These Conditions apply to and shall be incorporated by reference to all agreements for sale by Kramp.
Article 1. Interpretation
1.1 In these Conditions, the following definitions apply:
"Business Day" a day other than a Saturday, Sunday or public holiday in England and Wales, Scotland, Northern Ireland when banks in London are open for business;
"Commencement Date" has the meaning set out in clause 2.2;
"Conditions" these terms and conditions as amended from time to time in accordance with clause 11.11;
"Contract" the contract between Kramp and the Customer for the supply of Goods in accordance with these Conditions;
"Customer" the person or firm who purchases the Goods from Kramp;
"Delivery Location" has the meaning set out in clause 4.3;
"Force Majeure Event" means an event beyond the reasonable control of Kramp including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Kramp 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;
"Goods" the goods (or any part of them) set out in the Order;
"Goods Specification" any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and Kramp;
"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;
"Kramp" Kramp U.K. Limited registered in England and Wales with company number 01139130;
"Order" the Customer's order for the supply of Goods, as set out in the Customer's purchase order form, or the Customer's written acceptance of Kramp's quotation, or overleaf, as the case may be.
1.2 In these Conditions, the following rules apply:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party includes its personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision 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;
1.2.4 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
1.2.5 a reference to writing or written, except where expressly provided otherwise, includes faxes and e-mails.
Article 2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and ancillary services in accordance with these Conditions. The Customer shall ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate.
2.2 The Order shall only be deemed to be accepted when Kramp issues written acceptance of the Order or delivers the Goods to the Delivery Location (whichever is the earlier) at which point and on which date the Contract shall come into existence ("Commencement Date").
2.3 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 Kramp which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by Kramp and any descriptions of the Goods contained in Kramp's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 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.
2.6 Any quotation given by Kramp shall not constitute an offer, and is only valid for a period of 10 Business Days from its date of issue.
Article 3. Goods
3.1 The Goods are described in Kramp's catalogue as modified by any applicable Goods Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify Kramp against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Kramp in connection with any claim made against Kramp for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Kramp's use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 Kramp reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.
Article 4. Delivery of goods
4.1 The Customer shall make available for collection at such times as Kramp shall reasonably request all plastic, reusable packing crates that are made available by Kramp to the Customer and are marked with Kramp’s trademark or logo; such crates shall remain the property of Kramp.
4.2 Kramp shall deliver the Goods to the Customer’s registered office or principal place of business or, if different, the location set out in the Order ("Delivery Location"). If the location set out in the Order is Kramp's premises at Stratton Business Park, London Road, Biggleswade SG18 8QB then the Customer is to collect the Goods from the Delivery Location within three Business Days of Kramp notifying the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Kramp shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide Kramp with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If Kramp fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Kramp shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event the Customer's failure to provide Kramp with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.6 If the Customer fails to accept or take delivery of the Goods within five Business Days of Kramp notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by Kramp's failure to comply with its obligations under the Contract in respect of the Goods delivery of the Goods shall be deemed to have been completed at 9.00 am on the fifth Business Day following the day on which Kramp notified the Customer that the Goods were ready and Kramp shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If five Business Days after Kramp notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, Kramp may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.8 Kramp may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.9 Kramp shall be under no obligation to accept the return of any Goods nor to give any refund to the Customer, unless Kramp has expressly consented to the return and the Customer has complied with the conditions for such return that Kramp has informed the Customer about.
Article 5. Quality of goods
5.1 Kramp warrants that on delivery, and for three months after delivery (Warranty Period), the Goods shall:
5.1.1 conform with their description and any applicable Goods Specification;
5.1.2 be free from material defects in design, material and workmanship;
5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
5.1.4 be fit for any purpose expressly held out in writing by Kramp.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing (which shall not include by fax or e-mail) during the Warranty Period within eight Business Days of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 Kramp is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by Kramp) returns such Goods to Kramp's place of business at Kramp's cost,
Kramp shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 Kramp shall not be liable for the Goods' failure to comply with the warranty in clause 5.1 if:
5.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow Kramp's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
5.3.3 the defect arises as a result of Kramp following any drawing, design or Goods Specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the written consent of Kramp;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
5.3.6 the Goods differ from their description or any applicable Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in clause 5.2, Kramp shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by Kramp under clause 5.2.
Article 6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of Kramp receives payment in full (in cash or cleared funds) for the Goods and any other goods that Kramp has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums and the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the Customer, the Customer shall store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Kramp's property; not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Kramp's behalf from the date of delivery; notify Kramp immediately if it becomes subject to any of the events listed in clause 9.2.2 to clause 9.2.13; and give Kramp such information relating to the Goods as Kramp may require from time to time.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Kramp receives payment for the Goods. However, if the Customer resells the Goods before that time it does so as principal and not as Kramp’s agent; and title to the Goods shall pass from Kramp to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2.2 to clause 9.2.13, then, without limiting any other right or remedy Kramp may have the Customer's right to resell Goods or use them in the ordinary course of its business ceases immediately and Kramp may at any time require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
Article 7. Charges and payment
7.1 The price for Goods shall be the price set out in the Order or, if no price is quoted, the price set out in Kramp's published price list as at the date of delivery. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be paid by the Customer when it pays for the Goods.
7.2 Kramp reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to Kramp that is due to any factor beyond the control of Kramp (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give Kramp adequate or accurate information or instructions in respect of the Goods.
7.3 In respect of Goods, Kramp shall invoice the Customer on or at any time after completion of delivery.
7.4 The Customer shall pay each invoice submitted by Kramp net monthly, therefore on the last day of the month following the month of the date of the invoice, in full and in cleared funds (in the currency of the invoice) to a bank account nominated in writing by Kramp. Time for payment shall be of the essence of the Contract.
7.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time
("VAT"). Where any taxable supply for VAT purposes is made under the Contract by Kramp to the Customer, the Customer shall, on receipt of a valid VAT invoice from Kramp, pay to Kramp such additional amounts in respect of VAT as are chargeable on the supply of the Goods at the same time as payment is due for the supply of the Goods.
7.6 Kramp reserves its rights, including the right to recover interest, under the Late Payment of Commercial Debts (Interest) Act 1998 in connection with the Contract.
7.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. Kramp may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Kramp to the Customer.
Article 8. Limitation of liability
8.1 Nothing in these Conditions shall limit or exclude Kramp's liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; fraud or fraudulent misrepresentation; breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or defective products under the Consumer Protection Act 1987.
8.2 Subject to clause 8.1:
8.2.1 Kramp shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
8.2.2 Kramp'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 the price payable to Kramp under the Contract.
8.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
8.4 This clause 8 shall survive termination of the Contract.
Article 9. Termination
9.1 Without limiting its other rights or remedies either party may terminate the Contract by giving the other party not less than one months' written (if given by the Customer this shall not include fax or email) notice.
9.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written (if given by the Customer this shall not include fax or email) notice to the other party if:
9.2.1 the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within ten Business Days after receipt of notice in writing to do so;
9.2.2 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;
9.2.3 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;
9.2.4 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 the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
9.2.5 the other party (being an individual) is the subject of a bankruptcy petition or order;
9.2.6 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;
9.2.7 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);
9.2.8 the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
9.2.9 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;
9.2.10 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 9.2.2 to clause 9.2.9 (inclusive);
9.2.11 the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
9.2.12 the other party's financial position deteriorates to such an extent that in Kramp's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
9.2.13 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.
9.3 Without limiting its other rights or remedies, Kramp 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.
9.4 Without limiting its other rights or remedies, Kramp may suspend the further deliveries of Goods under the Contract or any other contract between the Customer and Kramp if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 9.2.2 to clause 9.2.13, or Kramp reasonably believes that the Customer is about to become subject to any of them.
9.5 On termination of the Contract for any reason:
9.5.1 the Customer shall immediately pay to Kramp all of Kramp's outstanding unpaid invoices and interest;
9.5.2 the accrued rights and remedies of the parties as at termination shall not be affected, 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
9.5.3 clauses which expressly or by implication have effect after termination shall continue in full force and effect.
Article 10. Force majeure
10.1 Provided it has complied with clause 10.3, if a party is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event ("Affected Party"), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
10.2 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
10.3 The Affected Party shall as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party of the Force Majeure Event.
10.4 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than four weeks (in the case of the Customer being the Affected Party) or more than six months (in the case of Kramp being the Affected Party), the party not affected by the Force Majeure Event may terminate this Agreement by giving four weeks' written notice to the Affected Party.
Article 11. General
11.1 Kramp 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.
11.2 The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
11.3 Any notice, invoice or other communication given to a party under or in connection with this 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 prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.
11.4 A notice, invoice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.3; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second 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 fax or e-mail, one Business Day after transmission.
11.5 The provisions of clause 11.4 shall not apply to the service of any proceedings or other documents in any legal action.
11.6 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.
11.7 If 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.
11.8 A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its 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.
11.9 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
11.10 A person who is not a party to the Contract shall not have any rights to enforce its terms.
11.11 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 Kramp.
11.12 This Agreement 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.
11.13 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 this Contract or its subject matter or formation (including non-contractual disputes or claims).