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Villa Drinks Limited - Standard Terms and Conditions for the Purchase of Goods, Services or Equipment
1. Interpretation
1.1 The definitions and rules of interpretation in this condition apply in these conditions. Company
Villa Drinks Limited, whose registered office is at Riverside Road, Southwick, Sunderland, Tyne and Wear SR5 3JG under company number 06769719;
Contract
the Order and the Seller's acceptance of the Order;
Goods
any goods agreed in the Contract to be bought by the Company from the Seller (including any part or parts of them);
Equipment
any Equipment or plant agreed in the Contract to be bought by the Company from the Seller (including any part or parts of them);
Order
the Company's written instruction to the Seller to supply the Goods/Equipment and/or Services to the Company, incorporating these conditions;
Seller
the person, firm or company who accepts the Company's Order;
Services
any Services agreed in the Contract to be bought by the Company from the Seller; and
Specification
the specification (if any) for the Goods/Equipment and/or Services set out in the Order or supplied or advised by the Company to the Seller.
1.2 A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 A reference to one gender includes a reference to the other gender.
1.4 Condition headings do not affect the interpretation of these conditions.
2. Application of Terms
2.1 Subject to any variation under condition 2.4, these conditions are the only conditions upon which the Company is prepared to deal with the Seller and they shall govern the Contract to the entire exclusion of all other terms or conditions.
2.2 Each Order for Goods/Equipment and/or Services (as applicable) by the Company from the Seller shall be deemed to be an offer by the Company to buy Goods /Equipment/Services (as applicable) subject to these conditions and no Order shall be accepted until the Seller either expressly by giving notice of acceptance, or impliedly by fulfilling the Order, in whole or in part accepts the offer, at which point the Contract shall be deemed to be formed.
2.3 No terms or conditions endorsed upon, delivered with or contained in the Seller's quotation, acknowledgement or acceptance of order, specification or similar document shall form part of the Contract and the Seller waives any right which it otherwise might have to rely on such terms and conditions.
2.4 These conditions apply to all the Company's purchases and any variation to these conditions shall have no effect. unless expressly agreed in writing and signed by a director of the of the Company.
3. Quality and Defects – Goods and/or Equipment
3.1 The Goods and/or Equipment 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 Specification and/or patterns supplied or advised by the Company to the Seller.
3.2 The Company's rights under these conditions are in addition to the statutory conditions implied in favour of the Company by the Sale of Goods Act 1979.
3.3 At any time prior to delivery of the Goods and/or Equipment to the Company the Company shall have the right to inspect and test the Goods and/or Equipment at all times.
3.4 If the results of such inspection or testing cause the Company to be of the opinion that the Goods and/or Equipment do not conform or are unlikely to conform with the Order or to any Specifications and/or patterns supplied or advised by the Company to the Seller, the Company shall inform the Seller and the Seller shall immediately take such action as is necessary to ensure conformity and in addition the Company shall have the right to require and witness further testing and inspection.
3.5 Notwithstanding any such inspection or testing, the Seller shall remain fully responsible for the Goods and/or Equipment and any such inspection or testing shall not diminish or otherwise affect the Seller's obligations under the Contract.
3.6 If any of the Goods and/or Equipment fail to comply with the provisions set out in this condition 3 the Company shall be entitled to avail itself of any one or more remedies listed in condition 13.
3.7 The provisions of this condition 3 shall survive any performance, acceptance or payment pursuant to the Contract and shall extend to any substituted or repaired Goods and/or Equipment provided by the Seller.
4. Quality and Defects - Services
4.1 The Seller warrants to the Company that:
4.1.1 the Seller will perform the Services with reasonable care and skill and in accordance with generally recognised commercial practices and standards in the industry for similar services;
4.1.2 the Services will conform with all descriptions and Specifications provided to the Company by the Seller; and
4.1.3 the Services will be provided in accordance with all applicable legislation from time to time in force and the Seller will inform the Company as soon as it becomes aware of any changes in that legislation.
4.2 At any time during performance of the Services, the Company shall have the right to test the Services and if the results of such testing cause the Company to be of the opinion that the Services do not conform or are unlikely to conform with the Order or to any Specifications, the Company shall inform the Seller and the Seller shall take such action as is necessary to ensure conformity and in addition the Company shall have the right to require and witness further testing.
4.3 Notwithstanding any such testing, the Seller shall remain fully responsible for the Services and such testing shall not diminish or otherwise affect the Seller's obligations under the Contract.
4.4 If the Services fail to comply with the provisions set out in this condition 4, the Company shall be entitled to avail itself of any one or more remedies listed in condition 13.
4.5 The Company’s rights under the Contract are in addition to the statutory terms implied in favour of the Company by the Supply of Goods and Services Act 1982 and any other statue.
4.6 The provisions of this condition 4 shall survive any performance, acceptance or payment pursuant to the Contract and shall extend to any substituted or remedial services provided by the Seller.
5. Delivery/Performance
5.1 The Goods and/or Equipment (as applicable), unless otherwise agreed in writing, shall be delivered, carriage paid, to the Company's place of business or to such other place of delivery as is agreed by the Company in writing prior to delivery of the Goods and/or Equipment. The Company shall off-load the Goods and/or Equipment at its own risk, except that the Company shall not be liable for damage to the Goods and/or Equipment during off loading if the Goods and/or Equipment have been inadequately packaged suitable for transportation.
5.2 The Services shall be performed at the location(s) specified in the Order.
5.3 The date for delivery/performance (as applicable) shall be specified in the Order, or if no such date is specified then delivery/performance shall take place within 28 days of the Order.
5.4 The Seller shall invoice the Company upon, but separately from, receipt of the Goods/Equipment by the Company or completion of performance of the Services to the Company.
5.5 The Seller shall ensure that each delivery of Goods and/or Equipment is accompanied by a delivery note which shows, the Order number, date of Order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
5.6 Time for delivery or performance shall be of the essence.
5.7 Unless otherwise stipulated by the Company in the Order, deliveries and performance shall only be accepted by the Company in normal business hours.
5.8 If the Goods/Equipment are not delivered or the Services performed on the due date then, without prejudice to any other rights which it may have (including those set out in condition 13), the Company reserves the right to:
5.8.1 refuse to accept any subsequent delivery of the Goods/Equipment or performance of the Services which the Seller attempts to make without any liability to the Seller whatsoever;
5.8.2 recover from the Seller any expenditure reasonably incurred by the Company in obtaining the Goods/Equipment and/or Services in substitution from another supplier; and
5.8.3 claim damages for any additional costs, loss or expenses incurred by the Company which are in any way attributable to the Seller's failure to deliver the Goods/Equipment or perform the Services on the due date.
5.9 If the Seller requires the Company to return any packaging material to the Seller that fact must be clearly stated on any delivery note delivered to the Company and any such packaging material shall only be returned to the Seller at the cost of the Seller.
5.10 Where the Company agrees in writing to accept delivery or performance by instalments the Contract shall be construed as a single contract in respect of each instalment. Nevertheless, failure by the Seller to deliver or perform any one instalment shall entitle the Company at its option to treat the whole Contract as repudiated.
5.11 If the Goods are delivered to the Company in excess of the quantities ordered, the Company shall not be bound to pay for the excess and any excess shall be and shall remain at the Seller's risk and shall be returnable at the Seller's expense.
5.12 The Company shall not be deemed to have accepted the Goods/Equipment and/or Services until it has had 14 days to inspect them following delivery or performance. The Company shall also have the right to reject the Goods/Equipment and/or Services as though they had not been accepted for 14 days after any latent defect in the Goods/Equipment and/or Services has become apparent.
6. Risk/property
The Goods and/or Equipment shall remain at the risk of the Seller until delivery to the Company’s place of business in accordance with clause 5.1 (but before any off-loading and stacking of the Goods and/or Equipment) when ownership of the Goods and/or Equipment shall pass to the Company.
7. Price
7.1 The price of the Goods/Equipment and/or Services shall be stated in the Order and unless otherwise agreed in writing by the Company shall be exclusive of value added tax but inclusive of all other charges.
7.2 No variation in the price nor extra charges shall be accepted by the Company.
8. Payment
8.1 The Company shall pay the price of the Goods/Equipment and/or Services within 60 days of delivery of the Goods/Equipment and/or performance of the Services by the Seller (unless agreed otherwise between the Company and the Seller), but time for payment shall not be of the essence of the Contract.
8.2 Without prejudice to any other right or remedy, the Company reserves the right to set off any amount owing at any time from the Seller to the Company against any amount payable by the Company to the Seller under the Contract.
9. Confidentiality
The Seller shall keep in strict confidence all technical or commercial know-how, specifications (including the Specification), inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Seller by the Company or its agents and any other confidential information concerning the Company's business or its products which the Seller may obtain and the Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Seller's obligations to the Company and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Seller.
10. The Company's Property
Materials, equipment, tools, dies, moulds, copyright, design rights or any other forms of intellectual property rights in all drawings, specifications (including the Specification) and data supplied by the Company to the Seller or not so supplied but used by the Seller specifically in the manufacture of the Goods/Equipment or performance of the Services shall at all times be and remain the exclusive property of the Company but shall be held by the Seller in safe custody at its own risk and maintained and kept in good condition by the Seller until returned to the Company and shall not be disposed of other than in accordance with the Company's written instructions, nor shall such items be used otherwise than as authorised by the Company in writing.
11. Indemnity
11.1 The Seller shall keep the Company indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, loss of production, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with:
11.1.1 defective workmanship performance, quality or materials;
11.1.2 an infringement or alleged infringement of any intellectual property rights caused by the use, manufacture or supply of the Goods/Equipment and/or Services; and
11.1.3 any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by the Company's employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods/Equipment and/or Services as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of the Contract by the Seller.
11.2 During the term of the Contract and for a period of six years thereafter, the Supplier shall maintain in force with a reputable insurance company professional indemnity insurance in an amount specified by the Company and shall, on the Customer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium.
11.3 The provisions of this condition 11 shall survive termination of the Contract, however arising.
12. Termination
12.1 The Company 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 Company 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 indirect or consequential losses (including, without limitation, loss of business, loss of production, depletion of goodwill and like loss).
12.2 The Company shall have the right at any time by giving notice in writing to the Seller to terminate the Contract forthwith if:
12.2.1 the Seller commits a material breach of any of the terms and conditions of the Contract; or
12.2.2 any distress, execution or other process is levied upon any of the assets of the Seller; or
12.2.3 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 filed 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
12.2.4 the Seller takes or suffers any similar or analogous action in any jurisdiction in consequence of debt;
12.2.5 the Seller ceases or threatens to cease to carry on its business;
12.2.6 there is a change of control of the Seller (as defined in section 574 of the Capital Allowances Act 2001); or
12.2.7 the financial position of the Seller deteriorates to such an extent that in the opinion of the Company the capability of the Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy.
12.3 The termination of the Contract, however arising, shall be without prejudice to the rights and duties of the Company accrued prior to termination. The conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
13. Remedies
13.1 Without prejudice to any other right or remedy which the Company may have, if any Goods/Equipment and/or Services are not supplied in accordance with, or the Seller fails to comply with, any of the terms of the Contract the Company shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods/Equipment and/or Services have been accepted by the Company:
13.1.1 to rescind the Order;
13.1.2 to cancel the Contract in whole or in part;
13.1.3 to reject the Goods/Equipment and/or Services (in whole or in part) and return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Goods/Equipment and/or Services so returned shall be paid forthwith by the Seller;
13.1.4 at the Company's option to give the Seller the opportunity at the Seller's expense either to remedy any defect in the Goods/Equipment or any failure in the Services or to supply replacement Goods/Equipment and/or Services and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
13.1.5 to refuse to accept any further deliveries of the Goods/Equipment or performance of the Services but without any liability to the Seller;
13.1.6 to carry out at the Seller's expense any work necessary to make the Goods/Equipment and/or Services comply with the Contract; and
13.1.7 to claim such damages as may have been sustained in consequence of the Seller's breach or breaches of the Contract.
14. Assignment
14.1 The Seller shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
14.2 The Company may assign the Contract or any part of it to any person, firm or company.
15. Force Majeure
The Company reserves the right to defer the date of delivery or payment or to cancel the Contract or reduce the volume of the Goods/Equipment and/or Services ordered without liability to the Seller if the Company is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, 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.
16. General
16.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
16.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
16.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
16.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Seller shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
16.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
16.6 No variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
16.7 Notice given under the Contract shall be in writing, sent for the attention of the person, and to the address or fax number given in the Contract (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre-paid, first class post or recorded delivery. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 16 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted.
16.8 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by the laws of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.