All contracts for the sale of goods (“Goods”) by Buckfast Organic Bakery Limited (“the Company”) to any person, firm or company (“the Customer”) are subject to the following Terms and Conditions of Sale (“Terms”), except were agreed in writing by a duly authorised representative of the Company. In these Terms “Contract” means any contract for the supply of Goods formed by the Company’s acceptance of the Customer’s order.
By placing an order with the Company, the Customer agrees and accepts that these Terms are incorporated into any such Contract.
1. Each order for Goods by the Customer from the Company shall be deemed to be an offer by the Customer to purchase Goods subject to these Conditions. The Customer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2. No order will be binding upon the Company unless and until accepted by the Company in writing or, if earlier, the Company delivers the Goods to the Customer.
3. Orders are accepted only on the basis that these Terms (or as varied as aforesaid) govern the resulting Contract formed by the Company’s acceptance of that order. Accordingly any terms and conditions endorsed on or contained or referred to in any Customer’s purchase order, confirmation of order, specification or other document or which are implied by custom, trade, practice or course of dealing or are otherwise communicated to the Company which are not specifically agreed to in writing by the Company, shall be excluded from the Contract and the Customer waives any right which it might have to rely on such terms and conditions.
4. The Company reserves the right to amend any accidental error or omission on quotations, order acknowledgements, invoices or credit notes.
5. Although all delivery dates stated by the Company are given in good faith and all reasonable efforts will be made to adhere to them, they are estimates only and (subject to the other provisions of these Terms) the Company accepts no liability for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods or the Customer’s failure to provide the Company with adequate delivery instructions. Time for delivery shall not be of the essence and the Customer will not be entitled to terminate or rescind the Contract in the event of any delay in delivery.
6. Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place on the Goods’ arrival at the delivery address stipulated by the Customer.
7. The Company shall be entitled to make deliveries by instalments and delivery of part only of any order shall not entitle the Customer to reject the Goods.
8. If for any reason the Customer fails to accept delivery of the Goods on the date of delivery, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, the Company shall, without prejudice to its other rights, be entitled to store the Goods at the Customer’s risk until actual delivery and the Customer will be liable for all related costs and expenses (including without limitation storage, insurance and additional carriage costs).
9. All drawings, descriptive matter, specifications, and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purposes of giving an approximate idea of the Goods described in them. They shall not form part of the Contract.
10. Whilst every effort will be made to supply Goods in accordance with samples and/or agreed specifications the Company reserves the right to modify specifications, designs and materials where such modifications do not materially affect the quality or fitness for purpose of the Goods or if required to comply with any applicable standards or legal requirements.
11. Unless otherwise notified to the Customer, Goods will be invoiced at the price stipulated in the Company’s published price list current at the date of delivery.
12. In the case of any order delivered by instalments each instalment shall be invoiced at the price stipulated in the Company’s published price list at the date of delivery of such instalment and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
13. Unless otherwise agreed, the Company shall invoice the Goods on or after despatch of the Goods. The Company shall be entitled to invoice each instalment as and when each instalment is despatched. Payment of all sums shall be made in sterling and is due in full and in cleared funds within 30 days after the invoice date (unless otherwise agreed in writing by the Company). The Company may sue for any monies outstanding beyond this date even if property in any relevant Goods has not passed to the Customer. Time for payment is of the essence.
14. If any payment is not made in full and in cleared funds by the due date then, without affecting any other right or remedy which it may have, the Company may deduct any outstanding amounts from any monies owed to the Customer on any account whatsoever.
15. All sums payable to the Company in respect of Goods delivered to the Customer under any contract between the Customer and the Company shall become due immediately upon termination of the Contract despite any other provision.
16. The Customer will be liable to pay interest to the Company on any outstanding amounts due from the Customer pursuant to the Contract which shall accrue from the due payment date on a daily basis until the date of payment at a rate of 2% above the Bank of England’s base lending rate from time to time in force, whether before or after any judgment. The Customer shall make all payments due under the Contract without any deduction by way of set off, counterclaim, discount, abatement or otherwise.
17. Deliveries to addresses outside the United Kingdom shall be subject to FOB terms (as defined in the latest published version of Incoterms from time to time) unless otherwise agreed in writing. It is the Customer’s responsibility to obtain all necessary import licences, clearances and other consents necessary for the purchase of the Goods and to ensure that the Goods comply with all local legislative or other legal requirements.
18. The quantity of any consignment of Goods as recorded by the Company on despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
19. The Company will (at the Company’s option) either replace or refund the price of any Goods which are shown to the Company’s reasonable satisfaction to be defective in materials or workmanship at the time of delivery or where there is a shortfall in quantity delivered and the Company shall have no further liability for such Goods provided that:
19.1. the Customer inspects the Goods on delivery and notifies the Company within 24 hours of delivery of any alleged defects, shortage in quantity or damage and the Company is given a reasonable opportunity to examine the Goods and the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Customer’s cost.
19.2. when signing for deliveries the Customer must state clearly on the delivery note any damage or shortages;
19.3. the Company shall not be liable for any defective Goods if the Customer makes any further use of the Goods after giving notice of any defect, if the defect arises because the Customer failed to follow the Company’s instructions as to the storage or use of the Goods, or if the Customer alters or repairs the Goods without the written consent of the Company;
19.4. the Company shall not be liable for non-delivery of Goods unless written notice is given to the Company and to the carrier within fourteen working days of the intended delivery date; and
19.5. these Terms shall apply to any replacement Goods supplied by the Company
and if the Customer fails to comply with these provisions, the Goods shall be deemed conclusively to be in accordance with the Contract and free from any defect or damage which would be apparent on a reasonable examination of them.
20. Subject to clause 19, clauses 20 to 23 set out the entire liability of the Company (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Customer in respect of:
20.1. any breach of these Terms; and
20.2. any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
21. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
22. Nothing in these Terms excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation or any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
The Customer’s attention is in particular drawn to the provisions of clause 23.
23. Subject to clauses 21 and 22:
23.1. the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price of the Goods the subject of the Contract; and
23.2. the Company shall not be liable to the Customer for loss of profit, goodwill or business opportunity or production downtime or any type of direct, indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
24. No order may be cancelled by the Customer and, unless otherwise stated in these Terms, no Goods may be returned without the Company’s prior written agreement. Any such returns which the Company agrees to accept must be forwarded carriage prepaid to the Company and the Customer shall also comply with any other provisions of the Company’s returns policy from time to time in place. On returns that require repackaging or re-boxing, an appropriate charge will be made which the Customer will be liable for.
25. The Goods shall be at the Customer’s risk from the time of delivery.
26. Ownership of the Goods shall not pass to the Customer until the Company has received in full in cash or cleared funds:
26.1. all sums payable in respect of the Goods; and
26.2. all other sums which are or which become payable to the Company from the Customer on any account including interest on such sums
27. Until ownership of the Goods has passed to the Customer, the Customer shall:
27.1. hold the Goods on a fiduciary basis as the Company’s bailee;
27.2. store the Goods separately to the other goods of the Customer or any third party in a way that they remain readily identifiable as the Company’s property;
27.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
27.4. maintain the Goods in a satisfactory condition insured for their full price against all risks and hold the proceeds of insurance on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account;
27.5. notify the Company immediately if it becomes subject to any of the events listed in clause 29; and
27.6. give the Company such information relating to the Goods as the Company may require from time to time.
28. The Customer may resell the Goods before ownership has passed to it solely on the Condition that any sale shall be on the Customer’s own behalf in the ordinary course of the Customer’s business and the Customer shall deal as principal when making such sale.
29. The Customer’s right to possession of the Goods shall terminate immediately if, or if the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly
29.1. the Customer has a bankruptcy order made against it or makes an arrangement or composition with its creditors or (being a body corporate) convenes a meeting of creditors (except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation), or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency of the Customer; or
29.2. the Customer encumbers or in any way charges any of the Goods or suffers or allows any execution to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other contract between the Company and the Customer, or is unable to pay its debts or the Customer ceases to trade.
30. The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
31. The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
32. Without prejudice to any other right or remedy available to it, the Company shall have the right to cancel all or any Contracts or withhold delivery of any Goods if:
32.1. the Customer fails to pay any monies owing to the Company by the due date;
32.2. the Customer commits any breach of any contract with the Company; or
32.3. the Customer becomes subject to any of the events listed in clause 29, or the Customer reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly
provided that in the event of delivery being so withheld the Company shall be entitled as a condition of resuming delivery to require pre-payment of or such security as it may require for the payment of the price of any further delivery.
33. The construction, validity and performance of all Contracts between the parties shall be governed by English law and shall be subject to the exclusive jurisdiction of the English Courts although this shall not limit the right of the Company to commence proceedings in any other jurisdiction the Company deems appropriate.
34. Any suggested retail prices quoted in the Company’s price lists or catalogues shall not limit the Customer’s right to set its own retail prices.
35. The Company shall not be liable in any way for loss, damage or expense arising directly or indirectly from any failure or delay in performing any obligation under any contract caused by any circumstances beyond its reasonable control, which shall, without limiting the generality of the foregoing, be deemed to include governmental actions, war or any other action of military forces, terrorism, riot, civil commotion, national emergency, sabotage, vandalism, accident, break-down or damage to machinery or equipment, fire, explosion, flood, epidemic, legislative or administrative interference, acts of God, strike, lock-out or other industrial disputes (whether or not involving employees of the Company) or shortage of materials or the Company’s inability to procure materials or supplies. If any such event prevents or delays the Company from carrying on its business, the Company reserves the right to defer the date of delivery or to cancel the Contract or to reduce the volume of Goods ordered by the Customer (without liability to the Customer).
36. The Customer shall ensure that no trade mark or logo used on or in connection with any of the Goods or their packaging is added to, obscured, removed, defaced, altered or otherwise interfered with in any way.
37. Trademarks and/or logos applied to any of the Goods may be used in advertising material intended for use in retail outlets or in catalogues for the purpose only of promoting the retail sale of the Goods concerned and provided that the Company’s prior written approval is obtained.
38. Except as permitted by clause 37 above the Customer shall not make any use of any logo or trade mark owned or used by the Company (whether in connection with the goods or otherwise) or any part thereof for any purpose whatsoever.
39. If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
40. The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
41. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
42. Any notice required or permitted to be given by either party to the other under these Terms shall be in writing addressed to that other party at its principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice. Notices cannot be sent by email.
43. Any waiver by the Company of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract. No failure or delay by the Company 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
44. A person who is not a party to the Contract shall not have any rights under or in connection with it.
45. The Contract constitutes the entire agreement between the parties. Except as set out in these Terms, any variation to the Contract or any statement, promise or representation made or given by or on behalf of the Company about the Goods shall only be binding when agreed in writing and signed by the Company.