1. General In these terms and conditions “Buyer” refers to Nutricol Ltd and/or its subsidiary, associated or operating companies and “Seller” refers to the individual, firm or company with whom the Buyer has placed an Order. The term “Contract” shall refer to any Order placed by the Buyer, and accepted by the Seller for the delivery of Goods. “Order” means the Buyer’s written instruction to supply the Goods, incorporating these terms and conditions. “Goods” means any Goods agreed in the Contract to be bought by the Buyer from the Seller (including any part or parts of them).
2. Terms These terms are the only terms upon which the Buyer is prepared to deal with the Seller and they shall govern all contracts between them to the exclusion of all other terms or conditions. In particular no terms or conditions endorsed upon, delivered with or contained in the Seller’s quotation, acknowledgement or acceptance of order, specification or similar document will form part of the Contract and the Seller waives any right which it otherwise might have to rely on such terms and conditions, provided that, where the Buyer’s terms and conditions of toll manufacture are expressed in the Order to apply, those terms shall take precedence. The performance of services or delivery of Goods by the Seller pursuant to the Order shall constitute acceptance of these terms where acceptance has not previously been communicated to the Buyer.
3. Orders 3.1 All Orders, including Orders for direct deliveries, shall be acknowledged by the Seller prior to despatch or within 5 working days of the Seller’s receipt of the Order, whichever is the earlier, confirming quantity, product specification, price and delivery date.
3.2 Unless the Buyer’s Order is confirmed in writing within 1 week of the date of Order, or delivery takes place within that time in response to the Order, the Buyer shall cease to be bound by it. Any modified acceptance of the Buyer’s Order by the Seller is required to be expressly set out in writing. In this case the Contract shall become effective only when such modifications are approved by the Buyer in writing.
4. Delivery and Quantity 4.1 In the absence of any agreement to the contrary the Goods shall be delivered, carriage paid, by the Seller to the Buyer’s premises on the stipulated date and time at the expense of the Seller. Time for delivery shall be of the essence of the Contract and the Buyer reserves the right to cancel without redress by the Seller, either the whole or the unexecuted part of the Order if the delivery is not within the time specified on the Order. If the Goods are delivered to the Buyer in excess of the quantities ordered the Buyer shall not be bound to pay for the excess and any excess will be and will remain at the Seller’s risk and will be returnable at the Seller’s expense.
4.2 The Buyer shall not be deemed to have accepted the Goods until it has had 5 days to inspect them following delivery. The Buyer shall also have the right to reject the Goods as though they had not been accepted for 5 days after any latent defect in the Goods has become apparent.
4.3 If the Seller is responsible for delivery or for arranging delivery of the Goods to the Buyer’s premises the Seller will be liable for all damage which it or its carrier causes to the Goods or the Buyer’s property in the course of delivery. If Goods are delivered before the date specified in the Order, the Buyer shall be entitled at its sole discretion to refuse to take delivery or to charge for insurance and storage of the Goods until the contractual date for delivery.
4.4 In the case of Goods supplied from outside the United Kingdom, the Seller shall ensure that accurate information is provided to the Buyer as to the country of origin of the Goods and shall be liable to the Buyer for any additional duties or taxes for which the Buyer may be accountable should the country of origin prove to be different from that advised by the Seller. Unless otherwise stated in the Order, Seller is responsible for obtaining all the export and import licences for the Goods and shall be responsible for any delays due to such licences not being available when required.
4.5 Deliveries must be booked in, with the relevant Buyer site, at least 24 hours prior to delivery unless otherwise stated on the Order.
5. Proof of Delivery (“P.O.D”) Where the Buyer has requested that the Seller deliver direct to the Buyer’s customer, a signed P.O.D. (with all details, including the Buyer’s customer’s signatory name, clearly printed) must be provided to the Buyer’s site from where the Order was placed. The P.O.D. must quote the Buyer’s purchase order number, quantity and description of Goods delivered and be received at that site, free of charge, within 3 working days of delivery of the Goods.
6. Certificates of Analysis Certificates of Analysis for all chemical products shall be provided free of charge with all deliveries or faxed prior to delivery, unless otherwise agreed in writing. They must quote the batch number and the Buyer’s purchase order number.
7. Quality The Goods shall be of the best available design, of the best quality, material and workmanship, be without fault and conform in all respects with the Order and any specifications supplied or advised by the Buyer to the Seller. The Buyer’s rights under these conditions are in addition to the statutory conditions implied in favour of the Buyer by the Sale of Goods Act 1979. The Seller warrants, represents and undertakes to the Buyer that:
7.1 the Goods are supplied in accordance with the specification agreed by the parties and have been tested accordingly by the Seller;
7.2 the Goods are of good quality, free from faults or defects and fit for their purpose;
7.3 all information provided by the Seller to the Buyer in relation to the Goods shall be true and accurate in all material respects; and
7.4 it has provided the Buyer with all product and technical information as may be required by law.
8. Demurrage Demurrage will only be accepted after the standard time of 3 hours from the agreed booking time. If the Seller misses the booking time no demurrage will be paid.
9. Inspection The Buyer reserves the right to reject any Goods or workmanship which is proved on inspection to be faulty in quality or construction, or is not of satisfactory quality, or is not reasonably fit for the purpose for which it is supplied, or which is not in accordance with the Order. The Seller undertakes to replace such rejected Goods with all reasonable speed if requested to do so by the Buyer. The Buyer shall be under no obligation to accept such replacement of Goods. Any money paid to the Seller in respect of rejected Goods shall be repaid forthwith by the Seller upon demand by the Buyer. The Buyer reserves the right to reject Goods whether or not any part of the Goods have been accepted by the Buyer.
10. Title and Risk Unless otherwise stated in the Order, risk in the Goods shall pass to the Buyer on completion of delivery at the place specified in the Order and title to the Goods or any part of them shall pass to the Buyer on the earlier of delivery of the Goods or upon sooner payment but nothing in this condition shall effect any right of the Buyer to reject Goods.
11. Price The price payable shall be that specified in the Order and unless otherwise agreed in writing by the Buyer shall be exclusive of value added tax but inclusive of all other charges, including without limitation, delivery of the Goods and any applicable duties or taxes. The invoice must be raised in the currency which is stated on the Order.
12. Payment The Buyer’s standard payment terms of 60 days from the end of the month in which the Goods were delivered apply to all Orders unless otherwise agreed in writing. Time for payment shall not be of the essence of the Contract.
13. Invoices All invoices must be sent to the “Accounts Office” and quote the relevant Buyer’s purchase order number. Without this the Buyer cannot process payments. Any invoices that require a credit note from the Seller will not be paid until the credit note of the correct value is received. The credit note must quote the Buyer’s purchase order number.
14. Offset of amount due The Buyer may deduct from any monies due or becoming due to the Seller any money that may be due to the Buyer from the Seller.
15. Indemnity The Seller shall indemnify the Buyer against all losses, actions, costs, claims, demands, expenses and liabilities, howsoever arising or incurred by the Buyer whether in contract or tort and whether at common law, in equity, by statute or otherwise in relation to:
15.1 the failure of the Seller to supply Goods which are of good quality, meet in all respects the agreed specification, fit for purpose and which conform with all applicable legislation at the time of supply;
15.2 the provision of insufficient and/or inaccurate and/or incomplete information by the Seller;
15.3 the failure of the Seller to provide adequate written notice of any change in product specification; and
15.4 all claims made against the Buyer arising out of acts or omissions of the Seller, its employees, agents or its subcontractors.
16. Statutory Requirements 16.1 In this clause “Laws” means any statute, statutory instrument, standards, law, production, order resolution, notice, rule of court, bye-law, directive, code of conduct or other instrument or requirement having the force of law within any national or local jurisdiction issued, declared, passed or given effect to in any manner by H.M. Parliament, the legislative making institutions of the European Union, the Scottish Parliament and the National Assembly for Wales, any court or other judicial form, any Commission of Inquiry, local authority, statutory undertaker or relevant authority or any other body or person having such power as may be amended, extended, consolidated or replaced from time to time. “Legislation” means any Act of Parliament or subordinate legislation within the meaning of section 21(1) of the Interpretation Act 1978, any exercise of the Royal Prerogative, and any enforceable Community right within the meaning of section 2 of the European Communities Act 1972, in each case in the United Kingdom. “Legal Requirements” means Laws and Legislation applicable to the Goods.
16.2 The Goods shall be provided by the Seller in compliance with all relevant Legal Requirements and all relevant codes, guidance, and other requirements of any relevant government agency. To the extent that any codes, guidance and/or requirements are advisory rather than mandatory, the standard of compliance to be achieved by the Seller shall be the best practice of the relevant industry. In all cases the costs of compliance shall be borne by the Seller.
16.3 All Goods supplied shall be of the nature, substance and quality described by the Seller and above at clause 7 and shall comply with all relevant Legal Requirements. In particular, all Goods supplied for human food consumption shall comply with all relevant Laws and Legislation relating to foodstuffs.
17. Health & Safety The Seller shall comply with the duties imposed by the Health and Safety at Work etc. Act 1974 or any amendment thereto or re-enactment thereof and of all other statutory provisions, bye-laws, rules and regulations in respect of all articles and substances supplied by the Buyer.
18. REACH 18.1 Seller shall provide on a timely basis to Buyer all relevant information in order to comply with Buyer’s obligations under the EU Regulation on REACH (EC1937/2006) (the “REACH Regulation”).
18.2 Where the Seller is located outside of the European Union and there is a requirement to pre-register and/or register the Goods pursuant to the REACH Regulation, the Buyer and the Seller shall agree who will be the registrant.
18.3 Where the Seller is the registrant, it shall pre-register and register the Goods at its own cost and expense on a timely basis under the REACH Regulation. Failure to do this shall be a material breach and entitle the Buyer to terminate the Contract in accordance with clause 22 of these terms and conditions.
18.4 Where the Buyer is the registrant, the Seller shall supply at the Sellers cost all relevant information and co-operate fully with the Buyer in order to pre-register and register the Goods on a timely basis under the REACH Regulation. In addition, Seller agrees to reimburse the Buyer on an indemnity basis for all costs incurred by the Buyer in complying with the obligations imposed by the REACH Regulation. The failure by Seller to comply with these obligations shall allow the Buyer to terminate the Contract in accordance with clause 22 of these terms and conditions.
18.5 The Seller shall ensure that all safety data sheets relating to the Goods are kept updated and shall as soon as reasonably practicable inform the Buyer of any information it acquires or becomes aware of concerning any hazardous properties of the Goods or risk management measures.
19. Changes to products, processes or site of Manufacture The Seller shall notify the Buyer in writing in good time if it intends to make changes to products and/or processes, alterations to specifications/analytical methods, site of manufacture or other material changes relating to the Goods. If the Seller fails to notify the Buyer of any such changes at least 7 days prior to such change, then Buyer shall be entitled to terminate the Contract forthwith.
20. Sub Contracting Orders may not be assigned or subcontracted either wholly or in part without the written consent of the Buyer.
21. Intellectual Property The Seller warrants that the design, construction, quality and supply of the Goods specified in the Order will not infringe any patent, trade mark, service mark, registered design, know-how, confidential information, rights under licences or copyright or rights of the same or similar effect or nature in any part of the world and shall indemnify the Buyer against any action, claim, demand, costs, charges and expenses (including legal costs) arising from or incurred by reason of any infringement of this warranty. This clause shall survive the termination of the Contract.
22. Confidentiality The Seller shall not, without the Buyer’s consent, disclose or make use of information contained in any specifications of products or formulations of the Buyer, or any other information which the Buyer expressly makes known to the Seller is of a confidential nature or such information which can reasonably be implied to be of a confidential nature, other than for the execution of an Order from the Buyer and the Seller shall restrict disclosure of such confidential material to such of its employees, agents or subcontractors as need to know the same for the purpose of discharging the Seller’s obligations to the Buyer and shall ensure that such employees, agents or subcontractors are subject to like obligations of confidentiality as bind the Seller. This clause shall survive the termination of the Contract.
23. Termination 23.1 Without prejudice to any other rights of the Buyer, the Buyer shall be entitled to terminate the Contract forthwith in the following events:
23.1.1 the Seller commits a material breach of any of the terms and conditions of the Contract; or
23.1.2 any distress, execution or other process is levied upon any of the assets of the Seller; or
23.1.3 the Seller has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are files with the court for the appointment of an administrator of the Seller or notice of intention to appoint an administrator is given by the Seller or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Seller or for the granting of an administration order in respect of the Seller, or any proceedings are commenced relating to the insolvency or possible insolvency of the Seller; or
23.1.4 Seller ceases or threatens to cease to carry on its business; or
23.1.5 the financial position of the Seller deteriorates to such an extent that in the opinion of the Buyer the capability of the Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy.
23.2 The Buyer shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Seller written notice whereupon all work on the Contract shall be discontinued and the Buyer shall pay to the Seller fair and reasonable compensation for work in progress at the time of termination but such compensation shall not include loss of anticipated profits or any consequential loss. The termination of the Contract, howsoever arising, will be without prejudice to the rights and duties of the Buyer accrued prior to termination. The conditions which expressly or implied have effect after termination will continue to be enforceable notwithstanding termination.
24. Insurance The Seller shall ensure that it has adequate insurance cover with an insurer of good repute to cover claims under this Contract or any other claims or demands which may be brought or made against the Seller by any person suffering any injury, damage or loss in connection with this Contract including, but not limited to, (a) Product Liability Insurance to the value of Â£2m per claim and (b) Employers Liability Insurance to the value of Â£2m per claim. The Seller shall, upon request by the Buyer, produce to the Buyer its policy or policies of insurance, together with the receipt for the last premium in respect of each policy.
25. Force Majeure
The Buyer reserves the right to defer the date of delivery or payment or to cancel an Order or reduce the volume of Goods Ordered if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Buyer including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
26. General If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable the remaining provisions of the Contract shall remain in full force and effect.
27. Third Party Rights A person who is not a party to this Contract (a “third party”) shall have no rights pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
28. Consumer Protection Act (the “Act”) 28.1 The Seller warrants that all Goods supplied to the Buyer together with all necessary instructions, information and warnings supplied with them will be designed, manufactured and produced in such a manner as to ensure that under no circumstances could the Goods be held to be defective pursuant to Part 1 of the Act.
28.2 If the Seller becomes aware at any time of any incidents, events or discoveries which are in any way relevant to the safe operation of Goods previously supplied, the Seller shall without delay issue written notice of them to the Buyer.
28.3 The Seller shall indemnify, reimburse and compensate the Buyer for all losses and damages (including costs, expenses and charges for legal action in which the Buyer may be involved) which the Buyer may incur or have to bear as a result of any claim or claims arising as a result of the Goods being adjudged defective pursuant to the provisions of Part 1 of the Act.
28.4 The Seller undertakes to maintain adequate insurance cover (with insurers of repute) in respect of liability pursuant to the Act and to produce to the Buyer without delay upon request a copy or copies of the relevant policy or policies of insurance.
29. Product Safety and Product Recall 29.1 The Seller shall immediately notify the Buyer (and where such notification is oral, confirm such notification in writing as soon as reasonably practicable) if the Seller has any reason to believe or suspect that there is any defect in the Goods that would render the Goods unsafe to any purchaser or user of such Goods or cause an unacceptable risk to consumers, or any error or omission in the instructions for use and/or assembly of the Goods which exposes or may expose consumers to any risk of death, injury or damage to property and the Seller shall promptly provide the Buyer with all relevant details (as the Buyer may reasonably request) relating to the circumstances giving rise to the notification.
29.2 Without prejudice to the Seller’s product safety obligations under any relevant legislation, the Seller shall at its own cost and expense:
29.2.1 use all reasonable endeavours to co-operate with the Buyer to take any remedial action necessary to minimise the impact of any defect in the Goods including without limitation making any agreed notifications to the relevant enforcement authorities, and issuing any written or other notification to the Buyer’s customers about the manner of or operation of the Goods;
29.2.2 recall any Goods already sold by the Buyer to its customers;
29.2.3 collect any recalled Goods or defective Goods held by the Buyer;
29.2.4 appropriately destroy and dispose of any recalled Goods;
29.2.5 comply with any reasonable directions (including, without limitation, any request of the Buyer to label the Goods in a manner that the Buyer deems appropriate to warn consumers) of the Buyer in respect of the Goods; and
29.2.6 comply with any other arrangements as may be agreed between the parties in respect of the Goods.
29.3 The Seller shall indemnify the Buyer against all costs, claims, liabilities, proceedings and expenses incurred by the Buyer by reason of any act or omission of the Seller or any breach by the Seller of the terms of this Contract which renders the Goods defective or unsafe.
30. Law These terms and conditions, and any contract between the parties shall be governed and interpreted according to the laws of England and the parties submit to the exclusive jurisdiction of the English courts.