1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms and Conditions the following expressions will have the following meanings unless inconsistent with the context:
“Business Day” any day other than a public or bank holiday in England or Wales
“Company” Zorba Delicacies Ltd of Unit 13, Rassau Industrial Estate, Ebbw Vale, Gwent, NP23 5SD
“Confidential Information” all information in respect of the business of the Company including, but not limited to, know- how or other matters connected with the Goods or Services, and information concerning the Company’s relationships with actual or potential clients, customers or suppliers and the needs and requirements of the Company and of such persons and any other information which, if disclosed, will be liable to cause harm to the Company
“Contract” any contract between the Company and the Seller for the sale and purchase of the Goods and/or supply of the Services formed in accordance with Condition 2
“Delivery Point” the place where delivery of the Goods is to take place under Condition 7.1
“Force Majeure” any cause preventing the Company from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable contemplation and control of the Company including, without limitation, strikes, lockouts or other industrial disputes (whether involving the work force of the Company or otherwise), protest, act of God, war, national emergency, an act of terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, explosion, flood or storm, epidemic or default of suppliers or subcontractors
“Goods” any goods which the Seller supplies to the Company (including any of them or any part of them) under a Contract
“Intellectual Property Rights” all intellectual and industrial property rights including patents, know-how, registered trade marks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trade marks, rights to prevent passing off for unfair competition and copyright, database rights, topography rights and any other rights in any invention, discovery or process, in each case in the United Kingdom and all other countries in the world and together with all renewals and extensions
“Order” any purchase order of the Company for the Goods or Services incorporating these Terms and Conditions
“Seller” the person(s), firm or company from whom the Company orders the Goods or Services
“Services” any services which the Company receives from the Seller (including any part of them) under a Contract
“Service Point” the place at which the Services are to be provided
“Specification” in relation to any Goods or Services, the technical specifications of those Goods or documents detailing the requirements of the Services; all preparatory, design and development materials which relate to the Goods or Services; all information of any description which explains the structure, design, operation, functionality of the Goods or how the Services will be performed; all information of any description which relates to the maintenance and/or support of the Product;
“Terms and Conditions” the standard terms and conditions of purchase set out in this document.
1.2 The headings in these Terms and Conditions are for convenience only and will not affect their construction or interpretation.
2.1 Subject to any variation under Condition 2.4, the Contract will be upon these Terms and Conditions to the exclusion of all other terms and conditions, including any terms or conditions which the Seller purports to apply under any acknowledgement or confirmation of order, quotation, Specification, delivery note, invoice or similar document, whether or not such document is referred to in the Contract.
2.2 Each quotation for the Goods or Services from the Seller will be deemed to be an offer by the Seller to sell the Goods or Services upon these Terms and Conditions. All quotations provided by the Seller, including the price provision, will remain open for 90 days from its date. The Contract is only formed when acceptance of the quotation in the form of an Order is served by the Company on the Seller. No contract will exist prior to service of such notice of acceptance.
2.3 Delivery of the Goods or commencement of performance of the Services will be deemed conclusive evidence of the Seller’s acceptance of these Terms and Conditions.
2.4 Save as set out in the Contract, these Terms and Conditions (including any special terms and conditions agreed between the parties) may only be varied or amended in writing and signed by a director of the Company.
3. THE GOODS AND SERVICES
3.1 The quantity and description of the Goods or Services will be as set out in theOrder and/or in any applicable Specification supplied or advised by the Companyto the Seller with or before the Order,
3.2 The Seller will comply with all applicable standards, regulations and/or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods and/or provision of the Services and shall provide written details of such compliance upon the request of the Company.
3.3 The Company (and any customer of the Company who may use the Goods subsequently in its own products) will have the right to inspect and test the Goods at any time prior to delivery and to inspect the premises from which the Goods and/or Services are provided. The Seller will not unreasonably refuse any request by the Company (or any third party permitted by this Condition 3.3) to carry out such inspection and testing and will provide the Company or such other third party with all facilities reasonably required.
3.4 If as the result of such inspection or testing the Company is not satisfied that the Goods will comply in all respects with the Contract and the Company so informs the Seller within 30 days of inspection or testing, the Seller will take all steps necessary to ensure compliance. Without prejudice to any other rights of the Company under the Contract, any failure of this obligation by the Seller will be deemed a material breach which is not capable of remedy entitling the Company to terminate the Contract under Condition 12.1.1.
3.5 Notwithstanding any such inspection or testing, the Seller will remain fully responsible for the Goods and any such inspection or testing will not diminish or otherwise affect the Seller’s obligations under the Contract.
3.6 The Seller acknowledges that precise conformity of the Goods or Services with the Contract is of the essence of the Contract and the Company will be entitled to reject the Goods or terminate the contract under Condition 12.1.1 if the Goods or Services are not in conformance with the Contract, however slight the breach may be. Any breach of this Condition is deemed a material breach which is not capable of remedy under Condition 12.1.1.
3.7 The Company may at any time make changes in writing relating to the Order, including changes in the drawings or Specifications, method of shipment, quantities, packing or time or place of delivery. If such changes result in an increase or decrease in the cost of, or the time required for performance of the Contract an equitable adjustment will be made to the price, delivery schedule or both. Any such claim or adjustment must be approved by the Company in writing before the Seller proceeds with such changes.
3.8 In respect of the Goods and Services the Seller will maintain and observe qualitycontrol and supplier quality assurance standards in accordance with the
requirements of the Company (including those of its customers), relevant British Standards and statutory and regulatory bodies. Failure to comply with such standards shall enable the Company to terminate the whole, or any unfulfilledpart of any Contract at any time without further liability to the Seller, other thanto pay for any Goods and Services which the Company has received and which itdoes not reject pursuant to any provision of these Terms and Conditions.
3.9 The Seller will maintain detailed quality control and manufacturing records for the period of at least 12 years from the date of supply of Goods or performance of the Services.
3.10 In the event that any Goods are either not delivered to the Company, or are returned to the Seller for whatever reason, and such Goods are manufactured, packaged or labelled in such a manner as to identify them in any way with the Company, or a customer of the Company, the Seller shall not under any circumstances, dispose of such Goods to a third party without the prior written consent of the Company. Any specific instructions given by the Company in respect of such disposal shall be strictly adhered to by the Seller and in any event, all references to the Company’s (or customer of the Company’s) name, address, trade marks and any other indications of the Company’s (or customer of the Company’s) identity shall be totally removed by the Seller prior to disposal so that no such reference remains which might lead any third party to associate the Goods with the Company (or any customer of the Company).
4.1 The price for the Goods and Services will be the price stated in the Order and, unless otherwise stated in that Order, will be:
4.1.1 inclusive of all charges including, but not limited to, packaging
material, packing, shipping, loading, carriage, insurance and delivery of the Goods to the Delivery Point and any duties, imposts, levies or taxes including value added tax; and
4.1.2 fixed for the duration of the Contract or for such longer period that may be agreed by the parties in writing.
4.2 No variation in the price nor extra charges can be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior written consent of the Company.
5.1 The Seller shall invoice the Company for the Goods or Services within 7 days of delivery or performance. Each invoice must be a proper VAT invoice and quote the number of the Order. Payment is due in sterling within 45 days of receipt by the Company of such invoice.
5.2 Without prejudice to any other right or remedy, the Company will be entitled but not obliged at any time or times without notice to the Seller to set off any liability of the Seller to the Company against any liability of the Company to the Seller (in either case however arising and whether any such liability is present or future, liquidated or unliquidated and irrespective of the currency).
5.3 If any sum under the Contract is not paid when due then, without prejudice tothe parties, other rights under the Contract, that sum will bear interest from the due date until payment is made in full, both before and after any judgement, at 2% per annum over the Bank of England’s base rate from time to time. The Seller is not entitled to suspend deliveries or performance of the Goods or Services as a result of any sums being outstanding.
The Seller may not deliver the Goods by separate instalments or perform the Services in stages unless agreed in writing by the Company. If the Company does agree, the Contract will be construed as a separate Contract in respect of each instalment or stage, and without prejudice to any other right or remedy, the Company will have the right, but not the obligation, to:
6.1 treat all the Contracts for the total Order as repudiated if the Seller fails to deliver or perform any instalment or stage; and
6.2 reject any or all of the instalments for the total Order if the Company is entitled to reject any one instalment.
7.1 The Goods will be delivered, carriage paid, to the address stated on the Order. The Seller will off-load the Goods at its own risk as directed by the Company.
7.2 The Goods will be delivered during the Company’s normal office hours between 07:30am and 16:00pm and/or the Services will be provided at the Service Point on the date or within the period specified in the Order. Time for delivery of the Goods and/or performance of the Services will be of the essence.
7.3 The Seller will ensure that:
7.3.1 the Goods are marked in accordance with the Company’s instructions and any applicable regulations or requirements of the carrier and properly packed and stored so as to reach their destination in an undamaged condition;
7.3.2 each delivery is accompanied by a prominently displayed delivery note which shows, inter alia, the Order number, date of Order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered; and
7.3.3 the Company is supplied on delivery of the Goods with all information as may be necessary for their proper use, maintenance and repair for the Company to accept delivery of the Goods.
7.4 No Goods or Services supplied under the Contract earlier than the date for delivery or performance, will be accepted or paid for unless the Company notifies the Seller in writing of its intention to accept and pay for the same.
7.5 Without prejudice to the Company’s other rights under the Contract, if the Goods are delivered to the Company in excess of the quantities ordered, the Company will not be bound to pay for the excess and such excess will be and remain at the Seller’s risk and be returnable at the Seller’s expense. In the event that the Seller does not arrange for the additional Goods to be returned within 14 days of the date of delivery, the Company shall be entitled to retain the additional Goods, at no cost to the Company.
7.6 The Company will not be deemed to have accepted the Goods until it has had 48 hours to inspect them following delivery. The Company will also have the right to reject the Goods as though they had not been accepted after any latent defect in the Goods has become apparent. The Company’s rights under this Condition 7.6 are without prejudice to the Company’s rights under Condition 11.2 which are not affected by any acceptance of the Goods by the Company.
8. RISK / OWNERSHIP
Risk in and ownership of the Goods will pass to the Company on delivery.
9. THE COMPANY'S PROPERTY
All materials, equipment, tools, dies and moulds supplied by the Company to the Seller will at all times:
9.1 be and remain the exclusive property of the Company;
9.2 be held by the Seller in safe custody at its own risk;
9.3 be maintained and kept in good condition by the Seller until returned to the Company;
9.4 not be disposed of other than in accordance with the Company’s written instructions; and
9.5 not be used otherwise than as authorised by the Company in writing.
10. INTELLECTUAL PROPERTY
10.1 The Company authorises the Seller to use the Intellectual Property Rights of the Company for the purposes only of exercising its rights and performing its obligations under the Contract. The Seller will have no other rights whatsoever in respect of the Intellectual Property Rights of the Company.
10.2 The Seller warrants that neither the Goods, nor their use, resale or importation, infringes the British or foreign patent, copyright, registered design, design right, trade mark, trade name or other intellectual property right of any third party except to the extent that any infringements arise from any Specifications, drawings, samples or descriptions provided by the Company.
10.3 If the Seller makes or discovers any discovery, invention, secret, process or improvement pursuant to a Contract, then the Seller will make full disclosure to the Company and the said discovery, invention, process or improvement and any and all Intellectual Property Rights therein shall belong to and be the absolute property of the Company and the Seller will do all such things necessary or desirable to vest such Intellectual Property Rights in the Company absolutely.
10.4 All drawings, designs, data, documents, models, proto-types, logos and othertradenames or trademarks, domain names or similar and any other materialsproduced by the Seller pursuant to a Contract in whatever medium held or
recorded and the copyright and/or design right and/or other rights therein and thereto shall belong to the Company absolutely. The Seller hereby irrevocably and unconditionally waives any and all moral rights (if any) conferred on it by virtue of the Copyright Designs and Patents Act 1988 in any work arising from the provision of the Goods and/or Services.
11. WARRANTY INDEMNITY AND CANCELLATION
11.1 The Seller warrants, represents and undertakes to the Company that the Goods or Services:
11.1.1 will be of satisfactory quality within the meaning of the Sale of Goods Act 1979 (as amended), and fit for any purpose held out by the Seller or made known to the Seller either in writing or orally at or prior to the Contract being formed;
11.1.2 will be free from defects in design, material and workmanship;
11.1.3 will correspond in every respect with any Specifications, drawings, samples or descriptions provided by the Company;
11.1.4 will comply with all statutory requirements, regulations and voluntary codes of conduct relating to the Goods or Services and their sale and supply and performance; and
11.1.5 will be so formulated, designed, constructed, finished and packaged as to be safe and without risk to health.
11.2 Without prejudice to any other rights or remedies of the Company (whether express or implied), if the Seller breaches any terms of the Contract (including, without limitation, a failure or delay in delivery) or the Company terminates the Contract in accordance with Condition 12.1 then the Company may (but will not be obliged to), whether or not the Goods have been accepted:
11.2.1 cancel any or all remaining instalments or stages if the Contract has
not already been terminated;
11.2.2 refuse to accept any subsequent delivery of the Goods and/or performance of the Services which the Seller attempts to make;
11.2.3 recover from the Seller any additional expenditure reasonably incurred by the Company in obtaining the Goods or Services in substitution from another supplier;
11.2.4 claim damages for any additional costs, loss or expenses incurred by
the Company, including without limitation any claims made against the Company by any of its customers, which are in any way attributable to the Seller’s breach of the Contract or failure to deliver the Goods or perform the Services on the due date or at all.
11.3 The Seller will indemnify, keep indemnified and hold harmless the Company from and against all costs (including the cost of enforcement), expenses, liabilities (including any tax liability) injuries, direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss), damages, claims (including without limitation any claims made against the Company by any of its customers), demands, proceedings or legal costs (on a full indemnity basis) and judgements which the Company incurs or suffers as a consequence of a direct or indirect breach or negligent performance by the Seller or failure or delay in performance of the terms of the Contract.
11.4 The Seller shall hold and maintain in force during the Contract and for a period of ten years thereafter (or such period as the Company shall reasonably require from time to time) product liability and professional negligence insurance policies with an indemnity limit of £10,000,000 (or such other sum as the Company may from time to time reasonably require) to cover its liabilities to the Company under these Terms and Conditions. The Company shall be entitled to inspect such policies at any time on reasonable notice and shall be supplied with the current premium receipt from time to time on demand.
12.1 The Company may by written notice served on the Seller terminate the Contract (or any unfulfilled part thereof) immediately if the Seller:
12.1.1 is in material breach of any of the terms of the Contract and, where the breach is capable of remedy, the Seller fails to remedy such breach within 7 days’ service of a written notice from the Company, specifying the breach and requiring it to be remedied. Failure to deliver Goods or perform any Services on the due date in accordance with Condition 7.2 is a material breach of the terms of the Contract which is not capable of remedy;
12.1.2 becomes bankrupt, insolvent, makes any composition with its creditors, has a receiver appointed under the Mental Health Act 1983 or dies;
12.1.3 has any distraint, execution or other process levied or enforced on any of its property;
12.1.4 ceases to trade or appears in the reasonable opinion of the Company likely or is threatening to cease to trade within 90 days;
12.1.5 has a change in its management and/or control as defined by section 416 of the Income and Corporation Taxes Act 1988; or
12.1.6 the equivalent of any of the above occurs to the Seiler in another jurisdiction to which the Seller is subject
or the Company reasonably anticipates that one of the above sets of circumstances is about to occur.
12.2 The termination of the Contact howsoever arising is without prejudice to the rights, duties and liabilities of either the Seller or the Company accrued prior to termination and the conditions which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
13.1 The Seller will keep confidential any and all Confidential Information that it may acquire.
13.2 The Seller will not use the Confidential Information for any purpose other than to perform its obligations under the Contract. The Seller will ensure that its officers and employees comply with the provisions of this Condition 13.
13.3 The obligations on the Seller set out in Conditions 13.1 and 13.2 will not apply to any information which:
13.3.1 is publicly available or becomes publicly available through no act or omission of the Seller; or
13.3.2 the Seller is required to disclose by order of a court or regulatory body of competent jurisdiction.
14.1 Time for performance of all obligations of the Seller under the Contract is of the essence.
14.2 Time for performance of all obligations of the Company under the Contract is not of the essence.
14.3 Each right or remedy of the Company under any Contract is without prejudice to any other right or remedy of the Company under this or any other Contract.
14.4 If any condition or part of the Contract is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from that Contract and will be ineffective without, as far as is possible, modifying any other provision or part of the Contract and this will not affect any other provisions of the Contract which will remain in full force and effect.
14.5 No failure or delay by the Company to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
14.6 The Company may assign, delegate, license, hold on trust or sub-contract all or any part of its rights or obligations under the Contract.
14.7 The Contract is personal to the Seller who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under the Contract without the Company’s prior written consent.
14.8 The parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
14.9 The Contract and the Specification contain all the terms which the Company and the Seller have agreed in relation to the Goods and Services and supersedes any prior written or oral agreements, representations or understandings between the parties relating to such Goods and Services. The Seller acknowledges that it has not relied upon any warranty, representation, statement or understanding made or given by or on behalf of the Company which is not set out in the Contract or Specification. Nothing in this Condition 14.9 will exclude any liability which one party would otherwise have to the other party in respect of any statements made fraudulently.
15.1 In the event that any Goods supplied by the Seller (whether or not such Goods have been supplied to the Company) are discovered to have been contaminated whether deliberately or accidentally prior to delivery by the Seller, the Company shall be entitled, without further liability to the Seller:
15.1.1 to suspend delivery of; and/or
15.1.2 to terminate any Contract for; and/or
15.1.3 to require the Seller to collect at its own risk and expense any stocks already held by the Company of
any Goods so contaminated and/or any Goods of the same description as those so contaminated and/or any other Goods supplied by the Seller the resale of which the Company, in its absolute discretion, considers is or will be commercially unviable as a result of the contamination and the Company shall be released from any obligation which has already arisen to pay for, and shall be entitled to a full refund of any sums already remitted in payment for, any such goods.
15.2 For the purpose of Condition 15.1, Goods will be deemed to be contaminated where they contain any substance or possess any quality or attribute which, in the Company’s opinion, is actually or potentially harmful to consumers or renders re-sale of the Goods commercially unviable or where a claim by any person that the goods have been interfered with becomes public knowledge.
16.1 Subject to the conditions relating to orders in Condition 2, any notice, demand or communication in connection with the Contract will be via e-mail in writing and may be delivered by hand, first class post or facsimile, addressed to the recipient at its registered office (or such other address or facsimile number which the recipient has notified in writing to the sender in accordance with this Condition 16, to be received by the sender not less than seven Business Days before the notice is despatched).
16.2 The notice, demand or communication will be deemed to have been duly served:
16.2.1 if delivered by hand, at the time of delivery;
16.2.2 if delivered by first class post, 48 hours after being posted (excluding days other than Business Days);
16.2.3 if delivered by facsimile, at the time of transmission, provided that a confirming copy is sent by first class post to the other party within 24 hours after transmission;
provided that, where in the case of delivery by hand or transmission by facsimile, such delivery or transmission occurs either after 4.00 pm on a Business Day, or on a day other than a Business Day, service will be deemed to occur at 9.00 am on the next following Business Day.
16.3 Service by facsimile is a valid means of service only where service of the original notice, demand or communication is not required.
16.4 For the avoidance of doubt, where proceedings have been issued in the Courts of England and Wales, the provisions of the Civil Procedure Rules must be complied with in respect of the service of documents in connection with those proceedings.
17. ELECTRONIC DATA INTERCHANGE
17.1 The Seller must be included in a recognised electronic data interchange process system. The arrangements for the placing and receipt of Orders invoicing and any other agreed transactions electronically shall be in such form and containing such details as the Company shall notify the Seller from time to time. These procedures, as amended and notified to the Seller from time to time, are deemed to be incorporated into these Terms and Conditions and, therefore, in any applicable Contract or Order.
18.1 The Seller agrees to co-operate with any investigation carried out by the Company into actual or suspected fraudulent behaviour and shall grant representatives of the Company access to its records and employees for the purposes of investigating actual or suspected fraudulent behaviour.
18.2 If the Company reasonably suspects that the Seller or its employees, agents or subcontractors have acted fraudulently, the Company may:
18.2.1 suspend or terminate any Contract; and/or
18.2.2 suspend any payments to the Seller until the investigation is completed.
18.3 The Seller accepts full responsibility for any fraudulent behaviour on the part of its employees and those of its agents or contractors, and shall indemnify and hold the Company harmless against, any action, claim, damage, injury, loss (including, without limitation, economic loss, loss of profit, revenue or goodwill), costs (including management and legal costs), or penalty whatsoever awarded against or incurred or paid by the Company resulting or arising directly or indirectly from such fraudulent behaviour, including, without limitation, any benefit or advantage received by the Seller, its agent or subcontractor from the Company as a result of the fraudulent behaviour.
The formation, existence, construction, performance, validity and all aspects whatsoever of the Contract or of any term of the Contract will be governed by English law as applied in Wales. The English and Welsh Courts will have exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Contract. The parties agree to submit to that jurisdiction.