JASCOTS WINE MERCHANTS
Trade Terms & Conditions
CONDITIONS OF SUPPLY
- DEFINITIONS AND INTERPRETATION:
The following terms as used herein shall have the meaning as stated:
“Acknowledgment” means the acknowledgment attached to these Conditions which requires the Customer’s signature and (where notified by the Company to the Customer) the signature of a Guarantor;
“Company” means Jascots Wine Merchants Limited, Company Registration No.: 8887662; “Conditions” means these Conditions of Supply;
“Contract” means any contract between the Company and the Customer for the supply of any Goods and/or Services, incorporating these Conditions;
“Customer” means any person, firm, company or other organisation who is the addressee of the Company’s quotation or acceptance of order issued by the Company and shall include any successor-in-title of the Customer and any company or entity existing or arising (wholly or partly) by way of any change of name, merger, amalgamation, reorganisation or acquisition of the Customer;
“Delivery Address” means the address for the delivery of the Goods notified to the Company in the Customer’s order;
“Designated Address” means the address designated by the Company for the performance of the Services, which shall be the Customer’s premises unless otherwise notified to the Customer;
“Goods” means any goods agreed in the Contract to be supplied by the Company to the Customer and including any goods agreed to be supplied with, or in relation to, any Services;
“Intellectual Property Rights” means any design rights, utility models, patents, inventions, logos, business names, trademarks, domain names, copyright, moral rights, rights in databases, source codes, reports, drawings, specifications, know how, trade secrets, rights in software, rights in the nature of unfair competition and the right to sue for passing off and any other equivalent or similar rights to any of the foregoing in any jurisdiction, whether registered or unregistered;
“Services” means any services agreed in the Contract to be performed by the Company for the Customer, including but not limited to training services;
“Supplies” means the Goods and/or the Services, depending on the context.
A reference to a clause is to a clause of these Conditions. Clause headings shall not affect the interpretation of these Conditions. Any obligation of the Company may be undertaken by the Company’s subcontractors, agents or representatives. Any reference to “parties” means the parties to the Contract and “party” shall be construed accordingly. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it. Words in the singular include the plural and in the plural include the singular.
These Conditions shall apply only to Customers who are Business Customers. A Customer is a Business Customer if the Customer purchases Goods and/or Services from the Company for the purposes of the Customer’s business, trade or profession, rather than for private use. All other Customers are Consumers.
APPLICATION OF CONDITIONS:
- All quotations are made and all orders are accepted by the Company subject only to these Conditions, which shall prevail notwithstanding any other terms and conditions which the Customer shall bring to the Company’s notice. No variation to these Conditions shall be binding except by specific written agreement of the Company. The Company’s employees or agents are not authorised to make any representations concerning the Supplies or the Contract unless confirmed by the Company in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.
- Any quotation is given on the basis that no Contract shall come into existence until the Company accepts the Customer’s order in accordance with the provisions of clause 2.3. Any quotation is valid for a period of 30 days only from its date unless otherwise stated, provided that the Company has not previously withdrawn it.
- The placing of an order following any quotation or other indication of price and delivery shall not be binding on the Company unless and until accepted by the Company in writing. The Company reserves the right to amend any accidental error or omission on quotations, orders acknowledgements or invoices without any liability on the part of the Company.
- The Customer shall be solely responsible for ensuring that the terms of its order and any instructions are complete, accurate and timely.
- No order of the Customer may be cancelled, deferred, altered or varied by the Customer, except with the agreement in writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs, damages, charges and expenses incurred by the Company as a result of cancellation, deferment, alteration or variation, provided always that any such order has not been accepted by the Company.
DESCRIPTION OF GOODS AND SERVICES:
- Any descriptions, data and illustrations contained in any Company publications are published for information only and shall not be incorporated into the Contract.
- Any and all Intellectual Property Rights (howsoever arising), in relation to the Supplies shall at all times vest in and belong solely to the Company.
- The Customer shall hold the Company harmless and shall fully and promptly indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any Intellectual Property Rights of any other person which directly or indirectly results from the Customer’s order or otherwise from any specification or instructions of the Customer.
- Prices for the Supplies, howsoever given, are based on conditions ruling on the date of their giving and are subject to change. The effective price for the Supplies shall be the price confirmed by the Company in its written notification of acceptance of the Customer’s order pursuant to clause 2.3.
- The Company reserves the right, by giving notice to the Customer at any time before delivery or provision of the Supplies, to increase the price of the Supplies to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, any increase in production, materials or labour costs, any change in delivery dates, quantities or specifications for the Supplies which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate, accurate or complete information or instructions.
- Unless otherwise stated the price quoted will be exclusive of Value Added Tax which will be charged at the rate which is applicable at the date of dispatch of the Goods or commencement of performance of the Services.
- Prices include the cost of delivery to the Delivery Address within the Company’s normal delivery routes.
DELIVERY AND PERFORMANCE:
- Any dates specified by the Company for delivery of the Goods and/or performance of the Services are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery and/or performance, as applicable, shall be within a reasonable time. Should expedited delivery of any Goods be agreed, the Company reserves the right to levy an extra delivery charge. The Company shall not be liable for any 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 similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods and/or performance of the Services (even if caused by the Company’s negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract.
- The Goods may be delivered by the Company in advance of any quoted delivery date upon giving notice to the Customer.
- Delivery of the Goods shall be made by the Company delivering the Goods to the Delivery Address and performance of the Services shall take place at the Designated Address.
- The Company may make partial delivery of any order or deliver any order by instalments and these Conditions shall apply to each. Each delivery shall be deemed to be a separate contract.
- All packaging provided by the Company which the Company has requested be returned shall be returned to the Company in an undamaged state within 30 days of delivery. The Company reserves the right to charge the Customer for any packaging which is not so returned.
- If for any reason the Customer fails to take or accept delivery of any of the Goods, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, or authorisations: (i) risk in the Goods shall pass to the Customer (including for loss or damage caused by the Company’s negligence); (ii) the Goods shall be deemed to have been delivered; and (iii) the Company may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance); or (iv) the Company may sell the Goods at the best price readily obtainable and (after deducting any reasonable costs and expenses in connection with the storage and expedited sale of the Goods), charge the Customer for any shortfall below the price for the Goods.
- If delivery involves difficult access to or at the Delivery Address and/or the point of access to the Delivery Address is located at an unreasonable distance from any feasible vehicular access point, the Company reserves the right to levy an extra delivery charge.
With respect to any Services which the Company is to perform for the Customer, the Customer shall co-operate with the Company in all matters relating to the provision of the Services and shall provide to the Company, in a timely manner, such relevant information as the Company may require and ensure that any such information is accurate and fully comprehensible in all material respects.
- Subject only to any special terms agreed in writing between the Company and the Customer, the Company shall be entitled to invoice the Customer for the price of the Supplies on or at any time after acceptance of the order.
- The Customer shall pay the price of the Supplies within the stipulated period of the date of the invoice for such Supplies. The Company shall be entitled to recover the price notwithstanding that delivery and/or performance may not have taken place. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will only be issued upon request.
- All payments shall be made without any deduction, withholding or set-off.
- In any circumstance, failure by the Customer to pay any invoice by its due date shall entitle the Company to: a) at its option, charge interest at the rate of five percent (5%) per annum above Lloyds Bank plc’s base lending rate from time to time calculated on a daily basis (whether before or after any judgment) until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest); b) charge the Customer with any costs incurred by the Company in the course of collecting outstanding monies due to the Company from the Customer; c) suspend any warranty for the Supplies or any other goods or services supplied by the Company to the Customer, whether or not they have been paid for; d) appropriate any payment made by the Customer to such of the Supplies as the Company may think fit; e) set off any amount owed by the Company to the Customer against any amount owed by the Customer to the Company on any account whatsoever; f) terminate the Contract, or suspend or cancel any future delivery of Goods and/or performance of Services; and g) cancel any discount (if any) offered to the Customer. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
- All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
The Company reserves the right to defer the date of provision of the Supplies, or to cancel the Contract or reduce the volume of the Supplies ordered by the Customer (without liability to the Customer) if it is prevented from, or delayed in, the carrying on of its business (wholly or in part) due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers, or any inability or delay in obtaining supplies of adequate or suitable materials, or the failure or demise of any source of supply.
- The Company warrants (subject to the other provisions of these Conditions) that:
- on delivery, the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
- if the Customer has made it expressly known to the Company in the Customer’s order that the Goods shall be suitable for a particular purpose and the Company has expressly stated in its written acceptance of the Customer’s order that it will supply Goods suitable for that purpose, then the Goods shall be reasonably fit for the purpose so stated; and
- the Services will be performed with reasonable skill and care.
- The Company’s liability pursuant to clause 9.1 shall be limited: a) for Goods, to the replacement of the Goods (or any part thereof) found to be defective and notified to the Company within the period set forth in clause 9.3; and b) for Services, to re-performing those Services found not to have been performed with reasonable skill and care and notified to the Company within the period set forth in clause 9.3. The Company may in either event but at its sole discretion, alternatively refund to the Customer the price of the Goods and/or Services.
- Any defect or deficiency in, or shortage or failure to correspond to specification of the Supplies shall be notified to the Company within 7 days from delivery of the Goods or performance of the Services; otherwise, the Supplies shall be deemed to be satisfactory.
- The Company shall not be liable for any breach of any warranty in clause 9.1, if: a) the Customer makes any further use of any Goods which the Customer has alleged to be defective after giving notice of any such defect; b) the defect arises from wilful damage, negligence, abnormal or adverse conditions or from any other cause which is not due to the neglect or default of the Company; c) the defect arises from the specification or instructions of the Customer; d) the full price for the Supplies has not been paid by the time for payment stipulated in clause 7.2; or e) the defect is of a type specifically excluded by the Company by notice in writing.
EXCLUSION OF LIABILITY:
- Other than as provided in clause 9 above and in Section 12 of the Sale of Goods Act 1979 and save for the conditions implied by section 2 of the Supply of Goods and Services Act 1982, all conditions, warranties and liabilities whatsoever whether express or implied, statutory or otherwise, are hereby expressly excluded and the Company shall be under no liability whatsoever for any loss or damage of whatsoever kind, howsoever caused or arising, including but without being limited to any direct, indirect or consequential loss or damage, lost profits, loss of use or other economic loss, provided that nothing herein contained shall be construed so as to exclude or limit the liability of the Company: a) for death or personal injury caused by the Company’s negligence; b) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or c) for fraud or fraudulent misrepresentation.
- The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price.
The Company reserves the right without prior approval from or notice to the Customer to make changes to the Goods in order to meet any statutory or other requirement.
RISK AND TITLE:
- The Goods are at the risk of the Customer from the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when the Company has tendered the delivery of the Goods.
- Title to the Goods shall not pass to the Customer until the Company has received payment in full (including any interest or other sums payable) in cash or cleared funds (i) for the Goods and (ii) for any other goods that the Company has supplied to the Customer in respect of which payment has become due.
- Until title to the Goods has passed to the Customer, the Customer shall: a) hold the Goods on a fiduciary basis as the Company’s bailee; b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property; c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery and indemnify the Company against all loss or damage of whatsoever nature affecting the Goods; e) notify the Company immediately if it becomes subject to any of the events listed in clause 4 below (a)-(b); f) not assign to any other person any rights arising from a sale of the Goods without the Company’s written consent; and g) give the Company such information relating to the Goods as the Company may require from time to time, but the Customer may use or resell the Goods in the ordinary course of its business, provided always that nothing herein shall constitute the Customer the agent of the Company for the purpose of any such resale of the Goods.
- The Customer’s right to possession of the Goods shall terminate immediately if:
- the Customer has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed over its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer, or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
- the Customer suffers or allows any execution distress or diligence, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other contract between the Company and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or a secured lender to the Customer takes any steps to obtain possession of the secured property or otherwise enforce its security, or the Customer ceases or threatens to cease to trade; or
- the Customer encumbers or in any way charges any of the Goods.
- If the Customer is late in paying (i) for the Goods or (ii) any other goods supplied by the Company or if, before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in Clause 12.4 or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, and without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored or kept in order to recover them. The Customer shall not keep the Goods at any premises other than such premises as shall be specified in writing by the Customer to the Company prior to the dispatch of Goods to the Customer or at any premises at which the Customer does not have the right to grant access to the Company.
- The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
- On termination of the Contract, howsoever caused, the Company’s (but not the Customer’s) rights contained in this clause 12 shall remain in effect.
- The Company may terminate the Contract forthwith by written notice to the Customer if:
- the Customer commits a continuing or material breach of the provisions of the Contract and if the breach is capable of remedy, fails to remedy it within 14 days of receiving written notice of the breach; or
- the Customer becomes subject to any of the events listed in clause 12.4.
- The right to terminate the Contract given by this clause 13 shall not prejudice any other right or remedy of the Company against the Customer in respect of the breach concerned, or any other breach.
- Upon termination of the Contract all obligations of the Company thereunder shall cease.
RELATIONSHIP OF CUSTOMER TO OTHER ENTITIES:
Where the Customer has a relationship with another entity and that entity becomes subject to any event which adversely affects the performance of any of the Customer’s obligations under the Contract, (“the Event”) the Customer shall, immediately upon becoming aware of the Event, disclose to the Company:
- the nature of the Customer’s relationship with the other entity;
- the nature of the Event; and
- the extent to which the Customer considers that the performance of its obligations will be adversely affected by the Event; and
the Customer shall use its best efforts to mitigate the adverse effects of the Event, provided that the Customer shall remain solely and exclusively liable for the full and prompt performance of all of its obligations under the Contract. Any change in, or recurrence of, the Event shall likewise be immediately notified to the Company.
If the Customer is an individual or a group of individuals, the Customer agrees that the Company may:
- seek, hold and process any information obtained about the Customer from the Customer or third parties for the purpose of and as a result of any applications or agreements the Customer has with the Company. This will include a search with a licensed credit reference agency which will keep a record of that search;
- use his information for credit assessment purposes including assessing the Customer’s credit limit and to administer and operate the credit account to the Customer and analyse the conduct of that credit account. This may include further searches with licensed credit reference agencies;
- disclose any information the Company holds about the Customer to licensed credit reference agencies, other suppliers and creditors to help the Company and others make credit decisions; to help prevent or direct fraud or other crimes; to trace debtors; to provide trade references on a confidential basis to the Company’s agents and subcontractors; to insurance companies for purposes connected with insurance products that relate or might relate to the Customer’s credit account; to any person to whom the Company proposes to transfer its rights and/or responsibilities under these Conditions and to the extent the Company is required and permitted to do so by law;
- hold and use this information during and for up to 6 years after the trading relationship; and
if the Customer is a body corporate or incorporate, the Company may access information as provided in this clause 15 relating to the Customer’s directors, shareholders or members, including searches with licensed credit reference agencies.
No forbearance or indulgence granted by the Company to the Customer shall in any way limit the rights of the Company under these Conditions. Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business. Neither the Company nor the Customer intends that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected. Where the Acknowledgment attached to these Conditions is required to be signed by a Guarantor, said Guarantor hereby agrees that in consideration of the Company extending credit to the Customer the Guarantor, as primary obligor, unconditionally and irrevocably guarantees to the Company the due payment and discharge by the Customer of all the Customer’s present and future indebtedness and other liabilities to the Company whether actual or contingent and whether incurred solely or jointly and of all interest, charges and expenses payable by the Customer to the Company on any account whatever (“the Indebtedness”) and agrees to indemnify the Company on demand against any loss it may incur, including legal costs on a solicitor/own client indemnity basis, as a result of or in connection with the Indebtedness. The Company shall be entitled at its discretion to perform any of the obligations assumed by it and to exercise any of its rights granted to it under the Contract through any other company or subsidiary. The Contract constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements and understandings between the parties. Any dispute arising under or in connection with the Contract shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application by either party to the President for the time being of the Law Society whose decision as to the type, qualifications and experience of such arbitrator shall be final and binding on the parties. The costs of the arbitrator shall be borne by the parties as he directs and his decision on the issue in dispute shall be final. These Conditions shall be subject to and construed under English Law and the parties hereby submit to the exclusive jurisdiction of the English courts for that purpose.