1.1 The terms and conditions as set forth herein and the European Contract for Coffee (ECC) as well as any additional terms and conditions that appear on the Contract shall constitute the entire agreement between DR Wakefield & Company Limited (“Seller”) and the Buyer, to the exclusion of all other terms and conditions.
1.2 No terms and conditions contained in the Buyer’s purchase order shall form part of the Contract simply as a result of being referred to in the Contract.
1.3 Acceptance by Buyer of these terms may be made by either (a) written acceptance or (b) receipt by Buyer of delivery of any products purchased by Buyer (“Products”).
1.4 The Agreement shall not be modified except in writing, signed by both the parties hereto.
2. Price and Payment
2.1 The price of all Products unless otherwise specifically stated in the Contract or otherwise agreed in writing with the Seller, is as stated in the Seller’s price list Ex-Warehouse, at the place of warehouse location, exclusive of insurance cost, palletisation and shrink wrap.
The price includes storage in a warehouse for up to four (4) weeks from date of invoice; if the Products are not collected after four weeks from the date of the invoice, all subsequent costs and expenses of storage (including, without limitation, storage and insurance) will be passed to the Buyer.
Where special packaging is specified, a charge may be made to cover such extra expense.
The invoice and release forms shall be sent no later than the last working day of the Forward Contract delivery month.
2.2 Invoices are due and payable within the time period specified on the invoice, measured from the date of the invoice and not the date of the delivery, subject to continuing credit approval by the Seller.
2.3 The Buyer agrees, without prior notice, to pay interest to the Seller on any over-due sums in accordance with the late Payment of Commercial Debts (Interest) Act 1998 from the due date to the payment date. The Seller shall be entitled to cancel or suspend the supply of any goods to the Buyer, without incurring any liability to the Buyer. If any Contract is cancelled, the Seller shall reserve the right to debit the Buyer for any cost or devaluation in the goods incurred at the daily market rate.
2.4 All orders are subject to, and the obligation of Seller to make deliveries is subject to, the right of the Seller as provided in paragraph 3, to require payment of all or any part of the purchase price in advance of delivery or to make shipment Cash On Delivery. If the Buyer fails to make advance payment when requested by Seller, or if the Buyer fails to make payment of any sum due Seller (whether or not arising out of this order) or refuses to accept Cash On Delivery shipment, then Seller shall have the right, in addition to any other remedy to which it may be entitled in law or equity, to cancel the sales order, refuse to make further deliveries, and declare immediately due and payable all unpaid amounts for goods previously delivered to the Buyer.
2.5 Partial shipments made under any order shall be treated as a separate transaction and for them shall be made accordingly. However, in the event of any default by Buyer, Seller may decline to make further shipments without affecting its rights under such order.
2.6 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise.
3.1 The month for delivery shown in the Contract means that the Product may be available at any time during the month once availability is confirmed. Time for delivery shall not be of the essence.
3.2 A release form notifying the Buyer that the Product is ready for delivery/collection will be sent to the Buyer no later than the last day of the month shown for delivery unless the parties have agreed delivery of the Product on an earlier date.
3.3 The Buyer is responsible for the collection of the Products at the agreed point. Unless otherwise agreed to in writing by Seller, all transport shall be at the expense of Buyer.
3.4 On specific request, the Seller may organise the transport on behalf of the Buyer; all cost will be passed to the Buyer.
3.5 A date and time for collection of all ex-Warehouse orders will need to be booked by the Buyer or their appointed transport company twenty four (24) hours prior to collection. The Buyer or appointed transport company will be given a booking reference number. Confirmation of the booking reference number is required when collection is made.
All delivered orders also require a twenty four (24) hours notice from the time the Buyer calls for the Product to be delivered, following receipt of the release form in accordance with condition 3.2. Bookings will be organised by the Seller.
3.6 The time for performance of the Contract by the Seller shall not be of the essence. The Seller’s failure to deliver and/or provide by the due date(s) shall not constitute a breach of Contract and the Seller shall not in any circumstances (even if caused by the Seller’s negligence) be responsible for any direct or consequential loss or damage of any kind suffered by the Buyer as a result. The Seller may wholly or partly suspend deliveries of Products and the Buyer shall accept late delivery of such Products unless the Buyer has cancelled the Contract in accordance with the provisions of Condition 6.
3.7 In accordance with Article 2 of the ECC if the Seller delivers to the Buyer Products of up to 3% more or less than the quantity in the Contract, the Buyer shall not be entitled to object to or reject the Products or any of them by reason of the surplus or shortfall and shall pay for such Products at the pro rata Contract rate.
4. Risk of Loss and Title of Goods
4.1 The Products are at the risk of the Buyer from the time of collection of the Products by the Buyer or the transport company at the Ex-Warehouse point; or at the time of delivery in the case of a delivered contract.
4.2 The Seller remains the owner of the Products until payment for the Products has been received in full (in cash or cleared funds).
4.3 The Buyer grants to the Seller, its agents and employees, an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or, whether the Buyer’s right to possession has terminated, to recover them.
5. Inspection and Acceptance/Claims/Returns
5.1 As the Seller is not the producer of the Products, the Seller shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Seller.
5.2 The Seller warrants that (subject to the other provisions of these conditions) on delivery the Products shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
5.3 The Seller shall not be liable for a breach of the warranty in condition 5.2 unless the Buyer gives written notice of the defect to the Seller within 24 hours if the Products are damaged or do not comply with the specification in the Contract, or within 30 days if the Product fails to meet the quality against the landed samples.
5.4 If the Buyer fails to give written notice in accordance with condition 5.3, he is deemed to have accepted the Products. Use of such goods by Buyer, its agent, employees or licensees, for any purpose after delivery thereof, shall constitute acceptance of the goods by Buyer.
5.5 The Products may not be returned to Seller without first obtaining Seller’s consent. The request for return and credit must be filed with Seller and shall include contract number, delivery date, type and quantity of goods, the marks and the reason for the return. If authorisation is granted, Products must be returned in a clean condition. No credit allowance on defective Products will be made and no replacement for defects will be delivered in any event, unless the alleged defectives are, among other things, established to Seller’s satisfaction after suitable testing and inspection by Seller. Returns for quality claims will be at the expense of Buyer unless the reason has been justified and accepted by the Seller.
6. Force Majeure
Seller will not be liable for any loss, damages or penalty resulting from delay in delivery of the Products when such delay is due to causes beyond the reasonable control of Seller, including without limitation, supplier delay, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, lock outs, strikes or other labour disputes, fire, explosion flood, epidemic or earthquake. In any such event, the Seller reserves the right to defer the delivery date or to cancel the Contract or reduce the volume of the Products ordered by the Buyer (without liability to the Buyer).
7.1 Subject to conditions 3 and 5 above, the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of: (a) any breach of these conditions; (b) any use made or resale by the Buyer of any of the Products, or of any product incorporating any of the Products; and (c) any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
7.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
7.3 Nothing in these conditions excludes or limits the liability of the Seller: (a) for death or personal injury caused by the Seller’s negligence; or (b) under section 2(3), Consumer Protection Act 1987; or (c) for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or (d) for fraud or fraudulent misrepresentation.
7.4 Subject to condition 7.2 and condition 7.3: (a) the Seller’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; and (b) the Seller shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
8.1 The Contract may not be terminated by the Buyer except with the agreement in writing of the Seller. On termination: (a) the Buyer will pay, at the prices stated in the Seller’s contract price, for all Products which have been ordered and allocated to Buyer at the time of Seller’s receipt of notice of termination; and (b) the Buyer will pay all storage costs, from the time of the Contract to the time of Seller’s receipt of notice of termination. In the event of a termination, Buyer will have no rights in partially completed goods.
8.2 If the Buyer has ordered bespoke Products and the Buyer decides to cancel, the Seller reserves the right to pass all costs incurred by the Seller to the Buyer.
9. Bankruptcy or insolvency of Buyer
If the financial conditions of the Buyer at any time is such as to give Seller, in its judgement, reasonable grounds for insecurity concerning Buyer’s ability to perform its obligation under this agreement, the Seller may: (a) by notice in writing to Buyer, cancel this Agreement, without judicial intervention or declaration of default of Buyer and without prejudice to any right or remedy which may have accrued or may accrue thereafter to Seller; (b) require full or partial payment in advance and suspend any further deliveries for continuance of the work to be performed by Seller until such payment has been received; or (c) make shipments Cash On Delivery.
10.1 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
10.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
10.3 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract. Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
10.4 The parties to the Contract do not intend 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.
11.1 Any dispute which the parties are unable to resolve amicably shall be determined by arbitration in London in accordance with the European Contract for Coffee.
11.2 These Conditions and all aspects of the Contract made pursuant to them shall be governed by and construed in all respects in accordance with the laws of England and the Seller and the Buyer hereby agree to submit to the exclusive jurisdiction of the English Courts.