Terms of Services - Index

1. GENERAL

1.1 In these conditions ‘The Company’ refers to Index Plastics Limited and the ‘Customer’ refers to the purchaser of the goods.

1.2 The Customer agrees that the conditions set out below shall be incorporated into any contract with the Company.

1.3 Clerical errors may be corrected by the Company at any time

1.4 The waiver by The Company of any breach or default of these Terms shall not be construed as a continued waiver of that breach nor as a waiver of any subsequent breach of the same or any other provision.

1.5 If any clause or sub-clause of these Terms is held by a competent authority to be invalid or unenforceable the validity of the other clauses and sub clauses of these Terms shall not be affected and they shall remain in full force and effect.

1.6 The company reserves the right to change sale prices at any time. The Company Product Catalogue, Price List, Web Site and Terms and Conditions are published E&OE. Index Plastics Limited ©2009.

2. FORMATION OF CONTRACT

2.1 The order consists of an acceptance by The Company to supply the goods and or services upon The Company’s terms and conditions here set out and shall, unless previously cancelled by The Company by written notice to The Customer, be deemed to be accepted upon receipt by The Company of The Customers’ written or verbal instructions to supply goods and or services, by accepting delivery of any part of the Goods and or services.

2.2 Unless otherwise agreed in writing by a director of the Company these Terms and Conditions of sale which supersede any earlier Terms and Conditions of sale shall override any terms and conditions stipulated, incorporated or referred to by the purchaser whether in the order or in any negotiations preceding the formation of the contract.

2.3 The Customer’s standard terms or any other terms provided by the Customer shall not be incorporated into the contract or any variation thereof less expressly accepted by the Company in writing.

2.4 These Conditions shall be deemed to be incorporated in every transaction by the Company to a customer or prospective customer for a Quotation, every Order and every Contract. Every Quotation and every acceptance or an Order by the Customer constitutes unconditional acceptance of the Conditions.

2.5 These Conditions shall apply to the contract to the exclusion of all Customer order terms and conditions on which any purchase order has been given to The Company or subject to when the order is accepted or purported to be accepted by The Company.

2.6 These Conditions shall prevail over, supersede and exclude any inconsistent terms or conditions contained in or referred to in a Customer’s Purchase Order, Tender Document or Quote request, correspondence or elsewhere. No addition to the Conditions or any of them shall be binding upon the Company unless confirmed expressly and specifically be a director of the Company, in Writing.

2.7  Neither party shall be bound by any variation, waiver or addition or exclusion to the terms and conditions here set out unless agreed in writing between the authorised representative of The Company and The Customer.

2.8 The Company shall not be liable in respect of any misrepresentation made by The Company the Company servants or agents to The Customer its servants or agents as to the condition of the Goods their fitness for any purpose or as to quantity or measurements or weight loadings unless the representation is:

2.8.1 made or confirmed in writing by The Company; and/or

2.8.2 fraudulent

2.9 Without prejudice to clause 2.8 of these Terms while the Company take every precaution in the preparation of the Company catalogue price lists and other literature these documents are for the Customers general guidance only and statements made therein (in the absence of fraud on the Company part) shall not constitute representations by The Company and The Company shall not be bound by them. If The Customer requires advice in relation to the Goods a specific request for advice should be made and any advice made or confirmed in writing in response to such a request shall amount to a representation and The Company shall be liable accordingly. Due to differing surfaces and physical conditions the Company cannot give advice as to appropriate weight loadings for any item of the Goods. On request the Company shall provide samples for The Customer to test on site.

2.10 For the avoidance of doubt if The Customer is not dealing as a Consumer the Company liability for damages for misrepresentation (other than fraudulent) is excluded or limited by Clause 8 of these Terms. The statutory rights of a Consumer are not affected by these Terms.

3. QUOTATIONS

3.1 All prices are, unless otherwise stated, quoted exclusive of delivery costs and VAT. The Company reserves the right to be exercised at it’s discretion, to vary the price of goods, if, subsequent to the date of the quotation there is any increase or decrease in the total cost to the Company of producing or acquiring the goods which is beyond the Company’s control.

3.2 In such an event the Company will give written notice to the Customer before delivery. If such alteration increases the price, the Customer may cancel the relevant order by notice given to the Company within 3 days of the date of the notification of the increase by the Company.

4. SAMPLES

The Company may at its discretion submit a sample to the Customer for approval before executing the bulk of the order, which will only be commenced on receipt of such approval in writing. All goods in respect of which is sampled is so approved shall be deemed to have been satisfactorily tested by the Customer and to comply with the specification for the goods.

5. WARRANTIES

5.1 The goods shall be of satisfactory quality and will conform to any specification agreed by the Company in writing, within the normal limits of industrial quality for such goods.

5.2 The liability of the Company for breach of the above term, or any claim in respect of any defect in the goods, shall be limited to replacement of the defective goods or, at the Company’s option, reimbursement of the price paid for those goods.

5.3 The Customer shall not be entitled to make any claim in respect of any such defective goods unless the claim is notified to the Company in writing within 7 days from delivery of the goods.

5.4 The Company shall not be liable to the customer where the defect or damage in respect of which a claim is made has been caused or contributed to by:

5.4.1 abnormal usage of the goods;

5.4.2 an act or omission of anyone other than The Company.

5.5 Any particular purpose for which the goods are to be fit must be agreed in writing between the Company and the Customer. If no such agreement is made, the customer acknowledges and agrees that he has not made known expressly or by implication to the Company any particular purpose for which the goods are being bought.

5.6 Save as set out above:

5.6.1 All terms relating to the quality of the goods or to the fitness to the goods for a particular purpose are excluded from any contract between the Company and the Customer.

5.6.2 The Company shall be under no liability in respect of any defect in the goods.

6. LIABILITY

7.1 In no circumstances shall the Companys liability (in contract, tort or otherwise) in any matter arising out of or in connection with this contract of the goods supplied, exceed the invoice price of the particular pieces concerned and furthermore the Company shall be under no liability for the loss or damage or delay howsoever arising, caused by circumstances outside its control.

7.2 In these Terms “the Defect” means the condition and/or any attribute of the Goods and/or any other circumstances which but for the effect of these Terms would have entitled the Customer to damages.

7.3 Nothing in these Terms shall exclude or restrict the Company liability for death or personal injury resulting from the Company negligence or the Company liability for fraudulent misrepresentation.

7.4 If the Customer deal as a Consumer any provision of these Terms which is of no effect shall not apply. The statutory rights of a Consumer are not affected by these Terms.

7.5 Subject to Clauses 7.3 and 7.4 of these Terms The Company shall not be liable by reason of any misrepresentation (unless fraudulent) or any breach of warranty condition or other term express or implied or any breach of duty (common law or statutory) or negligence for any damages whatsoever. Instead of liability in damages The Company undertake liability under Clause 7.6 below.

7.6 Where but for the effect of Clause 7.5 of these Terms The Customer would have been entitled to damages against The Company The Company shall not be liable to pay damages but subject to the conditions set out in Clause 8.6 below shall in the Company sole discretion either repair the Goods at the Company own expense or supply replacement Goods free of charge or refund all (or where appropriate part) of the price paid for the relevant Goods.

7.7 The Company will not be liable under Clause 7.6:

7.7.1 if the Defect arises from fair wear and tear

7.7.2 if the Defect arises from wilful damage negligence abnormal working conditions misuse alteration or repair of the Goods or storage of the Goods in unsuitable conditions (but this sub-clause shall not apply to any act or omission on the Company part)

7.8 Subject to Clauses 7.3 and 7.4 of these Terms The Company shall not be liable by reason of any misrepresentation (unless fraudulent) or any breach or warranty condition or other term express or implied or any breach of duty (common law or statutory) or negligence for any damages whatsoever (if notwithstanding Clause 7.5 of these Terms The Customer are entitled to recover any) nor shall The Company be liable under Clause 7.7 of these Terms unless:-

7.8.1 if the Defect would have been apparent on a reasonable inspection under Clause 6.1 of these Terms at the time of receipt written notice of any claim is given to The Company within one working day of the time of receipt; or in any other case

7.8.2 the Defect is discovered within 28 days from the date of delivery and The Company are given written notice of the Defect within two working days of it being discovered

7.9 If the Goods are not manufactured by The Company the Company liability in respect of any defect in workmanship or materials of the Goods will be limited to such rights against the manufacturer as The Company may have in respect of those Goods. The Company will on written request provide details of the Company rights against the manufacturer and any other terms and conditions imposed by the manufacturer and so far as possible will on request assign to The Customer any such rights.

7.10 If The Customer are not dealing as a Consumer The Customer will unconditionally fully and effectively indemnify The Company against all loss damages costs on an indemnity basis and expenses awarded against or incurred by The Company in connection with or paid or agreed to be paid by The Company in settlement of any claim by any third party arising from the supply or use of the Goods including loss arising from the Company negligence.

7.11 Without prejudice to any other provisions in these Terms in any event the Company total liability for any one claim or for the total of all claims arising from any one act of default on the Company part (whether arising from the Company negligence or otherwise) shall not exceed the purchase price of the Goods the subject matter of any claim.

8 INTELLECTUAL PROPERTY

8.1 The Company is the owner of all copyright, design rights including patents, patents pending and registered designs in the products manufactured by the Company and these rights are not transferred with the sale of the goods and may not be reproduced by the Customer or any other third party. The Company vigorously protects its intellectual property in all cases. Any drawings or technical information provided by the Company to the Customer in the course of the Company business relationship is to be treated as confidential and may not be passed to any third party without prior authorisation from the Company. Such information must be returned on request.

8.2 Where the Customer have provided drawings and /or specifications to the Company for manufacture the Customer agree to indemnify the Company against all claims for infringement of any third party’s intellectual property rights (including but not limited to: patents, trademarks, copyright, design rights) caused by accepting the Customers instructions to manufacture any item resulting in such a claim against the Company. If the Company have concerns about the provenance of any design the Company reserve the right to refuse the Customers order on both ethical and legal grounds.

10. DELIVERY

10.1 Time is not of the essence of the contract.

10.2 If the Company does not deliver the goods within 21 working days of the date stated for delivery on the order then the Customer may give written notice to the Company that delivery is required within a period of not less than 14 days, to be sent by recorded delivery. If the Company fails, without good reason, to commence delivery of the goods within the stated period then the Customer may cancel the order. In the event of such cancellation the Customer shall not be liable to pay any further sums in respect of goods which have not been delivered.

10.3 The Customer shall have no right to damages for any failure on the Company’s part to deliver the goods in accordance with the time stated for delivery.

10.4 The Company reserve the right to make delivery by instalments and tender a separate invoice in respect of each instalment. The Company failure to deliver any one or more instalments or any claim by The Customer in respect of any one or more instalments shall not entitle The Customer to treat the Contract as a whole as repudiated.

10.5 Goods will be delivered by the Company by whatever method The Company consider to be suitable in the circumstances. Delivery charges are additional. Details are available on request and will be quoted when order is place if requested.

10.6 The Company aim to despatch stock Goods the day following acceptance of order or receipt of cleared funds in the case of non-account transactions however, delivery and despatch dates are given in good faith but are estimates only.

10.7 The Company shall not be liable for any damages whatsoever whether direct or indirect (including for the avoidance of doubt any liability to any third party) resulting from any delay in delivery or despatch of the Goods or failure to deliver the Goods in a reasonable time whether such delay or failure is caused by the Company negligence or otherwise howsoever.

10.8 Whilst The Company shall make every endeavour to deliver the quantity of goods ordered, nevertheless a delivered quantity of 10% more or less than the quantity ordered shall be deemed to be due execution and performance of the Contract, the price being increased or reduced pro rata accordingly.

11. INSPECTION AND ACCEPTANCE

11.1 If the Customer wishes to inspect the goods prior to delivery, such inspection must be made at the Company’s premises and notification of this requirement must be given in writing at the time of placing the order. If upon inspection goods are approved by or on behalf of the Customer then such approval shall constitute acceptance by the customer that the goods conform with their specification and that the goods are fit for any particular purpose agreed under clause 4.

11.2 If no such inspection is made then, unless the Customer gives written notification to the contrary to the Company within 3 working days after delivery, the Customer shall be taken to have approved the goods and to accept that the goods conform with their specification and that the goods are fit for any particular purpose agreed under clause 4.

11.3 The Customer shall inspect the Goods at the time of receipt but nothing in these Terms shall require The Customer to break packaging and/or unpack Goods which are intended to be stored before use.

11.4 The Customer must telephone or fax The Company as soon as practicable and give The Company written notice within two working days of receipt of any claim for short delivery.

11.5 If The Customer do not give The Company that notice within that time the Goods will be deemed to have been delivered in the quantities shown in the delivery documents.

11.6 The Customer shall not be entitled and irrevocably and unconditionally waive any right to reject the Goods or claim any damages whatsoever for short delivery howsoever caused.

11.7 The Company liability for short delivery is limited to making good the shortage.

11.8 Where it is or would have been apparent on a reasonable inspection that the Goods are not in conformity with the Contract or (where the Contract is a contract for sale by sample) that the bulk does not compare with the sample The Customer must give the Company written notice, telephone or fax the Company as soon as practicable and give the Company written notice within two working days.

11.9 If the Customer are not a Consumer and The Customer fail to give The Company that notice within that time the Goods will be deemed to have been accepted and The Customer shall not be entitled and irrevocably and unconditionally waive any right to reject the Goods.

11.10 If the Customer are not a Consumer and The Customer fail to give The Company that notice within that time Clause 7.8 shall have effect.

12. SPECIFICATION

12.1 All drawings, descriptions, specifications and particulars of the goods to be supplied are approximate only.

12.2 The descriptions and illustrations contained in the catalogues, price lists and other advertising of the Company have been provided in good faith by the Company but:

12.2.1 No such description, illustration, price list or other advertising shall form part of the contract;

12.2.2 If the Customer wishes to rely on any such description, illustration, price list or other advertising in entering into the contract it must notify the     Company in writing before the Company provides a quotation. If no such notification is given, the Customer agrees that it did not rely on any such representation in entering into the contract.

12.3 The Company reserves the right to incorporate new features and to supply products which may not be strictly in accordance with the specification agreed upon, provided that any changes in specification shall not materially prejudice the performance of the goods.

13. QUANTITIES

13.1 The quantity of the goods ordered shall be subject to fluctuation of plus and minus 10%. In the case of such fluctuation, an appropriate adjustment shall be made to the price.

13.2 A receipt in respect of the delivery must be signed on receipt of the goods by the Customer or his representative at the Customers premises. Unless the Customer notifies the Company in writing of any shortfall within 48 hours of delivery, the Customer is taken to accept that the correct quantity has been delivered. The Company will have no liability for any shortfall and will be entitled to payment for the full quantity.

14. PRICE

14.1 The price of Goods exclusive of carriage and VAT shall be as at the date of delivery of the Goods. Prices are subject to change without prior notice.

14.2 Items marked N/A or P.O.A. on the Company’s web site or in its printed price list are normally not available in the quantity price band shown because as a stock item of low value/small quantity it would not be practical to split packs or as a non-stock item they have to be imported or made to order and minimum quantity requirements apply. The Company may, on request, consider whether the Company is able to accept an order.

14.3 Items not indicated on the Company web site or catalogue illustrations as stock will only be supplied if the quantity required is sufficient to justify either manufacture or importation.

15. NON-PAYMENT/INSOLVENCY

15.1 “Insolvent” means The Customer becoming unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; the levying or the threat of execution of distress on any of its property; the appointment of a receiver or administrative receiver over all or any part of its property; a proposal for a voluntary arrangement or compromise between The Customer and its creditors whether pursuant to the Insolvency Act 1986 or otherwise; the passing of a resolution for voluntary winding-up or summoning a meeting to pass such a resolution otherwise than for the purposes of a bona fide amalgamation or reconstruction; the presentation of a petition for the Customers winding-up or for an administration order in relation to The Customer; if the Customer suffer any analogous step or proceedings under foreign law or The Customer ceasing or threatening to cease to carry on its business.

15.2 If the Customer fail to pay the price for any Goods on the due date or The Customer become Insolvent or if The Customer are a Limited Company there is a material change in the Customers constitution or The Customer commit a material breach of this Contract and fail to remedy that breach all sums outstanding between The Customer and The Company shall become immediately payable and The Company shall be entitled to do any one or more of the following (without prejudice to any other right or remedy The Company may have):-

15.2.1 require payment in cleared funds in advance of further deliveries

15.2.2 cancel or suspend any further deliveries to The Customer under any contract without liability on the Company part

15.2.3 charge interest on the balance of monies outstanding at the rate of 8% over the current base rate prevailing in England from the date the payment became due until actual payment is made after as well as before judgement.

15.2.4 without prejudice to the generality of Clause 7 of these Terms exercise any of the Company rights pursuant to that clause.

15.2.5 recover from The Customer all costs and expenses, including legal costs on an indemnity basis, incurred by The Company in taking steps to enforce the Company rights under this or any other clause of these Terms.

16. PAYMENT

16.1 Payment for the goods must be made within 30 days of the date of the invoice.

16.2 In the event of non-payment within 30 days, then the Company may     charge interest on all unpaid sums at a rate of 8% over the current base rate prevailing in England.

16.3 The Company does implement it’s statutory right to interest.

16.4 Payment terms are strictly within the Company sole discretion which the Company may exercise on receipt of each order either:-

16.4.1 Cash with order: orders will not be processed until payment in full for Goods packaging carriage and VAT has been received by The Company in the form of cleared funds;

16.4.2 Credit card sales: Orders will not be processed until credit clearance has been received;

16.1.3 Account terms: payment is due no later than thirty days from the date of invoice.

16.5 The Company reserves the right to refuse to execute any order or contract if the arrangements for payment or the customer’s credit are not satisfactory to The Company and in the Companys sole discretion The Company may require payment for each consignment when it is available and before it is dispatched in which case delivery will not be effected until The Company are in receipt of cleared funds.

16.6 In the case of short delivery The Customer will remain liable to pay the full invoice price of all Goods delivered or available for delivery.

16.7 The Customer may not withhold payment of any invoice or other amount due to The Company by reason of any right of set off or counterclaim which The Customer may have or allege to have for any reason whatever.

17. STERLING PROTECTION

Where it is agreed that payment for the goods is to be made in any currency other than £ sterling the Company reserves the right to be exercised at it’s discretion to vary the price so as to take into account any changes in the rate of exchange between the date of the Company’s quotation and the date of the invoice.

18. RETURNS

Goods can only be returned if written authorisation has been received from the Company. The goods must be in their original cartons and unopened. Opened or incomplete cartons will not be accepted. A restocking charge of £25 will be made and any credit issued will exclude any carriage, P&P or freight charges originally invoiced and/or paid for. Custom made or modified products are non returnable. No returns of any nature will be accepted after 60 days from despatch date.

18.1 the Goods shall be stored separately from any other goods and The Customer shall not interfere with any identification marks label batch numbers or serial numbers on the Goods.

18.2 The Company agree that The Customer may use or agree to sell the Goods as principal and not as the Company agents in the ordinary course of the Customers business subject to the express condition that at the Company direction the entire proceeds of any sale or insurance proceeds received in respect of the Goods are held in trust for The Company and not mixed with any other monies or paid into an overdrawn bank account and shall at all times be identifiable as the Company money.

18.3 The Company shall be entitled to recover the price of the Goods including VAT even though the property in any of the Goods remains with The Company.

18.4 The Company shall be entitled at any time to recover any or all of the Goods in the Customers possession to which The Company have title and for that purpose The Company the Company servants or agents may with such transport as is necessary enter upon any premises occupied by The Customer or to which The Customer have access and where the Goods may be or are believed to be situated.

19 RISK AND TITLE

19.1 Risk in the goods shall pass to the Customer on delivery.

19.2 The property in the Goods shall remain with The Company until full payment for all goods has been received by the Company.

19.3 Property in all goods shall remain with the Company, notwithstanding delivery of the goods or any part of them;

19.3.1 Until title passes:-

19.3.2 The Customer shall be at liberty to sell or deal with the goods in the ordinary course of business, but until full payment in respect of all goods has been made;

a) The Customer shall hold the Goods as the Company fiduciary agent and bailee

c) The Customer shall hold the proceeds of any sale of the goods as trustee for the Company. The proceeds shall not be mingled with other monies or paid into any overdrawn bank account and such monies shall at all times be identifiable as the Company’s monies. The Customer as trustee for the Company shall not be entitled to deal with such monies in any manner whatsoever.

19.4 The Customers power to sell or deal with the goods in the ordinary course of business shall be automatically revoked if the Company cancels the order under clause 22 below.

19.5 Upon determination of the Customers power of sale, the Company shall be entitled to reclaim the goods and the customer grants the company a license to enter the Customers premises for that purpose.

20. CANCELLATION

20.1 If at any time the Customer cancels an order for goods or services which do not appear in the Company’s most recent catalogue or which are, in the Company’s opinion non standard, then the Company shall be entitled to claim an amount up to 85% of the value of the order, as liquidated damages for stock. The Customer agrees that the said amount represents a genuine pre-estimate of the Company’s loss. The said sum shall be recoverable by the Company from the Customer as a debt.

20.2 Cancellations for goods deemed as bespoke, custom, production or non standard in other way, will only be accepted at the company’s discretion and the Customer must notify the Company immediately by telephone and confirmation made in writing.

20.3 In the event of cancellation of any order the Customer will be liable for the cost of any tooling, materials committed to, labour undertaken and committed to up to the time of cancellation and any other cost associated with the cancelled order that the Company has or will incur as a result of the commitment made.

20.4 If the Customer fails to make the correct payment to the Company for the products by the date on which any such payment is due, or makes a composition or arrangement with his creditors, or becomes bankrupt or being a company makes a proposal for a voluntary arrangement for a composition of debts or scheme of arrangements to be approved in accordance with the Companies Act 1985 or the Insolvency Act 1986 as the case may be or any amendment or re-enactment thereof, or has a provisional liquidator appointed or has a winding up order made or passes a resolution for voluntary winding up or under the insolvency Act 1986 or any amendment or re-enactment thereof has an administrator or an administrative received appointed then:

20.4.1 The Customer shall immediately inform the Company;

20.4.2 The Company may by notice in writing to the Customer cancel the     order any other orders which may be outstanding between the Customer and the Company.

20.5 In the event of such cancellation:

20.5.1 The Company shall be entitled to reclaim the goods in accordance with the provisions of clause 21 above; and

20.5.2 The Customer shall remain liable to pay the Company the full purchase price for the goods less (i) the disposal value received by the Company for the whole or part of the goods in its possession or reclaimed by the Company under paragraph 14 above (ii) any part of purchase price for the goods paid by the Customer to the Company and (iii) any direct costs incurred by the Company in the performance of the order. The Company’s determination of such amount shall, in the absence of manifest error, be binding on the Customer.

21. FORCE MAJEURE

The company shall not be liable to the Customer for failure to deliver the goods or for any delay in delivery of the goods or for any damage to or defect in the goods where such failure is caused or contributed to by any cause outside the Company’s reasonable control, including but not limited to shortages of raw materials, industrial action, riots and civil commission or acts of God, theft, water and embargo.

22. LAW AND JURISDICTION

These conditions are governed by English Law. Any disputes shall be submitted to the exclusive jurisdiction of the English courts.