PackSure Terms & Conditions

Name: McLaren Packaging Group
Price range: $

1. INTERPRETATION

1.1 In the Agreement, the following words and phrases shall have the following meanings unless the context otherwise requires:

(a) Affiliate shall mean any entity that directly or indirectly controls, is controlled by, or is under common control with another entity;

(b) Agreement means the agreement between PackSure and the Customer for the supply of Services, comprising these terms and conditions, the Proposal and the Order;

(c) Business Day means a day other than a Saturday, Sunday or public holiday in Scotland, when banks in Edinburgh are open for business;

(d) Certificate means a certificate or report prepared by PackSure which states that the Services have been performed and the date(s) on which such Services were performed;

(e) Charges shall have the meaning given in Clause 7.1;

(f) control means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls and controlled shall be interpreted accordingly;

(g) Customer means the person(s), firm or company who engages PackSure to provide the Services as set out in the Order;

(h) Deliverables means the Certificates and any other deliverables, information, memoranda, data, calculations, drawings, images, measurements, estimates, notes and other material provided by PackSure to the Customer in whatever form in the course of providing the Services;

(i) Order means the Customer’s purchase order for the supply of the Services, comprising the Customer’s written acceptance of the Proposal;

(j) PackSure means Packsure Limited, a private limited company registered in Scotland with company number SC711618;

(k) Proposal means the description of the Services to be provided by PackSure and an estimate of the price, if applicable, provided to the Customer by PackSure;

(l) Sample means any material, product, process, or other property delivered to PackSure by the Customer for testing or any other Service as set out in the Proposal; and

(m) Services means the packaging testing services as set out in the Proposal.

1.2 The headings in the Agreement do not affect its interpretation.

1.3 A word importing the singular shall (where appropriate) include the plural and vice versa.

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 A reference to writing or written includes emails.

2. BASIS OF AGREEMENT

2.1 These terms and conditions apply to the provision of the Services, to the exclusion of any terms and conditions which the Customer seeks to impose or incorporate into the Agreement, whether in an Order or otherwise, or which are implied by law (unless such law cannot be excluded), trade, custom, practice or course of dealing.

2.2 These terms and conditions shall prevail over any inconsistent terms or conditions contained or referred to in a Proposal or an Order.

2.3 The Order constitutes an offer by the Customer to purchase the Services upon these terms and conditions. The Order shall only be deemed to be accepted by PackSure when PackSure issues a written acceptance of the Order or (if earlier) if PackSure commences the provision of the Services, at which point and on which date the Agreement shall come into existence.

2.4 The Proposal shall not constitute an offer and is only valid for a period of 30 days from its date of issue. PackSure may withdraw a Proposal at any time.

3. THE SERVICES

3.1 PackSure shall provide the Services to the Customer in accordance with the description of the Services set out in the Proposal in all material respects and using reasonable care and skill.

3.2 On completion of the Services, PackSure shall provide the Customer with a copy of the Certificate.

3.3 All Deliverables are prepared and provided on the basis that:

(a) they shall be used by the Customer solely for its internal requirements;

(b) the Customer shall not rely on, and PackSure shall not be liable in respect of, any statement, information, opinion, recommendation or advice given by PackSure to the Customer in relation to the Services, whether before, during or after the Agreement, other than as expressly set out in a Certificate;

(c) PackSure has no liability, duty or responsibility to any person other than the Customer and the Deliverables and their content may not be relied upon by any other person;

(d) the Deliverables are not produced for any particular purpose and no statement is to be deemed, in any circumstances to be or give rise to a representation, undertaking, warranty or contractual condition unless specifically stated;

(e) PackSure is entitled to be paid the Charges irrespective of the results or conclusions of the Services; and

(f) the Deliverables shall only address the Samples and information that have been provided by the Customer to PackSure and shall not be regarded as representative of any larger population from which any Sample was taken.

3.4 The Customer hereby undertakes that it shall not:

(a) reproduce or present any Deliverables except in full as delivered by PackSure; or

(b) use any Deliverables (or any information contained within any Deliverables) in whole or in part in any manner that might reflect unfavourably upon PackSure or its Affiliates, or that might be, or might include statements, interpretations or comments that could be, misleading or false.

3.5 PackSure is not responsible for the Customer’s use of the Deliverables or any actions taken or not taken on the basis of the Deliverables, and shall not be liable for any loss or damage resulting from any such use, acts or omissions.

3.6 In agreeing to provide the Services pursuant to the Agreement, PackSure does not agree or undertake to discharge, assume or reduce any duty or obligation of the Customer to any other person or any duty or obligation of any person to the Customer.

4. CUSTOMER’S PROPERTY

4.1 The Customer shall provide the Samples and as much information about them as possible to PackSure in order for PackSure to provide the Services. PackSure will use its reasonable endeavours to comply with any instructions provided by the Customer in writing relating to the treatment and handling of the Samples except PackSure will not be liable for any loss or damage arising from its compliance with the Customer’s instructions.

4.2 PackSure is not responsible for the performance, adequacy, condition or safety of any Sample provided to and/or tested or evaluated by PackSure as part of the Services.

4.3 The Customer shall notify PackSure prior to PackSure carrying out any Service of any actual or potential health and safety risks relating to any Sample, including any such risks as may arise from PackSure’s performance of the Services, and shall provide instruction on the safe handling of the Samples.

4.4 The Customer acknowledges and agrees that the performance of the Services may damage or destroy any or all Samples provided by the Customer to PackSure. Under no circumstances will PackSure be liable for any loss, cost or damage resulting from destruction or damage of the Samples.

4.5 The Customer shall collect the Samples from PackSure within two weeks of completion of the Services. If the Customer has not collected the Samples within such period, PackSure may destroy or dispose of the Samples at its discretion. The Customer shall reimburse PackSure for any costs incurred in relation to such destruction or disposal.

5. PACKSURE'S WARRANTIES

5.1 PackSure warrants exclusively to the Customer that:

(a) it has the power and authority to enter into the Agreement;

(b) it will comply with applicable laws and regulations in force as at the date of the Agreement in relation to the provision of the Services; and

(c) the Deliverables will not infringe any rights (including Intellectual Property Rights) of any third party. This warranty shall not apply where the infringement is directly or indirectly caused by PackSure’s reliance on any information, Samples or documents provided to PackSure by the Customer (or any of its agents or representatives).

6. CUSTOMER WARRANTIES AND OBLIGATIONS

6.1 The Customer represents, warrants and undertakes that:

(a) it has the power and authority to enter into the Agreement and procure the provision of the Services for itself;

(b) it is securing the provision of the Services for its own account and not for any other person;

(c) all information, records and documents it (or any of its agents or representatives) provides to PackSure are, true, accurate, representative, complete and not misleading in any respect and made available when required by PackSure. The Customer further acknowledges that PackSure will rely on such information, records, documents and any Samples provided to it by the Customer in order to provide the Services; and

(d) any information, records, documents or Samples provided by the Customer to PackSure will not, in any circumstances, infringe any rights (including Intellectual Property Rights) of any third party.

6.2 The Customer further agrees to:

(a) co-operate with PackSure in all matters relating to the Services and appoint a manager in relation to the Services who shall be duly authorised to provide instructions to PackSure on behalf of the Customer;

(b) provide instructions and feedback in a timely manner to enable PackSure to perform the Services;

(c) inform PackSure in advance of any applicable import or export restrictions, that may apply to the Services and/or any confidential information to be provided, including any instances where any products, information or technology may be exported or imported to or from a country that is restricted or banned from such transaction; and

(d) obtain and maintain all necessary licences and consents in order to comply with applicable laws and regulations in relation to the Services.

6.3 If PackSure’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Customer or any failure by the Customer to perform any relevant obligation (Customer Default), without limiting or affecting any other right or remedy available to it:

(a) PackSure shall have the right to suspend performance of the Services until the Customer remedies the Customer Default and to rely on the Customer Default to relieve it from the performance of its obligations under the Agreement;

(b) PackSure shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from PackSure’s failure or delay to perform any of its obligations as set out in this Clause 6.3; and

(c) the Customer shall reimburse PackSure on written demand for any costs or losses sustained or incurred by PackSure arising directly or indirectly from the Customer Default.

7. CHARGES, INVOICING AND PAYMENT

7.1 The Customer shall pay PackSure the charges as set out in the Proposal or otherwise agreed in writing (the Charges).

7.2 PackSure, may, at its sole discretion:

(a) invoice the Customer prior to performance of the Services, in which case the Customer shall pay such invoice in advance and prior to performance of the Services; or

(b) invoice the Customer on or at any time after completion of the Services. Subject to PackSure receiving satisfactory references and if agreed by PackSure in writing, the Customer shall pay such invoice no later than the end of the month following the month during which the Services were completed. If there is no such agreement, the Customer shall pay all outstanding sums on receipt of the Certificate; or

(c) invoice the Customer, and the Customer shall pay such invoice, in accordance with the timings specified in the Proposal.

7.3 The Customer shall pay each invoice submitted by PackSure in full and cleared funds to the bank account nominated by PackSure in writing. Time for payment shall be of the essence of the Agreement.

7.4 The Customer shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). PackSure may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by PackSure to the Customer.

7.5 All amounts payable by the Customer under the Agreement are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Agreement by PackSure to the Customer, the Customer shall, on receipt of a valid VAT invoice from PackSure, pay to PackSure such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

7.6 The Customer agrees that it will reimburse PackSure for any expenses reasonably incurred by PackSure relating to the provision of the Services and is wholly responsible for any freight, customs clearance or other fees relating to any Samples and the delivery of Samples to PackSure.

8. CONFIDENTIALITY

8.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, services, customers, clients or suppliers of the other party or of any of its Affiliates, except as permitted by Clause 8.2.

8.2 Each party may disclose the other party's confidential information:

(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this Clause 8; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

8.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.

8.4 This Clause 8 shall survive termination of the Agreement.

9. PREMISES

9.1 PackSure may, on a case-by-case basis and at its discretion, permit the Customer in writing to inspect a Sample at PackSure’s premises (the “Premises”). Any grant of such access to the Premises shall be subject to the Customer and its representatives:

(a) only accessing areas of the Premises as expressly permitted by PackSure; and

(b) complying at all times with all applicable policies and procedures of PackSure (including those relating to health and safety) and signing any applicable acceptance or acknowledgement form relating to such policies and procedures.

10. FORCE MAJEURE

10.1 Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under the Agreement if such delay or failure results directly or indirectly from events, circumstances or causes beyond its reasonable control, including any act of God, flood, drought, earthquake or other natural disaster, pandemic, epidemic, war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, riot, accident, terrorism, explosion, strike or labour dispute, any law, or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent, delay or default by subcontractor or supplier of materials or services.

11. LIMITATION OF LIABILITY

11.1 NOTHING IN THE AGREEMENT LIMITS ANY LIABILITY WHICH CANNOT LEGALLY BE LIMITED, INCLUDING LIABILITY FOR:

(a) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE;

(b) FRAUD OR FRAUDULENT MISREPRESENTATION; AND

11.2 SUBJECT TO CLAUSE 11.1, THE TOTAL AGGREGATE LIABILITY OF PACKSURE WHETHER IN CONTRACT, DELICT (INCLUDING NEGLIGENCE), MISREPRESENTATION, RESTITUTION, FOR BREACH OF STATUTORY DUTY OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT SHALL NOT EXCEED 100% OF THE CHARGES PAID OR PAYABLE BY THE CUSTOMER PURSUANT TO THE AGREEMENT.

11.3 SUBJECT TO CLAUSE 11.1, PACKSURE SHALL NOT BE LIABLE, WHETHER IN CONTRACT, DELICT (INCLUDING NEGLIGENCE), MISREPRESENTATION, RESTITUTION, FOR BREACH OF STATUTORY DUTY OR OTHERWISE FOR ANY:

(a) LOSS OF PROFITS;

(b) LOSS OF SALES OR BUSINESS;

(d) LOSS OF AGREEMENTS OR CONTRACTS;

(e) LOSS OF ANTICIPATED SAVINGS;

(f) LOSS OF OR DAMAGE TO GOODWILL OR REPUTATION;

(g) LOSS OR USE OR CORRUPTION OF DATA; OR

(h) INDIRECT OR CONSEQUENTIAL LOSS.

11.4 ANY CLAIM BY THE CUSTOMER AGAINST PACKSURE MUST BE MADE WITHIN 90 DAYS OF THE DAY ON WHICH THE CUSTOMER BECAME, OR OUGHT REASONABLY TO HAVE BECOME, AWARE OF THE CIRCUMSTANCES RELATING TO ANY SUCH CLAIM. PACKSURE SHALL HAVE NO LIABILITY IN RESPECT OF ANY CLAIM NOTIFIED TO PACKSURE BY THE CUSTOMER AFTER THE PERIOD DESCRIBED IN THIS CLAUSE 11.4.

11.5 OTHER THAN AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, ALL WARRANTIES, CONDITIONS, TERMS AND UNDERTAKINGS EXPRESS OR IMPLIED STATUTORY OR OTHERWISE IN RESPECT OF THE PERFORMANCE OF THE SERVICES ARE HEREBY EXCLUDED.

11.6 THIS CLAUSE 11 SHALL SURVIVE TERMINATION OF THE AGREEMENT.

12. INDEMNITY

12.1 The Customer agrees to indemnify, keep indemnified and hold harmless PackSure and each of its Affiliates and their respective shareholders, directors, members, officers, employees, and agents (collectively the Indemnified Parties) against all liabilities, losses, damages, costs and expenses incurred by any Indemnified Party arising out of or in connection with:

(a) breach of any law by the Customer in connection with the performance of the Services;

(b) any failure of the Customer to comply with clauses 9.1.1 and 9.1.2; and

12.2 This Clause 12 shall survive termination of the Agreement.

13. TERMINATION

13.1 Without affecting any other right or remedy available to it, the Agreement may be terminated with immediate effect by either party giving written notice to the other party if:

(a) the other party commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;

(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.

13.2 Without affecting any other right or remedy available to it, PackSure may terminate the Agreement:

(a) at any time by giving the Customer at least 30 days’ written notice; or

(b) with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Agreement by the due date for payment.

13.3 On expiry or termination of the Agreement, the Customer shall immediately pay to PackSure all outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, PackSure shall submit an invoice, which shall be payable by the Customer immediately on receipt.

13.4 Any termination or expiration of the Agreement shall not affect the accrued rights and obligations of the parties nor shall it affect any provision which is expressly or by implication intended to come into force or continue in force on or after such termination or expiration.

14. GENERAL

14.1 PackSure may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Agreement.

14.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement without the prior written consent of PackSure.

14.3 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the remainder of the Agreement. If any provision or part-provision of the Agreement is deleted under this Clause 14.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

14.4 Nothing in the Agreement and no action taken by the parties under the Agreement shall constitute a partnership, association, joint venture or other co-operative entity between the parties or constitute any party the partner, agent or legal representative of the other.

14.5 A waiver of any right or remedy under the Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

14.6 No variation to the Agreement shall be effective unless it is in writing, expressly stated to amend the Agreement and signed by an authorised signatory of each party.

14.7 Any notice given to a party under or in connection with the Agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case), or sent by email, in the case of PackSure to info@packsure.co.uk.

14.8 Any notice shall be deemed to have been received:

(a) if delivered by hand, at the time the notice is left at the proper address;

(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

(c) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Clause 14.8(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

14.9 The Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes and extinguishes all previous agreements, promises, assurances, representations, arrangements and understandings between the parties relating thereto.

14.10 Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, warranty or assurance that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement.

14.11 The Agreement does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 for any third party to enforce or otherwise invoke any term of the Agreement.

14.12 The Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it shall be governed by Scots law. The parties agree to submit to the exclusive jurisdiction of the Scottish courts in respect of any dispute or claim (including any non-contractual dispute or claim) arising out of or in connection with the Agreement or its subject matter or formation.

14.13 This Clause 14 shall survive termination of the Agreement.