In any contract to which these conditions of business apply (“the Conditions”):
1.1 “Business Day” means any day (other than a Saturday or Sunday) on which banks are generally open for business in the City of London.
1.2 “the Company” means Dunbia (UK), a company registered in England with number 3382084 and whose registered office is Michael House, Castle Street, Exeter, Devon, EX4 3LQ, United Kingdom and any of its subsidiary companies, successors or assigns where the context requires.
1.3 “Conditions” means these Conditions of Sale.
1.4 “Contract” means any contract between the Company and the Customer for the sale and purchase of Goods upon the terms of the
Order and incorporating these Conditions.
1.5 “the Customer” means the person firm company or public authority who buys goods from the Company.
1.6 “the Goods” means any goods which the Company agrees to supply to the Customer to which these Conditions apply.
1.7 “Order” means any order of the Customer which is accepted by the Company.
BASIS OF CONTRACT
2.1 The Company shall sell and the Customer shall purchase the Goods in accordance with the Order subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 Only a director may make representations on behalf of the Company in respect of matters to which the Contract relates, and such representations must be written (excluding fax and emails) to bind the Company. No other person is authorised by the Company to make representations on its behalf. Any other representation made by or on behalf of the Company prior to the date of the Contract is withdrawn.
2.3 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any Order submitted by the Customer and for giving the Company any necessary information relating to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
2.4 The quantity, quality and description of any specification for the Goods shall be those set out in the Order.
2.5 If the Goods are to be manufactured or any process is to be applied to the Goods by the Company in accordance with a specification submitted by the Customer, the Customer indemnifies and shall indemnify the Company against any and all loss, damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Customer’s specification.
2.6 The Company reserves the right to make any changes in or to the specification of the Goods which are required to conform with any applicable statutory or legal requirements or, where the Goods are to be supplied to the Company’s specification, which do not materially affect their quality or performance.
2.7 In relation to Orders to be delivered to any jurisdiction , the Customer confirms by placing the Order that the specification of the Goods in accordance with Condition 2.4 conforms to all applicable statutory requirements and/or regulations particularly in relation to quality in the jurisdiction in which the Goods are being received. For the avoidance of doubt the Customer will be barred from bringing a warranty claim under Condition 10 by reason of the Goods failing to comply with the applicable statutory requirements or regulations where the Goods conform in all material respects with the specification set in accordance with Condition 2.4.
3.1 Unless otherwise confirmed in writing these Conditions incorporate the International Chamber of Commerce’s current official rules for the interpretation of trade terms (“Inco terms”), except where the Inco terms are varied by these Conditions. In the event of a conflict arising between the Inco terms and anything set out in these Conditions, these Conditions shall apply.
PRICE AND PAYMENT
4.1 The price of the Goods (the “Price”) shall be agreed between the Company and the Customer and confirmed by the Company by email or on the Company’s sales invoice or shall be as otherwise agreed in writing between the Company and the Customer.
4.2 The Price is inclusive of duties and exclusive of Value Added Tax or other taxes to which the supply of goods may be subject, which will be added at the appropriate rates.
4.3 Payment is due immediately by the Customer on receipt of the Company’s invoice, unless the Company has agreed terms in writing around payment which shall then apply in the place of this Condition 4.3.
4.4 The Company shall be entitled to invoice the Customer on, or at any time after, delivery of the Goods unless the Customer fails to take delivery of the Goods in which event the Company shall be entitled to invoice the Customer at any time after the Company has tendered delivery of the Goods.
4.5 No payment shall be deemed to have been received until the Company has received it in cleared funds.
4.6 Time for payment shall be of the essence. The Company reserves the right at any time in its absolute discretion to revoke or vary any credit terms extended to the Customer.
4.7 If the Customer fails to make full payment on or by the due date then, without prejudice to any other right or remedy available to the Company:
4.7.1 the Customer shall from the due date until the date of actual payment (both dates inclusive) pay interest to the Company on any sum or sums due at the rate of 1.25% (per cent) per month and such interest shall accrue on a daily basis and accrues both before and after judgement; and/or
4.7.2 the Company may cancel the Contract or suspend any further deliveries or supply of any Goods to the Customer.
DELIVERY AND CARRIAGE
5.1 The Company may make delivery by instalments.
5.2 Unless otherwise stated in writing, the Customer will be responsible for any warehouse, cold store or other storage costs incurred by the Company in respect of Goods sold or agreed to be sold with immediate effect from the date of issue by the Company of a contract note, delivery order or invoice, whichever is issued first.
5.3 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business or designated despatch point shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
5.4 Delivery of the Goods shall be deemed to have taken place:-
5.4.1 If the Goods are sold on an “ex works” basis when the Company has notified the Customer that the Goods are ready for collection at the Company’s premises or storage location; or
5.4.2 If the Goods are sold to the Customer on a “Free Alongside Ship” basis when the Company has notified the Customer that the Goods are ready for collection at the named port of shipment; or
5.4.3 If the Goods are sold to the Customer on a “F.O.B.” (Free on Board) basis when the Company has notified the Customer that the Goods shall have been loaded on the sea going vessel at the named port of shipment; or
5.4.4 If the Goods are sold to the Customer on a “C.I.F” (Cost, Insurance, Freight) basis when the Company has notified the Customer that the Goods are ready for unloading at the named port of destination; or
5.4.5 If the Goods are sold on a “delivered end user” basis when the Goods are physically delivered to the Customer’s address or such other place as the Customer may reasonably nominate. AND in any such case delivery shall be deemed to have taken place irrespective of whether or not the Goods are signed or otherwise acknowledged for by or on behalf of the Customer. Terms used in this Condition 5.4 in quotation marks shall have the meaning attributed
to such terms in the Inco terms unless stated otherwise.
5.5 The method and route of despatch and delivery of the Goods shall be selected by the Company.
5.6 Any dates given in any contract for despatch or delivery of Goods shall constitute estimates of expectation only and shall not be binding unless the contract otherwise expressly provides and the Customer shall accordingly accept delivery of the Goods when tendered.
5.7 If at the date on which the Company is ready to deliver the Goods the Customer delays acceptance, the Goods may be stored by the Company and the Customer shall pay to the Company the Price of the Goods together with all reasonable storage charges for the period of delay and the cost of any additional handling and transport incurred. If on the expiry of 24 hours in the case of fresh meat and 3 days in the case of other Goods after the date on which the Company is ready to deliver the Goods the Customer has not accepted the Goods, the Company reserves the right immediately to cancel the Customer’s order. This cancellation shall entitle the Company to dispose of the Goods and to apply the proceeds in payment of outstanding sums. For the avoidance of doubt the Customer will remain responsible to pay the Price in full and the Company is entitled to recover any shortfall between the proceeds recovered under this Condition 5.7 and the Price from the Customer as a debt due to it.
5.8 Claims in respect of incomplete or incorrect supplies or in respect of goods damaged in transit must be notified to the carrier and to the Company as soon as possible and in any event not later than 24 hours in the case of fresh meat and 48 hours in the case of other Goods after receipt of the Goods at the place of destination.
5.9 Claims in respect of non-delivery of Goods must be made as soon as possible and in any event within 24 hours of the contractual time and date of delivery or in the event that no such time and date has been agreed, within 24 hours of the receipt by the Customer of the Company’s shipping documents or invoice, whichever is received earlier.
6.1 Risk in the Goods shall pass to the Customer forthwith upon delivery to the Customer in accordance with Condition 5.4 and the Customer shall be liable to insure the Goods in the amount of the price at which the Goods are sold to the Customer against all insurable risks and shall pay all sums due under this Contract whether or not the Goods are lost, destroyed, damaged or stolen.
6.2 If the Goods are destroyed by an insured risk prior to the same being paid for the Customer shall receive the proceeds of any such insurance payment as trustee for the Company and shall pay such proceeds over to the Company immediately upon receipt.
7.1 Notwithstanding risk in the Goods passing in accordance with Condition 6 title to the Goods shall not pass to the Customer until all payments and sums due from the Customer to the Company have been paid in full.
7.2 For so long as the Customer remains in possession of the Goods whilst title thereto remains with the Company:-
7.2.1 the Customer shall be bailee of the Goods for the Company; and
7.2.2 the Customer shall store the Goods:-
(a) carefully in conditions appropriate in all respects to their nature;
(b) separately from any other goods so that they are identifiable as the property of the Company; and
(c) in accordance with any other instruction given by the Company.
7.3 The Company may forthwith enter upon the premises of the Customer for the purpose of repossessing the Goods and the Customer hereby grants to the Company an irrevocable licence for that purpose and the Company shall be entitled to claim from the Customer the costs and expenses incurred by the Company of such repossession and removal in the event that:-
7.3.1 the Customer is in default in payment on the due date of any sum due by the Customer to the Company; or
7.3.2 the Company shall be entitled to treat the Contract as terminated pursuant to the terms of Condition 8.
8.1 Without affecting any other right or remedy available to it, the Company may terminate this Contract and any other agreements between the Customer and the Company with immediate effect by giving notice to the Customer if:
8.1.1 the Customer fails to pay any amount due under this Contract on the due date for payment and remains in default not less than 14 days after being notified to make such payment;
8.1.2 the Customer commits a material breach of any term of this Contract and (if such breach is remediable) fails to remedy that breach within 14 days of being notified to do so.
8.2 the Customer being a company has a petition presented for its winding up or administration or passes a resolution for voluntary winding up (other than for the purposes of a bona fide amalgamation or reconstruction) or compounds with its creditors or has a receiver appointed of all or any of its assets; or
8.3 the Customer being an individual, becomes bankrupt or insolvent; or
8.4 the Customer in either case ceases to pay its debts in the ordinary course of business, enters into any arrangement with its creditors or commits a serious breach of the Contract (and in the case of such breach being remediable fails to remedy it within 3 (three) days of receiving notice to do so).
In the event the Contract terminates in accordance with Condition 8, the Company shall have a general lien over all Goods and property in the Customer’s possession whilst any moneys is owing by the Customer to the Company and shall be entitled on the expiration of 24 hours’ notice in the case of fresh meat and 3 days’ notice in the case of other Goods to dispose of such Goods or property in such manner and at such price as the Company thinks fit and to apply the proceeds realised in payment of outstanding sums. For the avoidance of doubt the Customer will remain responsible to pay the Price in full and the Company shall be entitled to recover any shortfall after applying the proceeds realised in accordance with this Condition 9 from the Customer as a debt.
10.1 The Goods shall be inspected by the Customer promptly upon delivery. The Customer shall lodge with the Company any claims in respect of defective Goods which do not conform with the Order or any specifications in accordance with Condition 2.4 within 24 hours of delivery in the case of fresh meat and within 48 hours of delivery in the case of other Goods.
10.2 Most of the Goods supplied by the Company are perishable. Failure to notify claims immediately is likely to make it impossible for the Company to investigate those claims properly. If, in respect of any claim, the Customer fails to comply with the requirements of Conditions 5.8, 5.9 or 10.1 above, then the Customer shall be deemed to have released the Company from any liability in respect thereof.
10.3 If a claim is notified under Conditions 5.8, 5.9 or 10.1, then the Customer must use its best endeavours to make the Goods which are the subject of the claim available to the Company for inspection.
10.4 The Customer must retain all packaging and attached bar codes supplied with the Goods. The Company will not be liable in respect of any complaints in respect of Goods of which the packaging or bar codes have not been retained and/or the bar codes have been destroyed or are not decipherable.
10.5 The Company will at its discretion inspect the Goods (by means of physical inspection or inspection as otherwise decided by the Company (for example via a certificate of damage from a quality control professional or by the provision of evidence reasonably requested of damage by the Customer)) as quickly as possible following receipt of a claim and will as quickly as reasonably possible notify the Customer whether the Company accepts or rejects the claim.
10.6 The Company shall at its option either refund the price of incomplete, incorrect or defective Goods or replace them with similar Goods provided that:-
10.6.1 the Customer has complied with its obligations contained in this Contract; and
10.6.2 examination by the Company of such Goods shall disclose that such defects exist and have not been caused by misuse, neglect, accident, improper storage or handling by the Customer or some other person outside the control of the Company.
10.6.3 The liability of the Company to the Customer for any reason under this Contract howsoever arising, and notwithstanding that the circumstances or cause of loss or damage may be unexplained shall never exceed the invoiced price of such Goods in relation to each Order. The Company’s liability shall not be increased or extended as a result of additional or numerous Orders being placed by the Customers.
10.7 The Company’s liability under Condition 10.6 hereof shall be in lieu of any warranties and conditions whether express or implied by statute common law or otherwise however, which warranties and conditions are hereby expressly excluded.
10.8 WITHOUT PREJUDICE TO THE GENERALITY OF THE FOREGOING, NOTHING HEREIN CONTAINED SHALL OPERATE TO EXCLUDE ANY WARRANTY OR CONDITION IMPLIED BY STATUTE IN THE EVENT OF THE CUSTOMER DEALING AS A “CONSUMER” AS DEFINED BY SECTION 12 OF THE UNFAIR CONTRACT CONDITIONS ACT 1977. IN SUCH A CASE THE CUSTOMER’S STATUTORY RIGHTS ARE UNAFFECTED BY THESE CONDITIONS.
10.9 Save as aforesaid and save in respect of death or personal injury resulting from the negligence of the Company its servants or agents, the Company shall not be liable for any claim or claims for indirect consequential or incidental injury, loss or damage made by the Customer against the Company whether in contract or tort (including negligence on the part of the Company its servants or agents) arising out of or in connection with any defect in the Goods or work or any act, omission, neglect or default (whether or not the same constitutes a fundamental breach of the Contract or breach of a fundamental term thereof) of the Company its servants or agents in the performance of the Contract.
10.10 If the Customer has any special requirements or believes that unusually high risks of consequential losses exist it must inform the Company upon making the Order so that special conditions and/or insurance can be arranged and a variation to this Condition be agreed. Where the Customer fails to notify the Company of any such requirements or risks before the Company accepts the Order, the Company will not have any liability for any failure to comply with those special requirements or for the consequential loses which are incurred by the Customer.
10.11 The Company’s obligations contained in this Contract shall apply only to the Customer but the Customer shall not be prevented from having recourse to them solely by reason of the Customer selling the Goods in the normal course of its business to a third party.
10.12 The Customer accepts as reasonable that the Company’s total liability for any Goods which are defective or incomplete or otherwise under this Contract shall be as set out in these Conditions: in fixing that limit the Company has had regard to the contract price of the Goods, the nature of the Goods, and the resources available to each party including inspection and insurance cover, to meet any liability.
The Company shall be under no liability to the Customer in the event that the Company’s performance of the Contract is affected wholly or partially or prevented or delayed by any restriction imposed by a government or other competent authority, strike out, lock out, or other action taken by employees in contemplation or furtherance of a dispute, or failure in the Company’s anticipated supplies or materials or by any other cause whatsoever which is beyond the Company’s reasonable control.
12.1 If at any time after Brexit a Brexit Trigger Event occurs which has or is likely to have an Adverse Impact on the Company, the Company may in their sole discretion:
12.1.1 require the Customer to negotiate in good faith an amendment to this Contract to alleviate the Adverse Impact; or
12.1.2 terminate this Contract.
12.2 The following definitions apply for the purposes of this Condition 12:
12.2.1 Brexit means the UK ceasing to be a member state of the European Union.
12.2.2 A Brexit Trigger Event means any of the following events caused by Brexit: a change in law, the introduction of a trade tariff, the requirement for a licence or consent, a currency fluctuation, or any other change which will have a material impact on the Company.
12.2.3 An Adverse Impact means any one of the following: an adverse impact on the Company’s ability to perform the Contract, a material increase in the Company’s costs in performing the Contract or the price of Goods in the Order being materially lower than the market value for similar products.
The Customer undertakes to use, handle and store the Goods in accordance with the Company’s recommendations and any written instructions for storage and use and all relevant statutory provisions and will:-
13.1 notify any person to whom the Customer passes the Goods of the need to comply with such recommendations and provisions and procure that person’s compliance with those recommendation and provisions; and
13.2 at all times indemnify the Company in respect of all loss or damage suffered by any person, company or property and against all actions, claims, demands, costs, charges or expenses in connection herewith for which the Company may become liable in respect of the Goods.
14.1 Data Protection
The Company will use the Customer’s personal information for the purpose of disseminating information in future about the Company’s products and services unless the Customer makes known to the Company its wish that the personal information should not be used in this way. Both parties will comply with the Data Protection Act 2018 and the General Data Protection Regulations 2016 (in each case as amended from time to time) in performing this Contract.
Any failure or delay by the Company to enforce any of its rights under this Contract shall not be taken as a waiver of any of the Company’s rights hereunder.
14.3.1 Any notice to be served under these Conditions must be confirmed in writing as soon as possible and in any event within 24 hours to the intended recipient either:-
14.3.2 within the United Kingdom by prepaid first class post (when it will be deemed served at noon on the first Business Day after it was posted); or
14.3.3 by facsimile transmission or electronic mail between the hours of 9.00 a.m. and 3.00 p.m. on a Business Day, (when it will be deemed served twelve hours after it was transmitted by fax or upon receipt by the sender of a read receipt if sent by email); or
14.3.4 by personal delivery (when it will be deemed served when it is delivered).
14.4 The address for service of notices shall be the party’s address as shown in these Conditions or as subsequently notified in writing.
Under this Contract all Conditions and sub-Conditions and all parts thereof shall be severable. In the event that any one or more of such Conditions or sub-Conditions or any parts thereof shall be invalid, illegal or unenforceable in any respect under any relevant law that part shall be deemed deleted and the validity, legality and enforceability of the remaining Conditions and sub-Conditions and parts thereof
shall not in any way be affected or impaired.
No variation of this Contract shall be effective unless it is in writing and signed by the Company. The Company shall be entitled to make amendments to this Contract provided it notifies the Customer of such amendments in writing.
14.7 Applicable Law
This Contract shall be subject to the laws of England and Wales and to the exclusive jurisdiction of the courts of England and Wales.