Product Supply Terms and Conditions
1.1 The following definitions apply in the Agreement:
Agreement: the contract, consisting of the Agreed Terms, under which the Company will supply Goods and, where indicated on any Order Confirmation, Ancillary Services, to the Customer.
Agreed Terms: the Clauses, any Order Confirmation supplied by the Company, any other document referred to in the Clauses or any Order Confirmation, and any other terms or conditions of the Agreement relating to the specifics of an order (such as quantity and type of Good) as agreed by the Company.
Ancillary Services: has the meaning given in Clause 3.3.
Applicable Law: (a) the laws of England and Wales; and (b) any other laws or regulations, regulatory policies, guidelines or industry codes which apply to the Goods from time to time including any laws relating to the import and export of the Goods and any laws applying to the Goods in the jurisdiction where the Goods are to be used.
The Company: Jaunty Goat Coffee (Chester) Limited, a company registered in England and Wales with company number 05189055.
The Company IP: All Intellectual Property Rights in the Goods.
Business Day: any day other than a Saturday, Sunday or a public holiday.
Clauses: these clauses 1 to 13.
Customer: the Person who enters into the Agreement with the Company.
Customer Default: has the meaning given in Clause 4.2.
Delivery Location: has the meaning given in Clause 5.2.
Force Majeure Event: has the meaning given in Clause 12.1.
Goods: the goods (or any part of them) set out in the Order Confirmation, to include Coffee, all associated products eg Tea, Consumables, Syrups, Sugars, Biscuits, Ancillaries, Crockery, etc.
Intellectual Property Rights: all intellectual property rights, whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world including all copyright and related rights, trade marks and confidential information.
Order Confirmation: any written document provided by the Company to the Customer setting out the particulars of the Customer's order for Goods or Ancillary Services.
Person: shall be given its full definition as in Schedule 1 Interpretation Act 1978 to include a natural person, incorporated or unincorporated bodies of persons.
2. Basis of Contract
2.1 The Agreed Terms apply to the Agreement 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.
2.2 A quotation for Goods given by the Company shall not constitute an offer.
2.3 The Agreed Terms constitute the entire agreement between the parties. The customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Agreed Terms. This Clause 2.3 is subject to Clause 11.2.
2.4 Where the Customer is a distributor of the Company, the Agreement shall apply in addition to, and not instead of, the terms of the distribution agreement. To the extent of any conflict between the Agreement and any distribution agreement, the Agreement shall prevail. Any agreement between a Customer that is a distributor will contain at least the same obligation for all parties as this Agreement.
2.5 If there is a term or condition of the Agreement agreed orally and that term or condition conflicts with a term or condition of the Agreement agreed in writing then, to the extent of any conflict, the Company shall not be bound by the oral term or condition unless it has agreed in writing to be so bound.
3. The Company's Obligations and Warranties
3.1 The Company will carry out its obligations under the Agreement with what it considers to be reasonable skill and care. The Company will carry out its obligations in accordance with the Agreement in all material respects. The Company will use reasonable endeavours to meet any performance or delivery dates, but any such dates shall be estimates only and time shall not be of the essence in respect of the Company’s performance of its obligations or the delivery of any Goods or Ancillary Services.
3.2 The Company shall have the right (but not an obligation) to make any changes to the Goods or any Ancillary Services which do not materially affect the nature or quality of any such Goods or Ancillary Services.
3.3 The Company shall have no obligation to provide any services or support in connection with the Goods save those services and support (if any) agreed in writing by the Company and any such services or support shall be Ancillary Services.
3.4 Each order of Goods shall constitute a separate contract which is subject to these Agreed Terms.
3.5 The Company warrants that the Goods have been manufactured so that they comply with the laws of England and Wales as at the date risk in them transfers to the Customer in accordance with Clause 7.1.
4. The Customer's Obligations
4.1 The Customer shall: (a) upon delivery, ensure that the Goods meet its requirements (including any Goods which have been customised or altered at the Customer's request) and are fit for the purpose for which the Customer wishes to use them and (b) inspect the Goods upon receipt and inform The Company in writing of any concern or non-compliance within 48 hours from when risk in those Goods transfers to the Customer in accordance with Clause 7.1.
4.2 If the Company's performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) The Company shall without limiting its other rights or remedies have the right to suspend performance of its obligations until the Customer remedies a Customer Default, and to rely on a Customer Default to relieve it from the performance of any of its obligations to the extent a Customer Default prevents or delays The Company's performance of any of its obligations;
(b) The Company shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Company's failure or delay to perform any of its obligations as a result of a Customer Default; and
(c) The Customer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from a Customer Default.
5.1 The parties shall agree whether the Company or the Customer is to be responsible for delivery /collection of the Goods. In the absence of agreement, the Company shall be responsible for delivering the Goods to the Customer’s premises notified by the Customer to the Company.
5.2 If the Company is to be responsible for delivering the Goods then the Company shall deliver the Goods to the location initially specified by the Customer and agreed by the Company or such other location as the parties may agree (Delivery Location) and the Customer shall, for the avoidance of doubt, remain responsible for the matters described in Clause 4.1. The Customer shall supply the Company with such information and assistance as is required by the Company to deliver the Goods.
5.3 If the Company is responsible for Delivery of the Goods the usual practice is that Delivery will be executed by a private haulage company at the expense of the Company. This is subject to change as the business needs of the Company require.
5.3 The Customer shall, if requested by the Company, ensure that the Goods are withdrawn from sale and cease to be used where the Company reasonably believes that the sale or use of the affected Goods could be a breach of Applicable Law or cause personal injury. Where such withdrawal has resulted from a breach of the Agreement by the Company, the Company shall provide replacements Goods or refund to the Customer the price of the affected Goods, but, subject to Clause 11.2, the Company shall have no further liability for the matters described in this Clause 5.3.
5.4 If the Customer is to be responsible for collecting the Goods then (a) the Customer shall collect the Goods at such time and on such date as is agreed by the parties, or failing agreement, as specified by the Company; and the Customer shall be responsible for all costs relating to the collection and transport of the Goods including couriers fees and insurance.
5.5 Any dates quoted by the Company for delivery or collection are approximate only, and the time of delivery is not of the essence.
5.6 If the Customer fails to take delivery of any Goods which the Company has attempted to deliver, or if the Customer fails to collect the Goods in accordance with Clause 5.4, then, except where such failure or delay is caused by the Company's breach of the Agreement:
(a) delivery or collection, as the case may be, of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which The Company first attempted the delivery or, where the Customer was to collect the Goods, at 9.00 am on the third Business Day after the last day on which the Customer was due to collect the Goods; and
(b) the Company shall store the Goods until delivery or collection takes place, and charge the Customer for all related costs and expenses (including insurance);
(c) if 15 Business Days has elapsed the Company may, but shall have no obligation to, resell or otherwise dispose of part or all of the Goods and, after deducting any costs incurred under Clause 5.6, 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.
6.1 The Company warrants that perishable Goods shall be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) for one year from the date when risk passes to the Customer in accordance with Clause 7.1, or if earlier, until the expiry date for those Goods.
6.2 In respect of non-perishable Goods, the Company warrants that, for the period of 12 months from when risk passes to the Customer in accordance with clause 7.1, the Goods shall be free from material defects in design, material and workmanship; and be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
6.3 If the Customer suspects that any Goods do not comply with the warranty set out in Clause 6.1 or the warranty set out in clause 6.2, or do not comply with the Agreement, the Customer shall return the non-compliant Goods to the Company. If the Company agrees that the Goods are non-compliant, the Company shall, at its option, either repair or replace the defective Goods, or refund the price of the defective Goods in full and the Company shall also reimburse any reasonable costs incurred by the Customer in returning the Goods to the Company.
6.4 The Company shall not be liable for the failure of the Goods to comply with the Agreement or the warranties set out in Clause 6.1 and 6.2 to the extent that the non- compliance is caused by any of the following matters:
(a) the Customer making any further use of such Goods after giving notice in accordance with Clause 6.3;
(b) the non-compliance arises because the Customer failed to follow the Company's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or good trade practice regarding the same;
(c) the Customer altering or repairing such Goods without the written consent of the Company;
(d) the defect arising as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(e) the defect arising as a result of the Customer’s breach of the Agreed Terms or the negligence of the Customer or a third party.
6.5 Subject to Clause 11.2, Clause 6.3 is the Customer’s sole remedy in respect of the matters described therein.
6.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Agreed Terms.
7. Title and Risk
7.1 Where the Company is to deliver the Goods then the risk in a Good shall pass to the Customer on completion of delivery of the Goods. Where the Customer is to collect the Goods from the Company's premises then risk in the Goods shall pass to the Customer on the earlier of the Customer collecting the Goods and deemed collection under clause 5.6(a).
7.2 Title to the Goods shall not pass to the Customer until the Company has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) any other goods or services that the Company has supplied to the Customer whether under the Agreement or not, in respect of which payment has become due.
7.3 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;
(e) notify the Company immediately if it suspects that it may not be able to pay for the Goods; and
(f) give the Company such information relating to the Goods as the Company may require from time to time; but the Customer may resell or use the Goods in the ordinary course of its business.
7.4 If before title to the Goods passes to the Customer the Customer has notified the Company in accordance with Clause 7.3(e) or the Company has the right to terminate under Clause 10.1 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, or irrevocably incorporated into another product, 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 in order to recover them.
8. Price and Payment
8.1 The price of the Goods shall be the price set out in the Order Confirmation or as notified by the Company to the Customer, or, if no price is quoted, the price set out in the Company's price list in force as at the date of delivery. The price of the Goods is exclusive of the following which shall be invoiced to the Customer: costs and charges of packaging, insurance and transport of the Goods, and any costs incurred by the Company in connection with the import/export of the Goods.
8.2 The price of the Goods is exclusive of any VAT which is payable by the Customer to the Company.
8.3 The Customer shall pay the Company's invoice in full and in cleared funds within the timeframe specified by the Company from time to time, but where no such timeframe has been specified, the Customer shall pay the invoice in full and in cleared funds within 30 Business Days of the date of the invoice. If the Customer fails to make any payment due to the Company under the Agreement by the due date for payment, then the Customer shall pay interest on the overdue amount, and claim such other sums as it may be entitled to, as prescribed by the Late Payment of Commercial Debts (Interest) Act 1998.
8.4 The Customer shall pay all amounts due under the Agreement in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part.
8.5 If the Customer believes that it has overpaid for the Goods then it must inform the Company in writing within 48 hours of it becoming aware of the alleged error or within 48 hours of when it could first have become aware of the alleged error (whichever is the earlier). The Customer shall be liable for any overpayment which it has failed to report to the Company in accordance with this Clause 8.5 and shall pay to the Company a sum equal to such overpayment (plus VAT) in accordance with the timescales in the Agreement for payment.
9. Intellectual Property Rights
9.1 The Company IPR is the property of the Company, or the Company's licensors, and nothing in the Agreement shall transfer any of the Company’s IPR to the Customer.
9.2 The Customer shall not do anything which could in any way damage or harm the Company or the Company IPR and shall promptly inform The Company if it becomes aware of any actual or alleged infringement of The Company IPR, or any other Intellectual Property Rights owned by The Company.
10.1 Without limiting its other rights or remedies, the Company may terminate any contract for the supply of Goods or Ancillary Services with immediate effect by giving written notice to the Customer if (a) the Customer commits a material or persistent breach of the Agreed Terms and (if such a breach can be remedied) fails to remedy that breach within 10 Business Days of receipt of written notice of the breach; (b) the Customer fails to pay any sums due under the Agreed Terms within 10 Business Days of the due date for those sums; or (c) the Customer becomes insolvent or, in the Company's reasonable opinion, there is a material risk that the Customer may not be able to pay any of its debts.
10.2 The following Clauses shall survive expiry or termination: 1 (Interpretation); 2 (Basis of contract); 4.1 (the Customer's obligations); 5.3 (Withdrawal of Goods); 6 (Quality), 8 (Price and payment), 9 (Intellectual Property Rights), 11 (Limitation of liability), 12 (Force majeure), 13 (General) and any other Clause which expressly or by implication has effect after expiry or termination shall continue in full force and effect.
11. Limitation of Liability
11.1 In this Clause 11, a reference to a party's liability for something is a reference to any liability whatsoever which that party might have, the consequences of the liability, and any direct, indirect or consequential loss, damage, costs or expenses resulting from the liability, whether the liability arises under the Agreed Terms, in tort or otherwise, and even if the liability results from that party's negligence or from negligence for which that party would otherwise be liable.
11.2 Nothing in the Agreement shall limit or exclude a party's liability for: death or personal injury caused by its negligence, fraud or fraudulent misrepresentation; breach of the terms implied by section 12 of the Sale of Goods Act 1979; defective products under the Consumer Protection Act 1987; or any other matter to the extent to which it would be unlawful to exclude or restrict liability.
11.3 The Customer specifically agrees that:
(a) the Company shall have no liability for any loss of profit;
(b) the Company shall have no liability for indirect or consequential loss;
(c) the Company shall have no liability for any loss of business, rent, profit or anticipated savings whether direct or indirect;
(d) the Company shall have no liability for any damage to goodwill or reputation;
(e) the Company shall have no liability for damaged or defective Goods, or any failure to supply the correct type and quantity of Goods, to the extent that the Customer failed to report the matter in accordance with Clause 4.1 unless the matter would not be discovered on a reasonable inspection of the Goods;
(f) the Company shall have no liability for Goods not being used in accordance with any applicable operating instruction or good industry practice;
(g) the Company shall have no liability for the Customer mishandling Goods in any way including dropping or throwing Goods or not handling Goods with reasonable skill and care;
(h) the Company shall have no liability for any alteration or repair made to the Goods by the Customer or a third party without the written consent of the Company.
11.4 Subject to Clause 11.1 the Company's total liability to the Customer in respect of all other losses arising under or in connection with the Agreed Terms shall in no circumstances exceed the price of the Goods and any Ancillary Services. For the avoidance of doubt the cap on liability referred to in this Clause 11.4 shall be calculated by reference to the price of Goods under the Agreement and shall not take account of any goods or services ordered under another agreement between the Parties.
12. Force Majeure
12.1 Neither party shall be liable for any failure or delay in performing its obligations under the Agreement to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
13.1 No person, other than the Company and the Customer is a party to the Agreement. A person who is not a party to the Agreement shall not have any rights under or in connection with it.
13.2 The Company may enforce its Intellectual Property Rights in any jurisdiction but subject to this the 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.