Terms and Conditions

  1. Interpretation
    1. Definitions
      Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
      Commencement Date: the date The date when both parties have signed the Contract.
      Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with the Contract Details, the Schedules and these Terms and Conditions.
      Credit Limit: means any credit limit granted to the Customer by the Supplier and specified in writing.
      Delivery Date: the date specified for delivery of an Order in accordance with clause 4.
      Delivery Location: the address for delivery of the Goods, as set out in the Contract Details.
      Force Majeure Event: events, circumstances or causes beyond a party’s reasonable control.
      Goods: the goods (or any part of them), as set out in the Contract Details.
      Order: an order for the Goods submitted by the Customer in accordance with clause 4.
      Prices: the prices for the Goods, as set out in Schedule 2.
      Terms and Conditions: these terms and conditions set out in clause 1 to clause 14 (inclusive).
      VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
    2. Interpretation:
      1. a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted from time to time. A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
      2. any phrase introduced by the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
      3. a reference to writing or written includes fax and emails.
  2. Commencement and term
    This Contract shall commence on the Commencement Date and shall continue for successive 12 month periods, unless terminated earlier in accordance with its terms.
  3. Minimum purchase obligation
    1. The Customer acknowledges and agrees that Goods can only be supplied in complete cases and the Supplier cannot accept Orders for volumes which do not correlate to the number of Goods contained in complete cases. Any such Orders will be returned to the Customer to resubmit in appropriate volumes.
  4. Orders
    1. Orders shall be given to the Supplier by the Customer in writing using the form set out in Schedule 1 or the Customer’s own form provided that it contains each of those details specified in Schedule 1 (Order Form). Each Order shall be deemed to be a separate offer by the Customer to purchase Goods on the terms of this Contract, which the Supplier shall be free to accept or decline at its absolute discretion.
    2. The Supplier shall accept the Order, or specify any necessary amendments to the Order, in writing within 2 Business Days of receipt. Once an Order has been accepted by the Supplier it shall assign an order number to the Order and notify the order number to the Customer. Each party shall use the relevant order number in all subsequent correspondence relating to the Order.
    3. After confirming an Order, the Supplier shall as soon as practicable and in any event within 2 Business Days inform the Customer of the Supplier’s estimated Delivery Date for the Order. Unless otherwise specified in the Order Form, the Delivery Date for UK Orders placed prior to 11am on a Business Day will be the second Business Day following acceptance by the Supplier of the relevant Order, or in the case of Orders to be delivered to Northern Ireland or Scotland, the third Business Day following acceptance by the Supplier of the relevant Order.
    4. The Supplier may, at its discretion, accept an amendment to an Order by the Customer provided that the amendment is made at least 2 Business Days prior to the scheduled Delivery Date.
    5. The Customer is responsible for ensuring that Orders are complete and accurate. The Customer shall give the Supplier all necessary information that the Supplier reasonably requires in order to fulfil each Order.
  5. The Goods
    1. Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
    2. The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements or otherwise in their discretion..
  6. Delivery
    1. The Supplier shall ensure that each delivery of Goods is accompanied by a delivery note that shows the contract number, order number, the type and quantity of Goods (including the code number of the Goods, where applicable), special storage instructions for the Goods (if any) and, if the relevant Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
    2. The Supplier shall use reasonable endeavours to deliver Goods to the Delivery Location on the relevant Delivery Date.
    3. Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
    4. Delivery Dates are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of any Goods that is caused by:
      1. a Force Majeure Event; or
      2. the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
    5. If the Supplier fails to deliver Goods OR have Goods ready for collection by the relevant Delivery Date, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the Price of the Goods. The Supplier shall have no liability for any failure to deliver Goods to the extent that such failure is caused by:
      1. a Force Majeure Event; or
      2. the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
    6. If the Customer is not available to take delivery of the Goods on the relevant Delivery Date the Supplier will attempt to deliver the Goods a second time. If 10 Business Days after the day on which the Supplier attempted to make delivery of Goods the Customer has not taken delivery of those Goods, the Supplier may resell or otherwise dispose of part or all of the Goods and charge the Customer the cost of each failed delivery.
    7. The Supplier may deliver Orders by instalments, which shall be invoiced and paid for separately. The Customer may not cancel an instalment because of any delay in delivery or defect in another instalment.
  7. Quality and fitness for purpose
    1. The Supplier warrants that at the Delivery Date the Goods shall:
      1. conform in all material respects with their description; and
      2. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
    2. Subject to clause 7.3, if:
      1. the Customer gives notice in writing to the Supplier within 48 hours of delivery that some or all of the Goods are damaged or otherwise do not comply with the warranties set out in clause 7.1;
      2. the Customer provides photographic evidence of such non-compliance to the Supplier
      3. the Customer provides details of the number of cases, the batch numbers the order number and the purchase order number; and
      4. the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost, the Supplier shall, at its option, repair or replace any Goods that are found to be defective, or refund the price of such defective Goods in full.
    3. The Supplier shall not be liable for Goods’ failure to comply with the warranties set out in clause 7.1 if:
      1. the Customer makes any further use of such Goods after giving notice of defects in accordance with clause 7.2;
      2. the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
      3. the defect arises as a result of wilful damage, negligence, or abnormal storage or working conditions; or
      4. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
    4. The Supplier’s only liability to the Customer if the Goods fail to comply with the warranties set out in clause 7.1 is as set out in this clause 7.
    5. 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.
    6. The terms of the Contract shall apply to any repaired or replacement Goods supplied by the Supplier.
  8. Title and risk
    1. Risk in Goods shall pass to the Customer on completion of unloading the Goods at the Delivery Location.
    2. Title to Goods shall only pass to the Customer once the Supplier receives payment in full for them and for any other goods that the Supplier has supplied the Customer
    3. Until title to the Goods has passed to the Customer, the Customer shall:
      1. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’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 the Supplier immediately if it becomes subject to any of the events listed in clause 13.2.2; and
      5. give the Supplier such information relating to the Goods as the Supplier may require from time to time.
    4. The Supplier may at its discretion recover Goods in which title has not passed to the Customer. The Customer irrevocably licenses the Supplier, its officers, employees and agents, to enter any premises of the Customer (including with vehicles), in order to satisfy itself that the Customer is complying with the obligations in clause 8.3, and to recover any Goods in which property has not passed to the Customer. For the avoidance of doubt there is no obligation on the Supplier to exercise its rights under this clause 8.4 and the Customer has no right to require the Supplier to exercise such rights.
    5. The Supplier may at any time after delivery elect to transfer title in the Goods to the Customer, in which case the Customer shall immediately pay the Price to the Seller.
  9. Product recall
    1. If the Customer is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any Goods from the market (Recall Notice) it shall immediately notify the Supplier in writing enclosing a copy of the Recall Notice.
    2. Unless required by law, the Customer may not undertake any recall or withdrawal without the written permission of the Supplier and only then in strict compliance with the Supplier’s instructions as to the process of implementing the withdrawal.
  10. Price and payment
    1. The Customer shall pay for Goods in accordance with this clause 10.
    2. The Supplier shall be entitled to increase the Prices annually on 1 April, or at any other time during the Term as it in its sole discretion considers necessary, including but not limited to reflect  any increase in the costs of production, or to reflect any change in the Retail Price Index. The Supplier shall give the Customer 14 days’ notice in writing of any rises in the Prices.
    3. The Price excludes amounts in respect of VAT, which the Customer shall additionally be liable to pay to the Supplier, subject to the receipt of a valid VAT invoice.
    4. Subject to clause 10.6 the Supplier shall invoice the Customer for the price of Goods plus VAT on Delivery of the Goods to the Customer. The Supplier shall ensure that the invoice includes the date of the Order, the invoice number, the contract number, the Customer’s order number, the Supplier’s VAT registration number, and any supporting documentation that the Customer may reasonably require.
    5. Subject to clause 10.6 the Customer shall pay invoices in full in cleared funds by the end of the month following the month of invoice. Payment shall be made to the bank account nominated in writing by the Supplier.
    6. Notwithstanding clauses 10.4 and 10.5, where:
      1. the Customer has been granted a Credit Limit and the Order, or any part of an Order, causes the Customer to exceed its Credit Limit; or
      2. the Customer has not been granted a Credit Limit,

      if there is a balance owing from the Customer to the Supplier, the Customer shall make payment to the Supplier of the oldest outstanding invoice(s) sufficient to allow the new order to be shipped.  If there is not a balance owing from the Customer to the Supplier, the Supplier will invoice the Customer after it confirms the relevant Order and the Customer must pay the invoice prior to Delivery.

    7. The Customer acknowledges that the Supplier has appointed an insurer in relation to its Credit Limits (“Commercial Credit Insurer“). In the event that the Customer fails to pay its invoices under the Contract by the due date for payment the Supplier is obliged to pass the debt collection activity to the Commercial Credit Insurer. For this reason the Supplier encourages the Customer to inform the Supplier immediately if it has any concerns in relation to making  any payment due to the Supplier under the Contract by the due date for payment.
    8. If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier’s remedies under clause 13:
      1. the Customer shall 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 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and
      2. the Supplier may suspend all further deliveries of Goods until payment has been made in full.
    9. All amounts due under this Agreement from the Customer to the Supplier shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). The Supplier may at any time, without limiting any of its other rights or remedies, set off any amount owing to it against any amount payable by the Supplier to the Customer.
  11. PRODUCT REBATES and promotions
    1. On the Supplier’s request the Customer shall provide the Supplier with all necessary sales volume figures for Goods sold to its customers as required by the Supplier to enable the Supplier to apply any rebates payable to such customers under any retrospective rebate agreements it has in place.
    2. The Supplier may, in its sole discretion, agree to fully or partially fund the promotional activity of the Customer. In the event that the Supplier agrees to fully or partly fund any such promotional activity, the Customer shall provide a copy of, or a link to, the relevant promotional activity to the Supplier prior to requesting the relevant contribution from the Supplier.
  12. Limitation of liability
    1. Nothing in this Contract shall limit or exclude the Supplier’s liability for:
      1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
      2. fraud or fraudulent misrepresentation;
      3. breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
      4. any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
    2. Subject to clause 12.1:
      1. the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
      2. the Supplier’s total liability to the Customer for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, shall not exceed the total sums paid by the Customer for Goods under the Contract in the 12 month period preceding the claim.
  13. Termination
    1. Without limiting its other rights or remedies, the Supplier may terminate this Contract at any time by giving the Customer no less than one months’ notice.
    2. Without limiting its other rights or remedies, either party may terminate this Contract with immediate effect by giving written notice to the other party if:
      1. the other party 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 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), 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;
      3. 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
      4. 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 Contract has been placed in jeopardy.
    3. Without limiting its other rights or remedies, the Supplier 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 and remains in default not less than 14 days after being notified in writing to make such payment.
    4. Termination of the Contract shall 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 this Contract which existed at or before the date of termination.
    5. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
  14. General
    1. Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for two months, the party not affected may terminate this Contract by giving 30 days written notice to the affected party.
    2. Assignment and other dealings.
      1. The Customer shall not assign, transfer, 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 the Supplier.
      2. The Supplier may at any time assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights under this Agreement.
    3. Confidentiality.
      1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, including but not limited to the contents of this Contract and its schedules and any variations thereto, except as permitted by clause 14.3.2.
      2. Each party may disclose the other party’s confidential information:
        1. to its employees, officers, representatives 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 this Agreement, including, in the case of the Supplier, its Commercial Credit Insurer. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 14.3; and
        2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
      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 this Contract.
    4. Entire agreement.
      1. This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
      2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this Agreement.
    5. Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives). For the avoidance of doubt this includes any variations made to its schedules including schedule 2 (Prices), and in no event shall a verbal variation of the Prices be binding on either party.
    6. Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
    7. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
    8. Notices.
      1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier or email.
      2. A notice or other communication shall be deemed to have been received: if delivered by hand, when left at the address referred in clause 14.8.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
      3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
    9. Third party rights. No one other than a party to this Contract shall have any right to enforce any of its terms.
    10. Counterparts. This Contract may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement
    11. Governing law. This 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  shall be governed by, and construed in accordance with, the law of England and Wales.
    12. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.

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