GENERAL TERMS AND CONDITIONS OF SALE
(THE CUSTOMERS ATTENTION IS DRAWN SPECIFICALLY TO THE PROVISIONS OF CLAUSE 8)
- DEFINITIONS
1.1 The following definitions shall apply for these General Terms and Conditions of Sale:
(a) Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
(b) Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.4;
(c) Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions;
(d) Customer: the person or firm who purchases the Goods from the Supplier;
(e) Delivery Location: has the meaning given in clause 4.2;
(f) Force Majeure Event: means the events listed in clause 10;
(g) Goods: the goods (or any part of them) set out in the Order;
(h) Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order OR in the Supplier’s quotation OR overleaf, as the case may be;
(i) Specification: any specification for the Goods that is agreed in writing by the Customer and the Supplier;
(j) Supplier: Harvest Pet Products Ltd, registered in England and Wales with company number 05486678, whose registered office address is at The Granary Stone, Pit Lane, Keelby, Grimsby, DN41 8NB.
- BASIS OF CONTRACT
2.1 These Conditions apply to each Contract placed pursuant to these Conditions 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;
2.2 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 and any applicable Specification submitted by the Customer are complete and accurate in all respects;
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, which may be via email, the Supplier’s EDI system or otherwise, at which point the Contract shall come into existence;
2.4 Once confirmed, no Order may be cancelled or amended by the Customer, except with the prior written approval of the Supplier;
2.5 No amendment or variation of these Conditions shall apply to the Contract unless expressly agreed to in writing by the Supplier;
2.6 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues, brochures or on the Supplier’s website are produced for the sole purpose of giving an approximate idea of the Goods described in them and they shall not form part of the Contract or have any contractual force.
2.7 In the event of any conflict between these Conditions and the Order or Specification, the terms of these Conditions shall take precedence.
- GOODS
3.1 The Goods are being delivered strictly on the condition that the Customer has satisfied itself as to the suitability of the Goods for the Customer’s particular purposes;
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This clause 3.2 shall survive termination of the Contract;
3.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
- DELIVERY
4.1 Unless otherwise specifically agreed in writing with the Supplier, delivery shall be Ex-Works and the Customer shall collect the Goods from the Supplier’s premises or such other location as may be advised by the Supplier prior to delivery (“Delivery Location”) within three Business Days of the Supplier notifying the Customer that the Goods are ready for collection;
4.2 Delivery shall be deemed to be completed on the completion of loading of the Goods at the Delivery Location;
4.3 The Supplier shall ensure that:
4.3.1 each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the Contract number, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.3.2 if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense;
4.4 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 Goods 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 Goods;
4.5 If the Supplier fails to deliver the Goods, 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 the Goods 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 Goods;
4.6 If the Customer fails to take or accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
4.6.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance);
4.7 If, ten (10) Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted actual delivery of them, the Supplier 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.
- WARRANTY
5.1 The Supplier warrants that, on delivery, the Goods shall conform in all material respects with their description and any applicable Specification.
5.2 The Supplier does not provide any warranty regarding quality, usability, or characteristics following delivery, due to the perishable nature of the Goods and their dependence on appropriate storage and handling conditions. If any regulatory tolerance levels are applicable, these will apply to the Goods and the agreed Specification. 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.
5.3 Subject to clause 5.4, if:
5.3.1 the Customer gives notice in writing to the Supplier, within 7 days of delivery of the Goods, that some or all of the Goods do not comply with the warranty set out in clause 5.1; and
5.3.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.3.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,
then, if the Supplier agrees and confirms, acting reasonably, that the Goods do not comply with the warranty set out in clause 5.1, the Supplier shall, at its option, replace the defective Goods or refund the price of the defective Goods in full.
5.4 The Supplier shall have no liability under the warranty set out in clause 5.1 if:
5.4.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.3.1; or
5.4.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, use and/or maintenance of the Goods or (if there are none) good trade practice regarding the same; or
5.4.3 the defect arises as a result of the Supplier following any Specification supplied by the Customer; or
5.4.4 the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
5.4.5 if the Customer fails to pay for the Goods in accordance with these Conditions;
5.5 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
- TITLE & RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
6.2.1 the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer on other Contracts in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
6.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4;
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.1.1 to clause 9.1.4; and
6.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
6.4.1 it does so as principal and not as the Supplier’s agent; and
6.4.2 title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs;
6.5 If, at any time, the Customer becomes subject to any of the events listed in clause 9.1.1 to clause 9.1.4, then, without limiting any other right or remedy the Supplier may have:
6.5.1 the Customer’s right to resell the Goods or use them in the ordinary course of its business shall cease immediately; and
6.5.2 Supplier may at any time:
6.5.2.1 require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
6.5.2.2 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, and the Customer hereby grants to the Supplier and its employees and agents an irrevocable licence to enter the Customer’s premises for the purposes of enforcing the terms of this clause 6.5.2.2.
- PRICE & PAYMENT
7.1 The price of the Goods shall be the pre-agreed contract prices as agreed between the Customer and the Supplier 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. If there is any conflict between the price set out in the Order and the pre-agreed contract price or published price list, the pre-agreed contract price or published price list shall prevail;
7.2 The price of the Goods excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice;
7.3 Unless the Supplier notifies otherwise, the price of the Goods shall include the costs of packaging;
7.4 Unless the Supplier has agreed to include such costs in the price, the Customer shall be solely liable for all transportation and insurance costs;
7.5 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.5.1 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);
7.5.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.5.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions;
7.6 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery;
7.7 The Customer shall pay each invoice submitted by the Supplier in cleared funds to a bank account nominated in writing by the Supplier within 30 days of the date of the invoice, unless the Supplier has agreed any specific credit terms in writing with the Customer;
7.8 Time for payment shall be of the essence of the Contract.
7.9 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 9 (Termination), the Customer shall pay interest at 4% a year above the Bank of England’s base rate from time to time on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
7.10 All amounts due under the Contract 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).
- LIMITATION OF LIABILITY
8.1 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability for breach of contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in the Contract limits or excludes any liability which cannot legally be limited or excluded, including liability for:
8.2.1 death or personal injury caused by negligence; or
8.2.2 fraud or fraudulent misrepresentation;
8.3 Subject to clause 8.2, the Supplier’s total liability to the Customer shall not exceed the total price of the Goods which are the subject of the claim;
8.4 Subject to clause 8.2, the following types of loss are wholly and expressly excluded:
8.4.1 loss of profits;
8.4.2 loss of sales or business;
8.4.3 loss of agreements or contracts;
8.4.4 loss of anticipated savings;
8.4.5 loss of use or corruption of software, data or information;
8.4.6 loss of or damage to goodwill; and
8.4.7 any indirect or consequential loss not already covered in clauses 8.4.1 to 8.4.6.
8.5 This clause 8 shall survive termination of the Contract.
- TERMINATION
9.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
9.1.1 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;
9.1.2 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), 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;
9.1.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.4 the Customer’s financial position deteriorates to such an extent that in the Supplier’s 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 Goods 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 clause 9.1.1 to clause 9.1.4, 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 this Contract on the due date for payment;
9.3 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 and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
9.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
- FORCE MAJEURE
10.1 In this Contract a “Force Majeure Event” shall mean any circumstances beyond the reasonable control of Supplier, including but not limited to acts or restraints of government or public authorities, pandemics or epidemics; strikes, lockouts or other industrial disputes; failure of supplies of power, fuel, transport, equipment or other goods or services or utilities; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, blockage, embargo, or breaking off of diplomatic relations; acts of God, flood, drought, earthquake or other natural disaster; nuclear chemical or biological contamination; collapse of buildings, fire, explosion or accident; or non-performance by suppliers or subcontractors;
10.2 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. In such circumstances, subject to clause 10.4, the affected party shall be entitled to a reasonable extension of the time for performing such obligations;
10.4 If the period of delay or non-performance continues for 12 weeks, the party not affected may terminate this agreement immediately by serving written notice to the affected party.
- GENERAL
11.1 The Supplier 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;
11.2 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 the Supplier.
11.3 No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives);
11.4 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;
11.5 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision of the Contract is deemed deleted under this clause 11.5 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.
11.6 Any notice given to a party under or in connection with the Contract 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).
11.7 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;
11.8 This Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.9 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.
11.10 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.
11.11 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.
For the avoidance of doubt, the Customer shall be deemed to have accepted these Conditions and the terms of the Contract regardless of whether the Customer has signed and returned a copy of these Terms and Conditions.
Signed by: ………………………………………………………….
For and on behalf of the Customer
Dated:……………………………………………………………….
