TERMS AND CONDITIONS OF BUSINESS
The customer’s attention is drawn in particular to the provisions of clause 9.
1. Interpretation
1.1 Definitions.
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 11.6.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the
Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Force Majeure Event: has the meaning given in clause 10.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form.
Perishable Goods: the part of the Goods being food stuffs (for example coffee beans), as set out in the Order.
Specification: any specification for the Goods that is agreed in writing by the Customer and the Supplier.
Supplier: Wellington Coffee Ltd (registered in England and Wales with company number 9384003).
Unperishable Goods: the part of the Goods being not liable to rot as set out in the Order.
1.2 Construction.
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 terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
e. A reference to writing or written includes emails.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 Orders for Unperishable Goods are bespoke and manufactured to order according to the Customer’s requirements and therefore cannot be cancelled by the Customer once the Contract is in existence. Orders for Perishable Goods (such as coffee beans) can be cancelled by the Customer in writing prior to dispatch and the Customer has a right to a refund. If the Order has already been dispatched, the Customer has a right to cancel within 7 days of Delivery and has a right to a refund (except for coffee beans that have been roasted or ground to the Customer’s specification). The Customer is required to return and pay for returning the Goods to the Supplier. The Supplier reserves the right to cancel any Order for Unperishable or Perishable Goods prior to Delivery.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.6 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues, websites 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 the Supplier shall not constitute an offer and if any Goods are priced in error, the Supplier will not be bound to honour incorrect prices. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3. Goods
3.1 The Goods are described in the Supplier’s catalogue as modified by any applicable Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier 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 the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
4. Delivery
4.1 The Supplier shall deliver the Goods to the location set out in the Order (Delivery Location). For Goods that are delivered on a pallet, the Goods will be delivered as close as possible to the door. The delivery drivers are not insured to take their vehicles off the public highway. If the Delivery Location is unreachable for any reason, such as access being on a private road, up a flight of stairs or any other obstruction (narrow streets, controlled parking zones, road markings), delivery will be made as near to the Delivery Location as possible.
4.2 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location (or as near to it as possible in accordance with clause 4.1).
4.3 The Customer is responsible for making suitable arrangements, providing adequate manpower and appropriate equipment to receive the Goods into the Delivery Location. Some Goods will be particularly heavy and bulky in nature.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any losses, costs, damages or expenses incurred by the Customer or any third party arising directly or indirectly out of any failure to meet any estimated delivery date.
4.5 Should the Customer fail to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods that results in the delivery not taking place, the Customer will be responsible for the actual cost of returning the Goods to the Supplier and the actual cost of delivering the Goods again (the actual costs may be significantly higher than the original delivery cost).
4.6 If the Customer fails to accept delivery of the Goods then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
a. delivery of the Goods shall be deemed to have been completed at 9.00am on the Business Day after the day on which the Supplier attempted to complete physical delivery of the Goods at the Delivery Location (Deemed Delivery); and
b. the Customer will be responsible for the actual cost of returning the Goods to the Supplier and the actual cost of delivering the Goods again (the actual costs may be significantly higher than the original delivery cost); and
c. the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If 5 Business Days after Deemed Delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of any Perishable Goods.
4.8 If 10 Business Days after Deemed Delivery the Customer has still not accepted delivery of them, the Supplier may resell or otherwise dispose of the Unperishable Goods.
4.9 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.10 Loss or damage that occurs during shipping by a carrier selected by the Customer will be the responsibility of the Customer. Loss or damage that occurs during shipping by a carrier selected by the Supplier will be the responsibility of the Supplier provided notification of any such loss or damage is advised to the Supplier within 48 hours of delivery or expected delivery. Any damage to the packaging of the Goods must be stated in writing by the Customer on the delivery note. The Customer must check the Goods for damage/shortage on delivery and notify the Supplier within 48 hours. The Supplier cannot consider any claims for damage/shortage 48 hours after delivery. If a bespoke item arrives damaged, a replacement will be dispatched once manufactured.
5. Quality & Returns
5.1 The Supplier warrants that on delivery, and for a period of 2 months for Unperishable Goods and 2 weeks for Perishable Goods from the date of delivery (Warranty Period), the Goods shall:
a. conform in all material respects with their description and any applicable Specification
b. be free from material defects in design, material and workmanship; and
c. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
d. be fit for any purpose held out by the Supplier.
5.2 Subject to clause 5.1, if:
a. the Customer gives notice in writing to the Supplier during the Warranty Period, within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1, and
b. the Supplier is given a reasonable opportunity of examining such Goods; and
c. the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
a. the Customer makes any further use of such Goods after giving notice in accordance with clause 5.1,
b. the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
c. the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
d. the Customer alters or repairs such Goods without the written consent of the Supplier;
e. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
f. the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 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.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
5.7 Unperishable Goods are bespoke and manufactured to order so cannot be returned if they are not defective. Perishable Goods cannot be returned if they are not defective.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery or, should the Customer have failed to accept delivery, at the moment of Deemed Delivery.
6.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
a. the Goods; and
b. any other goods or services that the Supplier has supplied to the Customer.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
a. hold the Goods on a fiduciary basis as the Supplier’s bailee;
b. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s 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 (in line with the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same) and keep them insured against all risks for their full price from the date of delivery;
e. not resell the Goods;
f. notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and
g. give the Supplier such information relating to the Goods as the Supplier may require from time to time, but the Customer may use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. Price and payment
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
7.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
a. any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes or duties, and increases in labour, materials or other manufacturing costs);
b. any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
c. any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 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 the Customer.
7.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5 The Supplier may invoice the Customer for the Goods at any time after the Contract comes into existence.
7.6 Unless otherwise agreed, our standard invoicing terms are 50% upfront for Unperishable Goods as a non-refundable deposit to be paid when the Order is placed. The remaining 50% is payable when the Goods arrive into the UK and prior to Delivery. For Perishable Goods, the Customer shall pay the invoice in full and in cleared funds by the 20th day of the month following the month the invoice was dated (Due Date). Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.7 If the Customer fails to make any payment due to the Supplier under the Contract by the Due Date, then:
a. the Customer shall pay interest on the overdue amount at the rate of 8% per annum above National Westminster Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and
b. without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
c. If the Customer fails to make any payment due to the Supplier under any other contract between the Customer and the Supplier, then without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer under the Contract shall become immediately due.
7.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
7.9 The Customer shall indemnify the Supplier against all claims, costs, liabilities, fines, damages or expenses (including loss of profit) however indirect or remote resulting from cancellation or other breach of the Contract by the Customer.
8. Customer’s insolvency or incapacity
8.1 If the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
8.2 For the purposes of clause 8.1, the relevant events are:
a. the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its 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. the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
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 the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
d. (being an individual) the Customer is the subject of a bankruptcy petition or order;
e. a creditor or encumbrancer of the Customer 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 the Customer;
g. (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
h. a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
i. any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause ‘a’ to clause ‘h'(inclusive);
j. the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
k. the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
l. (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8.3 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.
9. Limitation of liability
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s 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
any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2 Subject to clause 9.1:
a. the Supplier shall under no circumstances whatever be liable to the Customer, 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; and
b. the Supplier’s total liability to the Customer 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 in no circumstances exceed the price of the Goods supplied.
10. Force Majeure
10.1 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.
11. General
11.1 Assignment and subcontracting:
a. The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
b. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
11.2 Notices:
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, recorded delivery, commercial courier, fax or e-mail.
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 ‘a’; if sent by pre-paid first class post or recorded delivery, 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 or e- mail, 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.
11.3 Severance:
a. If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
b. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.4 Waiver:
A waiver of any right or remedy under the Contract 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
11.5 Third party rights:
A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.6 Variation:
Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
11.7 Governing law and jurisdiction:
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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
