In these Conditions, the following definitions apply:
Address – the address of any parties stated in the Contract or their last known address.
Bill of Lading – a combined transport Bill of Lading involving carriage by refrigerated vessel in bulk, refrigerated container, or an Airfreight movement.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: has the meaning set out in clause 1.2.
Conditions: these terms and conditions as amended from time to time.
Consignment – may also be described as “Goods”. A consignment can form an entire contract or part of a contract or series of contracts. A consignment can refer to goods that are housed under appropriate storage conditions, goods in transit whether conveyed bulk in a sea going vessel, conveyed in an ocean going container, a refrigerated truck, or any other conveyance than those described.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Days – calendar days, unless otherwise provided. Where the time prescribed for doing any act is less than six days, Saturdays, Sundays, Christmas Day, Good Friday and Public Holidays at the place where the act is to be performed shall be excluded in the computation of such time, except where otherwise provided.
Deliverables: the deliverables set out in the Order.
Delivery Location: has the meaning set out in clause 4.2.
Final discharge – when Meat is carried by ship, the date of final discharge of the cargo from the ship at the port where the goods were landed. When Meat is carried by a container ship, the date on which the container(s) first became available for collection from a container base.
Force Majeure Event: has the meaning given to it in clause 6.1.
The Freezing Works (or Chilling Works) Certificate – the document and/or documents certifying for insurance purposes that the Meat was in good condition and properly dressed, cooled and frozen/chilled, that the period from the time the Meat was first received into freezing (chill) chambers for storage until the time of shipment did not exceed 60 days (14 days if chilled), (unless otherwise agreed between the parties) and stating the method of transportation from the freezing (chilling) works to shipside or container base, as the case may be.
Goods – the goods (or any part of them) set out in the Order, to include Meat and Non Meat items. The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
Meat – Beef, sheep meat (lamb and mutton), pork, poultry, game and where appropriate offals, along with other species and similar products of the trade. (It may be supplied as whole, carcass/sides or quarters and/or cuts covering fresh, chilled, frozen and/or cooked products in a wide variety of immediate wrappings and external packaging.)
Non Meat : Dairy, Fish, Fruit, Vegetables and similar food items along with further processed products that may form part of a Contract, subject to the parties’ agreement.
Notice – notice in writing unless otherwise provided in these Conditions of Sale and shall include letter, fax, email or any other similar method of electronic communication.
Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form or the Customer’s written acceptance of the Supplier’s quotation, as the case may be.
Party – a party to a contract or to a dispute, as the context shall require, and the duly authorised agent of each such party.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer.
Ship – either a vessel designed to carry Meat by sea in bulk or a “container” vessel designed to carry Meat solely in containers by sea.
Shipping Company means and shall include the owners of the carrying ship and their duly authorised agents, and/or charterers and/or ship brokers and NVOCC (Non Vessel Owning Common Carrier(s).
Supplier: Butterfly Poultry Limited registered in England and Wales with company number 02513659.
In these Conditions, the following rules apply :
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a Party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(e) a reference to writing or written includes faxes and e-mails; and
(f) Words used in the singular shall, where the context so admits, include the plural, and vice-versa and words used in the masculine shall include the feminine.
1.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
1.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“the Commencement Date”).
1.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
1.4 Any samples, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
1.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.6 Any quotation given by the Supplier shall not constitute an offer, and is only valid until the end of the working week from its date of issue and is subject to confirmation and availability.
1.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2. CONTRACT AND DOCUMENTATION
2.1 A contract shall be issued and sent by the Seller to the Buyer by either post, email or any appropriate electronic communication.
2.2 Every contract shall:
1. Specify the contract price, payment terms and applicable currency;
1. Specify the trade terms to be used, including but not limited to:
(A) Ex Works (EXW): Goods made available to the Customer at the Supplier’s premises.
(B) Free Alongside Ship (FAS); Free On Board (FOB); Free Carrier (FCA): Supplier required to deliver to a carrier of the Customer’s choice.
(C) Cost & Freight (CFR); Cost, Insurance & Freight (CIF); Carriage Paid To (CPT); Carriage, Insurance Paid To (CIP): Supplier contracts for carriage. Other risks defined within terms of contract.
(D) Delivered At Place (DAP); Delivered At Terminal (DAT); Delivered Duty Paid (DDP): Supplier bears all risks and costs to bring the Goods to a named point in the destination country.
(E) Or any such other terms that may be agreed between the parties at the time of contract.
1. Specify the place of delivery, collection and/or the place where transfer of risk occurs;
(iv) Specify the Goods, type of product, meat cut, weight, and, where appropriate, weight ranges, grade, packing and other relevant information;
1. The Supplier is to define which Party bears the cost for any landing, storage, delivery charges and which Party has responsibility for any tariffs, duties, bonded movements), levies, guarantees, and licence facility arrangements.
2.3 Documents constituting a valid Contract tender shall be in the English language and shall be depending on the method of sale:
(a) Standard Documents All Contracts:
1. Commercial Invoice in respect of each Contract showing description, weight, price, payment terms including currency of sale and method of sale.
1. Packing list detailing weights, production dates, durability dates, traceability codes and associated information.
(iii) Animal and Public Health Certification as required by the competent authorities both in the country of production and country of sale, as may be confirmed by method of sale or agreed between the parties.
(iv) Such customs, transit guarantees and other documents as may be required by the authorities in both the country of production and country of sale.
1. Receipt, Delivery note or CMR where relevant in respect of each shipment, vehicle or container load showing description and weight and container number if relevant.
The above list of Standard documents is designed for meat items, the requirements for non meat items may differ and should be agreed between the parties.
(b) In respect of Ex Store Sales only:
Delivery Order in respect of the contract detailing the description, weight and relevant cold store documentation allowing the release of the Meat to the Buyer on ex store terms.
(c) For CIF and CIP Sales (For example, Insurance certs not provided by Supplier under FOB and CFR sales):
1. Insurance Certificate: Any contractually required insurance policy and/or insurance broker’s certificate covering the goods in accordance with the following provisions.
1. where required under Contract insurance will be effected at a value of 10% above invoice price.
(B) Cover to be amended to note the interest of chilled and/or fresh Meat and non Meat items.
(C) Cover to be amended to continue until 60 days after the vessel arrives at the Port of Discharge.
(D) Cover will cease at the Port of Discharge unless otherwise agreed between the parties.
(E) In the event of the Meat being held in the Freezing Works and/or cold store prior to shipment for a period in excess of the 60 days provided within the above conditions, the insurance shall be extended to cover the excess period. Any additional premiums shall be paid by the Supplier and confirmed in written form by the insurer or his agent.
(ii) Bill of Lading: Up to three original “On Board” Ocean Bills of Lading or Airway bills unless otherwise agreed:
(A) In the case of shipment by sea, the date of the Bill of Lading shall be the on board date.
(B) Where the contract requires “on board bill of lading” for the ocean voyage of a containerised shipment, the Bill of Lading date shall be the date on which the container or goods came into possession of the carrier at the place of acceptance specified in the Bill of Lading.
(iii) Freezing Works/Chilling Works Certificate, if contractually required.
(iv) Certificate of Origin: In case of Goods qualifying for any form of preferential rate of import duty, produced on a form approved by and worded to the satisfaction of Customs or the competent authority dealing with matters of Duty.
3. QUANTITY AND DELIVERY
3.1 The Supplier shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. The cost of the return of packaging materials shall be agreed between the Supplier and the Customer.
3.2 It shall be the responsibility of the Supplier to advise the Customer of the details of the intended delivery time, and, if requested by the Customer, the name of the carrier and the registration number or other identifying mark of the vehicle and/or container number at the time of despatch.
3.3 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“the Delivery Location”) at any time after the Supplier notifies the Customer that the Goods are ready.
3.4 Delivery of the Goods shall be completed by the completion of loading of the Goods at the Delivery Location.
3.5 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.6 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods or if a suitable alternative is offered by the Supplier.
3.7 If the Customer fails to accept or take delivery of the Goods within 60 Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the 60 Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
3.8 If 60 Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
3.9 Where the Contract stipulates an exact quantity/tonnage, the Supplier must use all reasonable endeavours to ensure the contract is fulfilled. Contracts shall be on the basis of the quantity/tonnage agreed between the parties but subject to a tolerance of 5% provided all reasonable endeavours have been made to honour the contract. Any other variation to the contract quantity/tonnage or 5% tolerance requires the agreement of the Customer and the Supplier.
3.10 The Customer shall not be entitled to reject the Goods if the Supplier delivers up to and including 5 per cent more or less than the quantity of Goods ordered, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
3.11 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
3.12 In the event of a dispute, each delivery or part delivery shall be deemed to be a separate Contract.
4. TITLE AND RISK
4.1 The risk of insuring the Goods in respect of delivered sales shall pass to the Customer on completion of delivery.
4.2 Title to the Goods shall not pass to the Customer until the earlier of:
(a) the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other Goods that the Supplier has supplied to the Customer 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; and
(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 4.4.
4.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(m); and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
4.4 Subject to clause 4.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as the Supplier’s agent; and
(b) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
4.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2(b) to clause 9.2(m), then, without limiting any other right or remedy the Supplier may have:
(a) the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and
(b) the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and (ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
5. TERMS OF PAYMENT
5.1 The price for the Goods shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier’s published price list as at the date of delivery. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be paid by the Customer when it pays for the Goods.
5.2 The Supplier reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
(i) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(iii) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
5.3 In respect of the Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery.
5.4 The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract unless shorter terms are agreed prior to sales.
5.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods at the same time as payment is due for the supply of the Goods.
5.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the maximum rate permissible by law from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay (i) the interest (ii) together with the overdue amount (iii) fixed sum compensation as permitted by law to cover the Supplier’s credit control overhead costs; and (iv) any costs of taking legal action to enforce payment.
5.7 The Customer shall indemnify the Supplier in full and hold it harmless from all expenses and liabilities it may incur (directly or indirectly including financial costs, legal costs on a full indemnity basis and the cost of instructing a debt recovery agency to recover a debt due to the Supplier if any) following any breach by the Customer of any of its obligations under any Contract.
5.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
6. FORCE MAJEURE
6.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
6.2 The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
6.3 If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than eight (8) weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
6.4 Where the Contract provides for shipment within a specified period and/or on a named vessel:
1. The Supplier has the obligation to ship within the specified period, in the event of shipment or production delay it is the duty of the Supplier to notify the Customer, the reasons for the delay and the expected revised delivery.
(b) The Customer has the obligation to accept Goods shipped within the specified period, in the event of shipment delay properly notified by the Supplier to the Customer, the Customer has the option to accept delivery.
(c) In the event of the Customer being unable to accept the Goods at the place and/or time originally specified, the cost of any Port Cost, Quay Rent, Plug in Charges, Demurrage and/or redirection shall be for the Customer’s account.
7. LIMITATION OF LIABILITY
7.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
(e) defective products under the Consumer Protection Act 1987.
7.2 Subject to clause 7.1:
(a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £1000.
7.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
7.4 This clause 7 shall survive termination of the Contract.
8.1 Without limiting its other rights or remedies either party may terminate the Contract by giving the other party not less than 2 months’ written notice.
8.2 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 60 days after receipt of notice in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
1. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(b) to clause 8.2(i) (inclusive);
(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
(l) the other party’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(m) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
8.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.4 Without limiting its other rights or remedies, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under this Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 8.2(b) to clause 8.2(m), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
8.5 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all and any Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, 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; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
9. VETERINARY AND HEALTH REQUIREMENTS
The Supplier warrants that the Goods supplied have been inspected by a competent authority and declared fit for human consumption and that it shall, further, procure the issuing by that authority of written confirmation that that is the case.
10. WEIGHT CLAIMS
10.1 The Customer must report to the Supplier the net weight received as soon as possible after receipt at the Delivery Location and in any case within two clear days of delivery. In the event of a shortage, the Supplier shall be given the opportunity to check the weights of the entire parcel and is entitled to be present and/or appoint a surveyor or agent for this purpose. A further period of ten (10) calendar days for frozen meat and seven (7) for chilled meat from when the notice was given for the provision of documentary evidence in support of such a claim is allowable.
10.2 No weight claim under half of one per cent will be accepted by the Supplier. The Bill of Lading, veterinary health certificate weights, the producers packing lists, marked net weights, freezing/chilling certificates, cold store certified weights, shall be accepted as evidence of weight, subject to weights and measures legislation in force at the time. Whilst there shall be no claim for loss in weight if less than half of one per cent, the whole loss in weight that exceeds half of one per cent shall be allowed to the Customer.
10.3 (a) In the case of a Customer wishing to substantiate a shortweight claim, such claim shall be determined by one of the following methods:
1. Taking the Marked Net Weight of the product manually or via a scanned barcode; or
(ii) From the Gross Weight deduct the official tare as denoted by the Supplier and as described on the carton/packaging and/or documentation as prepared by the supplier; or
(iii) In the case of the above method not being available, or in the event of any dispute on the official tare then the tare is to be assessed by weighing the following quantities gross and calculating an average tare by weighing the packing material including all wrapping materials other than the immediate wrapping of the Meat which cannot be easily removed and after the contents have been removed. The quantity to be tested shall be no less than five individual cartons/packs and no more than a maximum test of 50 individual cartons/packs of each weight range where carton sizes and packs differ.
(b) The weight obtained by the above methods shall be treated as the net weight provided that the weight of these materials is within the tolerances prescribed by the Weights and Measures Act 1985 or any subsequent change in legislation that occurs from time to time.
(c) The cost of test weighing shall be paid by the Supplier only if a short weight claim is upheld. The Supplier shall have the right to be represented at all tests for tare.
11. QUALITY AND CONDITION CLAIMS
11.1 The Supplier warrants that on delivery, the Goods shall:
(a) conform with their description and any applicable Goods Specification; and
(b) be free from material defects.
11.2 Subject to clause 11.3, if:
(a) the Customer gives notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 11.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
11.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 11.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 11.2;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the defect arises as a result of the Supplier following any Goods Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
11.4 Except as provided in this clause 11, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 11.1.
11.5 The terms of these Conditions shall apply to any replacement Goods supplied by the Supplier under clause 11.2.
11.6 The Customer has a duty of care to inspect the Goods and any surrounding packaging upon receipt. In the case of claims relating to quality and/or condition, and before any further distribution of the goods is made, the Customer must notify the Supplier of such claims within the following time limits:
(a) – 24 hours in respect of Fresh or Chilled Carcass Meat and Poultry. – 48 hours in respect of Vacuum Packed Chilled Lamb, Poultry, Pork and non-meat goods. – 7 calendar days in respect of Vacuum Packed Chilled Beef. – 14 calendar days in respect of Frozen Meat and frozen non-meat goods.
(b) The time limits described in (a) will apply in the case of inherent fault, except for those products below where a Customer cannot reasonably detect a fault on immediate inspection:
– 14 calendar days in respect of Vacuum Packed Chilled Beef. – 1 (one) calendar month in respect of Frozen Meat and frozen non-meat goods.
(c) Following notification of a claim for defects, whether visible or hidden, the Customer must provide the Supplier with documentation to support the claim, such documentation to be supplied promptly. In addition to the time limits in (a) and (b) above the Customer shall be allowed additional time to provide supporting documentation as follows:
– 5 calendar days for Fresh and Chilled Vacuum Packed product other than Vacuum Packed Chilled Beef. – 14 calendar days in respect of Vacuum Packed Chilled Beef, Frozen Meat and frozen non-meat goods. – On application in writing by the Customer, the Supplier may agree to vary the time limits referred above to allow the Customer reasonable time to provide additional documentation in support of their claim.
(d) The Customer shall not be entitled to any compensation, or reduction in or refund of price paid for the Goods or any part thereof, or to make any claims arising out of condemnation of the meat unless the Customer notifies the Supplier by written communication including e-mail of any proposed condemnation prior to the same being condemned.
11.7 In the event of a dispute or claim for condition or quality, in order to establish the validity of any complaint the parties shall be entitled to inspect the Goods under dispute. In so doing the parties may agree that a sample representing the Consignment as a whole or that part of the consignment under dispute should be selected for physical and/or visual examination.
11.8 The sample or samples selected must be of sufficient quantity to be considered a representative sample, taking into account practicalities of carrying out such sampling in a veterinary controlled production and cold store environment. In order to carry out an inspection, the consignment in its entirety should be made available. If the goods have been dispatched in part, then sufficient quantity must be made available from the balance remaining for a sample to be obtained that is considered to be representative. Provided a sufficient proportion of the consignment is available, a sample of 10% (ten per cent) of the overall Consignment in dispute is deemed to be representative of the Consignment as a whole, but the parties may agree to a lesser quantity or percentage subject to the nature of the claim being made, the purpose for which the sample is being taken and the type and value of product being sampled.
11.9 Goods presented for sampling must be previously unopened cartons or units and contain identification in the form of labelling and health marks in order to correctly identify the Consignment. Any Goods selected for inspection and sampling should be selected at random.
11.10 In respect of a claim or complaint on the weight of a Consignment, the entire Consignment must be made available for testing unless the parties agree otherwise, other than when the dispute requires a test for tare, when the provisions of clause 10(a) shall apply.
11.11 If the claim for the issues described herein of quality, condition, specification, weight and tares is upheld, then the costs of inspection and associated costs of sampling are to be met by the seller. If the claim is unproven, the costs of inspection and associated costs of sampling are to be met by the Customer.
11.12 In the event of the Customer having a valid reason to reject the Goods either in full or in part following receipt/delivery, and having provided notice to the Supplier within the stated time schedule for reporting claims, then the Customer must provide for the safe return of the Goods in the condition as originally delivered/collected. In such case the Supplier’s liability to the Customer will be restricted to providing credit for the invoice value of the goods to the Customer plus any additional transport or storage charges incurred.
12.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication given to a Party under or in connection with this Contract shall be in writing, addressed to that Party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other Party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or partprovision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If one Party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.4 Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a Party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither Party shall have authority to act as agent for, or to bind, the other Party in any way.
12.6 Third parties. A person who is not a Party to the Contract shall not have any rights to enforce its terms.
12.7 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.
12.8 Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
12.9 Jurisdiction. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
Anti-bribery and Corruption.
(a) The Customer shall (i) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010, (ii) not bribe, promise or give financial advantage to another person (including a Foreign Public Official) whether directly or indirectly and must not receive any bribe, promise or other financial advantage from a third party which in each case may be designed or intended to induce or reward the improper performance of a function or activity, (iii) promptly report to the Supplier any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with the performance of any Contract and, at the Supplier’s request, confirm in writing that the Customer has complied with this clause 12.10 and provide such supporting evidence of compliance as the Supplier may reasonably request.
(b) Breach of this clause 12 shall be treated as a material breach of the Contract.