Terms and Conditions:
1 Formation of Contract
1.1 In these conditions (“the Conditions”) Seller means Purity Soft Drinks Limited and Purchaser means the person who buys or agrees to buy goods from the Seller.
1.2 Any order received by the Seller from the Purchaser shall be accepted entirely at the discretion of the Seller, and, if so accepted, will only be accepted upon these Conditions.
1.3 Each order which is so accepted shall constitute an individual legally binding contract between the Seller and the Purchaser and such contract is hereafter referred to in these Conditions as an “Order”.
1.4 These Conditions shall override any contrary different or additional terms or conditions (if any) contained on or referred to in an order form or other documents or correspondence from the Purchaser, and no addition alteration or substitution of these terms will bind the Seller or form part of any Order unless they are expressly accepted in writing by a person authorised to sign on the Seller’s behalf.
2 Specification and Price
2.1 Unless specified by the Purchaser and agreed to in writing by the Seller all goods supplied by the Seller shall be in accordance with the Seller’s specification (copies of which are available from the Seller upon request) and where manufactured by the Seller, in accordance with all applicable legislation and British Standards which relate specifically to the goods. No other specification, descriptive material, written or oral representation, correspondence or statement, promotional or sales literature shall form part of or be incorporated by reference into the Order.
2.2 The price of the goods shall be the Seller’s quoted price from time to time as previously notified to the Purchaser.
2.3 The Purchaser shall not interfere with the packaging or get-up of the goods prior to their re-sale by the Purchaser.
The Purchaser shall be deemed to have accepted all goods 7 days after their delivery by the Seller to the address specified in the Order unless written notification is sent to the Seller advising of any shortages, incorrect goods or otherwise unacceptable condition of goods within the aforementioned timeframe.
4 Delivery and risk
4.1 Unless otherwise stated in the Order, the price quoted includes delivery to the address specified in the Order provided that the Seller reserves the right to make an additional charge to cover any increase in transport costs occurring before the date of delivery.
4.2 Any time or date for delivery given by the Seller is given in good faith but is an estimate only.
4.3 Risk in the goods shall pass to the Purchaser upon delivery.
5 Title and payment
5.1 The Seller warrants that (except in relation to intellectual property rights of third parties as referred to in Condition 5.3) the Seller has good title to the goods.
5.2 The Seller warrants that it is not aware of any actual or alleged infringements of any intellectual property rights of third parties which relate to the goods other than those (if any) which the Seller has disclosed to the Purchaser prior to acceptance of the Order.
5.3 The Seller shall have no liability to the Purchaser (other than as provided in Condition 10) in the event that the goods to be supplied under the Order infringe any intellectual property rights of a third party (including without limitation by reason of their possession, sale or use, whether alone or in association or combination with any other goods); the Seller gives no warranty that the goods to be supplied under the Order will not infringe as aforesaid, and all conditions, warranties, stipulations or other statements whatsoever relating to such infringement or alleged infringement (if any), whether express or implied, by statute, at common law or otherwise howsoever, are hereby excluded.
5.4 Unless otherwise stated in the Order, payment of the price of the goods comprised in each consignment delivered pursuant to an Order shall become due via cleared funds on the 30th day following the date of invoice despite the fact that title therein has not passed to the Purchaser and the Seller shall accordingly be entitled to sue for the price once the same is due notwithstanding the fact that property in the said consignment has not so passed. Where the Seller recovers possession of a consignment of goods title in which has not yet passed to the Purchaser, such recovery shall be without prejudice to the rights of the Seller to sue for the purchase price under this clause. The Seller also reserves the right to reduce payment terms offered to the Purchaser at any time. The Seller agrees to notify the Purchaser in writing of any such changes which will be immediately effective.
5.5 If payment is not received by the due date in accordance with clause 5.4 the Seller reserves the right to charge interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and to claim any fixed sum due under the Late Payment of Commercial Debts Regulations 2002 or any regulation amending or replacing the same.
5.6 Title to goods shall not pass to the Purchaser but shall be retained by the Seller until the price of such goods has been paid to the Seller in full by the Purchaser.
5.7 Until such time as title in the goods has passed to the Purchaser:
5.7.1 the Seller shall have absolute authority to retake, sell or otherwise deal with or dispose of all any or part of the goods in which title remains vested in the Seller;
5.7.2 for the purpose specified in 5.7.1 above, the Seller or any of its agents or authorised representatives shall be entitled at any time and without notice to enter upon any premises in which the goods or any part thereof are installed, stored or kept, or are reasonably believed so to be;
5.7.3 the Seller shall be entitled to seek a court injunction to prevent the Purchaser from selling, transferring or otherwise disposing of the goods;
5.7.4 the Purchaser shall store or otherwise denote the goods in respect of which property remains with the Seller in such a way that the same can be recognised as the property of the Seller.
5.8 Notwithstanding the foregoing, risk in the goods shall pass on delivery of the same to the Purchaser, and until such time as title in the goods has passed to the Purchaser, the Purchaser shall insure such goods to their replacement value and the Purchaser shall forthwith, upon request, provide the Seller with a certificate or other evidence of such insurance.
6 Damage in transit
The Seller will replace free of charge any goods proved to the Seller’s satisfaction to have been damaged in transit provided that within 24 hours after delivery the Seller has received from the Purchaser notification in writing along with photographic evidence of the occurrence of the damage and also, if and so far as practicable, of its nature and extent. Where possible, a note should be made on the Proof of Delivery document that is handed back to the carrier.
7 Returns and Deposits
7.1 Where the price of goods includes a deposit in respect of packaging, this is specified in the terms of the Order.
7.2 The amount of such deposit will be offset against the amount due in respect of future Orders on return of such packaging in satisfactory condition to the Seller.
8 Force majeure
8.1 The Seller shall not be under any liability for any failure to perform any of its obligations under the Order due to Force Majeure. Following notification by the Seller to the Purchaser of such cause, the Seller shall be allowed a reasonable extension of time for the performance of its obligations.
8.2 For the purposes of this Condition, “Force Majeure” means fire, explosion, flood, lightning, Act of God, act of terrorism, war, rebellion, riot, sabotage, or official strike or similar official labour dispute, or events or circumstances outside the reasonable control of the party affected thereby.
9 Intellectual property rights
9.1 In the event that any claim is made against the Purchaser for infringement of Intellectual Property Rights arising directly from the use by the Purchaser of the goods, the Seller at its own expense shall conduct any ensuing litigation and all negotiations for a settlement of the claim. The Seller will bear the costs of any payment (either by way of a lump sum or a continuing royalty payment) made in settlement, or as a result of an award in a judgment against the Seller in the event of litigation.
9.2 The benefit of Condition 9.1 is granted to the Purchaser by the Seller only in the event that the Purchaser shall give the Seller the earliest possible notice in writing of any such claim being made or action threatened or brought against it, shall make no admission of liability or take any other action in connection therewith, shall permit the Seller to have the conduct of the claim pursuant to Condition 9.1, and shall (at the Seller’s expense) give all reasonable information, co-operation and assistance to the Seller (including without limitation lending its name to proceedings) in relation to the conduct of the claim. In addition, if it is made a condition of any settlement made by the Seller, or judgment awarded against the Purchaser, pursuant to Condition 9.1, the Purchaser shall return or destroy, as applicable, all infringing goods still under its control subject to a refund by the Seller of any payment for such goods already made less a reasonable allowance for depreciation of the goods by reason of their use (if any) by the Purchaser prior to their return or destruction as aforesaid.
9.3 The provisions of Condition 9.1 shall not apply to any infringement caused by the Seller having followed a design or instruction furnished or given by the Purchaser nor to any use of the goods in a manner or for a purpose which shall have been specifically prohibited in writing by the Seller, nor to any infringement which is due to the use of such goods in association or combination with any other product.
9.4 For the purposes of this Condition, the capitalised term “Intellectual Property Rights” means patents, registered designs, unregistered designs, registered trademarks and copyright only, having effect in the United Kingdom.
9.5 The foregoing states the Seller’s entire liability to the Purchaser and the Purchaser’s sole and exclusive remedies against the Supplier in connection with claims based on or resulting from the infringement of Intellectual Property Rights, of any kind whatsoever, of third parties.
Both the Seller and the Purchaser shall each keep confidential and shall not without the prior consent in writing of the other disclose to any third party any technical or commercial information which it has acquired from the other as a result of discussions, negotiations and other communications between them relating to the goods and the Order. In the event of damages caused by the carrier, the Seller reserves the right to share information relating to the order as required by the carrier’s insurers so that a claim can be made. In this event, only necessary information will be shared with the insurer in relation to the claim.
11 Economic loss
Subject to Condition 13, and notwithstanding anything contained in these Conditions (other than Condition 13) or the Order, in no circumstances shall the Seller be liable, in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever, and whatever the cause thereof (i) for any loss of profit, business, contracts, revenues, or anticipated savings, or (ii) for any special indirect or consequential damage of any nature whatsoever.
12 Limitation of liability
Subject to Condition 13, and notwithstanding anything contained in these Conditions (other than Condition 13) or the Order, the Seller’s liability to the Purchaser in respect of the Order, in contract, tort (including negligence or breach of statutory duty) or howsoever otherwise arising, shall be limited to 110 per cent of the price of the goods specified in the Order.
13 Unfair Contract Terms Act 1977
13.1 If and to the extent that s.6 and/or s.7(3A) of the Unfair Contract Terms Act 1977 applies to the Order, no provision of these terms and conditions shall operate or be construed to operate so as to exclude or restrict the liability of the Seller for breach of the express warranties contained in Condition 5, or for breach of the applicable warranties as to title and quiet possession implied into the terms and conditions of the Order by s.12(3) of the Sale of Goods Act 1979, or s.2(3) of the Supply of Goods and Services Act 1982, whichever Act applies to the Order.
13.2 If and to the extent that s.2(1) of the Unfair Contract Terms Act 1977 applies to the Order, nothing in these terms and conditions shall operate or be construed to operate so as to exclude or restrict the liability of the Seller for death or personal injury caused to the Purchaser by reason of the negligence of the Seller or of its servants, employees or agents.
13.3 No provision of these terms and conditions shall have effect or operate so as to exclude any liability of one of the parties in respect of fraud or a fraudulent misrepresentation made by that party to the other, or to restrict or exclude any remedy which the other party may have in respect of such fraud or fraudulent misrepresentation.
14 Purchaser’s Non-Payment and Insolvency
14.1 In the event of
14.1.1 the Purchaser’s non-payment by the due date of any sum due to the Seller; or
14.1.2 the Purchaser making any voluntary arrangement with its creditors or becoming subject to an administration order or going into liquidation; or
14.1.3 an encumbrancer taking possession or a receiver being appointed, of any of the Purchaser’s property or assets; or
14.1.4 the Purchaser ceasing or threatening to cease to carry on business; or
14.1.5 the Seller reasonably apprehending that any of the above events is about to occur in relation to the Purchaser;
then the Seller shall, without prejudice to any other right or remedy available to it, be entitled to cancel any Order or suspend any further deliveries or the performance of any services pursuant to any Order without liability to the Purchaser and the price of any goods or services delivered or performed pursuant to any Order shall become immediately due and payable.
15 Applicable law
The Order shall be considered a contract made in England and shall be governed in all respects by the law of England and the parties agree to submit to the non-exclusive jurisdiction of the English courts.