1. Interpretation In these Terms and Conditions the following expression will have the following meanings unless inconsistent with the context. “Buyer” the person(s), firm or company (including a Consumer) whose order for the Goods is accepted b. Consumer” an individual or entity who enters into a Contract to obtain Goods or Services from Empac Direct for purposes which are outside its trade, business or profession. “Contract" any contract between Empac Direct and the buyer for the sale and purchaser of the Goods or supply of the Services formed in accordance with Condition 2. “Goods” any Goods which Empac Direct supplies to the Buyer (including any of them or any part of them) under a Contract. “Services” any Services which Empac Direct provides to the Buyer (including any of them or any part of them) under a Contract. “Terms and Conditions” the standard terms and conditions of sale set out in this document together with any special terms agreed in writing between the Buyer and Empac Direct and attached to these terms and conditions. “Empac Direct ” The company Empac Direct Ltd. Whom have as their registered office, 1 Drake House, Cookway, Bindon Road, Taunton, Somerset, TA2 6BJ and further associated warehouses.
2. Formation and Incorporation
2.1 Subject to any variations under Condition 14.1, the Contract will be upon these Terms and Conditions, to the exclusion of all other terms and conditions and all previous oral or written representations including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order or similar document, whether or not such document is referred to in the Contract.
2.2 Each order or acceptance of a quotation for goods or services will be deemed to be an offer by the Buyer to purchase Goods or Services upon these Terms and Conditions. The contract is formed when the order is accepted by Empac Direct . No contract will come into existence until the acceptance, either orally or in writing, of an order by Empac Direct . All orders must be on Empac Direct ’s standard order form.
2.3 Any quotation is valid for a period of 30 days only from its date, provided Empac Direct has not previously withdrawn it.
2.4 Subject to Condition 10.1 in relation to Buyers dealing as Consumers, Empac Direct may cancel the Contract at any time prior to delivery or performance.
3. Description
The quantity and description of the Goods and/or Services will be as set out in the order form/specification. All samples, drawings, descriptive matter, specifications and advertising issued by Empac Direct and any descriptions or illustrations contained in Empac Direct ’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods or Services represented by or described in them.
4. Price and Payment
4.1 The price for the Goods and/or Services will be the price set out in Empac Direct ’s sales confirmation current at the date of acceptance of order and is (inclusive) (exclusive) of any costs of packaging and carriage, VAT and any other applicable sales tax or duty.
4.2 Prices and specifications are checked to the best of our ability, and whist every effort has been made to make them accurate, no responsibility will be accepted for errors and omissions. We reserve the right to alter our prices without notice.
4.3 Subject to Condition 10.4 in respect of Buyers dealing as Consumers Empac Direct may invoice the Buyer for the Goods on or at any time after delivery, or the services on or at any time after performance commences, and payment is due within 14 days of service of such invoice, or upon termination of the Contract, whichever occurs first. Empac Direct may, in its absolute discretion, require payment to be made before the provision of any Goods or Services by Empac Direct .
4.4 Payment may be made by cheque or by BACS transfer to Empac Direct ’s bank account at Barclays made payable to Empac Direct Ltd. We do not currently accept credit card transactions. 4.5 Subject to condition 10.2 in relation to Buyers dealing as Consumers, all payments to be made by the Buyer under the Contract will be made in full without any set-off, restriction or condition and without any deduction for or on account of any counterclaim.
4.6 Empac Direct may at any time suspend the provision of the Goods or the Services if the Buyer is late in making any payment due to Empac Direct Ltd.
4.7 If any sum payable under the Contract is not paid when due then, without prejudice to Empac Direct ’s other rights under the Contract, that sum will bear interest from the due date until payment is made in full, both before and after any judgment, at 2% per annum over Barclays base rate from time to time Empac Direct will be entitled to suspend deliveries of the Goods or performance of the Services until the outstanding amount has been received
5. Delivery
5.1 Delivery dates are estimates and are not under Empac Direct ’s control. Please inform Empac Direct if the Goods are not delivered when expected but we do not accept any liability for delays in delivery or any loss arising in consequence.
5.2 The Goods shall be delivered to the Buyer’s premises. The Services will be performed at the location agreed between the Buyer and Empac Direct and as specified on the sales confirmation form or Fax-delivery notices or at such location as otherwise agreed in writing between Empac Direct and the Buyer.
5.3 Delivery of the Goods will be accepted at any time of day. If the buyer fails to take delivery, or provide any necessary documents, the Goods will be deemed to have been delivered and Empac Direct , without prejudice to its other rights, may at its option:
5.4 Store or arrange for storage of the Goods until actual delivery or sale and charge the Buyer for all related costs and expenses (including, without limitation, storage and insurance); and/or
5.5 Use reasonable endeavors to rearrange delivery but, if unable to rearrange delivery, following written notice to the Buyer, sell any of the Goods at the best price reasonably obtainable in the circumstances and charge the Buyer for any shortfall below the price under the Contract or account to the Buyer for any excess achieved over the price under the Contract, in both cases having taken into account any charges related to the sale.
5.6 Empac Direct will use reasonable endeavors to deliver or perform each of the Buyer’s orders for the Goods and /or Services within the time agreed when the Buyer places an order and, if no time is agreed, then within reasonable time, but the time of delivery or performance will not be the essence. Subject to Condition 10.1 where the Buyer is dealing as a Consumer, any delay in delivery or performance will not entitle the Buyer to cancel the Contract unless and until the Buyer has given 30 days’ written notice to Empac Direct requiring the delivery or performance to be made and Empac Direct has not fulfilled the delivery or performance within that period. If the Buyer cancels the order in accordance with this condition 5.6 then:
5.7 Empac Direct will refund to the Buyer any sums which the Buyer has paid to Empac Direct in respect of that order or part of the order which has been cancelled;
5.8 The Buyer will be under no liability to make any further payments under Condition 4 in respect of that order or part of the order which has been cancelled.
6. The Customer
The customer warrants:
6.1 That the description and particulars of any Goods or information furnished, or services required, by or on behalf of the Customer are full and accurate and
6.2 That any Transport Unit and/or equipment supplied by the Customer in relation to the performance of any requested service is fit for purpose, and
6.3 That all Goods have been properly and sufficiently prepared, packed, stowed, labeled and/or marked, and that the preparation, packing, stowage, labeling and marking are appropriate to any operations or transactions affecting the Goods and the characteristics of the Goods.
6.4 The customer undertakes that no claim shall be made against any director, servant, or employee of the company which imposes, or attempts to impose, upon them any liability in connection with any services which are the subject of these conditions, and, if any such claim should nevertheless be made, to indemnify the company against all consequences thereof.
7. Acceptance
7.1 You as the Buyer and/or Consumer must inspect the Goods being delivered as soon as practicable after delivery and notify Empac Direct within 24 hours of an alleged defect shortage in quantity or failure to comply with the description of the order.
7.2 The Goods are at the Buyer and/or Consumers risk from the time of delivery and no liability will be accepted by Empac Direct for damage or loss of Goods after the time that the delivery document stating that the Good was received in good condition has been signed. Failing such notice, you as the Buyer and/or Consumer will be deemed to have accepted the Goods and it shall be conclusively presumed that the Goods is in accordance with the Contract and free from any defect or damage which would be apparent on examination.
7.3 Any damages to the Goods found on examination must be reported to Empac Direct within 24 hours for either replacement or credited to the Buyer.
7.4 Manufacturer's Warranty will automatically void if the Buyer/or Consumer tampers or signs of interference with any electrical components and/or electrical wiring with the goods sold. Offer of replacement or refunds will also be voided.
8. Risk / Title
8.1 All goods will remain the property of Empac Direct until the price of such goods has been paid in full price (in cash or cleared funds)
8.2 Risk in the Goods will pass to the Buyer from the date of delivery unless the Buyer is dealing as a Consumer, in which case the Goods shall remain at Empac Direct ’s risk until they are delivered to the Consumer or deemed to be delivered in accordance with condition 5.3
8.3 The Buyer’s right to possession will terminate immediately upon the occurrence of an event which would allow Empac Direct to terminate the Contract under Condition 13.1.
8.4 The Buyer grants Empac Direct , its agents and employees an irrevocable license at any time to enter the premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated to recover them.
9. Liability of Empac Direct
9.1 This Condition 9 is in the addition to and does not affect a consumer’s rights in relation to defective Goods or Services given to Consumers by law.
9.2 Empac Direct will, free of charge, within a period of 6 months from the date of delivery of Goods which are proved to the reasonable satisfaction of Empac Direct to be damaged or defective due to defects in material, workmanship or design (other than a design made, furnished or specified by the Buyer), replace such Goods. This obligation will not apply where:
9.3 Any instruction as to the use or storage of the Goods have not been complied with in all respects; or The Buyer has failed to notify Empac Direct of any defect or suspected defect within 14 days of delivery or performance where the defect should be apparent on reasonable inspection, or within 14 days of the same coming to the knowledge of the Buyer where the defect is not one which should be apparent on reasonable inspection, and in any event no later than 6 months from the date of delivery.
9.4 Any Goods which have been replaced will belong to Empac Direct . Any replacement Goods will be liable to replacement under the terms specified in Condition 9.2 for the unexpired portion of the 12 month period from the original date of delivery of the replaced Goods.
9.5 Empac Direct does not exclude its liability (if any) to the Buyer for any matter which it would be illegal for Empac Direct to exclude (or to attempt to exclude) its liability including those matters referred to in Condition 7.4 where the Buyer is dealing as a Consumer.
9.6 Except as provided in Condition 9.1 to 9.5 and 10.4, Empac Direct will be under no liability to the Buyer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused arising out of or in connection with any Contract including the provision of any Goods or Services.
9.7 Except as set out in Condition 5.3, 9.1 to 9.5 and 10.4, Empac Direct hereby excludes to the fullest extent permissible in law, all conditions, warranties and stipulations, express (other than those set out in the Contract) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Buyer.
9.8 Save where the Buyer is dealing as a Consumer, the Buyer agrees to indemnify, keep indemnified and hold harmless Empac Direct from and against all costs (including the cost of enforcement), expenses, liabilities (including and tax liability), injuries, direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which Empac Direct incurs or suffers as a consequence of a direct or indirect breach of negligent performance or failure or delay in performance by the Buyer of the terms of Contract.
10. Additional Terms onlt relating to buyers dealing as consumers
10.1 Once a Contract has come into existence between Empac Direct and a consumer, Empac Direct shall only be entitled to cancel the Contract in accordance with Condition 13. If Empac Direct has not delivered Goods to a Buyer dealing as a consumer within 30 days of the Consumer’s order, the Consumer may cancel the contract and Empac Direct will refund any money paid.
10.2 Following delivery, Buyers dealing as Consumers have the right to cancel a Contract (other than for personalized or perishable products, video, audio or software products which have been unsealed by the Consumer, or other products which Empac Direct has specified as non-returnable) and receive a refund. The Consumer must inform Empac Direct within 7 working days, commencing on the day after the Goods are delivered to the Consumer. If the Consumer chooses to cancel, the Goods must be returned at the Consumer’s cost and risk the Consumers must take reasonable care of Goods. If the Consumer does not return the Goods within 14 days of cancellation, or when requested to do so by Empac Direct , which ever occurs first, Empac Direct can collect the Goods at the Consumer’s cost.
10.3 Buyers dealing as Consumers are required to inspect the Goods for the purpose of ascertaining whether or not at the time of delivery they are damaged or defective. Buyers acting as Consumers are required to notify Empac Direct as soon as is reasonably practical in the event that the Goods are found on inspection defective or damaged. Empac Direct will then arrange for the return of the Goods to Empac Direct at no cost to the Consumer. If the Goods are found to be damaged prior to delivery to the Consumer, or defective, Empac Direct will repair or replace the Goods or refund the price paid by the Consumer.
10.4 BUYERS DEALING AS CONSUMERS HAVE OTHER RIGHTS GRANTED BY LAW IN ADDITION TO THOSE SET OUT IN THESE TERMS AND CONDITIONS WHICH EMPAC DIRECT CANNOT EXCLUDE. THESE TERMS AND CONDITIONS DO NOT AFFECT THOSE OTHER RIGHTS GRANTED BY LAW.
11. Force Majeure
Empac Direct will not be liable to the Buyer for an failure or delay or for the consequence of any failure or delay in performance of the Contract, if it is due to any event beyond the reasonable control and contemplation of Empac Direct including, without limitation, acts of God, War, industrial disputes, protests, fire, tempest, explosion, an act of terrorism and national emergencies and Empac Direct will be entitled to a reasonable extension of time for performing such obligations.
12. Intellectual Property
12.1 All intellectual property rights in the Goods belong to Empac Direct or its licensors absolutely. All intellectual property rights created, developed or discovered by Empac Direct (whether alone or with any other person including the Buyer) in the provision of the Goods or Services shall belong to Empac Direct absolutely.
12.2 The Buyer may not make or distribute copies of the Goods and Services;
12.3 Self, sub-license or transfer the Goods or Services to any third party;
12.4 If at any time in connection with a contract the buyer (whether alone or with any other person) creates any intellectual property related to the subject matter of the Contract, the Buyer shall treat such intellectual property and all information relating to it as confidential to Empac Direct and shall promptly disclose to Empac Direct full details of such work. The property, including all intellectual property rights in such work shall vest in Empac Direct absolutely and the Buyer agrees to assign the same to Empac Direct and the provision of Condition 12.6 shall apply.
12.5 The Buyer hereby irrevocably and unconditionally waives in favour of Empac Direct any and all moral rights conferred on the Buyer by virtue of the Copyright Designs and Patent Act 1988 for any design or copyright work referred to in Condition 12.4.
12.6 Notwithstanding any prior termination of a Contract, at the request of Empac Direct , the Buyer shall do all things necessary or desirable to enable Empac Direct or its nominee to confer absolute title to and ownership of and to obtain the benefit of the rights including the intellectual property referred to in Condition 12.4 and to secure patent or other appropriate forms of protection for it throughout the world.
13. Termination
13.1 Empac Direct may by written notice terminate the Contract immediately if the Buyer is in material breach of the contract or enters into insolvency, bankruptcy, any arrangement with its creditors or any other arrangement or situation which has a like effect. Failure to pay any sums due in accordance with Condition 4.3 is a material breach of the terms of the Contract which is not capable of remedy.
13.2 The termination of the Contract howsoever arising is without prejudice to the rights, duties and liability of either the Buyer or Empac Direct accrued prior to termination. The Conditions which expressly or impliedly have effect after termination will continue to be done in force notwithstanding termination