Terms Conditions

Terms & Conditions

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CONDITIONS OF PURCHASE
US - TERMS AND CONDITIONS FOR THE SALE OF GOODS AND SERVICES
AUSTRALIA - TERMS AND CONDITIONS FOR THE SALE OF GOODS

UK - TERMS AND CONDITIONS FOR THE SALE OF GOODS AND SERVICES

1. INTERPRETATION

1.1 The definitions and rules of interpretation in this condition shall apply in these conditions.

Combined Goods: any Goods which have been joined or connected in any way to other goods by or on behalf of the Customer in such a way that the Goods are nevertheless readily identifiable
and removable;

Commercial Unit: a unit of Goods, the division of which would materially impair the value of the Goods or the character of the unit;

Company: KM Packaging Services Limited;

Conditions: these Terms and Conditions of Supply;

Confidential Information: any information disclosed by one (the disclosing party) to another (the receiving party) if the disclosing party has notified the receiving party that the information is confidential, or the information could reasonably be supposed to be confidential;

Contract: any contract between the Company and the Customer for the sale of Goods and / or Services, incorporating these Conditions;

Customer: the person, firm or company who purchases the Goods and / or Services from the Company;

Goods & Services: any goods or Services agreed in the Contract to be sold by the Company to the Customer (including any part or parts of them);

Incorporated Goods: any Goods which have been incorporated into other goods by or on behalf of the Customer in such a way that the Goods are not readily identifiable and removable;

Input Material: any documents, plans, drawings, patterns, designs, substrate, plates or other materials including samples, and any instructions, specification, data or other information provided by the Customer to the Company relating to the Goods;

Intellectual Property Rights: any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports, drawings, specifications, know how, trade secrets, rights in software, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent or similar rights to any of the foregoing in any jurisdiction, whether registered or unregistered;

Output Material: any documents plans, drawings, patterns, designs, substrate, plates or other materials, and any data or other information provided by the Company to the Customer relating to the Goods;

1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.3 Any reference to "parties" means the parties to the Contract and "party" shall be construed accordingly.

1.4 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.

1.5 Words in the singular include the plural and in the plural include the singular.

1.6 A reference to one gender includes a reference to the other gender.

1.7 Condition headings do not affect the interpretation of these Conditions.

2. APPLICATION OF TERMS

2.1 Subject to any variation under Condition 2.3, the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).

2.2 No terms or conditions endorsed on, delivered with or contained in the Customer's purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.

2.3 These Conditions apply to the sale of all Goods and Services by the Company and any variation to these Conditions and any representations about any Goods or Services shall have no effect unless expressly agreed in writing and signed by an authorised signatory of the Company. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this Condition shall exclude or limit the Company's liability for fraudulent misrepresentation.

2.4 Each written purchase order or acceptance of a quotation for Goods and/or Services by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods and/or Services subject to these Conditions.

2.5 No order placed or quotation accepted by the Customer shall bind the Company until the Company has accepted the Customer’s order in writing.

2.6 Any quotation is given on the basis that no Contract shall come into existence until the Company has accepted the Customer’s order pursuant to Condition 2.5 above. Any quotation is valid for a period of 30 days only from its date (unless otherwise specified), provided that the Company has not previously withdrawn it.

2.7 No order placed or quotation accepted by the Customer which has in turn been accepted by the Company pursuant to Condition 2.5 may be cancelled, varied, or deferred by the Customer, except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), charges and expenses incurred by the Company as a result of such cancellation, variation or deferment.

3. DESCRIPTION

3.1 The quantity and description of the Goods and / or Services shall be as set out in the Company's acceptance of the Customer’s order issued pursuant to Condition 2.5.

3.2 Although reasonable precautions will be taken by the Company to ensure the accuracy of such information, all descriptive matter, weights, dimensions, and performance data supplied by the Company and any descriptions and illustrations contained in the Company’s data sheets, technical bulletins, catalogues, price lists, website and other advertising matter are approximate only and are intended merely to convey a general description of the Goods and / or Services; they are not (unless it is expressly so stated in the Contract) deemed to form any part of any Contract and are not to be regarded as a warranty or representation.

3.3 The Customer shall be responsible to the Company for ensuring the accuracy and completeness of the terms of any order submitted by the Customer and for giving the Company all necessary information relating to the Goods within a sufficient time to enable the Company to fulfil its obligations under the Contract.

3.4 All Input Material held by the Company on behalf of the Customer shall be held at the Customer’s risk and expense and the Customer shall insure the same against all risks whilst it is in the Company’s possession.

3.5 The Company reserves the right at its sole discretion to reject any substrate, plates or any other Input Material which appears to the Company to be unsuitable for the purposes of fulfilling its obligations under the Contract or which does not conform to specification. Notwithstanding the foregoing, the Company shall have no responsibility for checking the suitability, accuracy or completeness of any Input Material. No responsibility is accepted by the Company for imperfect work or delays in delivery due to any Input Material being defective, unsuitable, inaccurate, incomplete, or untimely.

3.6 The Customer warrants that any Input Material submitted by the Customer shall not cause the Company to infringe any Intellectual Property Rights of any other person. The Customer shall hold the Company harmless and shall fully indemnify the Company against any and all loss, damage, costs 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 for infringement of any Intellectual Property Rights of any other person resulting from the Company’s use of any Input Material submitted by the Customer.

3.7 The Customer warrants that any Input Material submitted by the Customer shall not contravene any applicable safety or other statutory or regulatory requirement. The Customer shall hold the Company harmless and shall fully indemnify the Company against any and all loss, damage, costs and expenses awarded against or incurred by the Company as a result of any breach of this warranty.

3.8 The Company will notify the Customer in writing of any proposed material modifications to the Goods and the Customer shall be deemed to have accepted such modifications unless notice in writing to the contrary shall be received by the Company within 3 days of the date of the Company’s notice to the Customer.

3.9 All Goods shall be supplied by the Company to any standard commercial tolerances that apply within the appropriate industry, unless the Customer notifies the Company in its order of any special tolerances that the Customer requires and the Company agrees in writing to deliver the goods accordingly.

3.10 Subject to the provisions of Condition 9.2 (b), the Customer shall be solely responsible for ensuring the suitability of any Goods for any specific purpose.

3.11 Without limiting the generality of Condition 3.10, all recommendations and advice given by or on behalf of the Company to the Customer as to any method of using or storing the Goods, or the Goods’ suitability for use in any manufacturing process or in connection with any other materials,is in either case given without liability on the part of the Company.

4. DELIVERY

4.1 Delivery will normally be arranged by the Company to the Customers address but delivery terms will be separately agreed in writing, with costs agreed in advance.

4.2 Reasonable endeavours will be made by the Company to deliver the correct quantity of Goods ordered by the Customer. However, the Customer may not reject short or excess deliveries which are within a margin of twenty per cent (20%) short and twenty per cent (20%) over. In such cases, the Company will adjust the price of the Goods proportionately.

4.3 The Company will submit proofs of work to the Customer for approval, subject to schedule constraints. The Company shall not be liable for any delay resulting from the Customer’s failure to return proofs promptly, nor for any errors in the proofs which are not corrected by the Customer. Due to differences in equipment, paper, inks and other conditions between colour proofing and production runs, a reasonable variation in colour between colour proofs and the completed work will be deemed acceptable unless otherwise agreed in writing.

4.4 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.

4.5 Delivery dates and periods shall be extended as necessary if any delay in delivery is caused as set out in Condition 7.3 of these Conditions or due to any other circumstances beyond the control of the Company. If any such delay causes the Company to revise agreed production schedules delivery will (subject to these Conditions) be in accordance with such revised schedules which will be notified to the Customer.

4.6 The Customer may request earlier delivery dates than those originally agreed and the Company will at their discretion endeavour to accommodate such requests providing that sufficient notice is given. Any additional costs associated with achieving an earlier delivery date will be for the Customer's sole account.

4.7 The Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, but are not limited to, pure economic loss, loss of profits, loss of business, loss of production depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods and / or Services (even if caused by the Company's negligence).

4.8 The Customer must examine the Goods upon delivery and within 2 days thereafter notify the Company in writing of any visible defects. In default the Customer will be deemed to have examined and accepted the Goods. Where the Contract is for the sale of Goods making up one or more Commercial Units, the Customer accepting any Goods included in a Commercial Unit shall be deemed to have accepted all of the Goods making up the Commercial Unit.

4.9 If for any reason the Customer fails to take or accept delivery of any or all of the Goods, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:

(a) risk in the Goods shall pass to the Customer (including for loss or damage caused by the Company's negligence);

(b) the Goods shall be deemed to have been delivered; and

(c) the Company may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including storage and insurance and redelivery); or

(d) sell the Goods at the best price readily obtainable and (after deducting any reasonable costs and expenses in connection with the storage and expedited sale of the Goods), charge the Customer for any shortfall below the price for the Goods.

4.10 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.

4.11 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.

4.12 Without prejudice to the provisions of Condition 4.11, the Company reserves the right to charge for the storage of Goods at such rate as shall be agreed with the Customer, if:

(a) the Customer requests that its order be put on hold; or

(b) if any Goods are held by the Company (through no fault of the Company) for any period of time beyond any date specified by the Company for the delivery of the Goods.

4.13 Where the Goods are supplied to the Customer’s specification or design, the Customer shall be responsible for ensuring that insofar as is reasonably practicable:

(a) the Goods are so designed as to be safe and without risk to health when properly used; and

(b) such testing and examination is carried out as may be necessary for ensuring that the Goods are safely designed; and

(c) adequate information will be available in connection with the use of the Goods in relation to the use for which they are designed and regarding any conditions necessary to ensure that when put to that use, the Goods will be safe and without risk to health.

4.14 The Customer shall indemnify the Company against:

(a) any costs, expenses, claims, demands or actions which may be made against the Company in this regard or otherwise arising out of any failure on the part of the Customer to undertake the obligations detailed in Condition 4.15; and

(b) all costs and expenses incurred by the Company in dealing with any claims, demands or actions referred to in sub-clause (a) above and in rectifying any defects in the Goods.

4.15 Where the Goods consist of wrappers, containers or any other articles intended for use in connection with any foodstuffs or any substances or materials of a sensitive, volatile or delicate nature, the Customer shall be solely responsible for satisfying itself that such foodstuffs, substances or materials will not be adversely affected by any materials used by the Company in the manufacture or printing of such articles. The Customer shall indemnify and keep indemnified the Company from and against all liability to any third party in respect of any claim that any foodstuffs, substances or materials have been adversely affected as aforesaid and have thereby caused said third party loss, damage or expense.

4.16 The Customer undertakes that it will comply with and will procure that its employees, customers and every other person working with, on, or near or using the Goods shall comply in full with the instructions and recommendations made in any manual or handbook or instructions provided by the Company or other manufacturer of the Goods and that they will comply with all other instructions given in connection with the use of the Goods.

4.17 The Goods are designed to be used without danger to health and safety where correctly used in accordance with the relevant National or International Standard, the rating for which the Goods were designed and accepted good practice. If the Customer intends to use the Goods under unusual conditions (especially if special risks to health and safety are posed), it shall be the sole responsibility of the Customer to ensure the safe use of the Goods in such circumstances.

5. DAMAGE IN TRANSIT AND NON-DELIVERY

5.1 No claim for loss or damage in transit or for errors in despatch or invoicing will be accepted by the Company unless a separate written notice is given to the Company within 2 days of receipt of the Goods. In the case of non-delivery a written notice must be given to the Company within 2 days of the invoice date.

5.2 If liability is accepted by the Company under Condition 5.1, the Company will repair or replace as appropriate at their sole discretion any lost or damaged Goods. The Customer shall have no other claim and the Company shall be under no liability for consequential loss or damage suffered by the Customer by reason of any delay in final delivery.

5.3 The Company will not accept the return of any Goods which have been properly supplied under the Contract.

6. RISK AND TITLE

6.1 Risk of damage to or loss of the Goods shall pass to the Customer:

(a) in the case of Goods to be delivered at the Company’s place of business, at the time when the Company notifies the Customer that the Goods are available for collection; or

(b) in the case of Goods to be delivered other than at the Company’s place of business, at the time of delivery of the Goods to the Customer’s premises, or such other location as shall be notified by the Customer to the Company in advance of despatch of the Goods.

6.2 Title to the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:

(a) the Goods; and

(b) all other sums which are or which become due to the Company from the Customer on any account.

6.3 Until title to the Goods has passed to the Customer, the Customer shall:

(a) hold the Goods on a fiduciary basis as the Company's bailee;

(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company's property;

(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery and indemnify the Company against all loss or damage of whatsoever nature affecting the Goods;

(e) notify the Company immediately if it becomes subject to any of the events listed in Condition 12.1 (c) to (f) inclusive;

(f) not assign to any other person any rights arising from a sale of the Goods without the Company’s written consent (and then only subject to a set of terms and conditions containing a Risk and Title clause which is at least as onerous as this Condition 6);

(g) not pledge or in any way charge by way of security for any indebtedness any of the Goods (and if the Customer does so, all moneys owing by the Customer to the Company shall, without prejudice to any other right or remedy of the Company, forthwith become due and payable); and

(h) give the Company such information relating to the Goods as the Company may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business, provided that it shall hold the entire proceeds of any such resale upon trust for the Company until the Goods have been paid for in full and shall keep all such trust monies in a separate bank account which shall not be overdrawn and in which such trust monies are not mingled with its own or any other monies. The Customer acknowledges and agrees that a sale by an administrator or liquidator as part of or in connection with the sale of the assets or part of the assets of the Customer is not in the ordinary course of the Customer’s business.

6.4 If:

(a) the Customer is late in paying for the Goods and / or Services; or

(b) the Customer is late in paying for any other goods supplied by the Company; or if

(c) before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in Condition 12.1 (c) to (f) inclusive or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then:

(d) without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, the Company may enter any premises of the Customer or of any third party where the Goods are stored or kept in order to recover them. The Customer shall not keep the Goods at any premises at which the Customer does not have the right to grant access to the Company.

6.5 With respect to any Combined Goods, the Company shall be entitled to remove and repossess the Combined Goods pursuant to Condition 6.4 (d) regardless of the practical difficulty of so doing or any damage caused to such other goods in the course of taking all reasonable steps to effect such removal (whether such other goods belong to the Customer or to third parties) and the Customer waives any claim it may have against the Company for any damage caused to its goods as a result of taking such reasonable steps and shall indemnify the Company in full against any claim made against the Company by any third party arising out of or in connection with such reasonable steps being taken by the Company.

6.6 With respect to any Incorporated Goods, the Customer shall store such Incorporated Goods separately and shall notify the Company of the precise location and position thereof and the ownership of such Incorporated Goods and the property therein shall vest in the Company. Upon any sale of any Incorporated Goods by the Company, then if the proceeds of sale exceed the price or the balance of the price of the Goods due to the Company from the Customer, the Company shall apply the balance of the proceeds of sale as follows:

(a) firstly, by reimbursing the Company for the cost and expense of the taking of possession of and arranging for the sale of the Incorporated Goods and any damages which the Company has suffered as a result of any repudiation of the Contract by the Customer;

(b) secondly, by paying any sums due and owing to other creditors of the Customer in respect of other items and materials used in connection with the manufacture of the Incorporated Goods where the property in such items and materials has remained vested in such other creditors by reason of effective retention of title clauses and the claims of such other creditors pursuant to such retention of title clauses have been notified to the Company by
the Customer or its liquidator, administrator or receiver, or by such other creditors.

7. PRICE

7.1 Unless otherwise agreed by the Company in writing, the price for the Goods and Services shall be the price confirmed in the Company’s acceptance of the Customer’s order issued pursuant to Condition 2.5, but the Company reserves the right to vary the price and to invoice the Customer at the price ruling at the date of despatch of the Goods.

7.2 If the cost to the Company of performing the Company’s obligations under the Contract shall be increased by reason of the making or amendment of any law or of any order, regulation, or bylaw having the force of law that shall affect the performance of the Company’s obligations under the Contract, the amount of such increase shall be added to the Contract price.

7.3 The Company reserves the right, by giving notice to the Customer at any time before delivery of the Goods, to increase the price of the Goods if the period between acceptance of the Customer’s order and delivery of the Goods is in excess of three months, or to reflect any increase in any cost to the Company which is due to any factor beyond the control of the Company (including any foreign exchange fluctuation, currency regulation, alteration of duties, increase in transportation costs and any increase in the costs of labour, materials or other costs of manufacture), or if there is any change in delivery dates, quantities or specifications for the Goods which is requested by
the Customer, or if there is any increase in any cost to the Company which is in any other way attributable to the Customer. Without limiting the generality of this Condition 7.3, the Company may increase the price of the Goods to reflect any cost increase caused by:

(a) any alteration to the instructions given by the Customer;

(b) any alteration requested by the Customer which requires the submission of additional proofs;

(d) any experimental, preliminary or additional work requested by the Customer other than that specified in the Company’s acceptance of the Customer’s order issued pursuant to Condition 2.5;

(e) the cost of any alterations or modifications to the Goods requested by the Customer as a result of any tests or inspections of any experimental work undertaken by the Company;

(f) any additional work involved where any Input Material is submitted late, or is found by the Company during production to be defective, unsuitable, inaccurate or incomplete;

(g) any expenses incurred by the Company in procuring appropriate substrate, plates or other materials;

(h) storage charges for retaining any material produced in origination work.

7.4 Unless otherwise agreed in writing between the Customer and the Company, the Contract price shall be exclusive of Value Added Tax which will be charged at the rate which is applicable at the date of despatch of the Goods.

7.5 Any waiver or reduction of any price will only be applicable if agreed by the Company in writing.

8. PAYMENT

8.1 The Company shall be entitled to invoice the Customer for the price of the Goods and / or Services immediately after delivery, or in line with the terms of the order if different.

8.2 The Company’s invoices shall be paid within 30 days of invoice date unless explicitly stipulated differently in writing by the Company, pursuant to Condition 2.5.

8.3 The time of payment of the price shall be of the essence of the Contract.

8.4 No payment shall be deemed to have been received until the Company has received cleared funds. Payment will not be made by cheque, without the prior written agreement of the Company. Any costs incurred by the Company in attempting to clear cheques received shall be charged to the Customer, who will reimburse the Company immediately.

8.5 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.

8.6 Any failure by the Customer to pay the Company any sum by the due date for payment and/or the occurrence of any one or more of the events set forth in Condition 12.1 shall entitle the Company, at any time and without notice to the Customer and without limiting any other remedy available to the Company under these Conditions, the Contract, or otherwise:

(a) at its option, to charge interest at the rate of six percent (6%) per annum above the Bank of England’s base lending rate from time to time calculated on a daily basis (whether before or after any judgment) until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest);

(b) to charge the Customer with any costs incurred by the Company in the course of collecting outstanding monies due to the Company from the Customer;

(c) to suspend any warranty for the Goods or any other goods supplied by the Company to the Customer, whether or not they have been paid for;

(d) to appropriate any payment made by the Customer to such of the Goods as the Company may think fit;

(e) to set off any amount owed by the Company to the Customer against any amount owed by the Customer to the Company on any account whatsoever;

(f) to terminate the Contract, or suspend or cancel the further delivery of any Goods and / or Services, including, stopping the delivery of any Goods in transit;

(g) to withdraw or reduce any agreed monthly credit limit; and (h) to cancel any discount (if any) offered to the Customer.

8.7 The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

8.8 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.

8.9 For the avoidance of doubt, and notwithstanding the exercise of any remedy by the Company in accordance with Condition 8.6, or under any other of these Conditions, the Contract, or otherwise, the Customer shall remain liable to pay and shall pay the Company at the Contract rate, any and all payments subsisting at the relevant time.

8.10 The Company shall retain a general lien on the full value of all Goods provided until such Goods have been fully paid for.

9. WARRANTIES

9.1 The Company warrants that upon delivery (subject to the provisions of Condition 9.1):

(a) the Goods will correspond in all material respects with any agreed specification submitted by the Customer and shall be within expected industry standards with regard to defects in materials, workmanship and design; and

(b) if the Customer has made it expressly known to the Company in the Customer’s order that the Goods shall be suitable for a particular purpose and the Company has expressly stated in the Company’s acceptance of the Customer’s order issued pursuant to Condition 2.5 that it will supply Goods suitable for that purpose, then the Goods shall be reasonably fit for the purpose so stated, subject to Customer approval and trial.

9.2 The Company shall not be liable for a breach of any of the warranties in Condition 9.1 unless:

(a) the Customer gives written notice of any defect or deficiency to the Company within 7 days from the date that the Customer discovered or ought to have discovered the defect or deficiency; and

(b) the Company is given a reasonable opportunity after receiving the notice of examining the Goods and the Customer returns such Goods to the Company's place of business at the Company's cost for the examination to take place there, or at the option of the Company, the Goods are made available at the Customer's premises for inspection by the Company.

9.3 The Company shall not be liable for a breach of any of the warranties in Condition 9.1 if:

(a) the Customer makes any further use of any Goods which the Customer has alleged to be defective after giving notice of any such defect; or

(b) the Customer alters or repairs the Goods without the prior written consent of the Company; or

(c) the defect arises because the Customer failed to follow any oral or written instructions as to the storage or use of the Goods or (if there are none) good trade practice; or

(d) the defect arises from any Input Material submitted by the Customer, or from fair wear and tear, wilful damage, negligence, abnormal working conditions or from any misuse of the Goods, or otherwise as a result of failure of the Customer to comply in full with any manual or handbook or instruction containing the technical specifications and operating instructions supplied by the Company for the Goods; or

(e) the Goods have been used for an application other than that specified at the time the Customer’s order was acknowledged, or otherwise not in accordance with the Company’s instructions;

(f) the full price for the Goods has not been paid by the time for payment referred to in Condition 8.2; or

(g) the defect is of a type specifically excluded by the Company by notice in writing.

9.4 Subject to Condition 9.2 and Condition 9.3, if the Goods do not conform to the applicable warranties in Condition 9.1:

(a) the Company shall at its option:

(i) repair the Goods;
(ii) replace such Goods (or the defective part); or
(iii) refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Customer shall, at the Company's expense, return the Goods or the part of such Goods which is defective to the Company; and

(b) the Company shall, if it opts to replace defective Goods, then deliver replacement Goods to the Customer (at the Company’s expense) and ownership of the defective Goods shall, if it has vested in the Customer, re-vest in the Company.

9.5 For the avoidance of doubt (but without prejudice to the provisions of Condition 9.5 (a)), the failure of any part of the Goods to conform to either warranty in Condition 9.2 (a) or (b) shall only render the Company liable to repair, replace or refund the value of that part of the Goods which is defective.

9.6 If the Company complies with Condition 9.4 it shall have no further liability for any breach of the applicable warranties in Condition 9.1.

10. LIMITATION OF LIABILITY

10.1 Save for any stipulation as to the Company’s liability contained elsewhere in these Conditions, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

(a) any breach of these Conditions;

(b) any use made or resale by the Customer of any of the Goods or of any product incorporating any of the Goods; and

(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

10.3 Nothing in these Conditions excludes or limits the liability of the Company:

(a) for death or personal injury caused by the Company's negligence; or

(b) under section 2(3), Consumer Protection Act 1987; or

(d) for fraud or fraudulent misrepresentation.

10.4 Subject to Condition 10.2 and Condition 10.3:

(a) the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price, PROVIDED THAT where the Company’s liability is referable only to a particular portion of the Contract price, then the Company’s total liability shall in no circumstances exceed the value of that portion of the Contract price; and

(b) the Company shall not be liable to the Customer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for indirect or consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

11. INDEMNITY

The Customer shall hold the Company harmless and keep the Company fully and promptly indemnified against all direct, indirect or consequential liabilities (all three of which terms include, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with any claim made by or against the Company in respect of any liability, loss, damage, injury, cost or expense whatsoever, howsoever and to whomsoever occurring, to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from any act or omission of the Customer, or from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.

12. TERMINATION

12.1 The Company shall have the right at any time by giving notice in writing to the Customer to terminate the Contract forthwith without liability to the Customer if:

(a) the Customer commits a material breach of any of these Conditions and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing of the breach; or

(b) the Customer repeatedly breaches any of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Conditions; or

(c) any distress, execution or other process is levied upon any of the assets of the Customer, or the Customer has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or administrative receiver appointed over its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator over the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or

(d) any event occurs, or proceeding is taken, with respect to the Customer under the laws of any jurisdiction to which the Customer is subject, that has an effect equivalent or similar to any of the events or proceedings mentioned in Condition 12.1 (c); or

(e) the Customer ceases, or threatens to cease, to carry on all or substantially the whole of its business; or

(f) the financial position of the Customer deteriorates to such an extent that in the reasonable opinion of the Company, the capability of the Customer adequately to fulfil its obligations under the Contract has been placed in jeopardy.

12.2 On termination of the Contract for any reason:

(a) the Customer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of any Goods and Services held or supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt;

(b) the Company may exercise its rights under Condition 6 hereof to recover any Goods from the Customer's premises for which payment has not been made in full, whether or not such payment is due; and

(c) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

12.3 On termination of the Contract (however arising), Conditions 6-12, 14 and 16 shall survive and continue in full force and effect.

13. ADDITIONAL EXPORT TERMS

13.1 In these Conditions “Incoterms 2020” means the international rules for the interpretation of credit terms at the International Chamber of Commerce as in force at the date when the Contract arises. Unless the context otherwise requires, any term or expression which is defined here or given a particular meaning by the provisions of Incoterms 2020 shall have the same meaning in these Conditions.

13.2 Where the Goods are supplied for export, the provisions of this Condition 13 shall (subject to any special terms agreed in writing between the Customer and the Company) apply, notwithstanding any other provisions of these Conditions.

13.3 Depending on the terms agreed, the Customer may be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them. The Contract shall be subject to the procurement by the Customer at the Customer’s own expense of any import licence and any other authorisations necessarily required for the import of the Goods into the country to which the Goods are to be exported, but failure to obtain any such documents shall not entitle the Customer to cancel the Contract.

13.4 Any import licence required shall be the responsibility of the Customer and will be provided to the Company on a needs basis. In the event of the import licence expiring before the Goods have been made available it shall be the responsibility of the Customer to obtain the renewal of such licence. The Company shall not be liable for any expense or loss caused by delay in obtaining such licence or the renewal thereof.

13.5 The Goods shall be delivered on the terms agreed between the parties and quoted on the order acknowledgement sent to the Customer and the Company shall be under no obligation to give the Customer the notice relating to insurance under Section 32(3) of the Sales of Goods Act 1979.

14. CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS

14.1 The Customer and the Company agree that in the course of the Company supplying Goods and Services to the Customer, the parties may disclose to each other certain Confidential Information. The Customer and the Company agree that each party will maintain the Confidential Information’s confidentiality and not disseminate it to any third party without the disclosing party’s prior written consent, save that this obligation shall not apply to any Confidential Information that either party has a duty (whether legal or otherwise) to communicate or that is in the public domain or is already in the receiving party’s possession through no fault of the receiving party. The Customer shall not use any Confidential Information for any purpose other than to carry out the Customer’s obligations to the Company.

14.2 The Customer acknowledges the Company’s ownership of any Intellectual Property Rights in any Output Material and in any Goods provided to the Customer pursuant to the Contract and agrees not to contest the Company’s ownership or use of any such Intellectual Property Rights. The Customer shall not acquire any such Intellectual Property Rights or any licence or grant of rights therein, nor shall the Customer register or attempt or permit to be registered, any such Intellectual Property Rights or any licence or grant of rights therein. No Output Material may be copied or reproduced in whole or in part without the prior written consent of the Company. The
Customer further acknowledges that any and all Intellectual Property Rights developed by the Company in producing and supplying any Goods and Services shall become vested and shall vest in the Company absolutely. The Company makes no representation or warranty that the use of the Goods will not infringe the Intellectual Property Rights of any third party and the Company accepts no liability in this respect.

15. ASSIGNMENT/SUBCONTRACTING

15.1 The Company shall endeavour to not reassign the Contract or any part of it to any person, firm or company without the prior written consent of the Customer.

15.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.

15.3 The Company, but not the Customer, shall be entitled to subcontract any or all of its obligations under all or any part of the Contract.

16. FORCE MAJEURE

The Company reserves the right to defer the date of delivery, or to cancel the Contract or reduce the volume of the Goods and Services ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including Acts of God, governmental actions, acts, restrictions, regulations, by-laws, prohibitions or measures of any
kind on the part of any governmental, parliamentary or local authority, war, threat of war, sabotage, insurrection, civil disturbance or requisition or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, pandemic, tempest, accident, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), import or export regulations or embargoes, restraints or delays affecting carriers or any inability or delay in obtaining supplies of adequate or suitable materials, difficulties in obtaining labour, fuel, parts or machinery or power failure or breakdown in machinery provided that, if the event in question continues for a continuous period in excess of 180 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.

17. GENERAL

17.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.

17.2 The Contract constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties.

17.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

17.4 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

17.5 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

17.6 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

17.7 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts.

18. COMMUNICATIONS

18.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by email:

(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Customer by the Company; or

(b) (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Customer.

18.2 Communications shall be deemed to have been received:

(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or

(b) if delivered by hand, on the day of delivery; or

(c) if sent by email, on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.

CONDITIONS OF PURCHASE

1. Definitions and Interpretation

1.1 The definitions and rules of interpretation in this condition shall apply in these conditions.

(a) "Company" means KM Packaging Services Limited;

(b) "Conditions" means these terms and conditions;

(c) "Contract" means the Contract between the Company and the Supplier for the sale and purchase of the Goods consisting of the Order, these Conditions, and other documents, (or parts thereof) specified in the Order, (as if fully set out in the Order) and the Supplier’s acceptance of the Order;

(d) "Goods" means the Goods or Services and other items of equipment (and any parts thereof) to be supplied to the Company pursuant to the Contract;

(e) "Order means the Order placed by the Company whether in writing, verbally, electronically or otherwise for the supply of Goods;

(f) "Services" means the services (if any) described in the Order to be undertaken by the Supplier;

(g) "Supplier" means the person, firm or company to whom the Order is addressed.

1.2 The headings in these Conditions are intended for reference only and do not affect their construction.

1.3 A reference to a clause is a reference to a clause of these Conditions.

1.4 Any reference to a "party" means a party to the Contract and "parties" shall be construed accordingly.

1.5 Words in the singular include the plural and in the plural include the singular.

1.6 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.

2. Application of Conditions and Contract Formation

2.1 All Goods purchased by the Company are purchased subject to these Conditions, which shall be the sole terms and Conditions governing any purchase by the Company from the Supplier.

2.2 These Conditions will prevail over any other terms and conditions contained or referred to in any acknowledgment of Order, form of contract, letter or other communication sent by the Supplier to the Company and acceptance of the Order by the Supplier shall indicate unqualified acceptance of these Conditions.

2.3 No Goods shall be deemed to have been purchased by the Company and no Contract shall come into existence until the Supplier accepts the Order in writing, or confirms a written delivery date.

2.4 Without prejudice to any of the Supplier’s obligations under these Conditions, the Supplier acknowledges that any forecasts, forward projections or schedules of volume provided to the Supplier by the Company are given only as an indication of the Company’s requirements, are not binding and are subject to change without notice.

2.5 In the event that the Goods are not likely to be available at the time required for fulfilment of the Order and will prevent the Order from being fulfilled on time, the Supplier shall notify the Company as soon as reasonably practicable of such unavailability. No substitutes shall be used without the consent of the Company.

2.6 No variation to the Order or these Conditions shall be binding unless expressly agreed in writing by the Company.

3. Company's Property

3.1 All specifications, drawings, patterns and other items furnished by the Company to the Supplier:

(a) are confidential and shall not be disclosed by the Supplier to any other person without the prior consent of the Company;

(b) shall not be copied or used for any other purpose other than for the carrying out of the Supplier’s obligations under the Contract;

(d) shall be returned at the Supplier's risk and expense in good order and condition to the Company immediately upon request or upon completion or termination of the Contract; and

(e) shall be insured against all risks by the Supplier whilst they are in its possession.

3.2 Where the Goods are designed, created or otherwise developed by or for the Supplier pursuant to the Contract, then all intellectual property rights therein or relating thereto throughout the world (including, without limitation, patents, copyrights, design rights, registered designs, trademarks, service marks and know-how and the rights to apply for any of the foregoing or other intellectual property rights) (the "Intellectual Property Rights") shall belong to the Company absolutely. The Supplier hereby assigns the Intellectual Property Rights to the Company with the intent that upon the making or creation thereof the Intellectual Property Rights shall automatically vest in the Company.

3.3 The Supplier shall at the Company's request (and notwithstanding the termination of the Contract) sign and execute and procure the signature and execution of all such documents and do all such acts as the Company may reasonably require:

(a) to vest the legal title in, apply for, obtain and maintain in force in the Company's sole name (unless it otherwise directs) the Intellectual Property Rights;

(b) to resist any objection or opposition to obtaining, and any petitions or applications for revocation of, any of the Intellectual Property Rights;

3.4 The Supplier irrevocably undertakes that it shall not assert against the Company any moral rights in or relating to the Intellectual Property Rights and warrants that all such moral rights are irrevocably waived and extinguished. For the purpose of this clause 3.4, moral rights shall have the meaning ascribed thereto by the Copyright, Designs and Patents 1988 Act and shall include all rights similar or corresponding thereto subsisting in any other country of the world from time to time.

4. Supplier’s Obligations

4.1 Without prejudice to any other rights the Company may have, the Supplier warrants to the Company that:

(a) the Goods shall be manufactured under BRCGS conditions and be fit for all purposes of the Company, including the use of the Goods in containing, handling, packaging and wrapping of foodstuffs and any substances or materials of a sensitive, volatile or delicate nature. The Supplier shall satisfy itself that it fully understands the Company's requirements so as to be in a position to comply with its obligations under this clause 4.1 (a) and also to prevent delay on account of any modifications to the Goods which may be necessary to meet the Company's requirements. The cost of any such modifications shall be deemed to be included in the Contract price;

(b) the Goods comply in all respects with all relevant British, European and international statutory requirements, regulations, orders and standards relating to the Goods and the Supplier expressly warrants that the Goods supplied under the Order have been or will be manufactured and sold free from all liens, claims and encumbrances and in compliance with all relevant laws and regulations in force in the United Kingdom.

4.2 Without prejudice to clause 4.1, the Supplier warrants that all Goods supplied under the Order shall:

(a) be of the quality, quantity, size, description, specification and dimensions specified in the Order or otherwise indicated by the Company;

(b) be of sound materials and of proper workmanship and design;

(d) be equal in all respects to any samples provided by the Supplier which have been approved by the Company;

(e) be of a nature, substance and quality suitable for use in connection with foodstuffs and any other categories determined by the Company and any substances or materials of a sensitive, volatile or delicate nature and be non-injurious to health;

(f) be of a nature, substance, and quality suitable for incorporation in and for use with other goods used in the containing, handling, packaging and wrapping of foodstuffs and any other categories determined by the Company and any substances or materials of a sensitive, volatile or delicate nature; and

(g) be capable of any standard of performance specified in the Order and/or the Supplier's quotation.

(h) Shall follow the Company Service Level Agreements, which will be submitted under separate cover.

4.3 Without prejudice to clauses 4.1 or 4.2, the Supplier warrants that:

(a) it shall at all times maintain sufficient manufacturing capacity and stocks of Goods to enable it to meet any Order and shall at all times maintain full quality and traceability records;

(b) it shall obtain and maintain in force for the duration of the Contract all licences, permissions, authorisations, consents and permits needed to produce and supply the Goods in accordance with the Contract;

(c) it shall comply with all applicable laws, enactments, orders, regulations and other instruments relating to the production, packing, packaging, marking, storage, handling, and delivery of the Goods;

(d) the Services will be performed by appropriately qualified and trained personnel in a good and workmanlike manner and to the highest standard of quality prevailing in the industry at the time of performance and that the Supplier shall observe any instructions given to it by the Company in connection with the performance of the Services;

(e) it has disclosed to the Company any information or requirements affecting the Company under the Health and Safety at Work Act 1974 and that any written information required to be supplied pursuant to that Act has been delivered to the Company.

4.4 The Supplier hereby agrees to indemnify and keep indemnified the Company from all loss, damage, expenses, costs, charges claims, demands or actions, whatsoever incurred or suffered by the Company and/or for which it may be liable to any third party due to, arising from or in connection with:

(a) all claims of whatsoever kind and from whomsoever arising for damage or injury to property or persons arising out of the act or omissions or the negligence of the Supplier, its employees, servants, agents, subcontractors or others in connection with the performance of its obligations under the Contract save insofar as the same is attributable solely to the negligence of the Company or its employees, servants, agents or subcontractors;

(b) the breach of any provision of the Contract by the Supplier (including any negligent performance or failure or delay in performing any obligation under the Contract);

(d) any breach of the warranty given by the Supplier in clause 8.1;

(e) any defect in the workmanship, materials or design of the Goods or their packaging;

(f) any claim made by or against the Company and arising out of, or in connection with, the supply of the Goods or the Services;

(g) any failure of the Goods or Services to comply with any law or regulation applicable to them;

(h) any infringement or alleged infringement of any Intellectual Property Rights for or relating to the Goods or to the importation, use or resale of the Goods;

(i) any liability under the Consumer Protection Act 1987 in respect of the Goods.

4.5 The Supplier shall insure adequately against all loss, damage or injury or other claims which may be incurred by the Supplier or the Company which may arise in any way whatsoever out of the Contract and without prejudice to the generality of the foregoing, shall be adequately insured for third party and employer's liability. At the request of the Company, the Supplier shall provide evidence of such insurance and payment of the current premiums.

4.6 The Supplier shall:

(a) do nothing to invalidate any insurance policy or to prejudice the Company's entitlement under it; and

(b) notify the Company if any policy is (or will be) cancelled or its terms are (or will be) subject to any material change.

4.7 The Supplier's liabilities under the Contract shall not be deemed to be released or limited by the Supplier taking out the insurance referred to in clause 4.5.

4.8 If the Supplier fails or is unable to maintain insurance in accordance with clause 4.5, or fails upon request by the Company to provide evidence that it has paid the current premiums in accordance with clause 4.5, the Company may, so far as it is able, purchase such alternative insurance cover as it deems to be reasonably necessary and shall be entitled to recover all reasonable costs and expenses it incurs in doing so from the Supplier.

5. Samples, Testing and Inspection

5.1 The Supplier shall submit samples of the Goods for the Company's approval before the Goods are delivered if requested by the Company. Such samples of Goods should be marked by the Supplier clearly and appropriately for identification and will be retained by the Company until after the Goods have been delivered.

5.2 The Company or its authorised agent shall be entitled to make such tests or carry out such inspections of Goods during manufacture, processing and storage and inspect any equipment used to manufacture such Goods. The Supplier shall at its own cost provide or shall procure the provision of all facilities as may be reasonably required and give all assistance and make available all pertinent drawings and plans to the Company or its authorised agent for such tests or inspections. Before despatching the Goods, the Supplier shall carefully inspect them for compliance with the Order approved samples and/or the specification and shall give the Company reasonable notice of any tests to be carried out so that the Company may be represented at such tests. The Supplier shall at the request of the Company supply to the Company a copy of the Supplier's test and/or inspection reports certified by the Supplier to be a true copy and the Supplier shall retain the original documents for a period of three years.

5.3 If as a result of any test or inspection report under clause 5.2 above, the Company considers that the Goods do not comply with the Order or Order samples approved by the Company and/or specification (if any), or are unlikely on completion of manufacture or processing so to comply, the Company shall notify the Supplier in writing and the Supplier shall promptly take such steps as may be necessary to ensure such compliance at its sole cost.

5.4 The Company shall have the right to inspect any Services performed by the Supplier pursuant to the Contract and the Supplier shall allow all reasonable access and assistance to the representatives of the Company to enable such representatives to carry out the inspection promptly, including providing the Company with any information that may be reasonably required.

6. Price

6.1 The price of the Goods shall be the price stated in the Order and shall not be subject to change without the prior written consent of the Company and shall include all charges for packing, packaging, carriage, insurance and delivery of the Goods to the Company and any clearance charges, import taxes or duties or other duties whatsoever.

6.2 No additional charges shall be accepted by the Company without the prior consent of the Company in writing.

6.3 Unless otherwise agreed by the Company in writing, any costs incurred by the Supplier in respect of secondary packaging (including the cost of pallets) are the Supplier’s responsibility and shall be included in the price of the Goods.

6.4 The Company shall be entitled to:

(a) any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Supplier; and

(b) the benefit of any other cost saving incurred by the Supplier, whether or not shown on its own terms and conditions of sale.

7. Payment

7.1 Unless otherwise agreed in writing by the Company, payment shall he made 60 days from the end of the month of receipt by the Company of the Supplier's invoice, or delivery of Goods or performance of the Services specified in the Contract, whichever is later.

7.2 The Company shall be free to make payment to the Supplier by whichever method the Company chooses.

7.3 If any sum under the Contract is not paid when due, the Supplier shall not be entitled to suspend delivery of the Goods as a result of any sums being outstanding.

7.4 The Company shall be entitled to set off against the sum shown to be due all sums due from the Supplier to the Company in respect of any other contract or transaction between the Company and the Supplier.

7.5 Payment of the invoice by the Company shall not constitute acceptance of the Goods and is without prejudice to any claims the Company might have against the Supplier.

7.6 All invoices shall:

(a) be rendered with the Order and the Order number;

(b) be in respect of one Order only; and

7.7 Any failure to submit invoices in accordance with the requirements of clause 7.4 will result in the invoice being returned to the Supplier.

7.8 Prices quoted exclude VAT except where explicitly specified. VAT (or equivalent) will be added to invoices as required.

8. Product Recalls

8.1 The Supplier warrants that it shall immediately notify the Company in writing providing all relevant details if it discovers:

(a) that there is or may be a defect in the Goods which have been delivered to the Company at any time;

(b) any error or omission in the instructions for the use and/or assembly of the Goods;

(d) that any such defect, error or omission represents a breach of any warranty which causes or may cause any risk of death, injury or damage to property; or

(e) that it receives any complaints relating to the Goods from its customers.

8.2 Where any of the circumstances in clause 8.1 apply, the Company may in its absolute discretion, or by order of any authority, at the Supplier’s expense:

(a) recall any Goods or any other Goods into which the Goods have been incorporated and sold by the Company to its customers (whether for a refund, credit or replacement, which shall in each case be undertaken by the Supplier at the Company’s discretion); and/or

(b) issue any notification whether in writing or otherwise to its customers about the manner of use or operation of any Goods or any other Goods into which the Goods have been incorporated and sold by the Company to its Customers; in each case on the basis of the identification whether by the Company, its customers or any third party of any defect in the relevant Goods or any error or omission in the instructions for their use or assembly (whether or not that defect, error or omission represents a breach of any warranty) which the Company reasonably concludes affects or may affect any of the Goods supplied which causes or may cause any risk of death, injury or damage to property.

8.3 The Company will wherever practicable notify the Supplier prior to taking such decision as detailed in clause 8.2 and afford the Supplier the opportunity to make representations.

8.4 If the Company conducts a recall of Goods, the Supplier shall cooperate with the Company and provide all assistance that is reasonably required to ensure that the Goods are recalled promptly and effectively. The parties shall have the following responsibilities:

(a) the Supplier shall follow local procedures covering recall of Goods subject to any directions received from the Company;

(b) the Supplier must ensure that it retains all batch records and product information relating to the recalled Goods and that these records are made available to the Company within four hours of notification of a Product recall;

(d) the Supplier shall only supply Goods replacing the recalled Goods upon the Company’s request in writing.

8.5 The Supplier shall reimburse the Company for losses as a result of or in connection with such recall of Goods and/or for arising out of the Supplier's performance, or purported performance of, or failure to perform its obligations under the Contract.

9. Collection or Delivery and Performance

9.1 Each delivery or collection must be accompanied by full details including the net quantity and description of the Goods supplied, together with the Order and the Order number.

9.2 Delivery or collection in instalments shall be permitted only with the consent of the Company in writing. Where the Company agrees in writing to accept delivery by instalments the Contract shall be construed as a single contract in respect of each instalment, but failure by the Supplier to deliver any one instalment shall entitle the Company at its option to treat the whole Contract as repudiated.

9.3 In the event that the Company is not able to collect or accept delivery of the Goods when due, the Supplier shall be responsible for arranging suitable storage at suitable premises for the Goods, advising the Company beforehand of the particulars of such proposed storage, and the Supplier shall also ensure that the Goods and the premises in which they are stored are properly insured against all the usual risks and shall notify the Company of such insurance cover. The Company shall be liable for the reasonable cost, including insurance, of so doing.

9.4 If the Goods are collected by or delivered to the Company in excess of the quantities ordered, the Company shall not be bound to pay for the excess and any excess shall be and shall remain at the Supplier's risk and shall be returnable at the Supplier's expense.

9.5 The Goods shall be available for collection or delivered at the time or within the period specified in the Order to the address indicated in the Order.

9.6 Collection or delivery of the Goods shall be complete on the completion of unloading and stacking of the Goods at the address indicated in the Order. The Supplier shall immediately notify the Company when delivery has been completed pursuant to this clause 9.7. Delivery shall take place during the Company's normal business hours.

9.7 The Services shall be performed at the address indicated in the Order or as otherwise directed by the Company.

9.8 If the Goods or any part are not available for collection or delivered within the time or times specified in the Contract or any extension of such time or times, the Company may recover from the Supplier as liquidated damages and not by way of penalty a percentage of that part of the Contract which is properly apportionable to the Goods undelivered and to any other Goods already delivered under the Contract which cannot be effectively and commercially used by the Supplier's failure entirely to perform the Contract. In addition to the Company’s rights under this clause 9.9 as aforesaid, the Company may:

(a) refuse to take any subsequent attempted delivery of the Goods;

(b) terminate the Contract with immediate effect;

(c) obtain substitute Goods from another supplier and recover from the Supplier any costs and expenses reasonably incurred by the Company in obtaining such substitute Goods; and

(d) claim damages for any other costs, expenses or losses directly or indirectly resulting from the Supplier's failure to deliver the Goods as aforesaid.

9.9 Each collection or delivery shall be accompanied by a delivery note from the Supplier showing:

(a) the Order number;

(b) the date of the Order;

(d) where the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.

9.10 The Supplier shall be obliged to obtain the signature of the Company’s representative on the delivery note required pursuant to clause 9.11, but such signature shall not indicate acceptance of the Goods.

9.11 If the Supplier requires the Company to return any packaging materials to the Supplier, that fact must be clearly stated on the delivery note accompanying the Order, and any such returns shall be at the Supplier's expense.

9.12 If the Supplier is in the position of being able to supply some but not all of his customers the Company shall be given priority over all other of the Supplier's customers.

9.13 If collection or delivery is made before the delivery date specified in the Order the Company may return the Goods to the Supplier at the Supplier's risk and expense. In any event payment will be withheld and payment period will begin to run from the delivery date specified in the Order or the date of receipt by the Company of a correct invoice whichever is the later.

10. Risk and Property

10.1 Until delivered by the Supplier in accordance with clause 9, the Goods shall remain at the risk of the Supplier who shall insure the same against all risks which can be reasonably contemplated as affecting the Goods. Subject to the Company's right of rejection which may accrue to the Company whether under these Conditions or otherwise and the passing of property at an earlier time under statute or rule of law, the property in the Goods shall pass to the Company upon delivery.

11. Packaging

11.1 Prior to despatch, the Goods shall he properly packed and secured in a manner so as to reach their destination in good condition under normal conditions of transport, having regard to the nature and composition of the Goods.

11.2 Subject to clause 11.1, all export shipments must meet all export shipping requirements and must be adequately boxed or crated with any special handling clearly marked and contents waterproofed and otherwise protected to prevent damage in transit.

12. Acceptance and Rejection

12.1 Without prejudice to any other of its rights, the Company may by notice in writing to the Supplier reject any or all of the Goods or Services if the Supplier fails to comply with any of its obligations under the Contract.

12.2 The Company shall not be deemed to have accepted any Goods until the Company has had a reasonable time to inspect them following delivery, or if later, within a reasonable time after any latent defect in the Goods has become apparent.

12.3 If any Goods are rejected by the Company in accordance with clause 12.1, then the Company may:

(a) require the Supplier to replace the rejected Goods at the Supplier’s risk and expense within an agreed reasonable timeframe of being requested to do so;

(b) terminate the Contract with immediate effect;

(d) where the Goods have already been paid for in part or in full, require the Supplier to repay the Contract Price for the rejected Goods in part or in full, as applicable (whether or not the Company has previously required the Supplier to replace the rejected Goods); and

(e) claim damages for any other costs, expenses or losses resulting directly or indirectly from the Supplier's delivery of the rejected Goods.

12.4 The Company's rights and remedies under clause 12.3 are in addition to the rights and remedies available to it in respect of the statutory conditions relating to description, quality, fitness for purpose and correspondence with sample implied into the Contract by the Sale of Goods Act 1979.

12.5 Clause 12.3 shall apply, without limitation, to any replacement Goods supplied by the Supplier.

12.6 If the Supplier fails to promptly replace rejected Goods in accordance with clause 12.3 (a), the Company may, without affecting its rights under clause 12.3 (e), obtain substitute Goods from a third party supplier and the Supplier shall reimburse the Company for the costs it incurs in doing so.

12.7 The Supplier shall promptly re-perform any Services found to have been performed defectively within an agreed timeframe.

13. Company's Identification

13.1 The Supplier agrees that any identification used by the Company such as trademarks, trade names, logos or any markings or decorative styling shall be used only on articles supplied to the Company.

14. Advertising and Confidentiality

14.1 The Supplier shall not without the prior written consent of the Company advertise or make it known to third parties that the Supplier supplies Goods to the Company.

14.2 Any Goods manufactured in accordance with the specifications and drawings shall not be disclosed or quoted to any other person.

15. Shipping Documents

15.1 Shipping documents and a separate invoice for each shipment on an Order must be sent to the Company’s office indicated on the Order on the day on which shipment is made. When Goods are invoiced by the Supplier but shipped by a third party the invoice shall bear the name of the shipper and the point from which shipment originated. All shipments must contain a packing list giving a description of the Goods, the net quantity and the Order and the Order number. If the shipment is not delivered to the Company's premises the original bill of lading must be furnished with the invoice. The Company's count shall be accepted as final on all shipments not accompanied by packing lists.

16. Assignment

16.1 The Supplier may not assign or transfer the Order or any rights or obligations thereunder to any other person, firm, company or third party without the prior written consent of the Company.

17. Subcontracts

17.1 The Supplier shall not subcontract any of the work contemplated to be performed by the Supplier under the Order without the prior written consent of the Company. If such written consent is granted, the Supplier shall if requested furnish unpriced copies of all subcontracts to the Company.

18. Termination

18.1 The Company shall have the right at any time by giving notice in writing to the Supplier to terminate the Contract forthwith without liability to the Supplier if:

(a) the Supplier commits a material breach of any of these Conditions and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing of the breach; or

(b) the Supplier repeatedly breaches any of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Conditions; or

(c) any distress, execution or other process is levied upon any of the assets of the Supplier, or the Supplier has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or administrative receiver appointed over its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator over the Supplier or notice of intention to appoint an administrator is given by the Supplier or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Supplier or for the granting of an administration order in respect of the Supplier, or any proceedings are commenced relating to the insolvency or possible insolvency of the Supplier; or

(d) any event occurs, or proceeding is taken, with respect to the Supplier under the laws of any jurisdiction to which the Supplier is subject, that has an effect equivalent or similar to any of the events or proceedings mentioned in clause 18.1 (c); or

(e) the Supplier ceases, or threatens to cease, to carry on all or substantially the whole of its business; or

(f) the financial position of the Supplier deteriorates to such an extent that in the reasonable opinion of the Company, the capability of the Supplier adequately to fulfil its obligations under the Contract has been placed in jeopardy.

18.2 The termination of the Contract, however arising, shall be without prejudice to the rights of the Company accrued prior to termination. Any Conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.

18.3 Without prejudice to the generality of clause 18.2, upon termination of the Contract the Company shall be entitled (at its entire discretion):

(a) to return to the Supplier at the Supplier's risk and expense any of the Goods already delivered but which cannot be effectively and commercially used by reason of the Supplier's failure entirely to perform the Contract and to recover any monies paid by the Company in respect of such Goods;

(b) to demand by notice in writing, where applicable, that the Supplier shall within a reasonable time replace the Goods in respect of which the Contract has been determined with Goods which are in all respects in accordance with the Contract;

(c) to recover from the Supplier, where applicable, any additional expenditure reasonably incurred by the Company in obtaining other Goods in replacement of those in respect of which the Contract has been determined.

19. Warranty

19.1 Without prejudice to any other remedy which the Company may have, the Supplier shall as soon as reasonably practicable upon a request by the Company to do so, replace or (at the Company's option) repair all Goods which are or which become defective, where such defect occurs under proper usage and is due to faulty design, or inadequate or faulty materials or workmanship, the Supplier's erroneous instructions as to use, or breach by the Supplier of a provision of the Contract.

20. Force Majeure

20.1 The Company shall not be liable to the Supplier or deemed to be in breach of Contract by reason of any delay due to, or any loss or damage occasioned by, any cause arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the Company, including, but not limited to Acts of God, strikes, lock-outs, pandemics, labour shortages, shortage of power, materials, malicious damage or obligatory voluntary compliance with any request having or appearing to have authority in that regard whether for defence or other national or local governmental purposes or otherwise. In any such case, the Order shall be suspended during such delay and shall again become operative upon the termination of such cause, provided that to meet any altered circumstances occasioned by such delay the Company may make such variations to the terms of the Order as are in its opinion, reasonable and if the Supplier does not agree thereto the Company may cancel the Order insofar as it remains unperformed but shall pay a proportionate part of the quoted price for work done and Goods supplied prior to the event of force majeure. In the event of any dispute as to the proper proportion payable as aforesaid, the matter shall be settled by the Company's Auditors who shall act as experts and not arbitrators and whose decisions shall be final and binding.

21. Intellectual Property Rights

21.1 The Supplier warrants that the supply by the Supplier and use by the Company of the Goods specified in the Order does not and will not infringe the Intellectual Property Rights of any third party and insofar as the Goods supplied or the manufacture thereof are in accordance with any special requirement specified by the Company and the Supplier undertakes to indemnify the Company against all actions, claims, demands, costs, charges and expenses arising from any infringement or any alleged infringement of such rights. Intellectual Property Rights in and relating to all improvements embodied in designs, tools, patterns, drawings, information and equipment supplied by the Company to the Supplier under the Order and exclusive rights for the use and reproduction thereof are reserved by the Company.

22. Miscellaneous

22.1 No right or remedy conferred upon or reserved to the Company is exclusive of any other right or remedy herein or by law or equity provided or permitted but each shall be cumulative of every other right or remedy given hereunder or now hereafter existing and may be enforced concurrently therewith or from time to time.

22.2 If any provision (or part of a provision) of these Conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

22.3 No failure or delay by either party in exercising any right, power or privilege under the Contract will impair or operate as a waiver of the same, nor will any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.

22.4 The Contract will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in the Contract. Neither party will have, nor represent that it has, any authority to make any commitments on the other party's behalf.

22.5 Any notice or other communication required to be given under the Contract shall be in writing and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery or by commercial courier to the other party and for the attention of the person specified by the relevant party by notice in writing to the other party. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address and for the contact referred to above or, if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second business day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.

22.6 No third party shall be entitled to enforce any of the terms of the Contract under the Contracts (Rights of Third Parties) Act 1999.

22.7 The Order and these Conditions contain the whole agreement between the parties and supersede and replace any prior written or oral agreements, representations or understandings between them. The parties confirm that they have not entered into the Contract on the basis of any representation that is not expressly incorporated into the Order or these Conditions.

22.8 Any dispute arising under or in connection with the Contract shall be solely and finally settled by arbitration in accordance with the London Court of International Arbitration (“LCIA”) Rules.

22.9 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English Courts.

U.S. - TERMS AND CONDITIONS FOR THE SALE OF GOODS AND SERVICES

1. INTERPRETATION

1.1 The definitions and rules of interpretation in this Condition shall apply in these Conditions.

1.2 Definitions:

Combined Goods: any Goods which have been joined or connected in any way to other goods by or on behalf of the Customer in such a way that the Goods are nevertheless readily identifiable and removable;

Commercial Unit: a unit of Goods, the division of which would materially impair the value of the Goods or the character of the unit;

Company: KM Packaging Services NA Corporation;

Conditions: these terms and conditions for the sale of Goods or Services;

Contract: any written agreement between the Company and the Customer for the sale of Goods and / or Services, including order acknowledgements, invoices, and other sale of Goods related documents provided by Company to Customer, incorporating these Conditions;

Customer: the person, firm or company who purchases the Goods and / or Services from the Company;

Goods or Services: any goods or services agreed in the Contract to be sold by the Company to the Customer (including any part or parts of them);

Incorporated Goods: any Goods which have been incorporated into other goods by or on behalf of the Customer in such a way that the Goods are not readily identifiable and removable;

Intellectual Property Rights: any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports, drawings, specifications, know how, trade secrets, rights in software, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent or similar rights to any of the foregoing in any jurisdiction, whether registered or unregistered; and

Output Material: any documents plans, drawings, patterns, designs, substrate, plates or other materials, and any data or other information provided by the Company to the Customer relating to the Goods;

1.3 Any reference to “parties” means the parties to the Contract and “party” shall be construed accordingly.

1.4 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.

1.5 Words in the singular include the plural and in the plural include the singular.

1.6 A reference to one gender includes a reference to the other gender.

1.7 Condition headings do not affect the interpretation of these Conditions.

2. APPLICATION OF TERMS

2.1 Subject to any variation under Condition 2.3, the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document provided by Customer).

2.2 No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Conditions.

2.4 Each written purchase order or acceptance of a quotation for Goods and/or Services by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods and/or Services subject to these Conditions and any terms that conflict with these Conditions are hereby rejected and superseded by the Conditions.

2.5 No order placed or quotation accepted by the Customer shall bind the Company until the Company has accepted the Customer’s order in writing.

2.6 Any quotation is given on the basis that no Contract shall come into existence until the Company has accepted the Customer’s order pursuant to Condition 2.5 above. Any quotation is valid for a period of 30 days only from its stated date (unless otherwise specified), provided that the Company has not previously withdrawn it, which it can do at any point in time prior to acceptance.

2.7 No order placed or quotation accepted by the Customer which has in turn been accepted by the Company pursuant to Condition 2.5 may be cancelled, varied, or deferred by the Customer, except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labor and materials used), charges and expenses incurred by the Company as a result of such cancellation, variation or deferment.

2.8 Notwithstanding anything herein to the contrary, if a written agreement signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said agreement shall prevail to the extent they are inconsistent with these Conditions.

3. DESCRIPTION

3.1 The quantity and description of the Goods and / or Services shall be as set out in the Company’s acceptance of the Customer’s order issued pursuant to Condition 2.5.

3.3 The Customer shall be responsible to the Company for ensuring the accuracy and completeness of the terms of any order submitted by the Customer and for giving the Company all necessary information relating to the Goods within a sufficient time to enable the Company to fulfil its obligations under the Contract.

3.4 All Input Material held by the Company on behalf of the Customer shall be held at the Customer’s risk and expense and the Customer shall insure the same against all risks whilst it is in the Company’s possession.

3.5 The Company reserves the right at its sole discretion to reject any substrate, plates or any other Input Material which appears to the Company to be unsuitable for the purposes of fulfilling its obligations under the Contract or which does not conform to specification. Notwithstanding the foregoing, the Company shall have no responsibility for checking the suitability, accuracy or completeness of any Input Material. No responsibility is accepted by the Company for imperfect work or delays in delivery due to any Input Material being defective, unsuitable, inaccurate, incomplete, or untimely.

3.6 The Customer warrants that any Input Material submitted by the Customer shall not cause the Company to infringe any Intellectual Property Rights of any other person. The Customer shall defend, hold the Company harmless and shall fully indemnify the Company against any and all loss, damage, costs 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 for infringement of any Intellectual Property Rights of any other person resulting from the Company’s use of any Input Material submitted by the Customer.

3.7 The Customer warrants that any Input Material submitted by the Customer shall not contravene any applicable safety or other statutory or regulatory requirement. The Customer shall defend, hold the Company harmless and shall fully indemnify the Company against any and all loss, damage, costs and expenses awarded against or incurred by the Company as a result of any breach of this warranty.

3.8 The Company will notify the Customer in writing of any proposed material modifications to the Goods and the Customer shall be deemed to have accepted such modifications unless notice in writing to the contrary shall be received by the Company within 3 days of the date of the Company’s notice to the Customer.

3.9 All Goods shall be supplied by the Company to any standard commercial tolerances that apply within the appropriate industry, unless the Customer notifies the Company in its order of any special tolerances that the Customer requires and the Company agrees in writing to deliver the goods accordingly.

3.10 The Customer shall be solely responsible for ensuring the suitability of any Goods for any specific purpose.

3.11 Without limiting the generality of Condition 3.10, all recommendations and advice given by or on behalf of the Company to the Customer as to any method of using or storing the Goods, or the Goods’ suitability for use in any manufacturing process or in connection with any other materials, is in either case given without liability on the part of the Company.

3.12 Customer shall comply with all applicable laws, regulations, and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Contract.

4. DELIVERY

4.1 Delivery will normally be arranged by the Company to the Customers address but delivery terms will be separately agreed in writing, with costs agreed in advance. If there is no separate agreement in writing by the parties, Company shall deliver Goods to Company’s designated warehouse location (the “Delivery Point”) using Company's standard methods for packaging and shipping such Goods. Customer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point, and will unload and release all transportation equipment promptly so Company incurs no demurrage or other expense.

4.2 Reasonable efforts will be made by the Company to deliver the correct quantity of Goods ordered by the Customer. However, the Customer may not reject short or excess deliveries which are within a margin of twenty per cent (20%) short and twenty per cent (20%) over. In such cases, the Company will adjust the price of the Goods proportionately based on the amount of overage or underage.

4.3 The Company will submit proofs of work to the Customer for approval, subject to schedule constraints. The Company shall not be liable for any delay resulting from the Customer’s failure to return proofs promptly, nor for any errors in the proofs which are not corrected by the Customer. Due to differences in equipment, paper, inks and other conditions between color proofing and production runs, a reasonable variation in color between color proofs and the completed work will be deemed acceptable unless otherwise agreed in writing.

4.4 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.

4.5 Delivery dates and periods shall be extended as necessary if any delay in delivery is caused as set out in Condition 7.3 of these Conditions or due to any other circumstances beyond the control of the Company. If any such delay causes the Company to revise agreed production schedules delivery will (subject to these Conditions) be in accordance with such revised schedules which will be notified to the Customer.

4.6 The Customer may request earlier delivery dates than those originally agreed and the Company will at their discretion endeavor to accommodate such requests providing that sufficient notice is given. Any additional costs associated with achieving an earlier delivery date will be for the Customer's sole account.

4.7 The Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, but are not limited to, pure economic loss, loss of profits, loss of business, loss of production depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods and / or Services (even if caused by the Company's negligence).

4.8 The Customer must examine the Goods upon delivery and within 2 days thereafter notify the Company in writing of any visible defects. In default the Customer will be deemed to have examined and accepted the Goods. Where the Contract is for the sale of Goods making up one or more Commercial Units, the Customer accepting any Goods included in a Commercial Unit shall be deemed to have accepted all of the Goods making up the Commercial Unit.

4.9 If for any reason the Customer fails to take or accept delivery of any or all of the Goods, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licenses or authorizations:

(a) risk in the Goods shall pass to the Customer (including for loss or damage caused by the Company's negligence);

(b) the Goods shall be deemed to have been delivered; and

(c) the Company may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including storage and insurance and redelivery); or

4.10 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.

4.11 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.

4.12 Without prejudice to the provisions of Condition 4.11, the Company reserves the right to charge for the storage of Goods at such rate as shall be agreed with the Customer, if:

(a) the Customer requests that its order be put on hold; or

(b) if any Goods are held by the Company (through no fault of the Company) for any period of time beyond any date specified by the Company for the delivery of the Goods.

4.13 Where the Goods are supplied to the Customer’s specification or design, the Customer shall be responsible for ensuring that insofar as is reasonably practicable:

(a) the Goods are so designed as to be safe and without risk to health when properly used; and

(b) such testing and examination is carried out as may be necessary for ensuring that the Goods are safely designed; and

4.14 The Customer shall defend, indemnify and hold the Company harmless against:

(b) all costs and expenses incurred by the Company in dealing with any claims, demands or actions referred to in sub-clause (a) above and in rectifying any defects in the Goods.

4.15 Where the Goods consist of wrappers, containers or any other articles intended for use in connection with any foodstuffs or any substances or materials of a sensitive, volatile or delicate nature, the Customer shall be solely responsible for satisfying itself that such foodstuffs, substances or materials will not be adversely affected by any materials used by the Company in the manufacture or printing of such articles. The Customer shall indemnify and keep indemnified the Company from and against all liability to any third party in respect of any claim that any foodstuffs, substances or materials have been adversely affected as aforesaid and have thereby caused said third party loss, damage or expense.

4.16 The Customer undertakes that it will comply with and will procure that its employees, customers and every other person working with, on, or near or using the Goods shall comply in full with the instructions and recommendations made in any manual or handbook or instructions provided by the Company or other manufacturer of the Goods and that they will comply with all other instructions given in connection with the use of the Goods.

4.17 The Goods are designed to be used without danger to health and safety where correctly used in accordance with the relevant National or International Standard, the rating for which the Goods were designed and accepted good practice. If the Customer intends to use the Goods under unusual conditions (especially if special risks to health and safety are posed), it shall be the sole responsibility of the Customer to ensure the safe use of the Goods in such circumstances.

5. DAMAGE IN TRANSIT AND NON-DELIVERY

5.1 No claim for loss or damage in transit or for errors in shipping or invoicing will be accepted by the Company unless a separate written notice is given to the Company within 2 days of receipt of the Goods. In the case of non-delivery a written notice must be given to the Company within 2 days of the invoice date.

5.2 If liability is accepted by the Company under Condition 5.1, the Company will repair or replace as appropriate at their sole discretion any lost or damaged Goods. The Customer shall have no other claim and the Company shall be under no liability for consequential loss or damage suffered by the Customer by reason of any delay in final delivery.

5.3 The Company will not accept the return of any Goods which have been properly supplied under the Contract.

6. RISK AND TITLE

6.1 Risk of damage to or loss of the Goods shall pass to the Customer:

(a) in the case of Goods to be delivered at the Company’s place of business, at the time when the Company notifies the Customer that the Goods are available for collection; or

6.2 Title to the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:

(a) the Goods; and

(b) all other sums which are or which become due to the Company from the Customer on any account.

6.3 Until title to the Goods has passed to the Customer, the Customer shall:

(a) hold the Goods on a fiduciary basis as the Company's bailee;

(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company's property;

(e) notify the Company immediately if it becomes subject to any of the events listed in Condition 12.1 (c) to (f) inclusive;

6.4 If:

(a) the Customer is late in paying for the Goods and / or Services; or

(b) the Customer is late in paying for any other goods supplied by the Company; or if

6.5 With respect to any Combined Goods, the Company shall be entitled to remove and repossess the Combined Goods pursuant to Condition 6.4 (d) regardless of the practical difficulty of so doing or any damage caused to such other goods in the course of taking all reasonable steps to effect such removal (whether such other goods belong to the Customer or to third parties) and the Customer waives any claim it may have against the Company for any damage caused to its goods as a result of taking such reasonable steps and shall indemnify the Company in full against any claim made against the Company by any third party arising out of or in connection with such reasonable steps being taken by the Company.

6.6 With respect to any Incorporated Goods, the Customer shall store such Incorporated Goods separately and shall notify the Company of the precise location and position thereof and the ownership of such Incorporated Goods and the property therein shall vest in the Company. Upon any sale of any Incorporated Goods by the Company, then if the proceeds of sale exceed the price or the balance of the price of the Goods due to the Company from the Customer, the Company shall apply the balance of the proceeds of sale as follows:

(b) secondly, by paying any sums due and owing to other creditors of the Customer in respect of other items and materials used in connection with the manufacture of the Incorporated Goods where the property in such items and materials has remained vested in such other creditors by reason of effective retention of title clauses and the claims of such other creditors pursuant to such retention of title clauses have been notified to the Company by the Customer or its liquidator, administrator or receiver, or by such other creditors.

7. PRICE

7.1 Unless otherwise agreed by the Company in writing, the price for the Goods and Services shall be the price confirmed in the Company’s acceptance of the Customer’s order issued pursuant to Condition 2.5, but the Company reserves the right to vary the price and to invoice the Customer at the price ruling at the date of shipment of the Goods.

7.2 If the cost to the Company of performing the Company’s obligations under the Contract shall be increased by reason of the making or amendment of any law or of any order, regulation, or by- law having the force of law that shall affect the performance of the Company’s obligations under the Contract, the amount of such increase shall be added to the Contract price.

7.3 The Company reserves the right, by giving notice to the Customer at any time before delivery of the Goods, to increase the price of the Goods if the period between acceptance of the Customer’s order and delivery of the Goods is in excess of three months, or to reflect any increase in any cost to the Company which is due to any factor beyond the control of the Company (including any foreign exchange fluctuation, currency regulation, alteration of duties, increase in transportation costs and any increase in the costs of labor, materials or other costs of manufacture), or if there is any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or if there is any increase in any cost to the Company which is in any other way attributable to the Customer. Without limiting the generality of this Condition 7.3, the Company may increase the price of the Goods to reflect any cost increase caused by:

(a) any alteration to the instructions given by the Customer;

(b) any alteration requested by the Customer which requires the submission of additional proofs;

(d) any experimental, preliminary or additional work requested by the Customer other than that specified in the Company’s acceptance of the Customer’s order issued pursuant to Condition 2.5;

(e) the cost of any alterations or modifications to the Goods requested by the Customer as a result of any tests or inspections of any experimental work undertaken by the Company;

(f) any additional work involved where any Input Material is submitted late, or is found by the Company during production to be defective, unsuitable, inaccurate or incomplete;

(g) any expenses incurred by the Company in procuring appropriate substrate, plates or other materials;

(h) storage charges for retaining any material produced in origination work.

7.4 Unless otherwise agreed in writing between the Customer and the Company, the Contract price shall be exclusive of Value Added Tax which will be charged at the rate which is applicable at the date of shipment of the Goods.

7.5 Any waiver or reduction of any price will only be applicable if agreed by the Company in writing.

8. PAYMENT

8.1 The Company shall be entitled to invoice the Customer for the price of the Goods and / or Services immediately after delivery, or in line with the terms of the order if different.

8.2 The Company’s invoices shall be paid within 30 days of invoice date unless explicitly stipulated differently in writing by the Company, pursuant to Condition 2.5.

8.3 The time of payment of the price shall be of the essence of the Contract.

8.4 No payment shall be deemed to have been received until the Company has received cleared funds. Payment will not be made by cheque, without the prior written agreement of the Company. Any costs incurred by the Company in attempting to clear cheques received shall be charged to the Customer, who will reimburse the Company immediately.

8.5 The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.

8.6 Any failure by the Customer to pay the Company any sum by the due date for payment and/or the occurrence of any one or more of the events set forth in Condition 12.1 shall entitle the Company, at any time and without notice to the Customer and without limiting any other remedy available to the Company under these Conditions, the Contract, or otherwise:

(b) to charge the Customer with any costs incurred by the Company in the course of collecting outstanding monies due to the Company from the Customer;

(c) to suspend any warranty for the Goods or any other goods supplied by the Company to the Customer, whether or not they have been paid for;

(d) to appropriate any payment made by the Customer to such of the Goods as the Company may deem appropriate;

(e) to set off any amount owed by the Company to the Customer against any amount owed by the Customer to the Company on any account whatsoever;

(f) to terminate the Contract, or suspend or cancel the further delivery of any Goods and / or Services, including, stopping the delivery of any Goods in transit;

(g) to withdraw or reduce any agreed monthly credit limit; and

(h) to cancel any discount (if any) offered to the Customer.

8.7 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.

8.8 For the avoidance of doubt, and notwithstanding the exercise of any remedy by the Company in accordance with Condition 8.6, or under any other of these Conditions, the Contract, or otherwise, the Customer shall remain liable to pay and shall pay the Company at the Contract rate, any and all payments subsisting at the relevant time.

8.9 The Company shall retain a general lien on the full value of all Goods provided until such Goods have been fully paid for.

9. WARRANTIES

9.1 The Company warrants that upon delivery the Goods will correspond in all material respects with any specification the Company agrees to in writing with the Customer and shall be within expected industry standards with regard to defects in materials, workmanship and design.

9.2 The Company shall not be liable for a breach of any of the warranties in Condition 9.1 unless:

(a) the Customer gives written notice of any defect or deficiency to the Company within 7 days from the date that the Customer discovered or ought to have discovered the defect or deficiency; and

9.3 The Company shall not be liable for a breach of any of the warranties in Condition 9.1 if:

(a) the Customer makes any further use of any Goods which the Customer has alleged to be defective after giving notice of any such defect; or

(b) the Customer alters or repairs the Goods without the prior written consent of the Company; or

(c) the defect arises because the Customer failed to follow any oral or written instructions as to the storage or use of the Goods or (if there are none) good trade practice; or

(d) the defect arises from any Input Material submitted by the Customer, or from fair wear and tear, willful misconduct, negligence, abnormal working conditions or from any misuse of the Goods, or otherwise as a result of failure of the Customer to comply in full with any manual or handbook or instruction containing the technical specifications and operating instructions supplied by the Company for the Goods; or

(e) the Goods have been used for an application other than that specified at the time the Customer’s order, as acknowledged by Company, or otherwise not in accordance with the Company’s instructions;

(f) the full price for the Goods has not been paid by the time for payment referred to in Condition 8.2; or

(g) the defect is of a type specifically excluded by the Company by notice in writing.

9.4 Subject to Condition 9.2 and Condition 9.3, if the Goods do not conform to the applicable warranties in Condition 9.1:

(a) the Company shall, as Customer’s sole and exclusive remedy for such nonconformance, at its option:

(i) repair the Goods;

(ii) replace such Goods (or the defective part); or

(iii) refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Customer shall, at the Company's expense, return the Goods or the part of such Goods which is defective to the Company; and

9.5 For the avoidance of doubt (but without prejudice to the provisions of Condition 9.5 (a)), the failure of any part of the Goods to conform to either warranty in Condition 9.2 (a) or (b) shall only render the Company liable to repair, replace or refund the value of that part of the Goods which is defective as Customer’s sole and exclusive remedy for any such breach.

9.6 If the Company complies with Condition 9.4 it shall have no further liability for any breach of the applicable warranties in Condition 9.1.

9.7 EXCEPT FOR THE WARRANTIES SET FORTH IN CONDITION 9.1, COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

10. LIMITATION OF LIABILITY

10.1 The following provisions set out the entire liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

(a) any breach of these Conditions;

(b) any use made or resale by the Customer of any of the Goods or of any product incorporating any of the Goods;

(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract; and

(d) any other type of liability known or unknown resulting from or arising from the Contract.

10.2 Nothing in these Conditions excludes or limits the liability of the Company:

(a) for death or personal injury caused by the Company's gross negligence; or

(b) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or

10.3 Subject to Condition 10.2:

(a) IN NO EVENT SHALL COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE CONTRACT PRICE PAID TO COMPANY FOR THE APPLICABLE GOODS OR SERVICES; PROVIDED THAT WHERE THE COMPANY’S LIABILITY IS REFERABLE ONLY TO A PARTICULAR PORTION OF THE CONTRACT PRICE, THEN THE COMPANY’S TOTAL LIABILITY SHALL IN NO CIRCUMSTANCES EXCEED THE VALUE OF THAT PORTION OF THE CONTRACT PRICE; and

(b) IN NO EVENT SHALL COMPANY BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

11. INDEMNITY

The Customer shall defend and hold the Company harmless and keep the Company fully and promptly indemnified against all direct, indirect or consequential liabilities (all three of which terms include, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with any claim made by or against the Company in respect of any liability, loss, damage, injury, cost or expense whatsoever, howsoever and to whomsoever occurring, to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from any act or omission of the Customer, or from the Customer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Customer in writing.

12. TERMINATION

12.1 The Company shall have the right at any time by giving notice in writing to the Customer to terminate the Contract forthwith without liability to the Customer if:

(a) the Customer commits a material breach of any of these Conditions and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing of the breach; or

(c) the Customer becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors in any jurisdiction; or

(e) the Customer ceases, or threatens to cease, to carry on all or substantially the whole of its business; or

(f) the financial position of the Customer deteriorates to such an extent that in the reasonable opinion of the Company, the capability of the Customer adequately to fulfill its obligations under the Contract has been placed in jeopardy.

12.2 On termination of the Contract for any reason:

(b) the Company may exercise its rights under Condition 6 hereof to recover any Goods from the Customer's premises for which payment has not been made in full, whether or not such payment is due; and

(c) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

12.3 On termination of the Contract (however arising), Conditions 6-12, 14 and 16 shall survive and continue in full force and effect.

13. ADDITIONAL EXPORT TERMS

13.1 In these Conditions “Incoterms 2020” means the international rules for the interpretation of credit terms at the International Chamber of Commerce as in force at the date when the Contract arises. Unless the context otherwise requires, any term or expression which is defined here or given a particular meaning by the provisions of Incoterms 2020 shall have the same meaning in these Conditions.

13.2 Where the Goods are supplied for export, the provisions of this Condition 13 shall (subject to any special terms agreed in writing between the Customer and the Company) apply, notwithstanding any other provisions of these Conditions.

13.3 Depending on the terms agreed, the Customer may be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them. The Contract shall be subject to the procurement by the Customer at the Customer’s own expense of any export and import license and any other authorizations necessarily required for the import of the Goods into the country to which the Goods are to be exported, but failure to obtain any such documents shall not entitle the Customer to cancel the Contract.

13.4 Any import license required shall be the responsibility of the Customer and will be provided to the Company as needed. In the event of the import license expiring before the Goods have been made available it shall be the responsibility of the Customer to obtain the renewal of such license. The Company shall not be liable for any expense or loss caused by delay in obtaining such license or the renewal thereof. Customer assumes all responsibility for shipments of Goods requiring any government import clearance. Company may terminate this Agreement if any governmental authority imposes countervailing duties or any other duties or penalties on the Goods.

14. CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS

14.1 The Customer and the Company agree that in the course of the Company supplying Goods or Services to the Customer, the parties may disclose to each other certain Confidential Information. The Customer and the Company agree that each party will maintain the Confidential Information’s confidentiality and not disseminate it to any third party without the disclosing party’s prior written consent, save that this obligation shall not apply to: (a) in the public domain; (b) known to recipient at the time of disclosure; or (c) rightfully obtained by the recipient on a non-confidential basis from a third party. If a recipient is required by applicable law or a valid legal order to disclose any Confidential Information, the recipient shall, before such disclosure, notify the disclosing party of such requirements so that disclosing party may seek a protective order or other remedy, and recipient shall reasonably assist the disclosing party therewith. If the recipient remains legally compelled to make such disclosure, it shall: (a) only disclose that portion of the Confidential Information that, in the written opinion of its legal counsel, recipient is required to disclose; and (b) use reasonable efforts to ensure that such Confidential Information is afforded confidential treatment. The recipient of Confidential Information shall not use any Confidential Information of the disclosing party for any purpose other than to carry out the recipient’s obligations under the Agreement.

14.2 The Customer acknowledges the Company’s ownership of any Intellectual Property Rights in any Output Material and in any Goods provided to the Customer pursuant to the Contract and agrees not to contest the Company’s ownership or use of any such Intellectual Property Rights. The Customer shall not acquire any such Intellectual Property Rights or any license or grant of rights therein, nor shall the Customer register or attempt or permit to be registered, any such Intellectual Property Rights or any license or grant of rights therein. No Output Material may be copied or reproduced in whole or in part without the prior written consent of the Company. The Customer further acknowledges that any and all Intellectual Property Rights developed by the Company in producing and supplying any Goods and Services shall become vested and shall vest in the Company solely and absolutely. The Company makes no representation or warranty that the use of the Goods will not infringe the Intellectual Property Rights of any third party and the Company accepts no liability in this respect.

15. ASSIGNMENT/SUBCONTRACTING

15.1 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.

15.2 The Company, but not the Customer, shall be entitled to subcontract any or all of its obligations under all or any part of the Contract.

16. FORCE MAJEURE

The Company reserves the right to defer the date of delivery, or to cancel the Contract or reduce the volume of the Goods and Services ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including Acts of God, governmental actions, acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, war, threat of war, sabotage, insurrection, civil disturbance or requisition or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, pandemic, tempest, accident, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), import or export regulations or embargoes, restraints or delays affecting carriers or any inability or delay in obtaining supplies of adequate or suitable materials, difficulties in obtaining labor, fuel, parts or machinery or power failure or breakdown in machinery provided that, if the event in question continues for a continuous period in excess of 180 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.

17. GENERAL

17.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.

17.2 The Contract constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties.

17.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

17.4 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

17.5 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

17.6 This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Conditions. .

17.7 All matters arising out of or relating to the Contract are governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania. Any legal suit, action, or proceeding arising out of or relating to the Contract shall be instituted in the federal courts of the United States of America or the courts of the Commonwealth of Pennsylvania in each case located in the City of Pittsburgh and Allegheny County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

18. COMMUNICATIONS

18.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by email:

(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Customer by the Company; or

18.2 Communications shall be deemed to have been received:

(a) if sent by pre-paid first class mail, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or

(b) if delivered by hand, on the day of delivery; or

(c) if sent by email, on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.

AUSTRALIA - TERMS AND CONDITIONS FOR THE SALE OF GOODS

1. INTERPRETATION

1.1 The definitions and rules of interpretation in this condition shall apply in these conditions.

Amount Incurred: has the meaning given to it in Condition 7.10(a);

Commercial Unit: a unit of Goods, the division of which would materially impair the value of the Goods or the character of the unit;

Company: KM Packaging Services ANZ Pty Limited;

Conditions: these Terms and Conditions of Supply;

Contract: any contract between the Company and the Customer for the sale of Goods and / or Services, incorporating these Conditions;

Customer: the person, firm or company who purchases the Goods and / or Services from the Company;

Goods & Services: any goods or Services agreed in the Contract to be sold by the Company to the Customer (including any part or parts of them);

GST: goods and services tax, or a similar value added tax, levied or imposed under the GST Law;

GST Law: has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

GST Supplier: has the meaning given to it in Condition 7.6;

Incorporated Goods: any Goods which have been incorporated into other goods by or on behalf of the Customer in such a way that the Goods are not readily identifiable and removable;

Non-Excludable Provision: has the meaning given to it in Condition 9.4;

Recipient: has the meaning given to it in Condition 7.6.

1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.3 Any reference to "parties" means the parties to the Contract and "party" shall be construed accordingly.

1.4 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.

1.5 Words in the singular include the plural and in the plural include the singular.

1.6 A reference to one gender includes a reference to the other gender.

1.7 Condition headings do not affect the interpretation of these Conditions.

2. APPLICATION OF TERMS

2.2 No terms or conditions endorsed on, delivered with or contained in the Customer's purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.

2.3 These Conditions apply to the sale of all Goods and Services by the Company and any variation to these Conditions and any representations about any Goods or Services shall have no effect unless expressly agreed in writing and signed by an authorised signatory of the Company. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this Condition shall exclude or limit the Company's liability for fraudulent misrepresentation, nor for liability the Company may have in connection with any representations or other communications (either oral or written) made prior to or during the term of the Contract where such liability cannot be excluded.

2.5 No order placed or quotation accepted by the Customer shall bind the Company until the Company has accepted the Customer’s order in writing.

2.6 Any quotation is given on the basis that no Contract shall come into existence until the Company has accepted the Customer’s order pursuant to Condition 2.5 above. Any quotation is valid for a period of 30 days only from its date (unless otherwise specified), provided that the Company has not previously withdrawn it.

3. DESCRIPTION

3.1 The quantity and description of the Goods and / or Services shall be as set out in the Company's acceptance of the Customer’s order issued pursuant to Condition 2.5.

3.2 Although reasonable precautions will be taken by the Company to ensure the accuracy of such information, all descriptive matter, weights, dimensions, and performance data supplied by the Company and any descriptions and illustrations contained in the Company’s data sheets, technical bulletins, catalogues, price lists, website and other advertising matter are approximate only and are intended merely to convey a general description of the Goods and / or Services; they are not (unless it is expressly so stated in the Contract) deemed to form any part of any Contract and are not to be regarded as a warranty or representation. Nothing in this Condition shall exclude or limit the Company's liability for fraudulent misrepresentation, nor for liability the Company may have in connection with any representations or other communications (either oral or written) made prior to or during the term of the Contract where such liability cannot be excluded.

3.6 The Customer warrants that any Input Material submitted by the Customer shall not cause the Company to infringe any Intellectual Property Rights of any other person. The Customer shall hold the Company harmless and shall fully indemnify the Company against any and all loss, damage, costs 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 for infringement of any Intellectual Property Rights of any other person resulting from the Company’s use of any Input Material submitted by the Customer.

3.7 The Customer warrants that any Input Material submitted by the Customer shall not contravene any applicable safety or other statutory or regulatory requirement. The Customer shall hold the Company harmless and shall fully indemnify the Company against any and all loss, damage, costs and expenses awarded against or incurred by the Company as a result of any breach of this warranty.

3.8 The Company may make immaterial modifications to the Goods without the need for prior notice to the Customer. The Company will notify the Customer in writing of any proposed material modifications to the Goods, and the Customer shall be deemed to have accepted such modifications if it gives notice in writing accordingly.

3.10 Subject to the provisions of Condition 9.6, the Customer shall be solely responsible for ensuring the suitability of any Goods for any specific purpose.

3.11 Without limiting the generality of Condition 3.10, and subject to Condition 9.6, all recommendations and advice given by or on behalf of the Company to the Customer as to any method of using or storing the Goods, or the Goods’ suitability for use in any manufacturing process or in connection with any other materials, must be independently confirmed by the Customer and is in either case given without liability on the part of the Company.

4. DELIVERY

4.1 Delivery will normally be arranged by the Company to the Customers address but delivery terms will be separately agreed in writing, with costs agreed in advance.

4.2 Reasonable endeavours will be made by the Company to deliver the correct quantity of Goods ordered by the Customer. However, the Customer may not reject short or excess deliveries which are within a margin of ten per cent (10%) short and ten per cent (10%) over. In such cases, the Company will adjust the price of the Goods proportionately.

4.3 The Company will submit proofs of work to the Customer for approval, subject to schedule constraints. The Company shall not be liable for any delay resulting from the Customer’s failure to return proofs promptly, nor for any errors in the proofs which are not corrected by the Customer. Due to differences in equipment, paper, inks and other conditions between colour proofing and production runs, a reasonable variation in colour between colour proofs and the completed work will be deemed acceptable unless otherwise agreed in writing.

4.6 The Customer may request earlier delivery dates than those originally agreed and the Company will at their discretion endeavour to accommodate such requests providing that sufficient notice is given. Any additional costs associated with achieving an earlier delivery date will be for the Customer's sole account.

4.7 The Customer must examine the Goods upon delivery and within 7 days thereafter notify the Company in writing of any visible defects. In default the Customer will be deemed to have examined and accepted the Goods. Where the Contract is for the sale of Goods making up one or more Commercial Units, the Customer accepting any Goods included in a Commercial Unit shall be deemed to have accepted all of the Goods making up the Commercial Unit.

4.8 If for any reason the Customer fails to take or accept delivery of any or all of the Goods, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:

(a) risk in the Goods shall pass to the Customer (except for loss or damage caused by the Company's gross negligence);

(b) the Goods shall be deemed to have been delivered; and

(c) the Company may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including storage and insurance and redelivery); or

4.9 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.

4.10 If an order states that Goods are to be delivered in separate instalments, each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.

4.11 Without prejudice to the provisions of Condition 4.11, the Company reserves the right to charge for the storage of Goods at such rate as shall be agreed with the Customer, if:

(a) the Customer requests that its order be put on hold; or

(b) if any Goods are held by the Company (through no fault of the Company) for any period of time beyond any date specified by the Company for the delivery of the Goods.

4.12 Where the Goods are supplied to the Customer’s specification or design, the Customer shall be responsible for ensuring that insofar as is reasonably practicable:

(a) the Goods are so designed as to be safe and without risk to health when properly used; and

(b) such testing and examination is carried out as may be necessary for ensuring that the Goods are safely designed; and

4.13 The Customer shall indemnify the Company against:

(a) any costs, expenses, claims, demands or actions which may be made against the Company arising out of any failure on the part of the Customer to undertake the obligations detailed in Condition 4.12; and

(b) all costs and expenses incurred by the Company in dealing with any claims, demands or actions referred to in sub-clause (a) above and in rectifying any defects in the Goods.

4.14 Where the Goods consist of wrappers, containers or any other articles intended for use in connection with any foodstuffs or any substances or materials of a sensitive, volatile or delicate nature, the Customer shall be solely responsible for satisfying itself that such foodstuffs, substances or materials will not be adversely affected by any materials used by the Company in the manufacture or printing of such articles. The Customer shall indemnify and keep indemnified the Company from and against all liability to any third party in respect of any claim that any foodstuffs, substances or materials have been adversely affected as aforesaid and have thereby caused said third party loss, damage or expense.

4.15 The Customer undertakes that it will comply with and will procure that its employees, customers and every other person working with, on, or near or using the Goods shall comply in full with the instructions and recommendations made in any manual or handbook or instructions provided by the Company or other manufacturer of the Goods and that they will comply with all other instructions given in connection with the use of the Goods.

4.16 The Goods are designed to be used without danger to health and safety where correctly used in accordance with the agreed specifications. If the Customer intends to use the Goods under unusual conditions (especially if special risks to health and safety are posed), it shall be the sole responsibility of the Customer to ensure the safe use of the Goods in such circumstances.

5. DAMAGE IN TRANSIT AND NON-DELIVERY

5.1 No claim for loss or damage in transit or for errors in despatch or invoicing will be accepted by the Company unless a separate written notice is given to the Company within 7 days of receipt of the Goods. In the case of non-delivery a written notice must be given to the Company within 7 days of the invoice date.

5.2 If liability is accepted by the Company under Condition 5.1, the Company will within a reasonable period of time repair or replace as appropriate at their sole discretion any lost or damaged Goods. If the Company does so, the Customer shall have no other claim and the Company shall be under no liability for consequential loss or damage suffered by the Customer by reason of any delay in final delivery.

5.3 The Company will not accept the return of any Goods which have been properly supplied under the Contract.

6. RISK AND TITLE

6.1 Risk of damage to or loss of the Goods shall pass to the Customer:

(a) in the case of Goods to be delivered at the Company’s place of business, at the time when the Company notifies the Customer that the Goods are available for collection; or

6.2 Title to the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:

(a) the Goods; and

(b) all other sums which are or which become due to the Company from the Customer on any account.

6.3 Until title to the Goods has passed to the Customer, the Customer shall:

(a) hold the Goods on a fiduciary basis as the Company's bailee;

(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company's property;

(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(e) notify the Company immediately if it becomes subject to any of the events listed in Condition 12.1(c) to (e) inclusive;

6.4 If:

(a) the Customer is late in paying for the Goods and / or Services and fails to make payment within 7 days of being notified of the late payment; or

(b) the Customer is late in paying for any other goods supplied by the Company and fails to make payment within 7 days of being notified of the late payment; or if

(c) before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in Condition 12.1(c) to (e) inclusive or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, the Company may enter any premises of the Customer or of any third party where the Goods are stored or kept in order to recover them. The Customer shall not keep the Goods at any premises at which the Customer does not have the right to grant access to the Company.

(b) secondly, by paying any sums due and owing to other creditors of the Customer in respect of other items and materials used in connection with the manufacture of the Incorporated Goods where the property in such items and materials has remained vested in such other creditors by reason of effective retention of title clauses and the claims of such other creditors pursuant to such retention of title clauses have been notified to the Company by the Customer or its liquidator, administrator or receiver, or by such other creditors.

7. PRICE

7.1 Unless otherwise agreed by the Company in writing, the price for the Goods and Services shall be the price confirmed in the Company’s acceptance of the Customer’s order issued pursuant to Condition 2.5, which must be consistent with any valid quotation given by the Company.

7.2 If the cost to the Company of performing the Company’s obligations under the Contract shall be increased by reason of the making or amendment of any law or of any order, regulation, or by-law having the force of law that shall affect the performance of the Company’s obligations under the Contract, the amount of such increase shall be added to the Contract price.

7.3 The Company reserves the right, by giving 14 days’ written notice to the Customer prior to the delivery of the Goods, to increase the price of the Goods to reflect any increase in any cost to the Company which is due to any factor beyond the control of the Company (including any foreign exchange fluctuation, currency regulation, alteration of duties, increase in transportation costs and any increase in the costs of labour, materials or other costs of manufacture), or if there is any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or if there is any increase in any cost to the Company which is in any other way attributable to the Customer, including any cost increase caused by:

(a) any alteration to the instructions given by the Customer;

(b) any alteration requested by the Customer which requires the submission of additional proofs;

(d) any experimental, preliminary or additional work requested by the Customer other than that specified in the Company’s acceptance of the Customer’s order issued pursuant to Condition 2.5;

(e) the cost of any alterations or modifications to the Goods requested by the Customer as a result of any tests or inspections of any experimental work undertaken by the Company;

(f) any additional work involved where any Input Material is submitted late, or is found by the Company during production to be defective, unsuitable, inaccurate or incomplete;

(g) any expenses incurred by the Company in procuring appropriate substrate, plates or other materials;

(h) storage charges for retaining any material produced in origination work.

7.4 If the Customer does not wish to proceed on the basis of the price increase set out in Condition 7.3, the Customer may by giving 14 days’ written notice to the Company terminate the Contract. A termination notice given by the Customer under this Condition 7.4 must be given during the 14 day notice period given by the Company under Condition 7.3, otherwise the Customer’s termination right under this Condition 7.4 lapses.

7.5 Unless otherwise agreed in writing between the Customer and the Company, each consideration or payment obligation in the Contract is exclusive of GST.

7.6 If GST is or becomes payable on a supply made under or in connection with the Contract, an additional amount is payable by the party providing consideration for the supply (Recipient) equal to the amount of GST payable on that supply as calculated by the party making the supply (GST Supplier) in accordance with GST Law.

7.7 Subject to Condition 7.8, the additional amount payable under Condition 7.6 is payable without set off, demand, or deduction at the same time and in the same manner as the consideration for the supply.

7.8 Each invoice delivered by the Company under the Contract must comply with all the requirements for a tax invoice under the GST Law.

7.9 If for any reason (including the occurrence of an adjustment event) the amount of GST payable on a supply made under or in connection with the Contract varies the additional amount payable under Condition 7.6:

(a) the GST Supplier must provide a refund or credit to the Recipient;

(b) the refund, credit, or further amount (as the case may be) will be calculated by the GST Supplier in accordance with GST Law; and

(c) the GST Supplier must notify the Recipient of the refund, credit, or further amount within 14 days after becoming aware of the variation to the amount of GST payable. Any refund or credit must accompany such notification or the Recipient must pay any further amount within 7 days after receiving such notification, as appropriate. If there is an adjustment event in relation to the supply, the requirement for the GST Supplier to notify the Recipient will be satisfied by the GST Supplier issuing to the Recipient an adjustment note within 14 days after becoming aware of the occurrence of the adjustment event.

7.10 Despite any other provision in the Contract:

(a) if an amount payable under or in connection with the Contract (whether by way of reimbursement, indemnity or otherwise) is calculated by reference to an amount incurred by a party, whether by way of cost, expense, outlay, disbursement or otherwise (an Amount Incurred), the amount payable must be reduced by the amount of any input tax credit to which that party is entitled in respect of that Amount Incurred; and

(b) no additional amount is payable under Condition 7.6 in respect of a supply to which section 84-5 of the GST Law applies.

7.11 Any waiver or reduction of any price will only be applicable if agreed by the Company in writing.

8. PAYMENT

8.1 The Company shall be entitled to invoice the Customer for the price of the Goods and / or Services immediately after delivery, or in line with the terms of the order if different.

8.2 The Company’s invoices shall be paid within 30 days of invoice date unless explicitly stipulated differently in writing by the Company, pursuant to Condition 2.5.

8.3 The time of payment of the price shall be of the essence of the Contract.

8.6 If the Company is entitled to terminate the Contract in accordance with Condition 12.1 or Condition 12.2, the Company may at any time upon notice to the Customer and without limiting any other remedy available to the Company under these Conditions, the Contract, or otherwise:

(a) at its option, to charge interest at the rate of four percent (4%) per annum above the then-current cash rate of the Reserve Bank of Australia from time to time calculated on a daily basis on any overdue amounts;

(b) to charge the Customer with any reasonable costs incurred by the Company in the course of collecting outstanding monies due to the Company from the Customer;

(c) to the extent permitted by law, suspend any warranty for the Goods or any other goods supplied by the Company to the Customer, whether or not they have been paid for;

(d) to appropriate any payment made by the Customer to such of the Goods as the Company may think fit;

(e) to set off any amount owed by the Company to the Customer against any amount owed by the Customer to the Company on any account whatsoever;

(f) to terminate the Contract, or suspend or cancel the further delivery of any Goods and / or Services, including, stopping the delivery of any Goods in transit;

(g) to withdraw or reduce any agreed monthly credit limit; and

(h) to cancel any discount (if any) offered to the Customer.

8.7 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.

8.9 The Company shall retain a general lien on the full value of all Goods provided until such Goods have been fully paid for.

9. WARRANTIES

9.1 The Company warrants that upon delivery (subject to the provisions of Condition 9.1):

9.2 Subject to the Non-Excludable Provisions, the Company shall not be liable for a breach of any of the warranties in Condition 9.1 unless:

(a) the Customer gives written notice of any defect or deficiency to the Company within 7 days from the date that the Customer discovered or ought to have discovered the defect or deficiency; and

9.3 The Company shall not be liable for a breach of any of the warranties in Condition 9.1 if:

(a) the Customer makes any further use of any Goods which the Customer has alleged to be defective after giving notice of any such defect; or

(b) the Customer alters or repairs the Goods without the prior written consent of the Company; or

(c) the defect arises because the Customer failed to follow any oral or written instructions as to the storage or use of the Goods or (if there are none) good trade practice; or

(e) the Goods have been used for an application other than that specified at the time the Customer’s order was acknowledged, or otherwise not in accordance with the Company’s instructions;

(f) the full price for the Goods has not been paid by the time for payment referred to in Condition 8.2; or

(g) subject to the Non-Excludable Provisions, the defect is of a type specifically excluded by the Company by notice in writing.

9.4 If any guarantee, warranty, term or condition is implied or imposed in relation to the Contract under the Australian Consumer Law or any other applicable legislation and cannot be excluded (a Non-Excludable Provision), and the Company is able to limit the Customer’s remedy for a breach of the Non-Excludable Provision, then the liability of the Company for breach of the Non-Excludable Provision is limited to one or more of the following at the Company’s option:

(a) repair the defective Goods;

(b) replace such defective Goods and ownership of the defective Goods shall, if it has vested in the Customer, re-vest in the Company;

(d) payment for the defective Goods to be replaced and ownership of the defective Goods shall, if it has vested in the Customer, re-vest in the Company.

9.5 If the Company complies with Condition 9.4 it shall have no further liability for any breach of the applicable warranties in Condition 9.1.

9.6 Nothing in the Contract excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by any legislation which cannot be lawfully excluded or limited.

10. LIMITATION OF LIABILITY

10.1 Subject to the Company’s obligations under the Non-Excludable Provisions, and save for any stipulation as to the Company’s liability contained elsewhere in these Conditions, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of the Contract or it subject matter, including in respect of:

(a) any breach of these Conditions;

(b) any use made or resale by the Customer of any of the Goods or of any product incorporating any of the Goods; and

(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

10.2 All warranties, conditions and other terms implied by statute or common law (save for the Non-Excludable Provisions) are, to the fullest extent permitted by law, excluded from the Contract.

10.3 Nothing in these Conditions excludes or limits the liability of the Company:

(a) for death or personal injury caused by the Company's negligence; or

(b) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or

10.4 Subject to the Company’s obligations under the Non-Excludable Provisions and Condition 10.3:

(a) the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract or its subject matter shall be limited to the Contract price, PROVIDED THAT where the Company’s liability is referable only to a particular portion of the Contract price, then the Company’s total liability shall in no circumstances exceed the value of that portion of the Contract price; and

(b) the Company shall not be liable to the Customer for loss of profit, loss of business, loss of production, or depletion of goodwill or similar loss, in each case whether direct, indirect or consequential, or any claims for indirect or consequential compensation whatsoever (howsoever caused, and whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise) which arise out of or in connection with the Contract or its subject matter.

11. INDEMNITY

The Customer shall hold the Company harmless and keep the Company fully and promptly indemnified against all direct, indirect or consequential liabilities (all three of which terms include, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with any claim made by or against the Company in respect of any liability, loss, damage, injury, cost or expense whatsoever, howsoever and to whomsoever occurring, to the extent that such liability, loss, damage, injury, cost or expense arises directly or indirectly from the Customer's fraud, subject to the Company confirming such costs, charges and losses to the Customer in writing.

12. TERMINATION

12.1 Either party shall have the right at any time by giving notice in writing to the other party to terminate the Contract forthwith without liability if:

(a) the other party commits a material breach of any of these Conditions and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing of the breach; or

(b) the other party repeatedly breaches any of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Conditions; or

(c) the other party commits an act which is or would be an act of insolvency, or if a receiver, receiver and a manager, liquidator, administrator, trustee or similar official is appointed over its assets or business; or

(d) the other party ceases, or threatens to cease, to carry on all or substantially the whole of its business; or

(e) the financial position of the other party deteriorates to such an extent that in the reasonable opinion of the terminating party, the capability of the other party adequately to fulfil its obligations under the Contract has been placed in jeopardy.

12.2 The Company shall have the right at any time by giving notice in writing to the Customer to terminate the Contract forthwith without liability if the Customer fails to make payment in accordance with Condition 8 and fails to make payment within 14 days of receiving a notice to do so from the Company.

12.3 On termination of the Contract for any reason:

(b) the Company may exercise its rights under Condition 6 hereof to recover any Goods from the Customer's premises for which payment has not been made in full, whether or not such payment is due; and

(c) the accrued rights and liabilities of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.

12.4 On termination of the Contract (however arising), Conditions 6-12, 14 and 16 shall survive and continue in full force and effect.

13. ADDITIONAL EXPORT TERMS

13.3 Depending on the terms agreed, the Customer may be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them. The Contract shall be subject to the procurement by the Customer at the Customer’s own expense of any import licence and any other authorisations necessarily required for the import of the Goods into the country to which the Goods are to be exported, but failure to obtain any such documents shall not entitle the Customer to cancel the Contract.

13.4 Any import licence required shall be the responsibility of the Customer and will be provided to the Company on a needs basis. In the event of the import licence expiring before the Goods have been made available it shall be the responsibility of the Customer to obtain the renewal of such licence. The Company shall not be liable for any expense or loss caused by delay in obtaining such licence or the renewal thereof.

13.5 The Goods shall be delivered on the terms agreed between the parties and quoted on the order acknowledgement sent to the Customer and the Company shall be under no obligation to give the Customer any notice relating to insurance under Section 35(3) of the Sale of Goods Act 1923 (NSW) or any other sale of goods legislation.

14. CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS

14.1 The Customer and the Company agree that in the course of the Company supplying Goods and Services to the Customer, the parties may disclose to each other certain Confidential Information. The Customer and the Company agree that each party will maintain the Confidential Information’s confidentiality and not disseminate it to any third party without the disclosing party’s prior written consent, save that this obligation shall not apply to any Confidential Information that either party has a duty (whether legal or otherwise) to communicate or that is in the public domain or is already in the receiving party’s possession through no fault of the receiving party. The Customer shall not use any Confidential Information for any purpose other than to carry out the Customer’s obligations to the Company.

14.2 The Customer acknowledges the Company’s ownership of any Intellectual Property Rights in any Output Material and in any Goods provided to the Customer pursuant to the Contract and agrees not to contest the Company’s ownership or use of any such Intellectual Property Rights. The Customer shall not acquire any such Intellectual Property Rights or any licence or grant of rights therein, nor shall the Customer register or attempt or permit to be registered, any such Intellectual Property Rights or any licence or grant of rights therein. No Output Material may be copied or reproduced in whole or in part without the prior written consent of the Company. The Customer further acknowledges that any and all Intellectual Property Rights developed by the Company in producing and supplying any Goods and Services shall become vested and shall vest in the Company absolutely. The Company makes no representation or warranty that the use of the Goods will not infringe the Intellectual Property Rights of any third party and the Company accepts no liability in this respect.

15. ASSIGNMENT/SUBCONTRACTING

15.1 The Company shall not assign the Contract or any part of it to any person, firm or company without the prior written consent of the Customer.

15.2 The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.

15.3 The Company, but not the Customer, shall be entitled to subcontract any or all of its obligations under all or any part of the Contract.

16. FORCE MAJEURE

The Company reserves the right to defer the date of delivery, or to cancel the Contract or reduce the volume of the Goods and Services ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the performance of the Contract due to circumstances beyond the reasonable control of the Company including Acts of God, governmental actions, acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, war, threat of war, sabotage, insurrection, civil disturbance or requisition or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, pandemic, tempest, accident, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), import or export regulations or embargoes, restraints or delays affecting carriers or any inability or delay in obtaining supplies of adequate or suitable materials, difficulties in obtaining labour, fuel, parts or machinery or power failure or breakdown in machinery provided that, if the event in question continues for a continuous period in excess of 180 days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.

17. GENERAL

17.1 Each right or remedy of a party under the Contract is without prejudice to any other right or remedy of that party whether under the Contract or not.

17.2 Subject to any liability either party may have in connection with any representations or other communications (either oral or written) made prior to or during the term of the Contract where such liability cannot be excluded, the Contract constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties.

17.4 Failure or delay by a party in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

17.5 Any waiver by a party of any breach of, or any default under, any provision of the Contract by the other party shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

17.6 The parties to the Contract do not intend that any term of the Contract shall be enforceable by any person that is not a party to it.

17.7 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts sitting in New South Wales.

18. COMMUNICATIONS

18.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by email:

(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Customer by the Company; or

18.2 Communications shall be deemed to have been received:

(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or

(b) if delivered by hand, on the day of delivery; or

(c) if sent by email, on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.

End of document

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