Norwest Foods International Limited - Customer Terms of Trading
Your attention is drawn in particular to the provisions set out in clause 10.
In these Conditions, the following definitions apply:
“Business Day” a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
“Conditions” the terms and conditions set out in this document as amended from time to time in accordance with clause.
“Contract” the contract between Us and You for the sale and purchase of the Goods in accordance with these Conditions.
“Customer” the person or Company who purchases the Goods from Us.
“Force Majeure Event” has the meaning given in clause 11.
“Goods” the goods (or any part of them) set out in the Order and clarified in clause 4.11.
“IMTA Terms” the current form of the Terms promulgated by the International Meat Traders Association Incorporated including, and as varied by all amendments and variations thereto as at the date of the Contract as applicable to the transaction to which the Contract relates.
“Order” Your order for the Goods, as set out in Your purchase order form or correspondence with Us.
“Specification” Any specification for the Goods that is agreed by You and Us.
“Us” Norwest Foods International Limited registered office and any successor or assignee.
“You” The person or company who purchasers the Goods from Us.
In these Conditions, the following rules apply:
a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
b) A reference to a party includes its personal representatives, successors or permitted assigns.
c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
d) Any phrase introduced by the Conditions including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those Conditions.
e) A reference to writing or written includes faxes and emails.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that you may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Contract is deemed to incorporate the IMTA Terms save to the extent that the IMTA Terms are varied by the conditions set out herein. In the event of conflict between the IMTA Terms and the terms set out herein, the latter shall apply.
2.3 The Order constitutes an offer by You to purchase the Goods in accordance with these Conditions. You are responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.4 The Order shall only be deemed to be accepted when we issue a written acceptance of the Order, at which point the Contract shall come into existence.
2.5 The Contract constitutes the entire agreement between the parties. You acknowledge that You have not relied on any statement, promise, representation, assurance or warranty made or given by Us or on our behalf which is not set out in the Contract.
2.6 Any samples, drawings, descriptive matter, or advertising produced by Us and any descriptions or illustrations contained in Our catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.7 A quotation for the Goods given by Us shall not constitute an offer. A quotation shall only be valid for a period of 7 Business Days from its date of issue unless otherwise stated will at all times be subject to availability of Goods
3.1 If we prepare the Goods in accordance with the Specification or instructions given by you, you must ensure that:
3.1.1 the Specification or instructions are accurate;
3.1.2 the Goods prepared in accordance with the Specification or instructions will be fit for the purpose for which you intend to use them;
3.2 To the extent that the Goods are to be produced in accordance with a Specification supplied by You, You shall indemnify Us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Us in connection with any claim made against Us for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Our use of the Specification. This clause
3.2 shall survive termination of the Contract.
3.3 We reserve the right to:
3.3.1 amend the Specification if required by any applicable statutory or regulatory requirements; and
3.3.2 make without notice any minor modifications in the Specification as we think necessary or desirable.
3.4 There is a small risk that trace levels of additional organic substances (“Trace Levels”) may be introduced to the Goods during production. Provided that the Trace Levels do not exceed 1% you shall not be entitled to a replacement or refund in accordance with clause 5.2.
4.1 We shall ensure that: a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, your and our reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and b) if we require You to return any packaging materials to Us, that fact is clearly stated on the delivery note. You shall make any such packaging materials available for collection at such times as we shall reasonably request.
4.2 We shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after we notify You that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location. 4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. We shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or your failure to provide Us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If we fail to deliver the Goods within 7 days of the confirmed delivery date you may (by informing us in writing) cancel the contract, however:
4.5.1 you may not cancel if we receive your notice after the Goods have been dispatched; and
4.5.2 if you cancel the contract, You have no further claim against us under that contract. 4.6 If You accept delivery of the Goods after the estimated delivery time, you waive any claim against Us for delay (indirect or consequential loss or increase in the price of the Goods). 4.7 If we fail to deliver the Goods, our liability shall be limited to the costs and expenses incurred by You in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. We shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or your failure to provide Us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.8 If You fail to accept delivery of the Goods within three Business Days of Us notifying You that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Us failing to comply with its obligations under the Contract:
a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which we notified You that the Goods were ready; and
b) we shall store the Goods until delivery takes place, and charge You for all related costs and expenses (including insurance).
4.9 If 10 Business Days after the day on which We notified You that the Goods were ready for delivery You have not accepted delivery of them, we may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to You for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.10 You shall not be entitled to reject the Goods if we deliver up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
4.11 We may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract and our limitations of liability set out in clause 10 shall apply to each of these Contracts separately. Any delay in delivery or imperfection in an instalment shall not entitle You to cancel any other instalment.
4.12 We may decline to deliver if:
4.12.1 we believe it would be unsafe, unlawful or unreasonably difficult to do so; or
4.12.2 the premises (or the access to them) are unsuitable for our Agent’s vehicles.
5.1 We warrant that on delivery, the Goods shall:
a) conform in all material respects with their description in the Specification;
b) be free from any imperfections over and above the Trace Levels as defined and set out in clause 3.4;
c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) meaning for the purpose of this contract, Goods being free from imperfections over and above the Trace Levels; and
d) be reasonably fit for any purpose expressly or impliedly made known to Us (within the meaning of the Sale of Goods Act 1979).
5.2 Subject to clause, if:
5.2.1 Within 2 Business Days of delivery of the Goods You give Us notice in writing that the Goods do not comply with the warranty set out in clause (Your Notice); or
5.2.2 You (if asked to do so by Us) return such Goods to the supplier or cold store as notified by Us at your cost, we shall, at our option (as we at our sole discretion shall decide):
(i) replace the defective Goods; or
(ii) refund the price of the defective Goods in full; or
(iii) exercise our right to examine such Goods and take any sample we need to undertake our own tests (Our Tests).
5.3 We shall be allowed 20 Business Days to undertake Our Tests and review any results before agreeing to replace any Goods, refund the price of the imperfect Goods; or confirm to you in writing that we do not agree with Your Notice.
5.4 We shall not be liable for the Goods’ failure to comply with the warranty set out in clause in any of the following events:
a) You make any further use of such Goods after giving notice in accordance with clause;
b) the imperfection arises because You failed to follow our oral or written instructions as to the storage, of the Goods or (if there are none) good trade practice regarding the same;
c) the imperfection arises as a result of Us following any drawing, design or Specification supplied by You;
d) You alter such Goods without our written consent;
e) the imperfection arises as a result of wilful damage, negligence, or abnormal storage or working conditions; or
f) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.5 Except as provided in this clause, we shall have no liability to You in respect of the Goods’ failure to comply with the warranty set out in clause.
5.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.7 These Conditions shall apply to any repaired or replacement Goods supplied by Us.
6. Title and risk
6.1 The risk in the Goods shall pass to You on completion of delivery.
6.2 Delivery takes place either –
6.2.1 at our supplier’s premises or nominated storage depot or cold store (if you are collecting them or arranging carriage); or
6.2.2 at your premises or address specified by you (if we are arranging carriage).
6.3 Title to the Goods shall not pass to You until We have received payment in full (in cash or cleared funds) for:
a) the Goods; and
b) any other goods that we have supplied to You in respect of which payment has become due.
6.4 Until title to the Goods has passed to You, You shall:
a) hold the Goods on a fiduciary basis as our bailee;
b) store the Goods separately from all other goods held by You so that they remain readily identifiable as our property;
c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
e) notify Us immediately if it becomes subject to any of the events listed in clause; and
f) give Us such information relating to the Goods as we may require from time to time but You may resell or use the Goods in the ordinary course of business.
6.5 If before title to the Goods passes to You, You become subject to any of the events listed in clause , or we reasonably believe that any such event is about to happen and notify You accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy we may have, we may at any time require You to deliver up the Goods and, if You fail to do so promptly, enter any premises of You or of any third party where the Goods are stored in order to recover them.
7. Price and payment
7.1 Unless otherwise stated, the price quoted is an illustrative estimate only and the price charged will be our current price as at the date of delivery. Our quotations lapse after 7 days (unless otherwise stated) and are on the basis of subject unsold.
7.2 The price of the Goods shall be confirmed by us in writing by fax or email.
7.3 The price charged will be our price at the time of delivery.
7.4 Unless otherwise stated the price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to You.
7.5 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). You shall, on receipt of a valid VAT invoice from Us, pay to Us such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.6 We may invoice You for the Goods on or at any time after the completion of delivery.
7.7 You shall pay the invoice in full and in cleared funds within 30 Business Days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Us. Time of payment is of the essence.
7.8 If You fail to make any payment due to Us under the Contract by the due date for payment then: –
7.8.1 You shall pay interest on the overdue amount at the rate of 8% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount;
7.8.2 We shall cancel any discount offered to you; and
7.8.3 We shall suspend future deliveries.
7.9 You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). We may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by You against any amount payable by Us to You.
7.10 If you have an approved credit account, payment is due no later than 30 days after the date of our invoice in the currency that has been invoiced unless otherwise agreed in writing. We may vary your credit limit or due date for payment at any time without written notice.
8. Export Terms
8.1 Clause 8 of these Conditions applies (except that it is inconsistent with any written agreement between us) where we supply the goods over an international border or overseas.
8.2 The ‘Incoterms’ of the International Chamber of Commerce which are in force at the time when the contract is made apply to exports, but these prevail to the extent that there is any inconsistency.
8.3 Unless otherwise agreed, the goods are supplied on an ex works basis. Where the goods are to be sent by us to you by a route including sea transport we are under no obligation to give a notice under section 32(3) of the Sale of Goods Act 1979.
8.4 You are responsible for arranging testing and inspection of the goods (unless otherwise agreed). We are not liable for any damage during transit. You shall be responsible for all export charges and licences relating to the import of Goods and for arranging all necessary import licences which may be required for the importation of the Goods, and You shall make these licences and consents available to us prior to the relevant shipment.
8.5 We are not liable for death or personal injury arising from the use of the goods delivered in the territory of another State (within the meaning of s.26(3)(b) Unfair Contract Terms Act 1977).
9. Customer’s insolvency or incapacity
9.1 If You become subject to any of the events listed in clause , or we reasonably believe that You are about to become subject to any of them and notify You accordingly, then, without limiting any other right or remedy available to Us, we may cancel or suspend all further deliveries under the Contract or under any other contract between you and Us without incurring any liability to You, and all outstanding sums in respect of Goods delivered to You shall become immediately due.
9.2 For the purposes of clause , the relevant events are:
a) You suspend, or threaten to suspend, payment of your debts, or are unable to pay your debts as they fall due or admit inability to pay your debts, or (being a company or limited liability partnership) are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) are deemed either unable to pay your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
b) You commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or makes a proposal for or enters into any compromise or arrangement with your creditors other than (where You are company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of you with one or more other companies or the solvent reconstruction of You;
c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of You, other than for the sole purpose of a scheme for a solvent amalgamation of You with one or more other companies or the solvent reconstruction of You;
d) (being an individual) You are the subject of a bankruptcy petition or order;
e) a creditor or encumbrancer of You attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over You;
g) (being a company) the holder of a qualifying charge over your assets has become entitled to appoint or has appointed an administrative receiver;
h) a person becomes entitled to appoint a receiver over your assets or a receiver is appointed over your assets;
i) any event occurs, or proceeding is taken, with respect to You in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause to clause (inclusive);
j) You suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business;
k) Your financial position deteriorates to such an extent that in our opinion your capability to adequately fulfil your obligations under the Contract has been placed in jeopardy; and
l) (being an individual) You die or, by reason of illness or incapacity (whether mental or physical), are incapable of managing your own affairs or becomes a patient under any mental health legislation.
9.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. Limitation of liability
YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
10.1 Nothing in these Conditions shall limit or exclude our 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;
d) defective products under the Consumer Protection Act 1987; or
e) any matter in respect of which it would be unlawful for Us to exclude or restrict liability.
10.2 Subject to clause:
a) We shall under no circumstances whatever be liable to You, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract;
b) Our total liability to You in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be the greater of the cost of replacing the Goods or such part of the Goods that have been rejected or any amount that we recover from a supplier of the Goods in relation to your loss; and
c) We shall not be liable for any loss resulting from any of our Goods which do not comply exactly with the Order or Specification on the basis that they contain Trace Levels as set out in clause 3.4.
11. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
12.1 Assignment and other dealings.
a) We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
b) You may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of the rights or obligations under the Contract without our prior written consent.
a) Any notice or other communication 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, fax or email.
b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause ; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business 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 fax, one Business Day after transmission.
c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
a) 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.
b) If one party gives notice to the other of the possibility that 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.
12.4 Waiver. 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.
12.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.6 Variation. Except as set out in these Conditions, 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 the Supplier.
12.7 Governing law. 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. 12.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).