DEFINITIONS AND INTERPRETATION
In these Conditions of Sale the following words shall have the following meanings:-
“Buyer” the person, firm or company with whom the Seller makes any Contract and which expression shall include (jointly and severally) any principal on whose behalf the Buyer orders Products.
“Contract” any contract formed between the Buyer and the Seller for the sale and purchase of Products pursuant to any Order.
“Delivery” the delivery of the Products by the Seller whether by way of delivery by or for and on behalf of the Seller, direct delivery by a supplier of the Seller or other third party, or where Products are to be delivered at the Seller’s premises, the notification by the Seller to the Buyer that the Products are ready for collection and/or the tender by the Seller of delivery of the Products or otherwise.
“Incoterms” the 2000 revision of the International Chamber of Commerce Incoterms.
“Loss or Losses” in respect of any matter, event or circumstance includes all losses, demands, awards, claims, actions, proceedings, damages, payments, costs, expenses, penalties, fines or other liabilities.
“Products” the products which are to be supplied by the Seller pursuant to any Contract.
“Order” any purchase order for Products placed with the Seller by the Buyer.
“Seller” Princes Limited or such other company as is in the same group of companies as or is an associated company of Princes Limited which is the supplier of the Products.
“Specification” the technical or other description (whether as to quantity, quality, price, weight or otherwise) of the Products shown or referred to in any Contract and any performance schedules and/or other characteristics and details contained, mentioned or referred to therein or prepared in accordance therewith.
References herein to Conditions are, unless otherwise stated, to Conditions in these Conditions of Sale.
The headings are inserted for convenience only and have no legal effect.
BASIS OF SALE
All Contracts shall be concluded upon the basis of these Conditions of Sale together with any special conditions issued by the Seller to the Buyer at any time prior to or with the Seller’s acceptance of the Buyer’s Order. Variations and/or qualifications of such Conditions (whether pursuant to Conditions 7.2, 12, 16.1 or otherwise) can only be effected by a document signed by a duly authorised officer of the Seller and setting out in full the relevant variations and qualifications.
No terms or conditions submitted by the Buyer or any third party to the Seller, irrespective of their date, shall prevail over these Conditions.
All Orders shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions of Sale and acceptance of Delivery or failure to accept Delivery pursuant to Condition 7.7 shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions of Sale.
The Seller’s employees or agents are not authorised to make any representations concerning the Products unless confirmed by the Seller in writing. In entering into a Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
Any reference in these Conditions of Sale to any statutory provision shall be construed as a reference to that provision as amended or re-enacted at the relevant time.
Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Products which is not confirmed in writing by the Seller is followed or acted on entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
QUOTATIONS AND ACCEPTANCE OF ORDERS
Quotations are not offers and may be withdrawn or varied at any time prior to acceptance by the Seller of the Order for Products being the subject of the quotation.
Orders for the Products shall be given by the Buyer to the Seller by electronic data transfer, (using such method as may be agreed in writing by the Seller), in writing or orally. Verbal Orders shall be confirmed by the Buyer in writing no more than three days after the Order is given by the Buyer but for the avoidance of doubt, it is agreed that verbal Orders shall, upon their acceptance by the Seller, be binding notwithstanding any failure of the Buyer to confirm the same in writing.
ORDERS AND SPECIFICATIONS
The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including but not exclusively any relevant Specification) and for providing to the Seller any necessary information concerning the Products within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
If the Products are to be manufactured or processed by the Seller in accordance with a Specification and/or design submitted by the Buyer the Buyer shall indemnify the Seller from and against all Losses made against or incurred by the Seller in connection with the settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any third party arising out of the Seller’s use of such Specification.
The Seller expressly reserves the right (but accepts no obligation) to make such changes in the Specification of the Products as are necessary to ensure that the Products conform with any applicable statutory requirements from time to time in force in the United Kingdom and the Buyer shall not be entitled to object to or reject the Products by reason of any such changes.
PRICE AND PAYMENT
The price of the Products shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price has been withdrawn or is otherwise no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the Order.
Unless otherwise agreed in writing the price of the Products is based upon Incoterms Ex-Works but (without prejudice to the foregoing) does not include VAT or any other taxes or duties (which shall be charged in accordance with current legislation) or cost of Delivery. All other amounts due under the Contract or under the terms of these Conditions of Sale shall be subject to the addition of any applicable value added or other sales tax.
If the Seller agrees to deliver the Products to the Buyer and/or by express or other special methods of Delivery or shall agree to expedite Delivery or if additional charges arise from Delivery whether by way of demurrage or otherwise all additional packaging, transport, insurance, demurrage and other costs, expenses or charges thereby incurred shall be added to the price of the Products and shall be the responsibility of and paid by the Buyer.
The Seller reserves the right to invoice the Buyer on an interim basis to cover any instalment of Products delivered and/or any charges arising pursuant to Condition 5.3.
Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Products and for any costs incurred by the Seller pursuant to these Conditions on or at any time after their despatch by the Seller for Delivery to the Buyer unless the Products are to be collected by the Buyer or the Buyer wrongfully fails to take Delivery of the Products, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Products are ready for collection or (as the case may be) the Seller has tendered Delivery of the Products.
The Buyer shall pay the price of the Products (and any costs incurred by the Seller pursuant to these Conditions) without any deduction and at such time as to ensure receipt by the Seller of cleared funds in such sum within 28 days of the date of the Seller’s invoice, notwithstanding that Delivery may not have taken place and the property in the Products has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract.
In the event of any payment becoming overdue then, without prejudice to any other right or remedy available to it, the Seller may:-
(a) terminate the Contract;
(b) suspend performance of the Contract until payment is received in full and any times and/or dates stipulated for performance of the Contract shall be extended/postponed accordingly;
(c) charge interest on the unpaid amount at the rate of 4% over the current base lending rate of National Westminster Bank Plc after as well as before commencement of proceedings for recovery of the same; and/or
(d) notwithstanding the terms of Condition 5.6, treat at its discretion all or any outstanding amounts owed by the Buyer whether such amounts or any of them are due and payable or not as (and such amounts and/or any of them shall be deemed to be) immediately due and payable.
Each Contract shall be subject to the Seller being satisfied as to the Buyer’s credit status both prior to and during the period of the Contract. If the Seller becomes dissatisfied with the Buyer’s credit status, it may:
suspend performance of the Contract until it is satisfied as to the Buyer’s creditworthiness or is given such security for the price as the Seller shall deem appropriate; or
alter the payment terms of a Contract to require payment in cleared funds prior to Delivery of the Products.
The Seller shall be entitled to increase its prices for the Products if the Seller, in its sole discretion, considers the same to be justified by any increase in cost prices to the Seller (including but not limited to variations in exchange rates, taxation or increase of duties, application of EEC, governmental or administrative measures taken in countries of origin or destination of goods, material, labour, transport and energy costs) and/or in order to cover any extra expense incurred as a result of the Buyer’s instructions or lack of instructions including, without limitation, as a consequence of an agreed change in Specification or packaging or in the manner or place of Delivery of the Products. The Seller shall not be required to give to the Buyer advance notice of any such increase which will apply forthwith. Where Delivery of the Products is by instalments the Seller shall be entitled to increase the price as aforesaid in respect of any undelivered Products.
Without prejudice to the terms of Condition 6.1 the Seller shall be entitled to increase its prices for the Products in the event of any fluctuation in import or export taxes, import duties, import levies, port charges, landing charges, carriage charges or surcharges or any other like charges or levies or any changes in any rates of freight or any surcharge applied in relation thereto.
The costs of any variation or modification to the Contract requested by the Buyer shall, if accepted by the Seller, be borne by the Buyer.
DELIVERY OF PRODUCTS
Delivery of the Products shall be made to the Buyer’s address or, if the Products are to be collected by the Buyer, upon such collection from the Seller’s address at any time after the Seller has notified the Buyer that the Products are ready for collection.
Where the Seller agrees to deliver Products otherwise than at the Seller’s premises, the Seller shall be under no obligation under Section 32(2) of the Sale of Goods Act 1979 nor shall any liability of the Seller arise thereunder in respect of damages or otherwise if Products are lost or damaged in the course of transit.
Any dates quoted for Delivery of the Products are approximate only and the Seller shall not be liable for any loss or damage whatever due to delay in Delivery of the Products howsoever caused. Time for Delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing. The Products may be delivered by the Seller in advance of the quoted Delivery date upon giving reasonable notice to the Buyer.
The Seller may effect Delivery by instalments in which case these terms and conditions shall apply to each instalment as though a separate Contract and any failure or defect in any one Delivery will not entitle the Buyer to repudiate the Contract as a whole.
The Seller may refuse to supply any Order or part of any Order which would require it to supply Products in a volume which is less than any minimum volume for such Products set by the Seller for the time being. The Seller will use its reasonable endeavours to deliver the exact quantity of Products in each Order but may deliver up to 10% more or less than the Products ordered and the Buyer will be debited or credited accordingly on a pro-rata basis.
Without prejudice to Condition 7.2 if the Seller fails to deliver the Products for any reason, (other than as a result of any cause beyond the Seller’s reasonable control or the Buyer’s fault or as a result of Conditions 7.4 or 7.5), and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be strictly limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Products. No claims for other direct, indirect and/or consequential loss or damage (all 3 of which terms include without limitation pure economic loss, loss of profits, loss of business depletion of goodwill and similar costs caused directly or indirectly by any delay, even if caused by the Sellers negligence) shall be allowed in connection with any such non-Delivery.
If the Buyer fails to take Delivery of the Products or fails to give the Seller adequate Delivery instructions prior to the time stated for Delivery then, without prejudice to any other right or remedy available to the Seller, the Seller may at its option:-
(a) store the Products until actual Delivery or sale (as provided in paragraph (b) hereof) and charge the Buyer for the reasonable costs (including insurance) of storage; and/or
(b) sell the Products at the best price readily obtainable and (after (in the case of Products which have been manufactured or processed and/or labelled by the Seller for the Buyer) stripping and relabelling such Products and deducting all reasonable storage and selling expenses and expenses incurred in stripping and relabelling) charge the Buyer for any shortfall below the price under the Contract.
And in any such circumstances it is hereby agreed for the avoidance of doubt, but without limitation, that the Buyer shall:-
(c) not be entitled to refuse to accept Delivery after the agreed date for Delivery by reason of the consequent failure of the Products to meet any shelf life requirements whether agreed between the parties or otherwise; and
(d) fully indemnify and keep indemnified the Seller from and against all Losses (including loss of profit) incurred or suffered by the Seller by reason of the failure by the Buyer to take Delivery or to give the Seller adequate Delivery instructions including (without limitation) any such Losses arising out of the use of lithographed packaging.
On Delivery the Buyer shall mark the Delivery advice note with details of any shortages and/or damaged Products received and shall forthwith deliver to the Seller a damage report signed by the Buyer in such form as the Seller shall request.
In the case of Products which have been manufactured or processed by the Seller in accordance with a Specification, within two days of the arrival of each Delivery the Buyer shall (if appropriate) deliver to the Seller a rejection report signed by the Buyer setting out full and accurate details of any material defect by reason of which the Products delivered are not in accordance with the Specification. For the avoidance of doubt it is hereby acknowledged and agreed that no right of rejection shall arise in the event that the Products delivered are in accordance (in all material respects) with the Specification or where any change to the Specification has been made by the Seller in accordance with Condition 4.3.
The Buyer shall not be entitled (without the prior written consent of the Seller) to reject or refuse to accept part only of the Products and the provisions of the Sale and Supply of Goods Act 1994 shall be construed accordingly.
If there is any difference of opinion between the parties as to whether any Products supplied are in accordance with the Specification the matter shall, be dealt with in accordance with Condition 19.
If the Buyer fails to deliver any such reports as are referred to in Conditions 7.8 and 7.9 then the correct quantity and quality of Products shall be conclusively presumed to have been delivered and to be in all respects in accordance with the Specification (where applicable) and, accordingly, the Buyer shall be deemed to have accepted and the Seller shall be deemed to have delivered properly the Products in question and the Seller shall have no liability to the Buyer with respect to those Products or otherwise.
The Buyer shall not reject Products where the breach complained of is so slight that it would be unreasonable for him to do so. In such a case the Buyer shall accept Delivery of the Products and the Seller’s breach (if any) shall be treated as a warranty claim pursuant to Clause 11 of these Conditions and the provisions of the Sale and Supply of Goods Act 1994 shall be construed accordingly.
The Seller may in its absolute discretion supply the Products to the Buyer by way of direct Delivery from a supplier of the Seller or other third party direct to the Buyer and the Buyer shall accept such Delivery in accordance with the terms of these Conditions of Sale.
Where the Seller proposes to make Delivery to the Buyer by way of direct Delivery the Seller shall inform the Buyer before Delivery and the Buyer shall thereafter take all reasonable precautions and action when unloading the Products and for the avoidance of doubt the Seller shall have no liability to the Buyer on any account whatsoever in respect of such Delivery or unloading. The Buyer acknowledges that where Delivery is made by way of direct Delivery, the Seller will not have had an opportunity to make any inspection or examination of the Products and therefore cannot be held liable for any defect or other matter or thing arising out of the manufacture, process, import, Delivery or other dealing in the Products and the Buyer undertakes to be responsible for all necessary checks, investigations and examinations as may be required in all the circumstances.
In the event that the Seller chooses to deliver Products to the Buyer by way of direct Delivery the Seller shall not be liable to the Buyer for any loss or expense (direct or otherwise) or any liability to third parties incurred by the Buyer resulting from or arising out of the Delivery of Products to the Buyer direct from any suppliers of the Seller or other third parties.
Risk of damage to or loss of the Products shall pass to the Buyer:-
(a) in the case of Products to be delivered otherwise than at the Seller’s premises, at the time of Delivery or if the Buyer wrongfully fails to take Delivery of the Products, the time when the Seller has tendered Delivery of the Products; or
(b) in the case of Products to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Products are available for collection.
Property in the Products shall pass to the Buyer on the later of payment in full of the price of the Products and payment in full of every other sum whatsoever which is due from the Buyer to the Seller whether under any Contract or otherwise (howsoever as at the date of Delivery of the Products being the subject of any Contract).
Until the happening of the last such event referred to in Condition 9.2 the whole right, title and interest, both legal and equitable in and to the Products shall remain with the Seller and the Buyer shall keep the Products as the Seller’s fiduciary agent and bailee properly stored, protected and insured in such a way that they are identifiable as the property of the Seller and are separate from all other goods of the Buyer.
Until the happening of the last such event referred to in Condition 9.2 the Buyer shall be entitled to use or re-sell the Products in the ordinary course of its business but shall account to the Seller for the proceeds of sale or otherwise of the Products (whether tangible or intangible and including insurance proceeds) to the extent of sums due to the Seller and shall hold such proceeds on trust for the Seller properly stored, protected and insured in such a way that they are identifiable as the property of the Seller and are separate from all other goods of the Buyer.
The right to use or resell the Products granted to the Buyer under the terms of Condition 9.2:-
(a) may be terminated by the Seller forthwith upon oral or written notice to the Buyer if the Buyer defaults in payment of any sum for more than seven days after such sum fell due; and
(b) shall automatically cease if a Receiver is appointed over any of the assets of the Buyer or a Petition is presented for an Administration Order in respect of the Buyer or a Petition is presented or notice is given of a resolution to wind up the Buyer or the Buyer is deemed to be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 or (in the event of the Buyer being a sole trader or a partnership) a Petition is presented for the bankruptcy of the Buyer or any partner of the Buyer or if the Buyer shall make any composition with its creditors or if any distress, execution or other process is levied or enforced upon or sued against all or any of the assets of the Buyer.
Upon the Buyer ceasing to have any such right of use or resale the Seller shall be entitled at any time without notice to enter the Buyer’s premises and/or the Buyer shall be deemed to have irrevocably authorised the Seller as the Buyer’s agent to enter the premises of any third party where any Products are, for the time being stored, to repossess the Products.
In the event that the Buyer has resold the Products in the ordinary course of business subject to any retention of title in favour of the Buyer and the Buyer defaults in payment or ceases to have any right to resell or use as referred to in Conditions 9.5(a) and 9.5(b) above the Seller shall have the right to require the Buyer to enforce or assign its rights pursuant to or under such retention of title and all monies and/or goods recovered thereby by the Buyer shall, to the extent of any liability of the Buyer to the Seller, be held by the Buyer on trust for the Seller, in the case of proceeds in a separate bank account and in the case of goods, separate and distinct, properly stored, protected and insured.
As all or any of the Products or some part or constituent of them may have been purchased by the Seller under a Contract containing a provision reserving title or other property right therein to the vendor thereof the Seller shall be liable to transfer to the Buyer only such title as the Seller may have in the Products.
Until such time as property in the Products shall pass to the Buyer (and Provided That the Products are still in existence and have not been re-sold) the Buyer shall upon request being made by the Seller deliver up the Products to the Seller and if the Buyer fails to do so forthwith to enter upon the Buyer’s premises and/or the Buyer shall be deemed to have irrevocably authorised the Seller as the Buyer’s agent to enter the premises of any third party where any Products are, for the time being stored, to repossess any Products supplied to the Buyer by the Seller. On the making of such a request as aforesaid the rights of the Buyer to use or re-sell the Products as set out in Condition 9.2 shall cease.
The Seller may in its absolute discretion assign to any third party whatsoever any debt outstanding and due from the Buyer without reference to the Buyer.
The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Products which remain the property of the Seller but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
Subject to the provisions of sub-Conditions 11.2 and 11.3, the Seller warrants that the Seller and/or the Products (as appropriate) shall comply with all relevant food and/or food safety legislation from time to time in force in the United Kingdom including but not exclusively the Food Safety Act 1990 and Part I of the Consumer Protection Act 1987. For the avoidance of doubt, where Products are to be sold outside the United Kingdom it is the responsibility of the Buyer to ensure that the Specification, Product and all associated packaging comply with the local laws of the appropriate country.
The Seller shall not be liable for any breach of the warranties contained or implied in these Conditions of Sale or otherwise implied or incorporated into any Contract (the “Warranties”):-
(a) to the extent that the Seller is entitled to rely on the defences provided by sections 20 and 21 of the Food Safety Act 1990 and/or section 4 of the Consumer Protection Act 1987;
(b) unless the Buyer has paid to the Seller all monies due and payable on or by the date(s) for payment;
(c) unless the Buyer gives written notice of the alleged non-compliance or alleged defect within two days of its discovery and in any event no later than the expiry of the shelf-life of the relevant Product;
(d) unless the Buyer gives the Seller an opportunity to inspect the Products;
(e) unless the Buyer makes no further use of the relevant Products;
(f) if the Products have been modified, altered or otherwise tampered with in any way other than by a duly authorised representative of the Seller;
(g) if the defect arises from the Buyer’s (or any agent, employee, servant of or third party who is acting on behalf of or performing any service for the Buyer) misuse, wilful damage, neglect, carelessness, lack of proper care, failure to follow any instructions given by the Seller or other commotion or disturbance of whatever nature whether affecting the Products directly or indirectly as the result of any such matter affecting the place where the Products are situate; or
(h) if and to the extent that the Products have been produced from Specifications produced by or on behalf of the Buyer;
(i) if and to the extent that the Products are to be sold in territories outside of the United Kingdom.
The Buyer is deemed to have inspected the Products on Delivery and unless the Delivery advice note is marked with details of any shortage, loss or damage the correct quantity and quality of Products will be deemed to have been delivered and no claim based on any defect in the quantity or damage to the quality of the Products which is made subsequently will be considered.
All other conditions and warranties, express or implied by statute, common law or otherwise are hereby excluded to the fullest extent permitted by law except those which by statute may not be excluded Provided That nothing in these Conditions shall affect the statutory rights of a buyer dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977).
If a valid Warranty claim shall arise which is properly notified to the Seller in accordance with these Conditions of Sale (save where the Buyer and the Seller have agreed in writing a damages allowance in which case the Seller will have no further liability to the Buyer) the Seller will at its sole option and expense either:-
(a) replace the non-complying or defective Products as soon as reasonably practicable; or
(b) require the Buyer to retain the Products and grant to the Buyer an appropriate allowance against the Contract price; or
(c) take back the non-complying or defective Products and refund the appropriate part of the Contract price; or
(d) take such steps as the Seller considers necessary to make the Products comply;
And performance of any one of the above options shall constitute discharge of the Seller’s entire liability under the Warranties.
(a) Nothing in these Conditions of Sale shall limit or exclude the liability of the Seller for:
death or personal injury caused by the Seller’s negligence, or
misrepresentation (unless fraudulent), or
breach of the terms implied by section 12 of the Sale of Goods Act 1979.
Subject to clause 11.6 (a) above or as expressly provided in these Conditions of Sale the Seller shall not be liable to the Buyer whether in contract, tort (including negligence) or restitution, breach of statutory duty or misrepresentation, breach of any implied warranty, condition or other term or breach of any duty at common law, or under the express terms of the Contract including deliberate repudiatory acts by the Seller, for any:
loss of profit;
loss of goodwill;
loss of business;
direct loss and/or expenses
any indirect loss and/or expenses;
any consequential, special punitive or exemplary loss or damage;
costs, expenses or other claims for consequential compensation whatsoever, (and whether caused by the negligence of the Seller, its employees or agents or otherwise), suffered or incurred by the Buyer which arise out of or in connection with the supply of the Products or their use or resale by the Buyer.
The Buyer warrants that the Buyer and/or the Products (as appropriate) shall comply in all respects as applicable with the Sellers Code of Conduct (as amended from time to time and available on request).
POSTPONEMENT AND TERMINATION BY THE BUYER
The Buyer is not entitled to postpone the date for Delivery of the Products as set out in the Contract without the written consent of the Seller. In the event of the Seller consenting to such postponement it may in its discretion require the Buyer to pay to the Seller a pro rata proportion of the Contract price based on Products manufactured and/or purchased and/or work undertaken in preparation for performance of the Contract as at the date of postponement and to cover any and all expenses directly or indirectly incurred by the Seller in connection therewith including but not exclusively any and all storage, insurance and interest costs thereby incurred.
In the event that the Seller agrees to postpone the date for Delivery the Buyer is deemed notwithstanding Condition 9.1 to accept the transfer of risk in the Products with effect from the date of the Seller’s agreement.
Save as provided in Condition 13.2 the Buyer is not entitled to terminate the Contract without the written consent of the Seller. In the event of the Seller consenting to such termination it may in its discretion require the Buyer to pay to the Seller a pro rata proportion of the Contract price based on Products manufactured and/or purchased and/or work already undertaken as at the date of termination and to cover any and all expenses directly or indirectly incurred by the Seller in connection therewith including but not exclusively any and all storage insurance and interest costs thereby incurred.
If the Seller is unable to supply the Products by reason of events beyond its control including but not limited to Act of God, crop failure or crop shortage or harvest of crop producing less than expected volumes or yields for whatever reason, power failure or breakdown in machinery, war, hostilities, riot, terrorism, civil commotion, insurrection or embargo, failure of public utilities or other services or any governmental restriction, order or regulation or statutory prohibition the specified Delivery date(s) shall be extended for a period equal to the delay caused by such events.
If the period of delay extends beyond a reasonable period then either party may terminate the Contract as regards any Products undelivered Provided That if the Buyer cancels the Contract the Seller may require the Buyer to pay for at the proper proportion of the Contract price any work already undertaken by the Seller for the purpose of the Contract and any Products manufactured and/or purchased to the Buyer’s Specification or manufactured and/or purchased for the purpose of the Contract and for which there is no other ready market available to the Seller.
SPECIFICATION AND SAMPLE
All illustrations, drawings, catalogues and descriptive matter are of a generally informative nature only and do not form part of the Specification or description of the Products.
Notwithstanding that a sample of the Products may be exhibited to and inspected by the Buyer, such sample is so exhibited and inspected solely to enable the Buyer to judge for itself the quality of the Products and not so as to constitute a sale by sample.
If the Buyer re-sells or otherwise supplies the Products to any third party such Products must be re-sold or supplied in the packaging in which they were purchased from the Seller and with any and all identification or other product numbers and/or marks unamended and clearly shown unless otherwise agreed in writing by the Seller and save where such changes are necessary to ensure that that the packaging of the Products complies with the local laws of the country in which the Products are to be sold.
PRODUCT RECALL AND CONSUMER COMPLAINTS
In the event that at the requirement, instruction, instigation, recommendation or suggestion of any governmental body (whether local or national) examination of any of the Products is required to be undertaken to investigate the fitness for the purpose of such Products and/or the parties otherwise agree that any of the Products should be withdrawn from sale and/or recalled after sale the Seller and the Buyer shall bear in equal shares all costs, charges and expenses properly and reasonably incurred by either or both of them arising out of such examination, withdrawal and/or recall but excluding any consequential loss or damage thereby incurred by either or both of them. In the event that any such examination, withdrawal or recall is carried out at the sole instigation of the Seller or the Buyer the costs, charges and expenses thereof shall be borne by that party unless otherwise agreed in writing or unless and to the extent that the reason for such examination, withdrawal or recall was attributable to the act or default of the other party in which case such costs charges and expenses shall be borne by that other party.
The Buyer shall maintain a proper and efficient procedure for reporting and dealing with consumer complaints but shall not settle any such complaints or otherwise compromise the position of the Seller in respect thereto without the Seller’s prior written consent. Full details of all such complaints must be referred to the Seller forthwith upon notification together with the packaging and/or batch code of the relevant Products without which no complaint shall be considered.
TERMINATION OF CONTRACT
Save as provided in Conditions 12.3 and 13.2 the Buyer cannot terminate the Contract although the Seller shall be entitled to terminate the Contract and/or any other Contract with the Buyer forthwith by notice without prejudice to any of its other rights:-
(a) if the Buyer (whether under this or any other Contract between the Buyer and the Seller) is overdue with any payment or commits any breach of Contract which is incapable of remedy or which if the same be capable of remedy it fails to remedy within seven days of the Seller’s written notice so to do; or
(b) if any distress or execution shall be levied on the Buyer’s assets, or if the Buyer shall make or offer to make any arrangement or composition with creditors or commit an act of bankruptcy or if any petition or receiving order in bankruptcy or administration order shall be presented or made against the Buyer or if the Buyer is a limited company and any resolution or petition to wind up the same (other than for the purposes of solvent reconstruction or amalgamation) shall be passed or served or an administration order be made or if a receiver or administrator be appointed of the Buyer’s assets and undertaking or any part thereof; or
(c) if in the opinion of the Seller serious doubts arise as to the solvency of the Buyer; or
(d) if the Seller becomes dissatisfied as to the Buyer’s credit status (including without limitation in circumstances where any credit indemnity insurance or other credit insurance taken out by the Seller in respect of the Buyer is revoked, restricted or reduced or if such insurance cannot be renewed or replaced or if any premium payable in respect of such insurance is increased);
(e) if there is any change of control of the Seller and in which the control is exercised by a competitor of the Seller. For this purpose “control” shall be determined by reference to section 840 of the Income Incorporation Taxes Act 1988)
(f) If the Seller shall become dissatisfied in respect of any of the actions, omissions, policies or practices of the Buyer (including without limitation) in circumstances where the Seller believes the Buyer has breached any applicable provision of the Seller’s Code of Conduct or the Buyer has committed or is about to commit or has been, is, or is about to be involved in any practice which could or may damage or adversely affect the commercial interests of the Seller or the goodwill of the business of the Seller including without limitation being involved directly or indirectly in any breach of human rights, environmental laws, welfare regulations, bribery or corruption, and/or unethical trade practices.
In the event of the Contract being determined in accordance with Condition 17 the Buyer shall pay the Seller at the Contract rate for all work done, materials used and Products purchased and/or manufactured to the Buyer’s design or Specification and/or purchased or manufactured for the purpose of the Contract and for all Products delivered prior to termination and shall indemnify the Seller against any resulting loss, (including loss of profit and other consequential loss) damage or expense incurred by the Seller in connection with the non-performance of the Contract.
Either the Seller or the Buyer shall be entitled to exercise any one or more of the rights and remedies given to it under the terms of the Contract and the determination of the Contract shall not affect or prejudice such rights and remedies and each party shall be and remain liable to perform all outstanding liabilities under the Contract notwithstanding that the other may have exercised one or more of the rights and remedies against it.
ANTI – BRIBERY
19.1 The Buyer shall: –
a) Comply with all applicable laws, statutes, regulations and codes relating to anti-Bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
b) Have, and shall maintain in place throughout for the duration of any Contract, its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and will enforce them where appropriate;
c) Promptly report to the Seller any request or demand for any undue financial or other advantage of any kind received by the Buyer in connection with the performance of any Contract;
d) Immediately notify the Seller in writing if a foreign public official becomes an officer or employee of the Buyer or acquires a direct interest in the Buyer and the Buyer warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of any Contract.
19.2 The Buyer shall ensure that any person associated with the Buyer who is purchasing Products in connection with any Contract does so only on the basis of a written contract which imposes on and secures from such person the terms equivalent to those imposed on the Buyer in this clause 19 (“Relevant Terms”). The Buyer shall be responsible for the observance of performance by such persons of the Relevant Terms which should be directly liable to the Seller for any breach by such persons of any of the Relevant Terms.
19.3 For the purpose of this clause 19, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with s7(2) Bribery Act 2010 (and any guidance issued under section 9 of that Act) s6(5), s6(6) and s8 of that Act respectively for the purposes of this clause 19 a person associated with the Buyer includes any sub-contractor of the Buyer.
Where the Buyer and the Seller resolve to refer any disputes or differences which shall at any time hereafter arise between them in respect of the construction or effect of these Conditions or the terms of any Contract or the rights duties and liabilities of the Seller or the Buyer or any matter or event connected with or arising out of these Conditions or the terms of any Contract (a “Dispute”) for independent determination they shall refer such Dispute to such independent third party (the “Third Party”) as the Buyer and the Seller shall jointly nominate.
If the Buyer and the Seller agree to refer any Dispute but shall fail to nominate a Third Party within 14 days of the date of occurrence of the Dispute then the Third Party shall be nominated at the request of either of the Seller or the Buyer by the President for the time being of the Liverpool Law Society.
The Third Party (whether appointed under clause 19.1 or 19.2 above) shall act as an expert and not as an arbitrator whose decision (including as to costs) which shall be in writing with supporting reasons and evidence for such reasons shall, except in the case of manifest error or negligence, be final and binding upon the Buyer and the Seller.
The Seller and the Buyer each agree with the other to maintain secret and confidential all information of a confidential nature (including, without limitation, price sensitive information) obtained from the other both pursuant to the Contract and prior to and in contemplation of it and all information which it may acquire from the other in the course of the Contract, to respect the other’s proprietary rights therein to use the same exclusively for the purposes of the Contract and to disclose the same only to those of its employees to whom and to the extent that such disclosure is reasonably necessary for the purposes of the Contract.
The Buyer shall procure that its employees who have access to any information of the Seller to which the obligations of Condition 20.1 apply shall be made aware of and subject to these obligations.
The confidentiality obligations of the parties hereto shall continue after the termination or expiry of the Contract.
If at any time any one or more of these Conditions of Sale (or any part or parts thereof) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted herefrom and the validity and/or enforceability of the remaining provisions of these Conditions shall not in any way be affected or impaired thereby.
Each party acknowledges that the Contract together with any variations and/or qualifications made pursuant to these Conditions of Sale contains the whole agreement between the parties and supersedes all previous agreements between the parties with respect to its subject matter.
The Buyer acknowledges that in entering into any Contract it does not do so on the basis of or in reliance upon any representation or warranty (unless the same is made fraudulently) or other provision except as expressly provided in these Conditions.
Except as provided in Condition 26 the Contract is personal to the parties and neither of them may, without the written consent of the other, sign, mortgage, charge or dispose of any of its rights hereunder.
No failure of, or delay or forbearance by the Seller (whether express or implied) in asserting or exercising any rights or remedies under the Contract shall affect its right to do so in the future.
Any notices to be served hereunder shall be delivered by hand or sent by first class post, telex with the correct answerback or facsimile to the relevant party at its last known address. Notice shall be deemed served on delivery if delivered by hand, on the 3rd day after posting if posted or 24\hours after despatch by telex or facsimile (weekends and bank holidays excepted).
THIRD PARTY RIGHTS
A person who is not a party to any Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce a term within these Conditions of Sale and the Seller and the Buyer agree that the provisions of such Act shall not apply to any Contract.
LAW AND JURISDICTION
These Conditions of Sale and each and every Contract shall be:-
(a) deemed to have been made in Liverpool;
(b) governed by English Law; and
(c) subject to the jurisdiction of the English Courts.
Provided That the Seller shall:-
(a) notwithstanding Condition 19, in its absolute discretion be entitled to refer any dispute to arbitration by a single arbitrator appointed (on the Seller’s application) by the President for the time being of the Liverpool Law Society; and/or
(b) be entitled to enforce the terms of any judgment obtained in respect of the terms of any Contract or these Conditions in any Court of competent jurisdiction.
The Seller is a member of the group of companies whose holding company is Mitsubishi Corporation and accordingly the Seller may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group or through any agent or sub-contractor appointed by the Seller or any member of its group provided that any act or omission of any such other member shall be deemed to be the act or omission of the Seller.