TERMS & CONDITIONS OF SALE
1.1 These conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to impose or incorporate under any purchase order confirmation of order or similar document, or which are implied by law, trade custom, practice or course of dealing.
1.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these conditions.
1.3 Acceptance of delivery of the Goods in accordance with these conditions shall be deemed conclusive evidence of the Buyer’s acceptance of these conditions.
1.4 No variation to these conditions (including any special terms and conditions agreed between the parties) shall be applicable unless it is in writing and signed by the parties (or their authorised representatives).
‘Brand’ means any brand owned or licensed to the Seller from time to time.
‘Buyer’ means the person firm company or organisation who purchases Goods from the Seller.
‘Confidential Information’ means all information of a confidential nature disclosed whether in writing, orally.
‘Goods’ means the goods (including any instalment of the goods or any part of them) set out in the Order.
‘Order’ means the Buyer’s order for the Goods as accepted by the Seller.
‘Seller’ means Cocofina Limited registered in England and Wales under Company Number 07358842 whose office is at 65 Swakeleys Road, Ickenham, Middlesex UB10 8DQ.
‘Territory’ means Great Britain and any other countries which the Seller shall notify to the Buyer in writing or which are otherwise agreed between the parties in writing in each case in respect of specific Brands from time to time.
‘Wholesalers’ means wholesalers that resell to other retailers and trade customers.
3 Basis of the sale
3.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with:
3.1.1 any written quotation of the Seller accepted by the Buyer; or
3.1.2 any written Order of the Buyer accepted by the Seller;
subject in either case to these conditions which shall govern the Contract to the exclusion of any other terms and conditions.
3.2 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.
4 Orders and specifications
4.1 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these conditions.
4.2 No Order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller or its authorised representative.
4.3 The quantity quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s Order (if accepted by the Seller). In the event of a conflict between the two the Seller’s quotation will prevail.
4.4 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or where the Goods are to be supplied to the Seller’s specification, which in any case do not materially affect their quality or performance.
4.5 No Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all Losses incurred by the Seller as a result of cancellation.
5 Price of the Goods
5.1 The price of the Goods shall be the Seller’s quoted price or where no price has been quoted a new price will be quoted.
5.2 The Seller may increase the price of the Goods by giving notice to the Buyer at any time before delivery in order to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller,
5.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller and unless otherwise agreed in writing between the Buyer and the Seller all prices are given by the Seller on an ex works basis and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises the Buyer shall given a price inclusive of transport packaging and excluding insurance.
5.4 The price is exclusive of any applicable value added tax which the Buyer shall be additionally liable to pay to the Seller and any other applicable tax which is applicable from time.
6 Terms of payment
6.1 Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after the delivery of the Goods unless the Goods are to be collected by the Buyer.
6.2 The Buyer shall pay the price of the Goods within 30 days of the date of the Seller’s invoice notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
6.3 The Seller shall have a general and particular lien over any property of the Buyer in its possession in respect of any monies due to the Seller from the Buyer from time to time.
6.4 If the Buyer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Seller the Seller shall be entitled to:
6.4.1 cancel the Contract or suspend any further deliveries to the Buyer until payment is made by the Buyer;
6.4.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
6.4.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 4% a year above Bank of England base rate from time to time or a minimum of 4% at The Sellers discretion.
7.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place save that where the Seller agrees to deliver the Goods 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.
7.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date (and by one or more deliveries) upon giving reasonable notice to the Buyer.
7.3 Where the Goods are to be or are delivered in instalments each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
7.4 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault and the Seller is accordingly liable to the Buyer the Seller’s liability shall be limited to the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered less the price of the Goods provided that the Seller’s liability under this Condition 7.4 shall not exceed an amount equivalent to 50% of the price of the Goods. The Supplier 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 the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, except where such failure or delay is caused by a Force Majeure Event or the Seller’s failure to comply with its obligations under the Contract and without prejudice to any other right or remedy available to the Seller, the Seller may:
7.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
7.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable costs and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7.6 The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that:
7.6.1 such discrepancy in quantity shall not exceed 5%; and
7.6.2 the Price shall be adjusted pro rata to the discrepancy.
7.7 No Goods delivered to the Buyer in accordance with the Contract will be accepted for return without the prior written approval of the Seller on terms to be determined at the absolute discretion of the Seller.
7.8 If the Seller agrees to accept any such Goods for return the Buyer shall be liable to pay a handling charge of 10% of the invoice price. Such Goods must be returned by the Buyer with transport costs paid to the Seller in their original packaging.
7.9 Goods returned without the prior written approval of the Seller may at the Seller’s absolute discretion be returned to the Buyer or stored at the Buyer’s cost without prejudice to any rights or remedies the Seller may have.
8 Risk and title
8.1 Risk of damage to or loss of the Goods shall pass to the Buyer on delivery.
8.2 Title to the Goods shall not pass to the Customer until the earlier of:
8.2.1 the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
8.2.2 the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in condition 8.4.
8.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
8.3.1 store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;
8.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
8.3.4 notify the Seller immediately if it becomes subject to any of the events listed in conditions 11.1.1 to 11.1.4; and
8.3.5 give the Seller such information relating to the Goods as the Seller may require from time to time.
8.4 Subject to condition 8.5, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods. However, if the Seller resells the Goods before that time:
8.4.1 it does so as principal and not as the Seller’s agent; and
8.4.2 title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs.
8.5 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in conditions 11.1.1 to 11.1.4, then, without limiting any other right or remedy the Seller may have:
8.5.1 the Buyer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
8.5.2 the Seller may at any time:
(a) require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(b) if the Buyer fails to do so promptly, The Seller may enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
9 Product Recall
9.1 If the Seller is made aware of or is subject to any request, court order or other directive of a Regulatory Body to recall; or chooses to recall or withdraw from the market any Goods supplied to the Buyer in accordance with these conditions, the Seller shall promptly notify the Buyer in writing providing sufficient details of the recall or withdrawal request to enable the Buyer to comply with its obligation.
9.2 The Buyer shall take all appropriate action to comply with any recall or withdrawal request and shall cooperate with the reasonable instructions of the Seller, the Seller’s representative, the court, or Regulatory Body and adhere to any relevant documented policies and procedures from time to time in force in relation to any such recall or withdrawal.
9.3 The Buyer shall not make any public statement in respect of any recall without the prior written consent of the Seller unless such statement is mandated by law or a Regulatory Body.
10 Warranties and limitation of liability
10.1 Subject to the conditions set out below the Seller warrants that the Goods will be of satisfactory quality and will correspond with the specifications (if any) referred to in condition 4.3 at the time of Delivery until the expiry of the ‘best before’, ‘sell by’ or similar date as marked on the Goods
10.2 The warranty set out in condition 10.1 is given by the Seller subject to the following conditions:
10.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any specification supplied by the Buyer;
10.2.2 the Seller shall be under no liability in respect of any defect arising from wilful damage negligence abnormal (including unhygienic) working conditions failure to follow the Seller’s reasonable instructions (whether oral or in writing) accidents which the Goods cannot reasonably be expected to withstand misuse or inadequate storage or alteration of the goods without the Seller’s approval;
10.2.3 the Seller shall be under no liability under the above warranty (or any other warranty condition or guarantee) if the total price for the goods has not been paid by the due date for payment;
10.3 Subject as expressly provided in these conditions and except where the Goods are sold to a person dealing as a consumer (within the meaning of the unfair contract terms act 1977) all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
10.4 The Buyer shall check the Goods thoroughly forthwith upon delivery or as soon as reasonably practicable thereafter and any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days of the date of Delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defects or failure. If Delivery is not refused and the Buyer does not notify the Seller accordingly the Buyer shall not be entitled to reject the Goods and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract. In no event shall the Buyer be entitled to reject the Goods on the basis of any defect or failure which is so slight that it would be unreasonable for the Buyer to reject them.
10.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with and subject to these conditions the Seller shall be entitled to rectify or replace the defective Goods free of charge or at the Seller’s sole discretion refund to the Buyer the price of the Goods (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer whatsoever.
10.6 The restrictions on the Seller’s liability in this clause 10 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
10.7 Subject to condition 10.7, the Seller’s total liability to the Buyer shall not exceed the price of the Goods except as expressly provided in accordance with these conditions.
10.8 Subject to condition 10.7, indirect losses including but not limited to listed below are wholly excluded:
10.8.1 loss of profits;
10.8.2 loss of sales or business;
10.8.3 loss of agreements or contracts;
10.8.4 loss of anticipated savings;
10.8.5 loss of use or corruption of software, data or information;
10.8.6 loss of or damage to goodwill; and
10.8.7 indirect, special or consequential loss.
10.9 Unless the Buyer notifies the Seller that it intends to make a claim in respect of an event within the notice period, the Seller shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of its having grounds to make a claim in respect of the event and shall expire three months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
10.10 This condition 10 shall survive termination of the Contract.
11 Solvency of Buyer
11.1 Without limiting its other rights or remedies, the Seller may terminate this Contract with immediate effect by giving written notice to the Buyer if:
11.1.1 the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of the Buyer being notified to do so;
11.1.2 the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
11.1.3 the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
11.1.4 the Buyer’s financial position deteriorates to such an extent that in the Seller’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.2 Without limiting its other rights or remedies, the Seller may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Seller if the Buyer becomes subject to any of the events listed in conditions 11.1.1 to condition
11.1.4, or the Seller reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
11.3 Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
11.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer immediately on receipt.
11.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
11.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
12.1 The Seller may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligation under the Contract.
12.2 The Buyer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Seller.
12.3 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.4 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these conditions.
12.5 Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
12.6 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.
12.7 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these conditions. If any provision of the Contract is deemed deleted under this condition 12.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.8 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12.9 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
12.10 The Contract shall be governed by the laws of England and the Buyer shall submit to the non-exclusive jurisdiction of the English courts.
13 Intellectual Property
13.1 All Goods sold in retail packaging may be resold by the Buyer only in the packaging supplied by the Seller and in no case may any trade mark other than those applied by the Seller (“Trade Marks”) be marked on or applied in relation to the Goods. The Buyer shall not make any addition to the labelling or packaging of the Goods or any marketing materials displaying the Trade Marks. The Buyer shall not alter, deface or remove any reference to the Trade Marks, any reference to the Seller, Brand or any other name or information displayed on the Goods or their packaging or labelling or any marketing materials.
13.2 The Buyer shall market and sell the Goods only under the Trade Marks, and not in association with any other trade mark, brand or trade name.
13.3 No right or licence is granted under these conditions to the Buyer under any patent trade mark copyright registered design or other intellectual property right except the right to use or resell the Goods.
14 Force Majeure
14.1 If the performance of a party’s obligations hereunder is affected (or it becomes apparent that it will be affected) as a result of any act, event, non-happening, omission or accident beyond its reasonable control (a “Force Majeure Event”), the provisions of this condition 14 shall apply.
14.2 Force Majeure Events shall include but not be limited to:
14.2.1 acts of God, flood, drought, earthquake or other natural disaster;
14.2.2 epidemic or pandemic;
14.2.3 terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations;
14.2.4 nuclear, chemical or biological contamination, or sonic boom;
14.2.5 any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
14.2.6 collapse of buildings, fire, explosion or accident;
14.2.7 any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this condition, or companies in the same group as that party); and
14.2.8 interruption or failure of utility service.
14.3 Any failure to perform or delay in performance by any sub-contractor or supplier of the Seller shall not be a Force Majeure Event unless the sub-contractor or supplier was itself subject to a Force Majeure Event.
14.4 If either party is affected by a Force Majeure Event, it shall notify the other party within 5 working days of becoming aware of the Force Majeure Event. The affected party will (where feasible) in its notification of a Force Majeure Event to the other party give details of the Force Majeure Event, its likely duration (if such duration can reasonably be calculated) and the manner and extent to which its obligations are likely to be prevented or delayed.
14.5 The Seller shall not be liable to the Buyer for any unfulfilled, cancelled, incomplete or missing orders or for any delay or interruption to the delivery of the Goods (together “Non-Performance Failures”) if such Non-Performance Failures are due to a Force Majeure Event suffered by it, its employees, agents, suppliers and sub-contractors.
14.6 If the period of delay or non-performance arising from any Force Majeure Event continues for a period of or exceeding 30 days, the party not affected by the Force Majeure Event shall have the right to terminate the Contract forthwith on written notice to the affected party. Each party shall use its reasonable endeavours to minimise the effects of any Force Majeure Event.
15.1 The Buyer undertakes that it shall not at any time disclose to any person any Confidential Information.