agrees and accepts that it is solely responsible for the form, content, legality and quality of the Labels and the design of the Pre-printed Cans and agrees to indemnify the Supplier against all costs, charges or losses sustained or incurred or agreed to be paid by the Supplier (including but not limited to any legal or other professional fees) that arise directly or indirectly from:
(a) the infringement or alleged infringement of a third party’s Intellectual Property Rights by the Labels, the Pre-printed Cans or any content included therein; and
(b) a breach by the Customer of clause 5.1(e)
6.1 The Supplier shall ensure that each delivery of the Canned Liquid is accompanied by a delivery note which shows the date on which the Canned Liquid was canned, all relevant Customer and Supplier reference numbers, the type and quantity of the Canned Liquid (including the code number of the Canned Liquid, where applicable), the batch number, production record number and traceability number.
6.2 The Customer shall identify in its Order whether any excess, unused packaging materials are to be returned to the Customer with the Canned Liquid, destroyed by the Supplier (at the Customer’s cost) or stored by the Supplier in accordance with clause 4.
6.3 Delivery of the Canned Liquid shall be completed on the Canned Liquid’s arrival at the Delivery Location.
6.4 Any dates quoted for delivery are approximate only and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Canned Liquid that is caused by a Force Majeure Event or any Customer Default including the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Services.
6.5 If the Customer fails to take delivery of the Canned Liquid on the date that delivery is attempted by the Supplier (or any haulier appointed by it) or (where the Supplier has agreed in writing that the Customer may collect the Canned Liquid) fails to collect the Canned Liquid within 24 hours of the Supplier notifying the Customer that the Canned Liquid is ready then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract, the Supplier shall store the Canned Liquid until delivery or collection (as appropriate) takes place and shall charge the Customer for all related costs and expenses (including redelivery charges, insurance and all other charges incurred by the Supplier on account of the Customer’s failure to receive the delivery or collect the Canned Liquid, as applicable). Without prejudice to the generality of the foregoing, the Customer shall be required to pay not less than £2 per week per pallet stored by the Supplier, with a minimum charge of one months’ storage fees regardless of the amount of time that the Canned Liquid is actually stored by the Supplier. Such fees shall be payable on demand by the Supplier.
6.6 If the Customer fails to collect or take delivery of the Canned Liquid within 15 Business Days of the end of the Canning Slot or the Supplier notifying the Customer that the Canned Liquid is ready (whichever occurs first), then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract, the Supplier shall be entitled to dispose of the Canned Liquid in any way it sees fit (at the Customer’s cost) without liability to the Customer. The exercise by the Supplier of its rights under this agreement shall not relieve the Customer of its obligation to make payment for the Services.
6.7 The Customer shall be liable to pay all duty and any other taxes that become payable in respect of the Canned Liquid and must provide evidence to the reasonable satisfaction of the Supplier that all duty and taxes haves been paid.
6.8 The Customer shall indemnify the Supplier against all losses, liabilities, costs and expenses (including but not limited to legal and other professional fees) suffered or incurred by the Supplier in connection with any breach by the Customer of clause 6.7 or otherwise in connection with duty payable on the Canned Liquid.
6.9 The Supplier does not collect Liquid from or deliver Canned Liquid to, any locations outside of England and Wales and the Customer shall be responsible for making its own transport arrangements in relation to any other territories.
7. CHARGES AND PAYMENT
7.1 The Charges for the Services are as detailed in clause 2.4 together with any surcharges payable in accordance with clause 7.5.
7.2 The collection of the Liquid from the Customer’s premises to the Supplier’s Premises and the transport of the Canned Liquid from the Supplier’s Premises to the Customer by the Supplier shall be charged in addition and payable in full by the Customer.
7.3 If the Customer requires the Supplier to provide the Packaging Materials, the Supplier shall charge the Customer the cost of the Packaging Materials in addition.
7.4 The Supplier shall notify the Customer of the transport costs and the costs for Packaging Materials (as applicable) as soon as reasonably practicable once transport arrangements have been determined.
7.5 If the Customer fails to order the Minimum Volume Requirement and the Supplier accepts the Order, the Customer agrees to pay a surcharge of £1 per litre where the Order is for less than 950 litres. For illustration only, if the Customer’s Order is for 900 litres, a surcharge of £50 is payable.
7.6 The Supplier shall invoice the Customer for the balance of the Charges (being the difference between the total Charges and the Deposit already paid by the Customer) and any other amounts payable on account of collection and delivery costs and/ or Packaging Materials on or at any time after completion of the Services or earlier if the Contract is cancelled or terminated.
7.7 Unless otherwise agreed in writing, the Customer shall pay each invoice submitted by the Supplier:
(a) within 10 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
7.8 For the avoidance of doubt, unless otherwise agreed in writing, the Supplier shall not be required to release the Canned Liquid to the Customer or deliver the Canned Liquid to the Customer (as applicable) until the Charges, transport costs and the costs for Packaging Materials (where applicable) have been paid by the Customer.
7.9 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
7.10 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay penalties and interest on the overdue amount at the rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount. The Supplier reserves the right to claim all costs (including but not limited to legal and other professional costs and debt collection agency fees, charges and other costs) incurred in recovering the debt.
7.11 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
8. PERMITTED WASTAGE
8.1 The Customer accepts, acknowledges and agrees that due to the nature of the Services and the production process that a volume of the Liquid and a number of the cans, Labels and Pre- printed Cans may become damaged, wasted or otherwise in an unsaleable condition during the provision of the Services (Damaged Materials).
8.2 The initial production run in the provision of the Services for a batch of a particular Liquid may result in Damaged Materials of up to and including 30% of the original volume of Liquid and 30% of the cans, Labels and Pre-printed Cans provided by the Customer (Initial Permitted Tolerance) and the Supplier shall have no liability for any such Damaged Materials up to the Initial Permitted Tolerance. In subsequent production runs of batches of the Liquid in each Order, the Supplier shall not be liable to the Customer if up to and including 10% of the Liquid, and 10% of the cans, Labels and Pre-printed Cans provided by the Customer for use in any Order (Subsequent Permitted Tolerance) become Damaged Materials.
8.3 If any volumes of Liquid or numbers of cans, Labels and Pre-printed Cans in excess of the respective Initial Permitted Tolerance and Subsequent Permitted Tolerance become Damaged Materials due to the manufacturing process or otherwise due to the default of the Supplier, then where those materials have been provided free of charge (or “Free Issued”) to the Supplier, the Supplier will reimburse to the Customer the total cost price (as can be evidenced in writing by the Customer) for the number of Damaged Materials over and above the respective Initial Permitted Tolerance and the Subsequent Permitted Tolerance.
A party (“Receiving Party”) shall keep in strict confidence all technical or commercial know- how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain. The Receiving Party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The Receiving Party may also disclose such of the Disclosing Party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 9 shall survive termination of the Contract.
10. LIMITATION OF LIABILITY
10.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
10.2 The Supplier shall under no circumstances whatever be liable to the Customer for any loss of or damage to or mis-delivery of the Liquid, the Canned Liquid and/or the Customer’s packaging materials whilst in transit where such transportation has been arranged by the Customer.
10.3 Where the Supplier has arranged and contracted for the transportation of the Liquid, the Canned Liquid and/ or the Customer’s packaging materials via a third party haulier then its liability for mis delivery, loss of or damage to the Liquid, the Canned Liquid and/or the Customer’s packaging materials shall be limited to the amount it is able to recover (using reasonable commercial endeavours only) from the relevant haulier under its terms.
10.4 The Customer agrees acknowledges and accepts that:
(a) it shall comply with its relevant obligations as the “Customer” under the haulier’s Conditions of Carriage;
(b) without prejudice to clause 10.4(a) it is responsible for ensuring that it notifies the Supplier of any non-delivery, mis-delivery or damage in transit within the earlier of 2 (two) Business Days and the time limits for bringing a claim against the relevant haulier;
(c) it shall not be entitled to suspend or withhold payment of any sums due to the Supplier by reason of any default by a haulier or whilst the Supplier pursues any claim against the haulier and the Supplier may suspend the pursuance of any claim against the haulier whilst any amounts owing by the Customer remain unpaid;
(d) any amounts recovered from a haulier by the Supplier may be retained by the Supplier and applied against any sums due from the Customer to the Supplier;
(e) it has been provided with a copy of the haulier’s Conditions of Carriage including by provision on the Supplier’s website, and accepts the limit of liability and the amounts that the Supplier may be able to recover from the haulier; and
(f) the limit in clause 10.3 is fair and reasonable.
10.5 Without prejudice to the thresholds detailed in clauses 4.4(a) and clause 8, under no circumstances whatever shall the Supplier be liable for any amount in excess of the cost price of the Liquid, the Canned Liquid and the Customer’s packaging materials where any such items have been lost, damaged mis-delivered or are otherwise unsaleable as a result of the Supplier’s breach of its obligations under the Contract.
10.6 Subject to clause 10.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:
(i) loss of profit;
(ii) loss of goodwill;
(iii) loss of business;
(iv) loss of business opportunity;
(v) loss of anticipated saving;
(vi) loss or corruption of data or information; or
(vii) special, indirect or consequential damage arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 125% of the Charges payable by the Customer under the Order to which the claim or liability relates.
10.7 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
10.8 This clause 10 shall survive termination of the Contract.
11.1 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) the holder of a qualifying floating charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1(b) to clause 11.1(i) (inclusive);
(k) the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business;
(l) the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(m) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
11.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and fails to pay all outstanding amounts within 30 days after being notified in writing to do so.
11.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 11.1(b) to clause 11.1(m), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
12. CONSEQUENCES OF TERMINATION
12.1 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the outstanding unpaid invoices and interest of the Supplier and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return any Canned Liquid which has not been fully paid for. If the Customer fails to do so, then the Supplier may enter the premises of the Customer and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication survive termination shall continue in full force and effect.
13. FORCE MAJEURE
13.1 For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of the Supplier including but not limited to epidemic or pandemic disease (including but not limited to COVID 19) as well as any law, governmental order, rule, regulation, direction, curfew restriction, quarantine or other act of the competent authorities implemented to combat such pandemic diseases)), strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
13.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
14.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
14.2 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Supplier.
14.3 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.5(a); if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the third Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission provided always that the sender does not recall the message or receive notification of non-delivery.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
14.6 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
14.7 Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
14.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
14.9 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.