CONDITIONS OF SALE
Buyer means the person or firm who buys or agrees to buy the Goods from the Seller.
Conditions means the terms and conditions of sale as varied from time to time in accordance with clause 2.4.
Contract means the contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
Delivery Date means the date specified by the Seller when the Goods are to be delivered in accordance with clause 5.
Force Majeure Event means an event or circumstance beyond the reasonable control of the affected Party.
Goods means the goods set out in the Order.
Order means the Buyer’s verbal or written order for Goods.
Parties means the Buyer and the Seller (each, a Party).
Price means the price for the Goods excluding VAT and any other tax, tariff, duty or levy, as set out in the Seller’s Invoice.
Seller means John Thompson & Sons Limited of 35-39 York Road, Belfast BT15 3GW company registration number R0000447.
Seller’s Invoice means the Seller’s invoice for the Goods.
Specification means the Seller’s standard specification for the Goods from time to time.
2. BASIS OF CONTRACT
2.1 These Conditions shall apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with any of these Conditions.
2.3 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable specification are complete and accurate.
2.4 No variation of these Conditions (including, without limitation, the incorporation of special terms and conditions) or the Contract shall be effective unless it is agreed in writing in advance by the Seller.
3. PRICE & PAYMENT
3.1 The Buyer shall pay the Price in full. The Price is exclusive of VAT and any other tax, tariff, duty or levy which, in each case, shall, unless otherwise agreed in writing in advance by the Parties, in additional to the Price, be payable at the rate ruling on the date of supply.
3.2 Where the Price is impacted by changes to VAT, or any other tax, tariff, duty or levy on raw materials or any other input to the cost of the product supplied, arising from any regulatory or legislative change, the Seller reserves the right to immediately reflect these changes in the Price.
3.3 Payment of the Price and VAT and any other tax, tariff, duty or levy shall be due by the last day of the month following the month of the Seller’s Invoice or upon such other payment terms as may be agreed in writing in advance by the Seller.
3.4 If the Buyer fails to make any payment due to the Seller under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above Bank of Ireland (UK) plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
3.5 To the extent that the Goods are to be manufactured to the Buyer’s required specification, then, in addition to the Price, any additional costs incurred by the Seller may be charged to the Buyer and added to the sales invoice.
4.1 The Goods are described in the Seller’s Specification (except where manufactured to the Buyer’s required specification).
4.2 The Seller reserves the right to amend the Goods if required by applicable statutory or regulatory requirements.
4.3 To the extent that the Goods are to be manufactured to the Buyer’s required specification, the Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including, without limitation, any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Seller’s use of such specification in this clause 4.3.
5.1 Unless agreed otherwise between the Parties, the Seller shall deliver the Goods to the Buyer’s address or such other location as the Parties may agree (Delivery Location) on the Delivery Date. The Buyer shall make all arrangements necessary to take delivery of Goods whenever they are tendered for delivery.
5.2 Delivery is completed on the completion of unloading of the Goods at the Delivery Location, save where the Goods are collected by the Buyer in which case delivery is completed on the completion of loading of the Goods at the collection point.
5.3 The Seller shall ensure each delivery of the Goods is accompanied by a delivery note.
5.4 If the Seller delivers up to and including 10% more or less than the quantity of Goods ordered, the Buyer may not reject them, but on receipt of notice from the Buyer of a correct and valid claim that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Seller’s invoice.
5.5 The Seller may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or non-compliance in an instalment shall not entitle the Buyer to cancel any other instalment.
6.1 In the absence of any notice given in accordance with clause 8.2(a), the Buyer shall be deemed to have accepted the Goods 12 hours after completion of delivery (Acceptance).
6.2 Upon Acceptance, save for any non-compliance which could not have been detected by visual inspection, the Buyer shall not be entitled to reject Goods which are not in accordance with the Contract.
7. RISK & TITLE
7.1 The risk in the Goods shall pass to the Buyer on completion of delivery.
7.2 Title to the Goods shall not pass to the Buyer until the earlier of:
(a) the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b) the Buyer uses the Goods in the ordinary course of its business, in which case, subject to clause 7.3, title to the Goods shall pass to the Buyer at the time specified in clause 7.5; and
(c) where resale of goods forms part of the ordinary course of the Buyer’s business (but not otherwise), the Buyer resells the Goods in the ordinary course of its business, in which case title to the Goods shall pass to the Buyer at the time specified in clause 7.6.
7.3 If any of the Goods which are the property of the Seller are:
(a) incorporated into other goods or used as material for other goods before payment, the property in the whole of such goods shall be and remain with the Seller until such payment has been made; or
(b) mixed with goods which are the property of any person other than the Buyer, the product thereof shall be deemed to be owned by the Seller in common with that other person.
7.4 Until title to the Goods has passed to the Buyer, the Buyer shall:
(a) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(b) notify the Seller immediately if it becomes subject to any of the events listed in clause 12.2; and
(c) give the Seller such information relating to the Goods as the Seller may require from time to time.
7.5 Subject to clauses 7.7, the Buyer may use the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods, provided that if it does so, then:
(a) it does so as principal and not as the Seller’s agent; and
(b) title to the Goods shall pass from the Seller to the Buyer immediately before the time at which use by the Buyer occurs.
7.6 Subject to clause 7.7, where the resale of goods forms part of the ordinary course of the Buyer’s business (but not otherwise), the Buyer may resell the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods, provided that if it does so, then:
(a) it does so in the capacity of a commission agent; and
(b) the proceeds of any such sale shall be held in trust for the Seller in a manner which enables those proceeds to be identified as such; and
(c) the Seller shall remunerate the Buyer a commission depending upon the surplus which the Buyer can obtain, to the satisfaction of the Seller, over and above the Price.
7.7 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 12.2, then, without limiting any other right or remedy the Seller may have:
(a) the Buyer’s right to use and/or resell the Goods in the ordinary course of its business ceases immediately; and
(b) the Seller may at any time require the Buyer to deliver up all Goods in its possession that have not been used, and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
7.8 The Seller shall not be responsible for, and the Buyer will indemnify the Seller against, liability in respect of damage caused to any vehicle or premises in the course of repossession and removal pursuant to clause 7.7(b).
7.9 The Buyer must ensure that if the Goods are or become affixed to any land or building, they shall be capable of being removed without material injury to such land or building and to take all necessary steps to prevent title to the Goods from passing to the landlord of such land or building. The Buyer warrants to repair and make good any damage caused by the affixation of the Goods to or their removal from any land or building and to indemnify the Seller against all loss, damage or liability it may incur or sustain as a result of such affixation or removal.
8. WARRANTY & COMPLIANCE
8.1 The Seller warrants that, on delivery, the Goods will conform in all material respects with the Specification (except where manufactured to the Buyer’s required specification) and comply with applicable law.
8.2 Subject to clause 8.3, if:
(a) the Buyer gives notice in writing to the Seller promptly upon discovery that some or all of the Goods do not comply with the warranty set out in clause 8.1; and
(b) the Seller is given a reasonable opportunity of examining such Goods; and
(c) the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Seller’s cost,
the Seller shall, at its option, repair or replace any such non-complying Goods, or refund the Price of such non-complying Goods in full.
8.3 Except as provided in this clause 8, the Seller shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 8.1, and all other conditions, guarantees, representations and warranties, whether express or implied by statute, custom of trade or otherwise as to quantity, quality, description, fitness for purpose, performance, merchantability or otherwise are excluded. 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 Contract.
8.4 The Seller shall not be responsible or liable in respect of Goods produced in accordance with the Buyer’s specification and the Buyer shall indemnify the Seller from and against all liability for actions, proceedings, costs, claims, demands, damage, expenses, loss or injury in respect thereof howsoever arising.
8.5 In performing its obligations under the Contract, each Party shall comply with all applicable laws, statutes and regulations from time to time in force, including, without limitation, the Modern Slavery Act 2015, the Bribery Act 2010 and the General Data Protection Regulation (GDPR) and the Data Protection Act 2018.
8.6 The Buyer recognises that, in performance of the Contract, the Buyer will be required to supply personal data. The Buyer represents and warrants that it has complied with all applicable obligations under GDPR and the Data Protection Act 2018 in supplying personal data to the Seller, including, without limitation, providing any required notices and obtaining any required consents for Seller’s processing of such personal data.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude the Seller’s liability for:
(a) death or personal injury resulting from negligence;
(b) fraud or fraudulent misrepresentation; and
(c) any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
9.2 Subject to clause 9.1:
(a) the Seller shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including, without limitation, negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of contract, loss of anticipated saving, loss of reputation, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including, without limitation, negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed and amount equal to the value of goods supplied unless specifically agreed otherwise between the Seller and Buyer in advance.
9.3 In relation to the supply of organic animal feed, the Seller will use reasonable endeavours to ensure that those Goods comply with EU Regulation No 834/2007 (as amended) and EU Regulation 889/2008 (as amended) for organic animal feed and certified as such, but otherwise no liability is accepted by the Seller for damage or loss of any kind arising from those Goods or any other raw materials supplied to the Seller in connection with those Goods either not being organic material or not meeting any other specification supplied by the Buyer.
10. FORCE MAJEURE
Neither Party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 60 days, the Party not affected may terminate the Contract by giving 30 days written notice to the affected Party.
The Buyer shall indemnify and hold harmless the Seller from and against all liability, loss, damage, injury, costs, expenses, claims and demands arising from any cause other than negligence or breach of contract by the Seller in performance of the Contract.
12. SUSPENSION & TERMINATION
12.1 Without prejudice to any other rights or remedies available to the Seller, if the Buyer:
(a) is overdue with any payment; or
(b) has failed to take delivery of the Goods whenever tendered; or
(c) exceeds its credit limit (if any) with the Seller; or
(d) makes or permits any default or breach of any of its obligations under the Contract,
the Seller may at its option, by notice in writing, either suspend further performance of the Contract with immediate effect for such time as the Seller thinks fit (but not exceeding 6 months) or (whether or not notice of suspension shall have been given) terminate the Contract with immediate effect.
12.2 Without prejudice to any other rights or remedies available to the Seller, the Seller may at its option, by notice in writing, either suspend performance of the Contract with immediate effect or (whether or not notice of suspension shall have been given) terminate the Contract with immediate effect if the Buyer:
(a) is or becomes insolvent or is deemed to be unable to pay its debts; or
(b) ceases or threatens to cease to trade; or
(c) (being an individual) becomes bankrupt (or being a company) takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(d) permits any judgement against it to remain unsatisfied for 7 days; or
(e) if any distress, execution, or other legal process shall be levied against the Buyer.
12.3 The Seller shall notify the Buyer of the exercise of its option to suspend performance of or terminate the Contract within a reasonable time of its becoming aware of the event or events giving rise to the Seller’s rights under this clause 12.
12.4 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
12.5 The following clauses shall survive termination of the Contract: clauses 1, 3, 4.3, 7, 9, 11, 12.4, 12.5 and 19.
13. ASSIGNMENT & SUBCONTRACTING
13.1 The Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
13.2 The Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Seller.
14. ENTIRE AGREEMENT
14.1 The Contract constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
14.2 Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
Each of the provisions of these Conditions shall be severable and distinct from the other and if any or more of such provisions is or becomes invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Any waiver by the Seller of any breach of or default under any provision of the Contract by the Buyer shall not be deemed to be a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
17.1 Any notice given to a Party under or in connection with the Contract shall be in writing, addressed to that Party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that Party may have specified to the other Party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
17.2 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 17.1; or if sent by pre-paid first class post or other next working day delivery service, at 9.00am on the second working day after posting; or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one working day after transmission.
17.3 The provisions of this clause 17 shall not apply to the service of any proceedings or other documents in any legal action.
18. THIRD PARTY RIGHTS
No one other than a Party shall have any right to enforce any of its terms.
19. LAW & COURTS
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of Northern Ireland. Each party irrevocably agrees that the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.