Terms and Conditions of Supply
1.1 Definitions. In these Conditions, the following definitions apply:
BD Foods: BD Foods Ltd (registered inEnglandandWaleswith company number 04170983) being the supplier of the Goods.
Contract: the contract between BD Foods and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from BD Foods.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer's order for the Goods, as set out BD Foods in the Customer's purchase order form or the Customer's written acceptance of BD Foods' quotation, as the case may be.
Specification: any specification for the Goods that is agreed in writing by the Customer and BD Foods.
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.
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 are complete and accurate.
2.3 The Order shall only be deemed to be accepted when BD Foods issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of BD Foods which is not set out in the Contract.
2.5 A quotation for the Goods given by BD Foods shall not constitute an offer. A quotation shall only be valid for a period of 20 working days from its date of issue.
3. supply of the Goods
3.1 BD Foods shall supply and the Customer shall purchase such quantities of the Goods as the Customer may order in accordance with condition 2.
4.1 BD Foods shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and BD Foods reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 BD Foods shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after BD Foods notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. BD Foods shall not be liable for any delay or failure in delivery of the Goods that is caused by an Unforeseen Event or the Customer's failure to provide BD Foods with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If BD Foods 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.
4.6 If the Customer fails to accept delivery of the Goods within 3 working days of BD Foods notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by an Unforeseen Event or BD Foods' failure to comply with its obligations under the Contract: (i) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third working day after the day on which BD Foods notified the Customer that the Goods were ready; and (ii) BD Foods shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If 10 working days after the day on which BD Foods notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, BD Foods 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.
4.8 The Customer shall not be entitled to reject the Goods if BD Foods delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
4.9 BD Foods may deliver the Goods by instalments, which shall be invoiced 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.
5.1 BD Foods warrants that on delivery the Goods shall: (i) conform in all material respects with the Specification; (ii) be free from material defects in design, material and workmanship; and (iii) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2 Subject to condition 5.3, if: (i) the Customer gives notice in writing to BD Foods within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in condition 5.1; (ii) BD Foods is given a reasonable opportunity of examining such Goods; and (iii) the Customer (if asked to do so by BD Foods) returns such Goods to BD Foods' place of business at the Customer's cost; then BD Foods shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 BD Foods shall not be liable for the Goods' failure to comply with the warranty set out in condition 5.1 in any of the following events: (i) the Customer makes any further use of such Goods after giving notice in accordance with condition 5.2; (ii) the defect arises because the Customer failed to follow BD Foods' oral or written instructions as to the storage, commissioning, use and maintenance of the Goods or (if there are none) good trade practice regarding the same; (iii) the defect arises as a result of BD Foods following any design or Specification supplied by the Customer; (iv) the Customer alters or repairs such Goods without the written consent of BD Foods; (v) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or (vi) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this condition 5, BD Foods shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in condition 5.1.
5.5 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.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by BD Foods.
6. Title and 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 BD Foods has received payment in full (in cash or cleared funds) for the Goods.
6.3 Until title to the Goods has passed to the Customer, the Customer shall: (i) hold the Goods on a fiduciary basis as BD Foods' bailee; (ii) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as BD Foods' property; (iii) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (iv) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (v) notify BD Foods immediately if it becomes subject to any of the events listed in condition 8.1; and (vi) give BD Foods such information relating to the Goods as BD Foods may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in condition 8.1, or BD Foods reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy BD Foods may have, BD Foods may at any time require the Customer to deliver up the Goods and, 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.
7. Price and payment
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in BD Foods' published price list in force as at the date of delivery.
7.2 BD Foods may, by giving notice to the Customer at any time up to 10 working days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to: (i) any factor beyond BD Foods' control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or (iii) any delay caused by any instructions of the Customer or failure of the Customer to give BD Foods adequate or accurate information or instructions.
7.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from BD Foods, pay to BD Foods such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5 BD Foods may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.6 The Customer shall pay the invoice in full and in cleared funds by the end of the month following the month the invoice was dated. Payment shall be made to the bank account nominated in writing by BD Foods. Time of payment is of the essence.
7.7 If the Customer fails to make any payment due to BD Foods under the Contract by the due date for payment (due date), 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 the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.1 If the Customer becomes, or BD Foods reasonably believe that the Customer is about to become, insolvent, or if an order is made or a resolution is passed for the winding up of the Customer (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Customer’s assets or business, or if the Customer makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt, then without limiting any other right or remedy available to BD Foods, BD Foods may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and BD Foods without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
8.2 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9. Limitation of liability
9.1 Nothing in these Conditions shall limit or exclude BD Foods' liability for: (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (ii) fraud or fraudulent misrepresentation; (iii) breach of the terms implied by section 12 of the Sale of Goods Act 1979; (iv) defective products under the Consumer Protection Act 1987; or (v) any matter in respect of which it would be unlawful for BD Foods to exclude or restrict liability.
9.2 Subject to condition 9.1: (i) BD Foods shall under no circumstances whatever 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 (ii) BD Foods' 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 100% of the price of the Goods.
10.1 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 (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, recorded delivery, commercial courier, fax or e-mail.
10.2 Neither party shall be liable for any failure or delay in performing its obligations under the Contract due to an unforeseen event.
10.3 A person who is not a party to the Contract shall not have any rights under or in connection with it.
10.4 The Contract is governed by English law and the parties submit to the exclusive jurisdiction of the courts ofEnglandandWales.