HOLLEYS FINE FOODS LTD. (THE ‘COMPANY’) TERMS AND CONDITIONS OF SALE
All orders are accepted subject to the terms and conditions as set out below.
These terms and conditions apply in preference to and supersede any terms and conditions referred to, offered or relied on by the Purchaser whether in negotiation or at any stage in the dealings between the parties with reference to the products with which this contrast is concerned. Without prejudice to the generality of the foregoing, the Company will not be bound by any standard or printed terms tendered by the Purchaser, unless the Purchaser specifically states in writing, desperately from such terms, that it wishes such terms to apply, and this has been acknowledged by the Company in writing.
Neither the Company nor the Purchaser shall be bound by any variation, addition to, or amendment of these terms unless such is agreed in writing by the parties and signed on their behalf by a duly authorised person.
Any description given or applied to these products has been given by way of identification only and the use of such description shall not constitute a sale by description. The Company makes every effort to keep its website, printed material and pack designs updated. However images of products, and lifestyle and dietary attributes and descriptions of products, on the Company’s website and in its printed material and pack designs are shown for illustration and guidance purposes only. For the avoidance of doubt, the Purchaser hereby affirms that no reliance was placed on any description or image when entering into the contract.
(a) No liability of any nature shall be incurred or accepted by the Company in respect of any representation made by the Company, or in respect of any express term of this contract, or on its behalf, to the Purchaser prior to the making of this contract where such representations were made or given in relation to the correspondence of the products with any description, or the quality of the product, or the fitness of the product for any purposes whatsoever.
(b) The limits and exclusions in this clause reflect the insurance cover the Company has been able to arrange and the Purchaser is responsible for making its own arrangements for the insurance of any excess liability.
(c) Nothing in this contract limits any liability which cannot legally be limited. Subject to that, the Company’s total liability to the Purchaser shall not exceed the amount of the order in respect of which any liability arises.(d) Each provision of this clause is to be construed as a separate limitation of liability applying and surviving even if for any reason one or other of the foregoing provisions is held inapplicable or unreasonable in any circumstances and shall remain in force notwithstanding termination of this contract.
All prices shown are strictly net and are subject to change without notification. Every effort will be made to maintain prices but variations in costs may necessitate immediate price changes and all orders are accepted on this basis. Without prejudice to the generality of the foregoing, any change in the applicable rate of VAT or of any other Government tax or levy shall be to the Purchaser’s account.
Products subject to VAT are at the applicable rate unless otherwise stated are so marked in the VAT column of the Company’s invoice and price list. All other products are subject to zero rates and indicated accordingly.
8. Delivery and Acknowledgement of Examination
(a) Any dates given are approximate and late delivery will not be an acceptable reason for refusing products unless the Company is informed in writing before the products are dispatched.
(b) The Purchaser must check all product upon receipt and mark any shortages on the delivery note at the time of the delivery. A claim in respect of any such shortages must be in writing and be received by the Company by 5pm on the third day after receipt of the consignment (where the day of receipt constitutes the first day). For the avoidance of doubt, in this clause a ‘day’ means any day of the week and not a working day. For example, if delivery of the consignment occurs on a Thursday, a claim must be received by 5pm on the Saturday.
(c) Delivery of the products to the Purchaser shall be conclusive evidence that the Purchaser has examined the products and found them to be in complete accordance with the contract description in terms of quantity and description, in good order and condition, of satisfactory quality and fit for the purpose for which they may be required. Subject to any claim under clause (b) above, by receipt of the products the Purchaser acknowledges and accepts that it has satisfied itself as to the condition of the products.
(d) The Company gives no warranty as to the quality or fitness for any purpose of the products. All conditions and warranties implied by statute, or otherwise, are excluded from the contract.
Payment for products supplied is due proforma, unless a credit account has been agreed. Where credit facilities exist, payment is due 30 days from the invoice date.
If payment of the price or any part thereof is not made by the due date the Company shall be entitled to:
9.1 Charge interest on the outstanding amount at a rate of 4% per annum above the Bank of England base rate from the date payment becomes due until the payment is received together with the costs and disbursements incurred in the recovery of any overdue amounts.
9.2 Require payment in advance of delivery in relation to any products not previously delivered.
9.3 Refuse to make delivery of any undelivered products whether ordered under the contract or not and without incurring any liability whatsoever to the Company for non-delivery or any delay in delivery.
9.4 Demand payment of all outstanding sums whether or not overdue for payment should an account not be settled by the due date for payment.
9.5 Terminate the contract.
The risk in the products will pass to the Purchaser upon delivery.
Until payment in full to the Company for the products, the products shall remain the property of the Company. The Purchaser shall keep the products in such a manner that they shall be identifiable by the Company. The Purchaser may sell the products in the normal course of its business but in a fiduciary capacity as bailee of the products shall hold and pursue all claims for the proceeds of their sale equal to the price of the products for and on behalf of the Company. In the event of non-payment by the Purchaser by the due date, the Company shall be entitled in addition to all other rights to enter any premises where the products may be held and recover possession of them.
12. New Accounts
Under the Data Protection Act 1998 the Company reserves the right to consult whomsoever it considers appropriate for the purpose of the trade references. It will record information in respect of such opinions which may be made available to other businesses for the continued assessment of credit risks. Two satisfactory trade and one bank reference must be given with the new account form. The Company reserves the right to insist on advance payment in part or full for the first or subsequent orders.
13. Sale or Return
The Company does not offer goods on ‘sale or return’ basis and no employee of the Company is authorised to accept orders on such a basis unless expressly agreed in writing. It is therefore the responsibility of the Purchaser to sell the products prior to the expiry of any “best before end” date. The Company’s stockholding and distribution systems are designed to allow stock to be delivered in date rotation order. No products are
to be returned to the Company without the prior agreement in writing of the Company. Unless such agreement is obtained no credit can be issued. Credit cannot be given for products that are or apparently have been ‘price marked’. At the Company’s discretion, a restocking charge of 25% of value of goods returned may be applied.
14. Force Majeure
(a) Force Majeure Event means any circumstance not in a party's reasonable control including:
(i) acts of God, flood, drought, earthquake or other natural disaster;
(ii) epidemic or pandemic;
(iii) 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;
(iv) nuclear, chemical or biological contamination, or sonic boom;
(v) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(vi) collapse of buildings, fire, explosion or accident;
(vii) any labour or trade dispute, strikes, industrial action or lockouts;
(viii) non-performance by suppliers or subcontractors; and
(ix) interruption or failure of utility service.
(b) Provided it has complied with clause (d) below, if a party is prevented, hindered or delayed in or from performing any of its obligations under this contract by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
(c) The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
(d) The Affected Party shall:
(i) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the contract; and
(ii) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
(e) If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 12 weeks, the party not affected by the Force Majeure Event may terminate this contract by giving 2 weeks’ written notice to the Affected Party.