DEVONLY CHOCOLATES

TERMS AND CONDITIONS OF SALE

  1. Definitions.

In this contract, the following words have the following meanings:
 “Contract” – any contract between the Seller and the Purchaser for the sale and purchase of the Products.
“Products” – any products which the Seller is to supply to the Purchaser (including any of them or any part of them).
“Purchaser” – the person(s) or company whose order for the Products is accepted by the Seller.
“Seller” – Devonly Chocolates.

  1. Terms & Conditions of Sale.
    1. All orders are subject to acceptance by the Seller. The Contract shall be on these conditions of sale to the exclusion of all other conditions of sale.
    2. Each order for Products by the Purchaser from the Seller shall be deemed to be an offer by the Purchaser to purchase products subject to these conditions of sale. Any conditions of sale which the Purchaser may purport to impose shall form no part of the contract between the Purchaser and the Seller.
    3. Any variation of these conditions of sale of contract must be stated in writing and signed by the proprietor(s) of Devonly Chocolates. No employee or agent has any authority to bind the Seller by an oral agreement at variance with these conditions of sale. Acceptance of delivery of the Products shall be deemed to be conclusive evidence of the Purchaser’s acceptance of these conditions of sale.

 

  1. Availability.

All Products are offered for sale subject to availability. Each order by the Purchaser shall be deemed to be an offer by the Purchaser to purchase Products subject to these conditions of sale. Acceptance of delivery of these Products shall be deemed conclusive evidence of the Purchaser’s acceptance of these conditions of sale.
 

  1. Specifications and Substitution.
    1. All product specifications provided by the Seller are a guide only and no guarantee is given or implied that the products supplied will conform in absolute detail to either the description or illustration.
    2. The Seller reserves the right to amend the specifications, provide an appropriate substitute or withdraw Products from sale without prior notification.
    3. The Seller makes no representations as to the fitness or suitability of any Products for any purpose whatsoever.
  1. Price variation.

The prices in any price list of the Seller are subject to alteration by the seller without prior notice and Products will be invoiced at the prices ruling at the date of delivery. The prices are quoted exclusive of packaging and delivery charges.

  1. Payment
    1. Payment for Products ordered must be paid for at the time of order unless credit has been approved by the Seller in writing and in which case the Buyer will pay the full invoice price in accordance with these conditions of sale and the credit terms agreed by the seller.
    2. In such circumstances payment for the Products delivered shall be made within such period. Time for payment shall be of the essence. No payment shall be deemed to have been received until the Seller has cleared funds.
    3. In the case of multiple deliveries for an order, each delivery will be invoiced as dispatched and each invoice will be treated as a separate account and be payable accordingly.
    4. The Purchaser shall make all payments due under this Contract without any deduction by way of set-off, counter claim or otherwise unless the Purchaser has a valid court order requiring an amount equal to such deduction to be paid by the seller to the Purchaser.
    5. Failure of the Purchaser to pay any invoice in accordance with these conditions of sales and with the credit terms agreed by the Seller shall entitle the Seller to:
      1. to charge interest at the rate of 4% above the base rate quoted by Barclays Bank from time to time and calculated on a daily basis on all sums outstanding from accounts rendered from the sale on which such sums become due until the date on which payment is actually received by the Seller;
      2. to recover any bank or other like charges incurred in respect of cheque's, direct debits and the like which are not met either at first or at all;
      3. to appropriate any payment made by the Purchaser to the Seller to such of the Products as the Seller thinks fit despite any purported appropriation by the Purchaser;
      4. to withdraw previously agreed credit facilities;
      5. to suspend or cancel further deliveries.

 

  1. Delivery.
    1. Any dates specified by the seller for delivery of the products are approximate only and may not be made of the essence by notice. If no dates are so specified, deliveries will be within a reasonable time.
    2. Any signature on a delivery note will be deemed to carry the requisite authority of the Purchaser.
    3. Delivery will be effected at the Purchasers premises. In the event that the delivery is made at the pre-arranged time and date but no representative of the Purchaser is present to accept delivery, the Sellers delivery note will be conclusive proof of delivery.
  1. Risk.

Risk in Products shall pass to the Purchaser upon delivery. Where the Seller is responsible for arranging delivery and the Products are lost or damaged in transit the Seller will replace, free of charge, the Products lost or damaged in transit provided the Purchaser:

    1. examines the Products as delivered at the time of delivery;
    2. retains for inspection all packaging material;
    3. endorses any delivery document with details of the loss or damage; and
    4. notifies the Seller and, when applicable, any independent carrier, in writing of any claim for any loss or damage before the expiry of the third day after delivery. The seller will not accept claims after this period.
  1. Product rotation.
    1. It is the purchaser’s responsibility to rotate products so that the oldest product is sold first. No credit will be given for out of date products nor will they be exchanged.
    2. Products purchased for resale must be properly kept and handled at all times and must be resold by the Purchaser only in the condition as sold or prescribed by the Seller.

 

  1. Ownership of products.
    1. Ownership of the Products shall not pass to the Purchaser until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of the Products, and all other sums which are or which become due to the seller from the Purchaser, on any account.
    2. Until ownership of the Products has passed to the Purchaser the Purchaser must:
      1. hold the products on a fiduciary basis as the seller’s bailee;
      2. store the products (at no cost to the seller) separately from all other products of the Purchaser or any third party in such a way that they remain readily identifiable as the seller’s property;
      3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Products;
      4. maintain the Products in satisfactory condition insured on the Sellers behalf for their full price against all risks to the reasonable satisfaction of the Seller; and
      5. hold the proceeds of the insurance referred to in clause 10.2.4 on trust for the seller and not mix them with any other money and not pay the proceeds into an overdrawn bank account.
    3. The Purchaser may resell the Products before ownership has passed to it solely on the following conditions:
      1. any sale shall be effected in the ordinary course of the purchasers business at the price in which the Products in question would normally be sold by the purchaser. The Purchaser shall account to the Seller accordingly; and
      2. any such sale shall be a sale of the seller’s property on the Purchaser’s own behalf and the Purchaser shall deal as principle when making such a sale.
    4. Where the Seller is unable to determine whether any products are the Products, the Purchaser shall be deemed to have sold all the products of the kind sold by the Seller to the Purchaser in the order in which they were invoiced by the Seller.
    5. The Seller shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from the Seller.
    6. The Purchaser grants the Seller, it’s agents and employees, an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or, where the Purchaser’s right to possession has terminated, to recover them.
  1. Force Majeure.

The Seller shall not be liable or be deemed to be in breach of contract for any failure or delay in performance of it’s obligations to the Purchaser as a result of causes beyond the Seller’s reasonable control, including (but not limited to) strikes, lock outs or trade disputes.

  1. Limitation of liability.
    1. The following provisions and the provision of this clause 12 set out the entire liability of the Seller (including any liability for the acts or omissions of it’s employees, agents and sub-contractors) to the Purchaser in respect of any breach of these conditions of sale and any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
    2. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are excluded from the Contract.
    3. Nothing in these conditions of sale excludes or limits the liability of the Seller for death or personal injury caused by the Sellers negligence or fraudulent misrepresentation.

 

THE PURCHASER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITIONS 12.4 AND 12.5.

    1. Subject to conditions 12.2 and 12.3:
      1. the Seller’s total liability in contract ,tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this contract shall be limited to invoiced value of Products delivered in the consignment in relation to which the claim arises; and
      2. the Seller shall not be liable to the Purchaser by reason of any representation or implied warranty, condition or other term or any duty at law or under the express terms of this Contract for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goods or otherwise costs, expenses or other claims for consequential compensation whatsoever (whether caused by the negligence of the Seller, it’s employees, agents or sub-contractors) which arise out of or in connection with the Contract.
    2. The Purchaser shall indemnify the Seller against all liability, actions, proceedings, costs, claims, damages or demands in any way connected with this Contract brought or threatened to be brought against the Seller by any third party except to the extent the Seller is liable to the Purchaser in accordance with these conditions of sale.
    3. The Seller denies that it imports, produces, carries, treats or disposes of controlled waste as defined in the Environmental Protection Act 1990. However, the Purchaser shall indemnify the Seller against all liability, actions, proceedings, costs, claims, damages or demands in any way connected with any alleged contravention of that act or legislation issued pursuant to that act, which, results from any act or omission of the Purchaser as regards it’s dealings with controlled waste.
  1. Insolvency of Purchaser.
    1. The contract will terminate immediately on the happening of any one or more of the following events:
      1. the Purchaser has a bankruptcy order made against him or makes an arrangement or composition with his creditors or otherwise takes the benefit of any act for the time being in force for the relief of insolvent debtors; or
      2. (being a body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory); or
      3. enters into solvent voluntary liquidation for the purpose of reconstruction or amalgamation, or has a receiver, manager, administrator or administrative receiver appointed to it’s undertaking or any part thereof; or
      4. a resolution is passed or petition presented to any court for the winding up of the Purchaser or for the granting of an administration order in respect of the Purchaser; or
      5. any proceedings are commenced in relation to the to the insolvency or possible insolvency of the Purchaser.
    2. The Contract will terminate immediately upon service of written notice of termination by the Seller on the Purchaser on the happening of any one or more of the following:
      1. is unable to pay it’s debts within the meaning of section 123 of the Insolvency act 1986; or
      2. the Purchaser ceases to trade.
    3. The Seller’s rights under clause 10 (but not the Purchaser’s rights) shall continue beyond the discharge of the Purchaser’s and the Seller’s primary obligations under the Contract consequent upon it’s termination.
    4. The termination of the contract howsoever arising shall be without prejudice to the rights and duties of either the Seller or the Purchaser accrued prior to termination.

Applicable Law.

The formation, performance, construction, warranty and all aspects of this Contract are governed by the laws of England and Wales and the parties shall submit to the exclusive jurisdiction of the courts of England and Wales.

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