SWAN MILL PAPER COMPANY LTD TERMS AND CONDITIONS OF QUOTATION AND SALE

1. DEFINITIONS
1.1 "Company" shall mean Swan Mill Paper Company Limited with registered number 01752881.
1.2 "Buyer" shall mean any person, partnership or company ordering goods from the Company.
1.3 "The Goods" shall mean the goods which shall be supplied by the Company to the Buyer.
2. GENERAL
2.1 A quotation by the Company does not constitute an offer and the Company reserves the right to withdraw or revise a quotation at any time prior to the Company's acceptance of the Buyer's order.
2.2 The terms and conditions set out below shall prevail over any terms put forward by the Buyer and except as provided in clause 2.3 below no conduct of the Company shall constitute acceptance of any terms by the Buyer.
2.3 No waiver alteration or modification of any of these terms and conditions shall be binding on the Company unless given in writing and signed by a director of the Company.
3. PRICE
3.1 The Company may increase the price of the undelivered balance of the Goods at any time and, where the price is greater than the price current at the date of order, the Company will notify the Buyer of this before the Goods are despatched. The Buyer may, prior to the goods being despatched, cancel the order for the undelivered balance of the Goods by notice in writing to the Company.
3.2 The price of the Goods does not include a carriage/handling charge which shall be charged on all consignments unless otherwise agreed in writing.
3.3 The price of all Goods is exclusive of and will be subject (where appropriate) to Value Added Tax and any other duties or taxes which are or will be from time to time payable.
4. PAYMENT TERMS AND OWNERSHIP
4.1 The Company may provide credit to the Buyer if the Buyer produces one bank and two trade references which are satisfactory to the Company. Where application for credit is made on behalf of a partnership, all partners at the time of each order/supply made to the partnership remain jointly and severally liable for the payment of monies in respect of such order/supply. The Company reserves the right to consult whomsoever it considers necessary for the purpose of seeking trade references and will record information in respect of such opinions which will be made available to other businesses for the continuing assessment of credit risk. The Company reserves the right to suspend trading with the Customer if in the opinion of the Company there is a material deterioration in the Buyer's creditworthiness or in its ability to comply with these terms and conditions. The Company reserves the right in its absolute discretion to insist upon payment at any time by way of cleared funds or security for payment notwithstanding any subsisting agreement to provide credit to the Buyer.
4.2 If the Company has not granted credit to the Buyer, then the order must be accompanied by payment equivalent to the price of the Goods.
4.3 All payments by credit card will incur a 2.5% surcharge on the total balance (including VAT).
4.4 The Company's payment terms are Nett Monthly, unless agreed otherwise and put in writing, so receipt of payment is due on or by the last working day of the month following the date of the invoice. Where any part of an invoice is disputed by the Buyer in good faith the amount in question may be deducted but the balance of the invoice must be paid in accordance with this clause. Details of the disputed amount, including the invoice number and reason for the deduction, must be notified to the Company within 7 days from the date of the invoice.
4.5 If any invoice is overdue for settlement, the Company reserves the right to demand immediate payment of all outstanding invoices from the Buyer. The Company shall also be entitled to charge interest at the rate of 5% above the National Westminster Bank Plc base rate per annum from the date payment becomes due until payment is made together with all costs and charges incurred in the recovery of all such overdue accounts including bank charges relating to any dishonoured cheques.
4.6 Any extension of credit allowed to the Buyer may be changed or withdrawn at any time.
4.7 An order once placed cannot be cancelled deferred or altered except by mutual agreement or under Clause 3.1 of these terms and conditions.
4.8 If the Buyer fails to pay in full for Goods delivered by the date for payment under clause 4.4 above, the Company shall be entitled to bring an action for the price notwithstanding that property in the Goods has not passed to the Buyer.
5. TITLE AND RISK
5.1 The Goods shall be at the Buyer's risk as from the time they are either
(a) delivered to the Buyer; or
(b) collected by the Buyer from the Company's premises.
5.2 Property in the Goods delivered to the Buyer shall not pass until the Buyer shall have paid all sums due to the Company:
(a) in respect of the Goods; and
(b) on any other account.
5.3 Until property in the Goods passes to the Buyer in accordance with clause 5.2 the Buyer shall hold the Goods and each of them on a fiduciary basis as bailee for the Company. The Buyer shall store the Goods (at no cost to Company) separately from all other goods in it possession and marked in such a way that they are clearly identified as the Company's property.
5.4 The Buyer may resell the Goods before the conditions in clause 5.2 are satisfied on the following conditions:
5.4.1 any sale shall be effected by the Buyer as agent for the Company, provided that the Buyer shall have no authority to create privity of contract between the Seller and any customer to whom the Goods are sold; and
5.4.2 the Buyer will hold the proceeds of any such resale as trustee for the Seller separate from its own monies in a separate identifiable bank account.
5.5 Until such time as property in the Goods passes from the Company to the Buyer, the Buyer shall upon request deliver up to the Company such of the Goods that have not ceased to be in existence or resold. If the Buyer fails to do so, the Company may enter upon any premises owned, occupied or controlled by the Buyer where the Goods are situated and repossess the Goods. The rights of the Buyer under clause 5.4 shall cease if the Company requests the Buyer to deliver up the Goods.
5.6 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Company. Without prejudice to the other rights of the Company, if the Buyer does charge or pledge the Goods, all sums whatever owing by the buyer to the Company shall immediately become due and payable.
5.7 The Buyer shall insure and keep insured the Goods to the full price against "all risks" to the reasonable satisfaction of the Company until the date the property in the goods passes from the Company and shall whenever requested by the Company, produce a copy of the policy of insurance. Without prejudice to the other rights of the Company, if the Buyer fails to do so, all sums whatever owing by the Buyer to the Company shall immediately become due and payable.
6. DELIVERY
6.1 Unless otherwise agreed in writing the price agreed for the Goods is delivery Ex Works
6.2 The Company will use its reasonable endeavours to meet the agreed delivery dated for Goods. The Company shall not be liable for any loss or damage, direct or indirect, occasioned by delayed delivery and the Buyer shall not be entitled to reject the Goods or cancel other orders for Goods because of delayed delivery.
6.3 Quantities of Goods despatched may vary by up to 5% from that ordered.
6.4 If the Company delivers more or less than the agreed quantity of Goods the following provisions in clauses 6.5 to 6.7 below shall apply.
6.5 The Company shall have no liability to the Buyer in respect of the excess or shortfall and the Buyer shall give the Seller notice of the excess or shortfall within three days of delivery. Upon the Buyer giving such notice:
6.5.1 in the case of excess delivery the Company will make arrangements for the excess to be returned to the Company at the Company's expense;
6.5.2 in the case of short delivery the Company may at its own discretion either:
(a) make good the shortfall by one or more further deliveries; or
(b) reduce the contract price by the same proportion as the shortage bears to the contract quantity.
6.6 The Buyer shall not be entitled to reject any delivery on the grounds of any excess or short delivery but shall pay the contract price or, where the Company exercises the option referred to in clause 6.5.2(b) above, the reduced price in accordance with that clause.
6.7 Save as provided in clauses 6.4 to 6.6 above, the Company shall not be liable for any losses caused by excess or short delivery.
6.8 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery the Company may store the Goods until delivered, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
7. SPECIFICATION
7.1 The Goods will conform in all material respects with their description in the Company's catalogue current at the time of order but the Company reserves the right in its sole discretion to vary such descriptions or specifications or to cease to manufacture the Goods and any such variation or the substitution of reasonably equivalent Goods shall not give rise to any claim against the Company.
7.2 All measurements quoted are approximate and unless otherwise agreed shall not be reason for termination by the Buyer.
7.3 The Buyer shall be solely responsible for any matter which the Company shall on the Buyer's instructions print on the Goods or for any design or construction which the Buyer supplies and the Buyer shall obtain any licences permission or consents for the use of such matter.
7.4 The Buyer shall indemnify the Company against any liability, costs, expenses and damages that it incurs in responding to allegations that anything printed onto the Goods pursuant to clause 7.3 above infringes the intellectual property rights of a third party.
7.5 All sketches or other work produced by the Company at the Buyer's request shall be separately charged and invoiced.
7.6 The Company shall have no liability to the Buyer for errors in drawings or samples after they have been approved by the Buyer.
8. WARRANTY AND LIMITATION OF LIABILITY
8.1 The Company warrants that the Goods will be free from material or other defect in workmanship and will conform in all material respects to the Company's specification.
8.2 The Buyer shall:
8.2.1 inspect the Goods immediately upon delivery;
8.2.2 within three days of delivery of the Goods give notice in writing to the Company of any defect or non-conformity; and
8.2.3 if there is any defect or non-conformity immediately return the Goods at the expense of the Company back to the Company.
8.3 Where the Goods are returned in accordance with clause 8.2 above, if the Company determines the Goods are defective or non-conforming, the Goods that are found not to comply with the specification shall be replaced; or the Company shall reduce the price of the Goods by an amount equivalent to the proportion of the price payable in respect of the Goods found not to conform with the specification.
8.4 If the Company determines (in its reasonable opinion) that the Goods are not defective or non-conforming under Clause 8.3, then it shall be entitled to reclaim all carriage costs incurred pursuant to Clause 8.2.3 and any carriage charges in returning the Goods to the Buyer.
8.5 The Company shall not be liable for any economic loss suffered by the Buyer as a result of any failure of the Goods to conform to the specification including loss of profit, business, goodwill or other consequential losses.
8.6 The Company does not warrant that the Goods are fit for any particular purpose.
8.7 Except as provided in this clause the Company shall have no liability for any defect in the quality of the Goods or their failure to correspond to any description or sample or to be fit for any purpose and all other conditions, warranties, stipulations and undertakings whether express or implied by statute or common law are excluded.
8.8 The warranty set out in clause 8.1 will not apply to Goods which have been repaired or altered by anyone other than the Company or subjected to accident misuse or neglect.
8.9 Any claim not made and received by the Company within the specified time limit shall be deemed invalid and the Company shall have no liability to the Buyer.
8.10 Other than for any liability which it is not legal to exclude the Company's liability in respect of any loss or damage shall not exceed the invoice value of the Goods, in respect of which any claim is made.
8.11 Any price discrepancy must be made in writing and received by the Company within 7 days of date of invoice.
8.12 All other warranties and conditions whether expressly implied statutory or otherwise as to the quality or fitness of the Goods for any purpose are hereby excluded.
9. BUYER'S WARRANTIES
9.1 The Buyer warrants to the Company that all work or material supplied and any design specification or instruction given to the Company shall not infringe the copyright or any enforceable rights of privacy or any rights of any third party or be defamatory of third party.
9.2 The Buyer shall indemnify the Company against all actions claims loss liability damages costs and expenses (including reasonable legal costs and expenses) suffered or incurred by it arising out of any breach by the Buyer of the warranty given by the Buyer in Clause 9.1.
10. CLAIMS
10.1 The Company shall not be responsible for non-delivery of the Goods or any part of a consignment unless the Buyer notifies the Company in writing within 7 days of the date of despatch that the Goods have not been delivered.
10.2 The Company shall not be responsible for damage to Goods in transit unless the Buyer notifies the Company and the carriers in writing within 7 days of the date of delivery.
11. FORCE MAJEURE
11.1 Neither party shall be liable to the other if by reason of any act of God, outbreak or threat of war, riot, strike, lock out, trade dispute or labour disturbance, statutory enactment, regulation or orders, accident, power failure, breakdown of plant or machinery, fire, flood, difficulty in obtaining workmen, materials or transport or other circumstances whatsoever outside the control of or which could not have been reasonably prevented by either of the parties the Buyer is prevented from or delayed in taking delivery, or the Company is prevented from, delayed or hindered in making delivery of the Goods or any part of the Goods at the times stated for delivery. During any period when delivery of the Goods or any part thereof cannot be made by the Company for any such reason the Buyer, after giving the Company not less than 3 days written notice of its intention to do so, shall be at liberty to purchase elsewhere at its own cost and risk, such quantities of goods similar to the Goods as the Company may be unable to deliver.
12. DEFAULT
  The Company reserves the right (without prejudice to its other rights and remedies) either to terminate any contract with the Buyer or to suspend further deliveries under any contract or require payment if advance in any of the following events occur:
12.1 the Buyer fails to make any payment to the Company when the same becomes due; or
12.2 if the Buyer, being a company, goes or threatens to go into liquidation or has or may have an administrator, administrative receiver or liquidator appointed or, in the opinion of the Company, is unable to pay its debts within the meaning of S123 of the Insolvency Act 1986; or
12.3 the Buyer, not being a Company, is declared bankrupt or enters into any arrangement or composition with his creditors; or
12.4 the Buyer is in material breach of any of these terms and conditions.
13. SET-OFF AND LIEN
13.1 No payments may be withheld by the Buyer nor may any counterclaims of the Buyer be set off against any payment due to be paid to the Company by the Buyer.
13.2 The Company reserves the right to offset any monies owed to the Buyer against any outstanding debt owed by the Buyer to the Company.
13.3 The Company will (without prejudice to any other remedy available to it) have in respect of all unpaid debts due from the Buyer a general lien on all property of the Buyer in the possession of the Company for whatever purpose and be entitled on the expiration of not less than 14 days notice in writing to the Buyer to dispose of such property and to apply the proceeds towards the satisfaction of such debts.
14. PALLETS
If the Goods are supplied in pallets, the pallets remain the property of the Company and the Buyer must return the pallets promptly to the Company and immediately on request of the Company. If the Buyer fails to comply with such a request, the Company may charge the Buyer for the cost of the pallets supplied.
15 ASSIGNABILITY
15.1 The Buyer shall not assign or charge the benefit of any contract of which these terms and conditions form part without the written consent of the Company.
16 INTERPRETATION
16.1 These terms and conditions shall be interpreted in accordance with English Law and the English Courts shall have exclusive jurisdiction to resolve any dispute arising out of or in connection with any contract of which these terms and conditions.
17 DATA PROTECTION ACT 1998
17.1 In compliance with the Data Protection Act 1998, any Buyer operating as a partnership or sole trader is hereby given notice that the Company may transfer information about such Buyer to the Company's bankers/financiers for the purpose of providing services and for the following purposes:-
- Obtaining Credit Insurance
- Making Credit reference agency searches
- Credit Control
- Assessment and analysis (including credit scoring, market, product and statistical analysis)
17.2 The Buyer consents to the processing of its data in accordance with clause 17.1 above.
17.3 The Company will provide the Buyer with details of our bankers/financiers and of any credit reference agencies used on request.
18 NOTICES
18.1 All notices to be served on the Company by the Buyer shall be sent to the Company's offices at Swan Mill Paper Company Limited, Swanley, Kent, England BR8 8EU marked for the attention of the Group Sales and Marketing Director.
18.2 All notices to be served by the Company on the Buyer shall be sent to the Buyer's last known trading address.
19 SEVERANCE
19.1 If any provision of these terms and conditions (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of these terms and conditions, and the validity and enforceability of the other provisions of these terms and conditions shall not be affected.