THE VEG FACTOR LIMITED.
STANDARD CONDITIONS OF BUSINESS
1. CONTRACT AND CONDITIONS
Unless otherwise agreed in writing between the Company and you (“the Customer”) these conditions shall govern the sale and supply of the Company’s products to the Customer and shall override any terms or conditions stipulated, included or referred to by the Customer whether in the order or in correspondence or in any negotiations preceding the formation of the contract made on these conditions between the Company and the Customer for the provision of products (“the Contract”).
Unless otherwise agreed by the Company in writing the price for the products shall be the price set out in the Company’s price list. The Company reserves the right to vary prices to take account of market conditions including (without limitation) increase in costs of materials, labour, transport or overheads, delay on the part of or caused by the Customer or failure by the Customer to give the Company adequate information or instructions. The price for the products shall be exclusive of value added tax which the Customer will pay in addition when it is due to pay for the products.
- Payment of invoices shall be made in full without any deduction or set-off and, unless indicated on the invoice or any despatch note to be payable in cash on delivery or otherwise agreed in writing by the Company, shall be payable on or before the last day of the month following the date of the invoice. Time for payment shall be of the essence.
- Any extension of credit allowed to the Customer pursuant to condition 3 (a) above may be changed or withdrawn by the Company at any time.
- If in the opinion of the Company the credit-worthiness of the Customer shall have deteriorated prior to delivery the Company may require full or partial payment for the products prior to delivery.
- No payment shall be deemed to have been received until the Company has received cleared funds.
- The Company reserves the right to charge (in which event the Customer shall be bound to pay) interest on overdue invoices at the rate of 2% above the base rate of Barclays Bank Plc from time to time, such interest to be calculated on a daily basis.
- Without prejudice to condition 3(e) the Company reserves the right to cancel the Contract or suspend delivery or performance to the Customer where invoices are not paid in accordance with any of the conditions of 3(a), (b) or (c) or where there is otherwise any sum due or owing by the Customer to the Company.
- No cash or other discount will be allowed unless specified in writing on the quotation or invoice given to the Customer.
- The Company may at any time or times, without notice to the Customer, set off any amount due by the Customer to the Company against any amount due by the Company to the Customer, in either case, whether under this Contract or otherwise and whether any such liability is present or future, liquidated or unliquidated. Any exercise by the Company of its rights under this clause shall be without prejudice to any other rights or remedies available to it under this Contract or otherwise.
- Delivery of products is subject to availability and shall take place when the products are delivered by the Company to the vehicles or premises of the Customer or otherwise to the Customer’s order and the Customer will provide at its expense at the point of delivery adequate and appropriate equipment and manual labour for loading and unloading the products.
- Delivery times and dates quoted by the Company shall be treated as estimates only and failure to comply with the delivery times and dates shall not constitute a breach of the Contract giving rise to damages for late delivery or entitling the Customer to terminate or rescind the Contract.
- If for any reason the Customer will not accept delivery of any of the products when they are ready for delivery, or the Company is unable to deliver the products on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
(i) risk in the products will pass to the Customer;
(ii) the products will be deemed to have been delivered; and
(iii) the Company may store the products until delivery whereupon the Customer will be liable for all related costs and expenses (including without limitation storage and insurance).
- INSPECTION AND ACCEPTANCE
- It shall be the responsibility of the Customer to inspect and check all products immediately on delivery for weight and condition and in order to ensure that such products are those ordered by the Customer. The Customer’s said responsibility shall not be in any way diminished or extinguished in the case of products which are delivered to a third party on the instructions of the Customer.
- The Customer shall be deemed to have accepted all products supplied to it (or, at its direction, to any third party) unless notice of rejection is served on the Company in accordance with condition 7 (a) below.
- PASSING OF PROPERTY AND RISK
- The risk in products shall pass to the Customer on delivery and the Customer shall insure the products comprehensively in respect of all loss and any damage thereto.
- Until full payment (in cash or cleared funds) has been received for the products, together with all other monies owing by the Customer to the Company, the products will remain the sole and absolute property of the Company as legal and equitable owner and the Customer acknowledges that it is in possession of the products solely as fiduciary agent and bailee for the Company and undertakes to keep the products (at no cost to the Company) properly stored, protected, insured and clearly identified as the Company’s property and kept separate from the products of the Customer or any other person.
- Until the Customer becomes the owner of the products, the Customer shall ensure that any of the products which are of a perishable nature are kept properly stored so as to preserve their quality and freshness and to prevent their denaturisation.
- The Customer may, prior to property passing to the Customer, use or resell any of the products at market value as principal in the ordinary course of its business provided always that when meeting any orders from its customers the Customer shall utilise products from any stock which it may have accumulated of the type of products ordered in the chronological order of their supply from the Company (i.e. Last-in, Last-out).
- Until the Customer becomes the owner of the products, any right the Customer may have to possess the products shall cease forthwith upon the Customer doing or omitting to do any act, the result of which is to entitle an administrator or receiver to take possession of any assets of, or, as appropriate, a receiving order or administration order to be made against, the Customer or which would entitle any person to petition for the winding-up, or, as appropriate, the bankruptcy of the Customer, and the products shall thereupon be returned forthwith to the Company.
- Until the Customer becomes the owner of the products (and provided the products are still in existence and have not been resold), the Company (or its authorised representative) may, for the purpose of recovering the products, enter upon any premises where the products are or where they are reasonably thought to be and may repossess the products.
- The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any products which remain the property of the Company, but if the Customer does so all monies owing by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
- The Customer acknowledges that before entering into the Contract it has expressly represented and warranted to the Company that it is not insolvent and knows of no circumstances which would entitle any debenture holder or creditor to appoint a receiver or administrator, to petition for the winding-up, or, as appropriate, the bankruptcy of the Customer or exercise any other rights over or against the Customer’s assets.
- LIMITATION OF LIABILITY
- The Company shall (at its sole discretion) as soon as reasonably practicable either replace free of charge any products that prove defective or are not in good condition when delivered or credit the Customer accordingly provided that:-
- the Customer notifies the Company in writing of the defect within 2 working days of delivery stating precisely its reason(s) for rejection and receives authorisation from a senior Head Office Manager of the Company for the return of the products; and
- the alleged defect in the reasonable opinion of the Company arises under proper use and is due to faulty manufacture or bad workmanship; and
- the products are returned in substantially the same condition (allowing for any deterioration due to the alleged defect) as when originally delivered, carriage paid where applicable, to the Company.
- The quantity of any consignment of products as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary. In case of short delivery of the products the Company shall make good the shortfall as soon as reasonably practicable or credit the Customer accordingly provided that the Customer in writing shall notify the Company of any such shortfall on the day of delivery.
- The Customer shall at all times comply with the obligations under any applicable laws or codes relating to the storage manufacture and distribution of foodstuffs and the Health and Safety at Work Act 1974 and shall indemnify the Company from all liability of whatsoever nature or kind to third parties or others arising from or in connection with the operation or use of the products or any paper or other work done by the Company under the Contract.
- Subject to the foregoing, the following provisions set out the entire financial liability of the Company to the Customer in relation to (i) any breach of these conditions; and (ii) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract. Subject as expressly provided in these terms, and except where the products are sold to a person acting as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions and other obligations imposed or implied by statute or otherwise (except for the conditions implied by section 12 of the Sale of Goods Act 1979) and all other liability for any loss or damage arising out of or in connection with the Contract (including loss of profit, loss of business, depletion of goodwill and all other indirect or consequential loss) is hereby expressly excluded provided always that nothing in these conditions excludes or limits the liability of the Company for death or personal injury insofar as the same results from the Company’s negligence or fraudulent misrepresentation.
- Subject to condition 7(d), the Company’s aggregate liability to the Customer in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the contract price for the products.
- Consumer Rights
These conditions do not and will not affect the statutory rights of a Customer who is a Consumer where the products are sold under a consumer transaction.
No provisions in these conditions which would be void by virtue of Section 6 or Section 20 of the Unfair Contract Terms Act 1977 (as amended) shall apply to any consumer transaction.
For the purposes of the foregoing the expressions “Consumer” and “consumer transaction” shall have the respective meanings given thereto in the Consumer Transactions (Restrictions on Statements) Order 1976 (as amended).
8. FORCE MAJEURE
The Company shall be under no liability if it is prevented from carrying out any provisions of the Contract for any reason beyond its control.
- This clause applies if:-
- the Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being and individual or firm has a petition for bankruptcy presented against it or becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
- an encumbrancer takes possession, or an administrator or receiver is appointed, of any of the property or assets of the Customer; or
- the Customer ceases, or threatens to cease, to carry on business; or
- the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
- If this clause applies then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend the delivery of products under the Contract without any liability to the Customer and if products have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
Where the Customer is also a supplier to the Company, the Company reserves the right to offset any amount overdue for payment from the Customer to the Company against amounts owed to the Customer by the Company. Where the Customer is also a supplier to the Company, the Company shall not make payment to any third party (e.g. factoring company) unless the Customer has obtained prior permission from the Company to assign to such third party amounts due from the Company.
- EXERCISE OF RIGHTS
No failure or delay by the Company in exercising any of its rights or powers shall operate as a waiver thereof nor shall any partial exercise of any right or power preclude any further exercise thereof.
The Customer may not assign its rights under the Contract in whole or in part without the Company’s prior written consent.
13. THIRD PARTIES
No term of the Contract shall be enforceable by a third party (being any person other than the parties and their permitted successors and assignees).
14. LAW AND JURISDICTION
The Contract shall be governed and interpreted in accordance with English Law and the parties hereby submit themselves to the non-exclusive jurisdiction of the Courts of England for the resolution of any disputes arising under the Contract.
If any part, term or provision contained herein shall be held illegal or unenforceable, the validity or enforceability of the remainder of the Contract shall not be affected.
16. ADDITIONAL TERMS AND CONDITIONS FOR PARTNERSHIPS AND SOLE TRADER DEBTORS
- .We may transfer information about you to our bankers/financiers, in order for them to provide their services to us and other customers of theirs and to help them to (a) obtain credit insurance (b) undertake credit control (c) undertake assessment and analysis (including credit scoring, market, product and statistical analysis) (d) securitise debts and (e) protect their interests.
- We or our bankers/financiers may make credit reference agency searches in respect of your business and its principals. Please note that credit reference agencies make a record of searches which may be used to prevent fraud or money laundering or by other subscribers to make credit decisions about you.
- Our bankers/financiers may give information about you and your indebtedness to the following for the purposes stated:
- any other divisions or associated companies of theirs – for the business purposes of such divisions or companies;
- our or their insurers – to quote for and issue any credit policy or to deal with any claims;
- any advisers acting on our or their behalf – so the advisers can carry out their services;
- any business to which your indebtedness or our financing arrangements with them may be transferred – to facilitate such transfer;
- to any person to whom they have a duty of disclosure or to whom the law permits disclosure.
- Our bankers/financiers may make decisions about you solely using an automated decision making process, such as credit scoring; however, they will tell us (and in turn we will tell you) if they make a significant decision using such a process only. Through us you can then request a review of their decision using other means.
- Our bankers/financiers may monitor and/or record your phone calls to them for training and/or security purposes.
- We will provide you with details of our bankers on request, including a contact telephone number from which you can obtain details of the credit reference agencies used by them and any third parties to whom information is transferred.
Any notice to be given under the Contract may be delivered personally or sent by prepaid post, courier or transmitted by facsimile copy to the other party at such address as may be notified in accordance with this condition from time to time. Any notice so sent will be deemed to have been given if sent by personal delivery or courier upon delivery at the address of the relevant party, if sent by prepaid post the day after the date of posting and if sent by facsimile upon confirmation of transmission.