Terms and Conditions of Sale

Interpretation
1. Definitions:

Aquapak: Aquapak Polymers Ltd (registered in England and Wales with company number 05343342).

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Collection Location: Aquapak’s premises at 107 Hollymoor Way, Northfield, Birmingham B31 5HE or such other location as may be advised by Aquapak.

Collection Time: 8:30 – 17:00 Monday to Thursday and 8:00 – 15:00 on Fridays.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 15.5.

Contract: the contract between Aquapak and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from Aquapak.

Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.

Delivery Location: the location confirmed in Aquapak’s acceptance of the Customer’s Order.

Force Majeure Event: an event or circumstance beyond a party’s reasonable control including (without limitation) acts of God, flood, drought, earthquake or other natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, nuclear, chemical or biological contamination or sonic boom, any law or any action taken by a government or public authority, collapse of buildings, fire, explosion or accident, any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on the existence of the Force Majeure Event, or companies in the same group as that party), non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on the existence of the Force Majeure Event) and interruption or failure of utility service.

Goods: the goods (or any part of them) set out in the Order.

Incoterms: Incoterms 2020 (International Chamber of Commerce) or any later version of Incoterms stipulated by Aquapak from time to time.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form, the Customer’s written acceptance of Aquapak’s quotation, or overleaf, as the case may be.

Technical Data Sheet: the technical data sheet for the Goods, as provided to the Customer by Aquapak.

1. A reference to:
  1. a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
  2. a party includes its personal representatives, successors and permitted assigns;
  3. legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision;
  4. any words following the terms including, include or any similar expression will be interpreted as illustrative and will not limit the sense of the words preceding those terms;
  5. writing or written excludes fax and email (unless otherwise stated).

Basis of Contract
1. These Conditions apply in all circumstances when Aquapak and the Customer are trading with each other in the course of their respective businesses.
2. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
4. The Order will only be deemed to be accepted when Aquapak issues a written acceptance of the Order, at which point and on which date the Contract will come into existence.
5. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
6. Any samples, drawings, descriptive matter or advertising produced by Aquapak and any descriptions or illustrations contained in Aquapak’s catalogues or brochures or on its website are produced for the sole purpose of giving an approximate idea of the Goods referred to. They will not form part of the Contract nor have any contractual force.
A quotation for the Goods given by Aquapak will not constitute an offer. All quotations are subject to change and may be withdrawn or amended by Aquapak at any time and are therefore non-binding.
Goods
1. The Goods are described in the Technical Data Sheet.
2. Aquapak reserves the right to amend the Technical Data Sheet if required by any applicable statutory or regulatory requirement, and Aquapak will notify the Customer in any such event.
3. Any advice or recommendations given by Aquapak or its employees or agents relating to the suitability of the Goods is supplied in good faith but the Customer must satisfy itself that the Goods are suitable for the intended purpose.
4. The shelf life of the Goods is stated on the Technical Data Sheet.
Delivery/COLLECTION
1. If Aquapak’s acceptance of the Customer’s Order states that Incoterms will apply to the Order, the relevant stated Incoterm will apply. In that case, if there is any conflict between the Contract and Incoterms, Incoterms will prevail to the extent required to resolve the conflict.
2. It is the Customer’s responsibility to check that the Goods delivered/made available for collection by Aquapak match the Goods ordered. Aquapak will not be responsible for any liabilities, costs, expenses, damages or losses incurred by the Customer if the Customer does not check the Goods in this way. In the event of an inconsistency between the Goods (as ordered) and the goods actually delivered/collected (e.g. the wrong products are delivered or made available for collection), the Customer will notify Aquapak immediately on discovery (and in any event within 7 days of receipt of the Goods) and Aquapak will contact the Customer to arrange re-delivery/collection of the Goods as soon as reasonably practicable following notification of the inconsistency. The incorrect goods will be collected by or returned to Aquapak (at Aquapak’s option) at Aquapak’s cost and the Customer will co-operate with Aquapak in this respect.
3. Aquapak reserves the right at any time to refuse to make delivery of the Goods or make the Goods available for collection (as the case may be) if in its sole opinion the transport, storage or offloading facilities proposed by the Customer are unsafe or inadequate for the Goods. All reasonable costs incurred by Aquapak in attempting to make delivery in these circumstances will be for the account of the Customer. Delivery of the Goods by Aquapak or Aquapak’s agent for such delivery will in no way constitute a commitment or representation by Aquapak as to the suitability of the Buyer’s storage or offloading facilities.
4. If Aquapak has agreed to deliver the Goods to the Customer:
  1. Aquapak will deliver the Goods to the Delivery Location at any time after Aquapak notifies the Customer that the Goods are ready. Aquapak (or Aquapak’s nominated courier) will contact the Customer with an estimated delivery date;
  2. the risk in the Goods will pass to the Customer on completion of delivery;
  3. Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
5. If Aquapak has agreed that the Customer may collect the Goods:
  1. the Customer will collect the Goods from the Collection Location at a date and time to be agreed between the parties within the Collection Time;
  2. the risk in the Goods will pass to the Customer on collection; and
  3. collection is completed on the completion of loading of the Goods at the Collection Location.
6. Any dates quoted for delivery/collection are approximate only, and the time of delivery is not of the essence. Aquapak will not be liable for any delay in delivery of the Goods or making the Goods available for collection that is caused by a Force Majeure Event or the Customer’s failure to provide Aquapak with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7. The Customer will not be liable for the price of and Aquapak will refund any amount paid in respect of Goods which Aquapak fails to deliver or make available for collection. Subject only to clause 12 but notwithstanding any other provision of these Conditions or the Contract, Aquapak’s further liability in respect of such failure will be limited to 10% of the price of the Goods (excluding the costs and charges listed in clause 10.3) in respect of which such failure occurred. However, Aquapak will have no liability for any failure to deliver Goods or make Goods available for collection to the extent that such failure is caused by a Force Majeure Event or any breach or failure by the Customer.
8. If the Customer fails to take or accept delivery of the Goods within 3 Business Days of Aquapak notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Aquapak’s failure to comply with its obligations under the Contract in respect of the Goods:
  1. delivery/collection of the Goods will be deemed to have been completed at 9.00 am on the third Business Day after the day on which Aquapak notified the Customer that the Goods were ready; and
  2. Aquapak will store the Goods until delivery/collection takes place, and charge the Customer for all related costs and expenses (including insurance).
9. If 10 Business Days after the day on which Aquapak notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted actual delivery of them, Aquapak may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
10. Aquapak may deliver the Goods or make the Goods available for collection by instalments, which will be invoiced and paid for separately. Each instalment will constitute a separate contract. Any delay in delivery or defect in an instalment will not entitle the Customer to cancel any other instalment.
11. If the Customer wishes to change a pre-agreed delivery/collection date or time the Customer must give Aquapak 24 hours’ notice. The Customer will be required to pay Aquapak’s costs in connection with such a request including storage and re-delivery costs.
OVERSEAS DELIVERY
1. Aquapak may at its discretion agree to deliver Goods to addresses outside of the United Kingdom. However, there are restrictions on some products for certain international delivery destinations and it is the Customer’s responsibility to ascertain information about the existence and applicability of such restrictions. If the Customer order Goods for delivery outside of the United Kingdom, that order may be subject to import duties and taxes which are applied when the delivery reaches that destination. Aquapak has no control over these charges and cannot predict their amount. The Customer will be responsible for payment of any such import duties and taxes. The Customer must comply with all applicable laws and regulations of the country for which the products are destined. Aquapak will not be liable or responsible if the Customer breaks any such law.
Quality
1. On delivery or collection (as the case may be), the Goods will conform in all material respects with the Technical Data Sheet and be free from material defects in design, material and workmanship.
2. The Customer must examine the Goods on delivery or when they are collected (as the case may be). If the Goods cannot be examined, the delivery note or other appropriate documentation presented to the Customer must be marked “not examined”.
3. Subject to clause 7.3.1, if:
  1. the Customer gives notice in writing to Aquapak within 24 hours of discovery that some or all of the Goods do not comply with clause 7.1. If any issue is or should be apparent on visual inspection (including (without limitation) shortages or damage), such issues must be notified to Aquapak (with photographs of damage) within 7 days of receipt of the Goods;
  2. Aquapak is given a reasonable opportunity of examining such Goods; and
  3. the Customer (if asked to do so by Aquapak) returns such Goods to Aquapak’s place of business at the Customer’s cost,
4. Aquapak will, at its option, repair or replace the Goods it agrees are defective, or refund the price of the defective Goods in full by way of credit to the Customer’s account or if the Customer doesn’t have an account with Aquapak, to the original method of payment. If Aquapak agrees with any alleged shortages, Aquapak will make good such shortages in a reasonable time.
5. Aquapak will not be liable for the Goods’ failure to comply with clause 7.1 if:
  1. the Customer makes any further use of such Goods after giving notice in accordance with clause 7.2;
  2. the defect arises because the Customer failed to follow Aquapak’s oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
  3. the defect arises as a result of Aquapak following any drawing, design or specification supplied by the Customer;
  4. the Customer alters or repairs such Goods without the written consent of Aquapak;
  5. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
  6. the Goods differ from the Technical Data Sheet as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6. If the Customer fails to give notice of rejection in accordance with this clause 7, it will be deemed to have accepted these Goods.
7. Except as provided in this clause 7, Aquapak will have no liability to the Customer in respect of the Goods’ failure to comply with clause 7.1.
8. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
9. These Conditions will apply to any repaired or replacement Goods supplied by Aquapak.
Title
1. Title to the Goods will not pass to the Customer until the earlier of:
  1. Aquapak receiving payment in full (in cash or cleared funds) for the Goods and any other goods that Aquapak has supplied to the Customer in respect of which payment has become due, in which case title to the Goods will pass at the time of payment of all such sums; and
  2. the Customer reselling the Goods, in which case title to the Goods will pass to the Customer at the time specified in clause 8.3.
2. Until title to the Goods has passed to the Customer, the Customer will:
  1. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Aquapak’s property;
  2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
  3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
  4. notify Aquapak immediately if it becomes subject to any of the events listed in clause 13.1.2 to clause 13.1.4; and
  5. give Aquapak such information as Aquapak may reasonably require from time to time relating to:
    1. the Goods; and
    2. the ongoing financial position of the Customer.
3. Subject to clause 8.4, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Aquapak receives payment for the Goods. However, if the Customer resells the Goods before that time:
  1. it does so as principal and not as Aquapak’s agent; and
  2. title to the Goods will pass from Aquapak to the Customer immediately before the time at which resale by the Customer occurs.
4. At any time before title to the Goods passes to the Customer, Aquapak may:
  1. by notice in writing, terminate the Customer’s right under clause 8.3 to resell the Goods or use them in the ordinary course of its business; and
  2. require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
Delays
1. If Aquapak’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
  1. without limiting or affecting any other right or remedy available to it, Aquapak will have the right to suspend the performance of its obligations until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Aquapak’s performance of any of its obligations;
  2. Aquapak will not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Aquapak’s failure or delay to perform any of its obligations as set out in this clause 9; and
  3. the Customer will reimburse Aquapak on written demand for any costs or losses sustained or incurred by Aquapak arising directly or indirectly from the Customer Default.
Price and Payment
1. The price of the Goods will be the price set out in Aquapak’s acceptance of the Customer’s Order.
2. Aquapak may, by giving notice to the Customer at any time before delivery/collection, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
  1. any factor beyond Aquapak’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
  2. any request by the Customer to change the delivery/collection date(s), quantities or types of Goods ordered, or the Technical Data Sheet; or
  3. any delay caused by any instructions of the Customer or failure of the Customer to give Aquapak adequate or accurate information or instructions.
3. The price of the Goods excludes:
  1. amounts in respect of value added tax (VAT), which the Customer will additionally be liable to pay to Aquapak at the prevailing rate, subject to the receipt of a valid VAT invoice;
  2. all applicable consular charges, stamp duties, export or import duties, purchase tax or similar fiscal demands (UK or otherwise), bank charges and interest charges; and
  3. the costs and charges of packaging, insurance and transport of the Goods, which will be invoiced to the Customer.
4. Aquapak may invoice the Customer for the Goods on or at any time after the completion of delivery/collection (as the case may be).
5. The Customer will pay each invoice submitted by Aquapak:
  1. unless otherwise agreed in writing, within 30 days of the end of the month in which the invoice is dated; and
  2. in full and in cleared funds to a bank account nominated in writing by Aquapak, and

time for payment will be of the essence of the Contract.

1. If the Customer fails to make a payment due to Aquapak under the Contract by the due date, then, without limiting Aquapak’s remedies under clause 13, the Customer will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 10.6 will accrue each day at 5% a year above the Bank of England’s base rate from time to time, but at 5% a year for any period when that base rate is below 0%.
2. All amounts due under the Contract will be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

INTELLECTUAL PROPERTY RIGHTS
1. The Customer will not receive rights in any Intellectual Property Rights in the Goods by virtue of the Contract save for a non-exclusive, non-transferable, royalty-free licence to use and resell (subject to clause 8) the Goods for the purposes of its business.
Limitation of Liability
1. References to liability in this clause 12 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
2. Nothing in the Contract limits any liability for:
  1. death or personal injury caused by negligence;
  2. fraud or fraudulent misrepresentation;
  3. breach of the terms implied by section 12 of the Sale of Goods Act 1979;
  4. defective products under the Consumer Protection Act 1987; or
  5. any liability that legally cannot be limited.
3. Subject to clause 12.2, Aquapak’s total liability to the Customer will not exceed the price of the Goods.
4. Subject to clause 12.2 and 12.3, the following types of loss are wholly excluded by Aquapak:
  1. loss of profits;
  2. loss of sales or business;
  3. loss of agreements or contracts;
  4. loss of anticipated savings;
  5. loss of use or corruption of software, data or information;
  6. loss of or damage to goodwill; and
  7. indirect or consequential loss.
5. This clause 12 will survive termination of the Contract.
Termination
1. Without limiting its other rights or remedies, Aquapak may terminate this Contract with immediate effect by giving written notice to the Customer if:
  1. the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
  2. the Customer 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), obtaining a moratorium, 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;
  3. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
  4. the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
2. Without limiting its other rights or remedies, Aquapak may suspend provision of the Goods under the Contract or any other contract between the Customer and Aquapak if the Customer becomes subject to any of the events listed in clause 13.1.2 to clause 13.1.4, or Aquapak reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
3. Without limiting its other rights or remedies, Aquapak may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
4. On termination of the Contract for any reason the Customer will immediately pay to Aquapak all of Aquapak’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Aquapak will submit an invoice, which will be payable by the Customer immediately on receipt.
5. Termination of the Contract, however arising, will not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
6. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract will remain in full force and effect.
DATA PROTECTION
1. Each party will, at its own expense, ensure that it complies with and assists the other party to comply with all requirements of the Data Protection Legislation. Each party will ensure that it has all necessary consents and notices in place to enable the lawful transfer of personal data to the other for the purposes of each party fulfilling its obligations under the Contract. Neither party will use or disclose personal data provided to it by the other in connection with the Contract other than for the purpose of fulfilling the Contract.
General
1. Force Majeure. Aquapak will not be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations will be extended accordingly.
2. Assignment and other dealings. Aquapak may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Aquapak.
3. Confidentiality. Each party undertakes that it will not disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by this clause 15.3. Each party may disclose the other party’s confidential information 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 the Contract and as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. Neither party will use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract. Each party will ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 15.3.
4. Entire agreement. The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
5. Variation. No variation of this Contract will be effective unless it is in writing and signed by the parties (or their authorised representatives).
6. Waiver. A waiver of any right or remedy is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy will not waive that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.
7. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will be deemed deleted, but that will not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 15.7 the parties will negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
8. Notices. Any formal notice given to a party under or in connection with the Contract will be in writing and will 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). Any such notice will be deemed to have been received: if delivered by hand, at the time the notice is left at the proper address and 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. This clause 15.8 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
9. Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
10. Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, will be governed by and construed in accordance with the law of England and Wales.
11. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

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Terms and Conditions of Sale

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