SUPPLIER TERMS & CONDITIONS (TOWNVIEW AS CUSTOMER)
1.1 In these Terms:
Acceptance means the acceptance by the Buyer of Goods delivered by or on behalf of the Supplier pursuant to clause 6:
Buyer means Townview Foods Ltd (registered in Northern Ireland under number NI035629).
Buyers Group means any company which is a subsidiary or a holding company of the Buyer, and any company which is a subsidiary of such holding company, the terms “subsidiary “and “holding company” having the meanings given to them in Section 1159 of the Companies Act 2006.
Supplier means the person named in a Purchase Order issued by the Buyer.
Charges means the amount payable by the Buyer for the Goods as set out in a Contract.
Contract means the contract for the sale and purchase of Goods comprising a Purchase Order (including these Terms) issued by the Buyer accepted by the Supplier.
Defect means a material error, omission, failure, inefficiency or inconsistency in the Goods (and “Defective” is construed accordingly).
Goods means the goods to be supplied under a Contract.
Purchase Order means a purchase order issued by the Buyer which describes and/or quantifies the Goods and incorporates these Terms, as well as any applicable Incoterms agreed by the parties.
Specification means the specification for the Goods set out in the Purchase Order.
Terms means the terms of purchase set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Buyer and the Supplier.
Warranty means each of the warranties given by the Supplier in clause 9.
Warranty Period means the period of 12 months commencing on Acceptance.
Writing, and any similar expression, includes email, or other forms of electronic communication.
1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 Reference in these Terms to a ‘party’ means as the context requires the Supplier or the Buyer and references to the ‘parties’ means both the Supplier and the Buyer.
1.4 The headings in these Terms are for convenience only and shall not affect their interpretation.
2. Basis of the sale and purchase
2.1 The Supplier shall sell and the Buyer shall purchase the Goods in accordance with the relevant Contract. These Terms shall govern the Contract to the exclusion of any other terms including without limitation any terms appearing on the Supplier’s invoices or other paperwork. No conduct by or on behalf of the Buyer shall be deemed to constitute acceptance of any terms put forward by the Supplier or any other terms.
2.2 To the extent that any of the terms agreed and set out in a Purchase Order is inconsistent with any of these Terms, the variable details set out in the relevant Purchase Order shall prevail.
2.3 The Supplier’s agreement is with Buyer and nothing contained herein shall amount to a guarantee of Buyer’s obligations by any other member of Buyer’s Group.
2.4 No variation to these Terms shall be binding on the Buyer unless agreed in Writing by a director of the Buyer.
3. Price of the Goods
3.1 The price payable by the Buyer for the Goods shall be as stated in the Purchase Order, or as otherwise confirmed in Writing by the Buyer.
3.2 Liability for transport costs shall be as stated in the Purchase Order or as otherwise agreed in Writing by the Parties.
3.3 The Charges are exclusive of any applicable value added or other sales tax, which the Buyer shall be additionally liable to pay to the Supplier.
3.4 Unless otherwise stated on the Purchase Order, the Charges are inclusive of the cost of packaging, pallets and containers where applicable.
4. Right to inspect
4.1 The Supplier shall at Buyer’s request allow Buyer to inspect and test the Goods prior to despatch to the Buyer premises.
4.2 If as a result of any inspection or testing Buyer is not satisfied that the Goods will comply in all material respects with the Contract and Buyer so informs the Supplier within 7 days of such inspection or testing, Buyer shall not be deemed to have accepted such Goods, and Buyer shall not be obliged to pay any relevant Charges until the non-compliance is remedied.
4.3 No such inspection shall diminish or otherwise affect the Supplier’s obligations.
5.1 Delivery of the Goods shall be made by or on behalf of the Supplier;
5.1.1 at the Buyer’s premises or from some other place of collection agreed by the Supplier, at any time after the Supplier has notified the Buyer that the Goods are ready for collection or;
5.1.2 if some other place for delivery is agreed by the Supplier, by the Supplier delivering the Goods to that place.
5.2 The Supplier shall, at its own expense, deliver the Goods during a working day, properly packed and secured to the place specified in the Purchase Order or such other location as may subsequently be advised in writing by Buyer to the Supplier.
5.3 All Goods shall be delivered by the date specified in the Purchase Order, and time shall be of the essence in relation to delivery of the Goods.
5.4 The Supplier shall supply Buyer in good time with any instruction or other information required to enable Buyer to take delivery of the Goods.
5.5 The Supplier shall ensure that each delivery is accompanied by a delivery note which shows, inter alia, the PO number (if any), date of order, number of packages delivered and contents, and in the case of part delivery, the outstanding balance remaining to be delivered.
5.6 Delivery of the Goods shall not be complete unless acknowledgement of delivery is signed by an appropriate representative of the Buyer.
5.7 Where the Goods can be manually unloaded at the delivery location in accordance with applicable legislation or health and safety codes the Supplier shall be responsible for unloading the Goods and delivery shall include the cost of unloading the Goods. Where the Goods cannot be so unloaded, unless otherwise specified in the Purchase Order, Written arrangements must be made for unloading by the parties.
5.8 Where delivery of the Goods is to be made by the Supplier in bulk, the Supplier reserves the right to deliver up to 10 per cent more or 10 per cent less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered. If in fact there is more than a 10% difference between the quantity delivered and the quantity ordered, the Buyer shall issue a fresh Purchase Order incorporating a price adjustment to reflect the quantity actually delivered.
5.9 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Supplier to deliver any one or more of the instalments in accordance with these Terms 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.
5.10 Buyer may reject any Goods delivered earlier or later than the relevant Delivery Date, unless previously agreed in writing by the Parties, provided that Buyer shall use its reasonable endeavours to accommodate deliveries effected prior to the relevant Delivery Date.
5.11 Subject to clause 5.9, if the Goods (or any part of them) are not delivered by the relevant Delivery Date, Buyer may terminate in whole or in part the relevant Contract without cost or liability. Where Buyer exercises this option:
a) the Supplier shall refund to Buyer in full any payments made by Buyer to the Supplier in respect of such Goods;
b) no further payment will be due from Buyer in respect of such Goods;
c) following receipt of payment in full of all monies due to it in relation to the Goods in respect of which a Contract has been terminated (whether in whole or in part), Buyer shall make such Goods available for collection by the Supplier and the Supplier shall collect such Goods at its own expense within 5 Working Days of the payment, and if the Supplier fails to collect within this period, Buyer may dispose of such Goods in its absolute discretion without notice or liability to the Supplier;
d) if title to the Goods has passed to Buyer, title in the Goods will revert to the Supplier following receipt by Buyer from the Supplier of payment in full of the refund due to Buyer; and
e) if risk in the Goods has passed to Buyer, risk in the Goods shall revert immediately to the Supplier.
6.1 Without prejudice to Buyer’s other rights under a Contract, title and risk in the Goods shall pass to Buyer on Acceptance.
6.2 Buyer shall accept the Goods immediately after the Supplier has demonstrated to Buyer’s satisfaction that the Goods: i) comply with the Purchase Order pursuant to which they are supplied; and ii) are in accordance with the Specification and any samples provided.
6.3 Buyer shall not be deemed to have accepted any Goods until delivery of the Goods has been completed in accordance with the Contract and after it has had a reasonable time to inspect them following completion of delivery or, if later, within a reasonable time after any Defect in the Goods or shortfall in quantity has become apparent, provided that any inspection or test by Buyer shall not in any way relieve the Supplier from any of its obligations under the agreement.
6.4 Without prejudice to any other right or remedy which Buyer may have if any Goods are not supplied in accordance with the Specification, sample and Contract, Buyer may at its discretion, whether or not it has accepted any parts of the Goods:
a) rescind the Contract;
b) reject the Goods (in whole or in part) and return them to the Supplier at the risk and cost of the Supplier on the basis that a full refund for the Goods so returned shall be paid forthwith by the Supplier;
c) at Buyer’s option give the Supplier the opportunity at the Supplier’s expense either to remedy any Defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the agreement are fulfilled;
d) refuse to accept any further deliveries of the Goods but without any liability to the Supplier;
e) carry out at the Supplier’s expense any work necessary to make the Goods comply with the Specification, sample and agreement;
f) claim such damages as may have been sustained in consequence of the Supplier’s breaches of the agreement; and / or
g) obtain equivalent Goods from an alternative source whereupon the Supplier shall reimburse Buyer for all additional costs incurred in so doing.
6.5 The Supplier undertakes at its own expense to repair or replace (at the option of Buyer) Goods lost or damaged in transit, and Acceptance will not be deemed to have taken place until replacement or repaired items have been delivered to the satisfaction of Buyer.
7. Terms of payment
7.1 The Supplier shall, following Acceptance of any Goods, be entitled to submit an invoice for the appropriate Charges. Each invoice shall contain the particulars required by statute in respect of VAT and the following mandatory information:
· Supplier name and remittance address in full,
· Remittance banking information,
· VAT registration number, if applicable,
· Purchase Order number,
· Supplier’s unique invoice number
· Amount and Currency in which payment is required
· GBP equivalent VAT amount and exchange rate if the Supplier is located in the UK and issues invoices in currencies other than GBP.
7.2 All invoices shall be sent to or as otherwise notified by Buyer.
7.3 Payment of a correct invoice submitted in accordance with these Terms shall be made by Buyer within the number of days stated in the Purchase Order. Buyer reserves the right to refuse payment of part or all of any invoice which is not submitted in accordance with these Terms.
7.4 If either Party fails to pay any undisputed amount properly due on time, the other Party shall be entitled to charge and receive interest at a rate of 2% per annum above the base lending rate from time to time of HSBC Bank. Such interest shall accrue from the due date until the date of payment whether before or after any judgement and shall be calculated on a daily basis.
7.5 If Buyer disputes an invoice amount, it shall pay any amount it believes is due for payment and liability for payment of the balance shall be determined by agreement between the parties acting reasonably or, failing such agreement, in accordance with law.
7.6 No payment made by Buyer shall constitute a waiver by Buyer of any breach by the Supplier of any of its obligations under the agreement, or prejudice Buyer’s right in the future to question or dispute any payments and any payment withheld by Buyer shall be without prejudice to any other rights and remedies of Buyer under the Contract or at law.
7.7 Claims for credit or payment due to Buyer in respect of returned Goods, slow deliveries, overcharges or other matters for which the Supplier is liable under the Contract shall be settled within 20 working days from the identification by Buyer of such claims.
8. Risk and property
8.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
a) in the case of Goods to be delivered at the Supplier’s premises, at the time when the Supplier notifies the Buyer that the Goods are available for collection; or
b) in the case of Goods to be delivered otherwise than at the Supplier’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Supplier has tendered delivery of the Goods.
9. Warranties and liability
9.1 The Supplier warrants to Buyer as follows:
a) the Supplier holds absolute legal and beneficial title in and to the Goods and has the unfettered right to sell and supply them and to pass good unencumbered title to Buyer;
b) the Goods are fit for the purpose stated in the Purchase Order or if no purpose is stated, the purpose for which the Goods would ordinarily be used;
d) the Goods will be free from Defects (including Defects in installation) whether actual or latent and whether in design, material or workmanship;
e) the Goods will comply in all material respects with all relevant statutory requirements and regulatory standards;
9.2 A claim by the Buyer which is based on any Defect in the quality or condition of the Goods or their failure to correspond with specification must (whether or not delivery is refused by the Buyer) be notified to the Supplier:
a) in the case of fresh or chilled produce, within 24 hours of delivery or attempted delivery;
b) in the case of all other Goods, within 90 days of the date of delivery or attempted delivery unless the Defect was not apparent on reasonable inspection, in which case within a reasonable time after discovery of the Defect;
c) otherwise the Supplier shall have no liability for such Defects. The Supplier shall not be liable if the Defect arises because the Buyer failed to follow the Supplier’s oral or Written instructions as to the storage or use of the Goods or (if there are none) good trade practice regarding the same
9.3 The Buyer must allow the Supplier reasonable opportunity to inspect the Goods which the Buyer claims are defective by arranging at the Supplier’s request, and cost, either for the return of the Goods to the Supplier or for them to be available for inspection in situ by the Supplier and its representatives. If requested by the Supplier, the Buyer shall also arrange, at the Supplier’s cost, for the Goods to be forwarded to a third party for inspection. In any event if the Goods have been processed, defrosted, resold, moved or otherwise dealt with by the Buyer or its agents, the Supplier shall no longer have any liability for any defect in the quality or condition of the Goods.
9.4 Subject to clause 9.2, after the expiry of 7 days from delivery or attempted delivery (or 12 hours only in the case of fresh or chilled produce), the Buyer shall not be entitled to reject the Goods, the Supplier shall have no liability for such defect and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
9.5 Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods is notified to the Supplier in accordance with these Terms, the Supplier may replace the Goods in question with equivalent product free of charge or, at the Supplier’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), in which case the Supplier shall have no further liability to the Buyer.
9.6 Where the Supplier has replaced the Goods or refunded the price, at the Supplier’s direction the Supplier shall forthwith arrange at its own cost either for the return of the defective Goods to the Supplier or their destruction. The Supplier’s obligations under this clause shall apply equally to any products resulting from the conversion of the original Goods or incorporating any part or element of the original Goods and to any products resold by the Buyer. The Buyer shall certify to the Supplier in writing that it has complied with the requirements of this clause and provide the Supplier with such evidence of compliance as the Supplier may reasonably require.
9.7 If the Supplier is in breach of any Warranty in respect of any of the Goods during the Warranty Period, the Supplier will (at Buyer’s option and without prejudice to its other rights or remedies):
a) where applicable, repair the Goods promptly at the Buyer premises (and where that is not possible repair the Goods and redeliver them to Buyer); or
b) replace the Goods promptly with Goods that conform with the Warranties at no cost to Buyer. If the Supplier fails to repair or replace any Goods within a reasonable period determined by Buyer, Buyer may either itself or through a third party, repair or replace the Goods and set off the cost of doing so against any sum Buyer owes or will owe to the Supplier and recover any further amount outstanding from the Supplier as a debt. Buyer’s rights and remedies are in addition and without prejudice to its other rights and remedies at law.
9.8 Save as expressly provided to the contrary, each of the Warranties is, and shall be construed as, separate and distinct from the other Warranties. Accordingly, a Warranty shall not be limited or restricted by reference to, or inference from, the terms of any other Warranty or any other term of an agreement.
9.9 The Warranties apply equally to any Goods repaired or replaced, in which case the Warranty Period shall be the longer of the remainder of the original Warranty Period or 6 months from the date of receipt of the repaired or replaced Goods by Buyer.
9.10 Buyer’s rights under a Contract are in addition to the statutory conditions (if any) implied in favour of Buyer by the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982, and any successor or equivalent legislation.
10. Limitation of Liability
10.1 This clause sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and subcontractors) to each other in respect of:
(a) any breach of the Contract however arising;
(b) any use made or resale of the Goods by the Buyer, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Contract.
10.2 Nothing in these Terms shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective products under the Consumer Protection Act 1987.
10.3 Without prejudice to clause 10.2, neither party shall under any circumstances whatever be liable to the other party, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:
(a) loss of profit; or
(b) loss of goodwill; or
(c) loss of business; or
(d) loss of business opportunity; or
(e) loss of anticipated saving; or
(f) loss or corruption of data or information; or
(g) special, indirect or consequential damage,
suffered by the Buyer that arises under or in connection with the Contract.
10.4 Without prejudice to clause 10.2 or clause 10.3, the Supplier’s total liability arising under or in connection with the Contract, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited to £5 million GBP.
10.5 The Supplier shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Supplier’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Supplier’s reasonable control:
1) Act of God, explosion, flood, tempest, fire or accident
2) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
3) acts of any governmental, local or port health authority or such authority (ies) restrictions, regulations, bye-laws, prohibitions or measures of any kind imposed by after the date of the relevant Order Confirmation;
4) import or export regulations or embargoes;
5) strikes, lock-outs or other industrial actions or trade disputes (whether involving
employees of the Supplier or of a third party);
6) inability of obtaining raw materials, labour, fuel, key parts or key machinery; or
7) power failure or breakdown in key machinery.
11. Product recalls
11.1 The Supplier may notify the Buyer from time to time of any adverse results arising out of any scientific or quality tests or checks carried out from time to time on products of the same or substantially similar specification to the Goods and which are received before or after the Goods have been delivered to the Buyer. Likewise the Buyer shall immediately notify the Supplier if the Buyer itself receives any such results.
11.2 In either of the cases described in clause 11.1, the Buyer must allow the Supplier reasonable opportunity to inspect any Goods which the Supplier considers may be affected by the results, if necessary, by arranging for the return of the Goods to the Supplier at the Supplier’s cost. If requested by the Supplier, the Buyer shall also arrange for the Goods to be forwarded to a third party for inspection, at the Supplier’s cost.
11.3 If a governmental body (whether local or national) recommends or requires it and/ or if the Supplier in its opinion considers it necessary on food safety grounds or other reasonable grounds, the Supplier may require the Goods are withdrawn from sale and/ or, where practicable, recalled after sale.
11.4 At the Supplier’s cost, the Buyer shall cooperate fully with the Supplier during any product withdrawal or product recall processes which are required pursuant to clause 11.3.
12. Compliance with laws
12.1 In performing its obligations under a Contract each Party shall comply with all applicable laws, rules and regulations of governmental entities having jurisdiction over such performance, including without limitation requirements concerning the manufacture, packaging, carriage, packing and delivery of the Goods, and applicable health and safety and environmental legislation.
12.2 Without prejudice to the generality of Clause 12.1, in connection with the Contract and the performance by the Supplier of its obligations under it, the Supplier shall:
a) comply with all applicable laws and regulations of the United Kingdom on anti-bribery, including but not limited to the Bribery Act 2010 (the Bribery Act’);
b) not offer, promise, give, request, accept or receive bribes, including facilitation payments, or commit any Bribery Act offence;
c) disclose immediately all bribes, offers of bribes or suspicions of bribery or corruption;
d) use its best endeavours to prevent bribes (including by adopting adequate procedures in accordance with the Bribery Act);
e) use all reasonable endeavours to ensure that Supplier personnel, any third party agent, subcontractor, or other representative used in the performance of the Supplier’s obligations under the Contract are aware of and comply with their obligations under the Bribery Act.
13.1 Relationship of the Parties
a) The relationship between Buyer and the Supplier is that of purchaser and supplier.
b) Nothing in a Contract is intended to create a partnership or joint venture of any kind between the Parties, or to authorise either Party to act as agent for the other.
c) Save where expressly so stated in a Contract neither Party will have authority to act in the name of or on behalf of or otherwise to bind the other
13.2 Assignment and other dealings
13.2.1 Neither party may assign, transfer, mortgage, charge, subcontract, 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 third-party other party.
13.3.1 Any notice 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 clause, and shall be delivered personally, sent by pre-paid first-class post or other next working day delivery service, commercial courier or e-mail.
13.3.2 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.3.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second working day after posting; if sent by pre-paid airmail, at 9.00 am on the fifth working day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or if sent by email on receipt of delivery confirmation.
13.3.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
13.4.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
13.4.2 If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
13.5 A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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.
13.6 A person who is not a party to the Contract shall not have any rights to enforce its terms.
13.7 Except as set out in these Terms, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in Writing and signed by a director the Supplier.
13.8 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
13.9 Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).