(b) 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; and
(c) A reference to writing or written includes faxes and emails.
2. Basis of Contract
2.1 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 trade, custom, practice or course of dealing. In the event of any conflict between these Conditions and any other terms agreed between the Supplier and Customer these Conditions shall prevail save unless otherwise agreed in writing by the Supplier.
2.2 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence. The Supplier shall be under no obligation whatsoever to accept an Order or contract or otherwise transact with Customer.
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier including, for the avoidance of doubt, the information included in any of the Supplier's catalogues or other materials, which is not set out in the Contract.
2.4 Any samples, drawings or advertising produced by the Supplier and any illustrations contained on the Supplier's website or in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Products referred to in them. They shall not form part of the Contract nor have any contractual force.
2.5 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.
2.6 A quotation for any Products and/or services given by the Supplier is not binding or capable of acceptance and shall not constitute an offer and nor shall any previous dealings between the parties constitute any agreement or other arrangement that a contractual relationship exists between the parties.
3.1 The Products shall be as described in the Specification.
3.2 The Supplier reserves the right to alter the Specification if required to do so by any applicable statutory or regulatory requirements. The Supplier shall inform the Customer of any such alteration that may be required.
4.1 The Supplier shall ensure that each delivery of Products is accompanied by a delivery note that shows the date of the Order, invoice number, Customer and Supplier reference numbers (if applicable), the type and quantity of the Products (including their code number, where applicable), special storage instructions (if any) and, if the Products are being delivered by instalments, the outstanding balance of Products remaining to be delivered.
4.2 The Supplier strives to deliver Products with a minimum of 12 months' shelf life. The Supplier must be notified within 7 days of delivery of an Order if the Customer has concerns that the shelf life of any Product delivered is less than 12 months on delivery.
4.3 The Supplier will not accept returns of, or provide credit in respect of, Products delivered to the Customer with a shelf life of 12 months or more which subsequently fall below this threshold. It is the responsibility of the Supplier to manage its own stock/inventory accordingly.
4.4 The Supplier shall deliver the Products to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Products are ready.
4.5 Delivery is completed on delivery of the Products at the Delivery Location.
4.6 Any dates quoted for delivery 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 the Products that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.7 If the Supplier fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Products of similar description and quality in the cheapest market available, less the price of the Products. The Supplier shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.8 The Supplier may deliver the Products by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
If the Customer wishes to return Products due to an immediately evident fault (e.g. missing labels/batch number), it must notify the Supplier within 7 days of delivery. When returning Products, they must be packaged to the same standards with which they arrived.
6.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Products shall:
(a) conform in all material respects with the Specification; and
(b) be fit for any purpose held out by the Supplier.
Subject to Conditions 5 and 6.3, if:
(a) the Customer gives notice in writing to the Supplier during the warranty period within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in Condition 6.1;
the Supplier shall, at its option, replace the defective Products, or refund the price of the defective Products in full.
6.3 The Supplier shall not be liable for the Products' failure to comply with the warranty set out in Condition 6.1 in any of the following events:
(a) the Customer makes any further use of such Products after giving notice in accordance with Condition 6.2;
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, use and maintenance of the Products;
(c) the Customer alters the Products in any way;
(d) the defect arises as a result of wilful damage, negligence or abnormal storage conditions; or
(e) the Products differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.4 Except as provided in this Condition 6, the Supplier shall have no liability to the Customer in respect of the Products' failure to comply with the warranty set out in Condition 6.1.
6.5 The terms implied by sections 13 to 15 of the Sale of Products Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6.6 These Conditions shall apply to any replacement Products supplied by the Supplier.
7. Title and risk
7.1 The risk in the Products shall pass to the Customer on completion of delivery.
7.2 Title to the Products shall not pass to the Customer until the earlier of:
(a) the Supplier receives payment in full (in cash or cleared funds) for the Products and any other goods or services that the Supplier has supplied or provided to the Customer in respect of which payment has become due; or
(b) the Customer resells the Products, in which case title to the Products shall pass to the Customer at the time specified in Condition 7.1.
7.3 Until title to the Products has passed to the Customer, the Customer shall:
(a) store the Products separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(c) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in Condition 9.1; and
(e) give the Supplier such information relating to the Products as the Supplier may require from time to time.
7.4 If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in Condition 9.1, then, without limiting any other right or remedy the Supplier may have:
(a) the Customer's right to resell the Products or use them in the ordinary course of its business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Products in its possession that have not been resold; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them
8. Price and payment
8.1 The price of the Products shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery.
8.2 The Supplier may, by giving reasonable notice to the Customer at any time before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
(a) any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
8.3 The price of the Products:
(a) excludes amounts in respect of VAT, which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance and transport of the Products, which shall be invoiced to the Customer.
8.4 Save unless otherwise agreed in writing between the Supplier and the Customer, the Supplier may invoice the Customer for the Products on or at any time after the completion of delivery.
8.5 The Customer shall pay the invoice in full and cleared funds within 30 days of the date of the invoice, save unless otherwise agreed in writing between the parties. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
If the Customer pays by cheque, the Customer acknowledges that its first pro-forma order will take significantly longer to deliver (e.g. approximately 13-15 Business Days after delivery of a cheque). Standard credit terms will apply to payment by cheque and the Customer must ensure that it posts the cheque with an appropriate lead time in advance of the due date of any invoice to ensure that it is received by the Supplier. If the Customer fails to do so, the Supplier reserves the right to charge 8% APR interest on overdue invoices that are settled late by cheque for any reason (e.g. if they are lost in the post, etc.).
8.6 Save as otherwise provided for in Condition 8.5, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier 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 the Supplier to the Customer.
9.1 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) 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 21 days;
(b) 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), 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 Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer's financial position deteriorates to such an extent that in the Supplier's reasonable opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Products under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in Conditions 9.1(a) through 9.1(d), or the Supplier 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 the Contract on the due date for payment.
9.3 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.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.
9.5 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 the Contract that existed at or before the date of termination.
9.6 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.
10. Limitation of Liability
10.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Products Act 1979; or
(d) defective products under the Consumer Protection Act 1987.
10.2 Subject to Condition 10.1:
(a) the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid by the Customer for those Products for which any such liability has arisen.
11. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for four weeks, the party not affected may terminate the Contract by giving no less than 30 days' written notice to the affected party.
12.1 Assignment and other dealings
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, 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.
12.2 Entire agreement
(a) The 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.
(b) 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 these Conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in these Conditions.
12.3 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.4 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) waive that or any other right or remedy; nor
(b) prevent or restrict the further exercise of that or any other right or remedy.
12.5 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 Condition shall not affect the validity and enforceability of the rest of the Contract.
(a) 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 (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Condition, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or fax or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 12.6(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 a.m. 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 fax or email, one Business Day after transmission.
(c) The provisions of this Condition shall not apply to the service of any proceedings or other documents in any legal action.
12.7 Third party rights. No one other than a party to the Contract shall have any right to enforce any of its terms.
12.8 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, shall be governed by and construed in accordance with English law.
12.9 Jurisdiction. Each party irrevocably agrees that the courts of England shall 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.