Legal

Nactarome Limited Registered England & Wales. Reg No. 4540927, VAT No. 800 8434 57

Nactarome Limited standard terms and conditions of supply of goods

 

        1. Definitions and Interpretation

1.1 Definitions:

“Business Day” means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

“Business Hours” means the period from 9.00 am to 5.00 pm on any Business Day.

“Buyer” means the person who purchases the Goods from the Seller.

“Collection Location” has the meaning given in clause 4.3.

“Conditions” means the terms and conditions set out in this document as amended from time to time in accordance with clause 11.4.

“Confirmation” has the meaning given in clause 2.4.

“Contract” means the contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.

“Delivery Location” has the meaning given in clause 4.2.

“Force Majeure Event” means an event, circumstance or cause beyond the Seller’s reasonable control.

“Goods” means the goods (or any part of them) specified in the Order.

“Order” means the Buyer’s order for the Goods, as set out in the Buyer’s purchase order form.

“Party” means a party to the Contract.

“Seller” means Nactarome  Limited incorporated and registered in England and Wales with company number 12549489 whose registered office is, as at the date of the Order, at Unit 11 Windmill Business Park, Windmill Road Kenn, Clevedon, North Somerset, England, BS21 6SR.

“Specification” means the specification for the Goods, including any related plans and drawings, that is included in the Order and is agreed in writing by the Seller in accordance with clauses 2.2 to 2.4 (inclusive).

“Warranty Period” has the meaning given in clause 5.1.

1.2 Interpretation:

1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.2.2 A reference to a party includes its personal representatives successors and permitted assigns.

1.2.3 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

1.2.4 The headings in this document are inserted for convenience only and will not affect its construction.

1.2.5 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

1.2.6 A reference to writing or written excludes fax but not email.

        2. Basis of contract

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and the applicable Specification are complete and accurate and that the applicable Specification is agreed in writing by the Seller before the Order is submitted to the Seller.

2.3 Any Order sent to the Seller by the Buyer shall be accepted entirely at the discretion of the Seller, and if so accepted, will only be accepted upon these Conditions.

2.4 The Order shall only be deemed to be accepted when the Seller issues a written purchase order confirmation email accepting the Order (Confirmation), at which point the Contract shall come into existence.

2.5 The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.

2.6 Any samples, drawings, descriptive matter or advertising produced by the Seller are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

2.7 A quotation for the Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for the time period stated in the relevant quotation.

2.8 Without limiting the Seller’s discretion under clause 3, the Seller in particular reserves the right to change any quotation at any time prior to any acceptance by the Seller pursuant to clause 2.4.

        3. Goods

3.1 The Goods are described in the Specification.

3.2 The Buyer shall indemnify the Seller 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 Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Sellers’s use of the Specification. This clause 2 shall survive termination of the Contract.

3.3 The Seller reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and the Seller shall notify the Buyer in any such event.

        4. Delivery

4.1 The Buyer shall return any packaging materials to the Seller, if requested by the Seller within five (5) Business Days of such request. Returns of packaging materials shall be at the Buyer’s expense.

4.2 Where the Confirmation states that the Goods shall be delivered to the Buyer:

4.2.1 the Seller shall instruct a carrier selected and appointed by the Seller to deliver the Goods to the location stated in the Order or such other location as the parties may agree prior to delivery (Delivery Location) at any time after the Seller notifies the Buyer that the Goods are ready to dispatch; and

4.2.2 where these Conditions refer to “delivery or (as applicable) collection”, delivery is applicable and reference to the date of “delivery or (as applicable) collection” means the date on which delivery is completed for the purposes of clause 4.

4.3 Where the Confirmation states that the Goods shall be collected by the Buyer:

4.3.1 the Buyer shall collect the Goods from the address stated in the Confirmation or such other location as may be advised by the Seller prior to collection (Collection Location) within three (3) Business Days of the Seller notifying the Buyer that the Goods are ready to collect; and

4.3.2 where these Conditions refer to “delivery or (as applicable) collection”, collection is applicable and reference to the date of “delivery or (as applicable) collection” means the date on which collection is completed for the purposes of clause 5.

4.4 Delivery is completed on the completion of the arrival of the carrier appointed by the Seller at the Delivery Location with the Goods, ready for unloading.

4.5 Collection is completed on the completion of the supply by the Seller of the Goods at the Collection Location for the Buyer to collect.

4.6 Any times or dates quoted for delivery or collection are approximate only, and the time of delivery is not of the essence and time of collection is not of the essence. The Seller shall not be liable for any delay in delivery or collection of the Goods that is caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery or collection instructions or any other instructions or information that are relevant to the supply of the Goods.

4.7 If the Seller fails to deliver the Goods or to provide them for collection, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.

4.8 Notwithstanding clause 4.7, the Seller shall have no liability for any failure to deliver the Goods or any failure to provide them for collection, in each case 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 or collection instructions or any other instructions or information that are relevant to the supply of the Goods.

4.9 If the Buyer fails to accept delivery or take collection of the Goods within two (2) Business Days of the Seller notifying the Buyer that the Goods are ready for dispatch or collection (as the case may be), 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 in respect of the Goods:

4.9.1 delivery or (as applicable) collection of the Goods shall be deemed to have been completed at 9.00 am on the second Business Day after the day on which the Seller notified the Buyer that the Goods were ready; and

4.9.2 the Seller shall store the Goods until either the Seller exercises its right under clause 10 or, prior to that date and time, actual delivery or (as applicable) collection takes place and the Seller shall charge the Buyer for all related costs and expenses (including insurance).

4.10 If ten (10) Business Days after the day on which the Seller notified the Buyer that the Goods were ready for delivery or (as applicable) collection, the Buyer has not accepted delivery or (as applicable) collected them, the Seller may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Buyer for any shortfall below the price of the Goods.

4.11 The Buyer must check the quantities of the Goods against the Order at the time of delivery or (as applicable) collection. The quantities of the Goods will be deemed correct unless confirmed by the Seller at the time of delivery or (as applicable) collection that the quantity is incorrect.

4.12 The Seller may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in the delivery of Goods or (as applicable) provision of Goods for collection or defect in an instalment shall not entitle the Buyer to cancel any other instalment.

         5. Quality

5.1 The Seller warrants that on the date of delivery or (as applicable) collection (Warranty Period), the Goods shall:

5.1.1 conform with their description in the Specification; and

5.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

5.2 Subject to clause 3, if:

5.2.1 the Buyer gives notice in writing to the Seller 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 1;

5.2.2 the Seller is given a reasonable opportunity of examining such Goods; and

5.2.3 the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Buyer’s cost, the Seller shall, at its option, replace the defective Goods or refund the price of the defective Goods in full.

5.3 The Seller shall not be liable for the Goods’ failure to comply with the warranty set out in clause 1 if:

5.3.1 the Buyer makes any further use of such Goods after giving notice in accordance with clause 2;

5.3.2 the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

5.3.3 the defect arises as a result of the Seller following the Specification supplied by the Buyer;

5.3.4 the Buyer alters such Goods without the written consent of the Seller;

5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

5.3.6 the Goods differ from their description and 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 Seller shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 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 replacement Goods supplied by the Seller.

         6. Title and risk

6.1 The risk in the Goods shall pass to the Buyer on completion of delivery for the purposes of clause 4 or (as applicable) on completion of the collection for the purposes of clause 4.5.

6.2 Title to the Goods shall not pass to the Buyer until the Seller receives payment in full (in cash or cleared funds) for the Goods 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.

6.3 Until title to the Goods has passed to the Buyer, the Buyer shall:

6.3.1 store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;

6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery or (as applicable) collection;

6.3.4 notify the Seller immediately if it becomes subject to any of the events listed in clause 1.1 to clause 9.1.5 inclusive; and

6.3.5 give the Seller such information as the Seller may reasonably require from time to time relating to:

(i) the Goods; and

(ii) the ongoing financial position of the Buyer.

6.4 Subject to clause 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 Buyer resells the Goods before that time:

6.4.1 it does so as principal and not as the Seller’s agent; and

6.4.2 title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs.

6.5 At any time before title to the Goods passes to the Buyer, the Seller may:

6.5.1 by notice in writing, terminate the Buyer’s right under clause 4 to resell the Goods or use them in the ordinary course of its business; and

6.5.2 require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Buyer fails to do so promptly, enter any premises of the Buyer 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 Seller’s published price list in force as at the date of delivery or (as applicable) collection.

7.2 The Seller may, by giving notice to the Buyer at any time up to five (5) Business Days before delivery or collection, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to any factor beyond the Seller’s control (including foreign exchange fluctuations, increases in taxes and duties, increases in transport costs and increases in labour, materials and other manufacturing costs).

7.3 The Seller may, by giving notice to the Buyer at any time before delivery or collection, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

7.3.1 Any request by the Buyer to change the delivery or collection date(s), quantities or types of Goods ordered, or the Specification; or

7.3.2 any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.

7.4 The price of the Goods:

7.4.1 excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to the Seller at the prevailing rate, subject to the receipt of a valid VAT invoice; and

7.4.2 excludes the costs and charges of insurance and transport of the Goods (where applicable), which shall be invoiced to the Buyer.

7.5 The Seller may invoice the Buyer for the Goods on or at any time before, on or after the completion of delivery or (as applicable) collection. The Seller may also invoice the Buyer for any other sums which the Seller is entitled to invoice or receive under the Contract at any time.

7.6 The Buyer shall pay each invoice submitted by the Seller:

7.6.1 within thirty (30) days of the date of the invoice (unless otherwise agreed by the Seller in writing); and

7.6.2 in full and in cleared funds to a bank account nominated in writing by the Seller, and time for payment shall be of the essence of the Contract.

7.7 If the Buyer fails to make a payment due to the Seller under the Contract by the due date, then, without limiting the Seller’s remedies under clause 9, the Buyer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

7.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

         8. Limitation of liability

8.1 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

8.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

8.2.1 death or personal injury caused by negligence;

8.2.2 fraud or fraudulent misrepresentation;

8.2.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

8.2.4 defective products under the Consumer Protection Act 1987.

8.3 Subject to clause 2, the Seller’s total liability to the Buyer shall be limited to the price of the Goods specified in the relevant Order.

8.4 Subject to clause 2, the following types of loss are wholly excluded:

8.4.1 loss of profits;

8.4.2 loss of sales or business;

8.4.3 loss of agreements or contracts;

8.4.4 loss of anticipated savings;

8.4.5 loss of use or corruption of software, data or information;

8.4.6 loss of or damage to goodwill; and

8.4.7 all indirect or consequential loss whatsoever.

8.5 This clause 8 shall survive termination of the Contract.

         9. Termination

9.1 Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if:

9.1.1 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 fourteen (14) days of being notified in writing to do so;

9.1.2 the Buyer is declared bankrupt or makes any arrangement with or for the benefit of their creditors or has a county court administration order made against them under the County Court Act 1984;

9.1.3 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), obtaining a moratorium, 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;

9.1.4 the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

9.1.5 the Buyer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

9.2 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 clause 1.1 to clause 9.1.5 inclusive, 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 the Contract on the due date for payment.

9.3 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.

9.4 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 be entitled to submit any one or more invoice(s) for such, which shall be payable by the Buyer immediately on receipt.

9.5 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

         10. Force majeure

The Seller shall not be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for six (6) months, the Buyer may terminate the Contract by giving seven (7) days’ written notice to the affected party.

         11. General

11.1 Assignment and other dealings.

11.1.1 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 obligations under the Contract.

11.1.2 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.

11.2 Confidentiality

11.2.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2.2.

11.2.2 Each party may disclose the other party’s confidential information:

(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information keep the information confidential and use it only in accordance with such party’s instructions. and

(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

11.2.3 Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

11.3 Entire agreement.

11.3.1 The Contract constitutes the entire agreement between the parties.

11.3.2 Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

11.4 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.5 Waiver

11.5.1 Except as set out in clause 5, a waiver of any right or remedy is only effective if given in writing.

11.5.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

11.6 Severance. 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 the Contract. If any provision of the Contract is deemed deleted under this clause 11.6 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.

11.7 Notices.

11.7.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(ii) sent by email to the address specified by that relevant party from time to time.

11.7.2 Any notice shall be deemed to have been received:

(i) if delivered by hand, at the time the notice is left at the proper address;

(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

11.7.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

11.8 Third party rights.

11.8.1 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.

11.8.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

11.9 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.

11.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.