Edition 1
The following terms and conditions apply in respect of any supply of goods by the Company
1.___DEFINITIONS
1.1 In these conditions the following words shall have the following meanings:-
“the Buyer” means the person firm or company with whom any contracts to sell goods is made by the Company.
“the Company” means Kingfisher (Brixham) Ltd.
“the Company’s premises” means Unit 5, Torbay Business Park, Woodview Road, PAIGNTON, Devon, TQ4 7HP
“the Goods” means the article or things or any of them described in the order details between the Company and the Buyer for the sale or supply of goods by the Company (including any instalment) together with any packaging.
“the Order Details” means those received from the buyer.
“Writing” including facsimile transmission, e-mail and/or other comparable means of communication.
2.____GENERAL
2.1 These conditions shall be deemed to be incorporated into every contract entered into by the Company to sell goods and shall notwithstanding any statement to the contrary contained in any of the Buyers communications prevail over any conflicting or inconsistent terms and conditions contained in any order, letter, or form of contract sent by the Buyer to the Company or any other communication between the Buyer and Company whatsoever and whatever their respective dates unless or to the extent that any variation of these conditions shall be expressly agreed in writing signed by one of the Company’s directors.
2.2 All dealings between the Company and the Buyer are confidential. The Buyer may not disclose information concerning contracts with the Company (unless required by law) to any third party without the consent of the Company.
2.3 The headings in these conditions are for convenience only and shall not affect their interpretation.
2.4 A quotation by the Company does not constitute an offer and the Company reserves the right to withdraw or revise the same prior to the Company’s acceptance of the Buyer’s order.
3.____PRICES
3.1 Subject to the following provisions of this condition the price of the Goods shall be as stated at the time of ordering.
3.2 Unless stated to the contrary at the time of ordering and subject to the provisions of clause 3.3.1 all prices quoted include the cost of normal delivery to the point of delivery stated at the time of ordering.
3.3 Except all otherwise expressly stated at the time of ordering:-
3.3.1 all prices are stated exclusively of VAT.
3.3.2 the Buyer shall pay forthwith against the invoice the Company’s reasonable charges for any unusual delivery arrangements or special packaging arrangements made at the Buyer’s request.
4.____DELIVERY
4.1 Any delivery dates specified at the time of ordering are given in good faith but unless expressly stated to be guaranteed are given for guidance only and shall not be of the essence of any contract. The Company’s only obligation shall be to deliver within a reasonable time taking into account the time the Company received all necessary information including delivery instructions to enable the Company to source, process or deliver the Goods.
4.2 No stipulation as to time or period of delivery shall be of the essence of any contract between the Company and the Buyer.
4.3 The Company shall not under any circumstances be liable to compensate the Buyer for any indirect or consequential loss whatsoever (including but not limited to loss of profit or liability to third parties) arising by reason of the Company’s failure to deliver the Goods after or within the time or period stipulated by the Buyer or that notified by the Company to the Buyer or within a reasonable time and whether or not such failure results from the Company’s negligence.
4.4 The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
4.5 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver any one or more of the instalments in accordance with these conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the contract as a whole as repudiated.
4.6 If the Company fails to deliver the Goods for any reason other than any cause beyond the Company’s reasonable control or the Buyer’s fault and the Company is accordingly liable to the Buyer, the Company’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest market available) of similar Goods to replace those not delivered over the price of the goods.
4.7 If the Buyer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Company’s fault) then, without prejudice to any other right or remedy available to the Company, the Company may:
4.7.1 store the goods until actual delivery.
4.7.2 or sell the Goods at the best price readily obtainable.
5.____PAYMENT
5.1 Subject only to any agreement in writing to the contrary between the Company and the Buyer the Company shall be entitled to invoice Buyer for the price of the Goods (or an instalment) on or at time of delivery/collection of the Goods.
5.2 Payment of the invoiced priced shall be made by the 15th of the month following the invoice date.
5.3 The Company shall be entitled to charge interest at the rate of 8% over the Bank of England base rate on all overdue amounts until actual payment in full irrespective of whether payment has been formally demanded or judgement entered.
6.____RETENTION OF TITLE
6.1 Subject to the power given to the Buyer by this condition, sole and absolute ownership of the Goods shall remain vested in the Company until all amounts relating to Goods supplied by the Company to the Buyer under this or any other contract have been paid in full.
6.2 Nothing in this condition shall give the Buyer the right to return the Goods without the Company’s consent.
7.____TERMINATION AND SUSPENSION
7.1 Where the Company is unable to supply or deliver the Goods by its normal route or means of delivery owing to any of the following:-
7.1.1 the Buyer’s failure to supply any necessary information; or
7.1.2 any other reason beyond the Company’s reasonable control including (without prejudice to the generality of the foregoing expression) shortages or unavailability from normal sources or routes of supply, breakdown of plant, reduction or unavailability of power at the premises, strikes, lock-outs, act of Government, fire, flood, Queen’s enemies, explosion, lighting, aircraft, civil commotion, act of war, malicious mischief or theft.
Then the Company shall have the right on giving notice to the Buyer and without incurring any liability to the Company suspend further deliveries until such impediment is resolved.
7.2 the Company may terminate any contract by notice to the Buyer.
7.3 In the event that:-
7.3.1 the Buyer is in arrears in making payment due to the Company under any contract or
7.3.2 the Buyer’s stated credit limit with the Company has been reached; or
7.3.3 the Company to believe on reasonable grounds that any payment (whether or not any agreed credit limit has expired) will not be met by the Buyer when due.
Then the Company may suspend further deliveries under any contract with the Buyer and require immediate payment of all amounts then due to the Company and further payment in advance before making any further deliveries (notwithstanding agreed credit terms). If any such payment or any part of it remains in arrears for 7 days after the Company has demanded it in writing then the Company shall have the further right to cancel any other contract without prejudice to any claim for damages it may have against the Buyer and without incurring any liability to the Buyer for failure to deliver.
7.4 When a contract is terminated or suspended under this condition then:-
7.4.1 the Company shall be entitled to charge the Buyer with any interest or other costs and charges arising from such termination or suspension.
8.____INSPECTION AND CLAIMS
8.1 The Buyer should carry out a thorough inspection of the Goods immediately upon delivery.
8.2 Claims in respect of defects or errors in quality or quantity reasonably discoverable on such an inspection shall be made within 24 hours of delivery by fax backed up by hard copy written notice in the post and in the absence of such claim the Goods shall be deemed to have been delivered and accepted by the Buyer complete and satisfactorily.
8.3 It is the Buyer’s entire responsibility to satisfy themselves that the Goods are suitable for the purpose and/or conditions for which they are required.
9.____LIABILITY
9.1 Where the Goods are alleged to be defective the Buyer shall notify the Company pursuant to the provisions of clause 8 above and in any event as soon as practicable by fax followed by hard copy written notice in the post and where possible shall afford in the Company an opportunity of examining the Goods before they are resold or otherwise dealt with and further:-
9.1.l the Buyer shall give the Company a reasonable opportunity of correcting any remedial defects or errors at the Company’s own cost and
9.1.2 the Buyer shall at the Company’s request and cost return to the Company on the basis that the Company will thereafter reimburse to the Buyer the cost of such provided that it is reasonable and
9.1.3 if the Buyer agrees an allowance with the Company in respect of such matters then such allowance shall be accepted by the Buyer in full and final settlement of all claims in respect of any such matter.
9.2 The Company’s liability (if any) to the Buyer in respect of the Goods shall in all circumstances be limited at the Company’s option either to give a refund of the amount paid by the Buyer to the Company, or a reasonable credit or allowance for those of the Goods proved to be defective or replacing them at the agreed point of delivery.
9.3 The Company shall not under any circumstances be liable to compensate the Buyer for any indirect or consequential loss whatsoever (including but not limited to loss of profit or liability to third parties).
9.4 In all cases it shall be the responsibility of the Buyer to properly store handle and generally deal with the Goods following the delivery in accordance with the food industry practices and food regulations which are from time to time applicable and the Company does not accept any liability in respect of any defects in the Goods arising as a result of the Buyer’s negligence or mishandling.
10.___JURISDICTION AND COSTS
10.1 The validity, construction and performance of these conditions and any contract between the Company and the Buyer shall be subject to and be construed in accordance with English Law and the Buyer shall submit to the exclusive jurisdiction of English Courts and specifically to the jurisdiction of the County or High Courts (as may be appropriate) nearest to the Company’s premises.
10.2 The Buyer shall be responsible for all costs and disbursements (on a full indemnity basis) incurred by the Company in enforcing its rights under these conditions against the Buyer.
11.___INTERFERENCE
11.1 The Buyer shall not alter obscure, remove, conceal, or otherwise interfere with any markings or other identification or source or origin placed by the Company on the Goods or on their labelling or packaging.
12.___THIRD PARTY RIGHTS
12.1 If the Buyer uses or sells the Goods in such a manner so as to incur liability to any third party then such liability shall be the sole responsibility of the Buyer, which shall indemnify the Company from and against any such liability.
12.2 The Buyer shall not make any representations, warranties or guarantees with reference to Goods supplied by the Company except such as are consistent with these conditions.
13.___DATA PROTECTION ACT 1998
13.1 We may transfer information about sole traders and partnerships (other than limited liability partnerships) to our financiers, who:
13.1.1 may use, analyse and assess information about you, including the nature of your transactions, and exchange such information with other members of their group of companies and others for credit or financial assessment, market research, statistical analysis, insurance claim, underwriting and training purposes and in making payments and servicing their agreement with us:
13.1.2 from time to time, may make searches of your record at credit reference agencies where your record with such agencies may include searches made and information given by other businesses; details of their searches will be kept by such agencies but will not be seen by other organisations that may make searches:
13.1.3 may give information about you and your indebtedness to the following
(i) our or their insurers for underwriting and claims purposes
(ii) any guarantor or indemnifier of your or our obligations to enable them to assess such obligations
(iii) their bankers or any advisers acting on their behalf
(iv) any business to whom your indebtedness or our arrangements with our financiers may be transferred – to facilitate such transfer
13.1.4 may monitor and/or record any phone calls you may have with them, for training and/or security purposes
13.1.5 in the event that they transfer all or any of their rights and obligations under their agreement with us to a third party, may transfer information about you to enable the third party to enforce their rights or comply with the obligations.
13.2 We will provide you with details of our financiers on request, including a contact telephone number if you want to have details of the credit reference agencies and other third parties referred to above from whom they obtain and to whom they may give information about you. You also have a right to receive a copy of certain information they hold about you if you apply to them in writing. However a fee will be payable.
Kingfisher (Brixham) Ltd, Unit 5, Torbay Business Park, Woodview Road, PAIGNTON, Devon, TQ4 7HP