Terms and Conditions of Sale
Version 08.05.24
1 Definitions
In these Conditions, unless the context requires otherwise:
1.1 “Business Day” means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
1.2 “Business Hours” means the period from 9.00 am to 5.00 pm on any Business Day;
1.3 “Buyer” means the person who buys or agrees to buy the Goods from the Seller;
1.4 “Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
1.5 “Contract” means the contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance with these Conditions;
1.6 “Customer Confirmation” means the last Seller’s written confirmation of the Buyer’s order for the Goods sent to the Buyer prior to Delivery;
1.7 “Delivery” means delivery of the Goods in accordance with these Conditions;
1.8 “Delivery Date” means the date specified by the Seller when the Goods are to be delivered or the date the Goods are actually Delivered;
1.9 “Delivery Location” means the location for Delivery set out in the Customer Confirmation or as otherwise agreed by the Seller in writing;
1.10 “Force Majeure” shall have the meaning given in Clause 10;
1.11 “Goods” means the items which the Buyer agrees to buy from the Seller;
1.12 “Price” means the price for the Goods set out in the Customer Confirmation or as otherwise agreed between the Buyer and the Seller in writing, and which shall include the cost of carriage unless notified by the Seller to the Buyer in writing;
1.13 “Seller” means OLIVER PERRY LTD (company number 11762030) of Shanty Farm, Moss Lane, Byley, CW10 9NG or any subsidiary companies or divisions thereof as shown on the Customer Confirmation; and
1.14 “writing” includes (without limitation) e-mail, SMS text and WhatsApp messages.
2 Conditions applicable
2.1 These Conditions shall apply to all contracts for the sale of goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms and conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar documents.
2.2 All orders for goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
2.3 An order shall only be deemed to be accepted when the Seller issues a written acceptance of an order, at which point and on which date a Contract on these Conditions shall come into existence.
2.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.
3 Price and payment
3.1 The Price shall be the price set out on the Seller’s invoice, or, if no price is quoted, the price set out in the Seller’s published price list in force as at the date of receipt of the invoice.
3.2 The Price shall be binding upon the Buyer unless the Buyer shall have queried the price in writing within two days of the Buyer having received the Seller’s invoice.
3.3 Payment of the Price shall be due within twenty-eight days of the date of invoice.
3.4 In the absence of evidence of earlier receipt by the Buyer the Seller’s invoice shall be deemed to be received by the Buyer when delivered in accordance with the notice provisions in Clause 11.6.2.
3.5 It is the policy of the Seller to enforce its right to charge interest on overdue invoices under the Late Payment of Commercial Debts (Interest) Act 1998 as amended from time to time and interest shall continue to accrue after as well as before any judgment.
3.6 The Buyer is liable for all collection costs due to late payment.
3.7 The Seller may at any time, without notice to the Buyer, set off any liability of the Seller to the Buyer against any liability of the Buyer to the Seller, whether present or future, liquidated or unliquidated.
3.8 The Buyer is not entitled to set off any sums due to the Seller under this Contract.
3.9 The Buyer’s price lists are subject to change and subject to the availability of goods.
3.10 In addition to statutory interest, the Seller reserves the right to apply a late payment fee equal to 10% of the outstanding invoice value to any invoice not paid by the due date. This fee may be charged at the Seller’s discretion and shall be payable immediately on demand.
4 The Goods
4.1 The quantity and description of the Goods shall be as set out in the Customer Confirmation.
4.2 The Seller warrants that the Goods supplied will at the time of delivery correspond with the description given by the Seller in the Customer Confirmation. All other warranties, conditions or terms relating to fitness for purpose, quality or condition of the Goods, whether express or implied by statute or common law or otherwise are excluded to the fullest extent permitted by law.
5 Delivery of the Goods
5.1 Delivery of the Goods shall be made to the Delivery Location on the Delivery Date.
5.2 Delivery is completed on the arrival of the Goods at the Delivery Location (“Delivery”).
5.3 The Buyer shall make all arrangements to take delivery of the Goods whenever they are tendered for Delivery.
5.4 Any dates quoted for Delivery are approximate only, and the time of Delivery is not of the essence.5.5 If the Seller fails to deliver the Goods on the Delivery Date it shall Deliver as soon as reasonably practicable thereafter and use reasonable efforts to complete Delivery within 24 hours.
5.6 If there is a delay attributable to the Buyer and such delay affects quality, the Buyer shall be required to accept the Goods and pay the Price in full.
6 Risk and title
6.1 The risk in the Goods shall pass to the Buyer on completion of Delivery.
6.2 Title to the Goods shall pass to the Buyer on the earlier of the date that:
6.2.1 the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has
supplied to the Buyer, in which case title to the Goods shall pass at the time of payment of all such sums; or
6.2.2 the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in Clause 6.4.
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 Delivery Date; and
6.3.4 notify the Seller immediately if it becomes subject to any of the events listed in Clause 9.1.2 to Clause 9.1.4;
6.4 Subject to Clause 6.5, 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. If the Buyer resells the Goods before that time, 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 6.4 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 Limitation of Liability
7.1 The limits and exclusions in this clause 7 reflect the insurance cover the Seller has been able to arrange and the Buyer is responsible for making its own arrangements for the insurance of any excess liability.
7.2 References to liability in this Clause 7 include every kind of liability arising under or in connection with the supply of Goods including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
7.3 Nothing in these terms limit any liability which cannot legally be limited, including liability for:
7.3.1 death or personal injury caused by negligence;
7.3.2 fraud or fraudulent misrepresentation;
7.3.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; and
7.3.4 defective products under the Consumer Protection Act 1987.
7.4 Subject to Clauses 7.3 and 7.5, the Seller’s total liability to the Buyer shall not exceed the Price of the relevant Goods, or if there are no particular relevant Goods, the Price of the relevant Contract.
7.5 Subject to Clause 7.3, the following types of loss are wholly excluded from the Seller’s liability:
7.5.1 loss of profits;
7.5.2 loss of sales or business;
7.5.3 loss of agreements or contracts;
7.5.4 loss of anticipated savings;
7.5.5 loss of use or corruption of software, data or information;
7.5.6 loss of or damage to goodwill; and
7.5.7 indirect or consequential loss.
7.6 This Clause 7 shall survive termination of the Contract.
8 Acceptance of the Goods
8.1 The Buyer shall carefully inspect the Goods immediately upon delivery to ensure that they comply with the details of the Customer Confirmation, both in quantity and quality.
8.2 The Buyer agrees that the Goods are not returnable to the Seller unless defective. If the Buyer resells or otherwise disposes of any Goods the Buyer shall be deemed to have accepted such Goods.
8.3 If the Buyer alleges any defect with the Goods or shortage in the quantity of the Goods, the Buyer shall give immediate notice to the Seller and in any event within 24 hours of Delivery and the Seller shall upon receipt of such notice be entitled to inspect and/or collect such possibly defective Goods which shall be made available on demand to the Seller for that purpose.
8.4 If the Goods are deemed by the Seller to be defective upon inspection, the Seller, at its sole discretion, shall either replace the Goods or issue a refund within 28 days of inspection.
8.5 If the Buyer does not comply with Clauses 8.1 to 8.3 above the Buyer shall be deemed to have accepted the Goods 24 hours after Delivery.
8.6 The Seller shall not be liable to the Buyer for short delivery of the Goods unless the Buyer shall have inspected the Goods within twenty four hours of the Delivery Date and notified the Seller within the same time scale by email of any alleged shortage in quantity. If the Buyer shall fail to comply with this condition the Goods shall be conclusively presumed to be in accordance with the Contract and the Buyer shall be deemed to have accepted the Goods.
8.7 The Seller shall not be liable to the Buyer under Clause 8.6 for any quality issue attributable to a delay in delivery as specified in Clause 5.6.
After acceptance the Buyer shall not be entitled to reject the Goods.
9 Termination
9.1 Without limiting its other rights or remedies, the Seller may terminate this 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 24 hours of that party being notified in writing to do so;
9.1.2 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.
9.1.3 the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;
or
9.1.4 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 The Buyer shall notify the Seller in writing immediately if it undergoes any of the events listed in Clause 9.1.2 to Clause 9.1.4. 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 9.1.2 to Clause 9.1.4 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 this Contract or any other contract with the Seller on the due date for payment.
9.3 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 submit an invoice, which shall be payable by the Buyer immediately on receipt.
9.4 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
9.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
10 Force Majeure
10.1 The Seller is not liable to the Buyer for any loss by the Buyer caused by the Seller’s failure to observe the terms and conditions of this Agreement on the Seller’s part including the failure of the Seller to supply or delay in supplying any goods to be supplied by the Seller to the Buyer, if the failure is occasioned by any cause beyond the Seller’s reasonable control, whether on account of any supplier of the Seller varying or discontinuing any supply, or for any other cause whatsoever, including (without limitation) war, insurrection, fire, flood, earthquake, frost, drought, extreme weather, strikes, lock outs, the unavailability of the goods or similar cause.
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 comply with this Clause 11.2; 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
11.4.1 No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.5 Severance.
11.5.1 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 enforce-ability of the rest of the Contract. If any provision of the Contract is deemed deleted under this Clause 11.5 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.
11.6 Notices
11.6.1 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 prepaid 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, which if to the Seller should be sent to [hello@nationwideproduce.com] (or such other email address notified by the Seller to the Buyer in writing).
11.6.2 Any notice, and for the purposes of Clause 3.4, any invoice, shall be deemed to have been received by the Buyer:
(i) 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;
(ii) if delivered personally when left at the Buyer’s address to which the Goods were delivered;
(iii) If sent by recorded delivery three days after posting;
(iv) if sent by first class post on the second day after posting.
11.6.3 This Clause 11.6 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.
11.7 Third party rights
11.7.1 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 Governing law
11.8.1 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.
11.9 Jurisdiction
11.9.1 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.
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