Terms & Conditions of Trade
1 Definitions
1.1 'Company' means 4DegreesC Ltd, T/A Wellington Fresh.1.2 'Customer' means any person, firm, company or other legal entity which places an order, or buys any Products from the Company.
1.3 'Customer Nominated Product' means a Product that is not sourced by the Company but which at the request of the Customer the Company has agreed to purchase from the supplier thereof and supply to the customer.
1.4 'Food' means any food or beverage.
1.5 'Non-Food' means any foods which are not Food.
1.6 'Contract' means a contract between the Company and the Customer for the sale and purchase of the Products.
1.7 'Products' means any Food and/or Non-Food agreed in the contract to be supplied by the Company to the Customer.
1.8 'Statutory Interest' means statutory interest as defined in the Late Payment of Commercial Debts (Interest) Act 1998 as amended & supplemented by the Late Payment of Commercial Debts Regulations 2002.
1.9 'Terms and Conditions' means these terms and conditions of sale as may be amended by the company from time to time without notice.
2 Applicability of Terms & Conditions
These terms and conditions shall be incorporated into the contract and shall apply in place of and prevail over any terms and conditions contained or referred to in any communication from the Customer or implied by custom or practice. Other purported terms and conditions are expressly rejected by the Company.
3 Orders & Contracts
3.1 By placing an order with the Company either via the Company’s telesales department, EDI, Email, the Company’s website or otherwise, the Customer is offering to purchase the Products in accordance with these Terms and Conditions. The Contract shall be formed when the Company acknowledges acceptance of the Customer’s order or commences delivery of the Products to the Customer, whichever occurs earlier.3.2 Each Order shall be subject to a minimum value of £50.00.
3.3 No pricing made available to the Customer in any way shall constitute an offer and the Company may amend its prices at any time.Any current price list replaces all previous price lists.Prices are quoted exclusive of VAT which shall be applied if applicable.
3.4 The Contract is subject to availability of stock and the Company reserves the right to vary or alter the specification of Products without notice unless otherwise agreed in writing with the Customer.
3.5 The Contract is subject to availability of stock and the Company reserves the right to vary or alter the specification of Products without notice unless otherwise agreed in writing with the Customer.
3.6 The Contract constitutes the entire agreement between the parties and 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 Contract.
4 Title & Risk
4.1 Title in the Products shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of the Products and all other sums which are or which become due to the Company from the Customer on any account.4.2 In the event of non-payment on the due date for whatever reason of any sums due from the Customer to the Company, or in the event that any of the forms of insolvency detailed in Condition 9 commences against the Customer, the Company, its agents and employees shall have the right, without giving notice and without incurring liability, to enter into the Customer’s premises and to take possession of the Products to which title has not passed. This right shall be without prejudice to any other legal rights or remedies available to the Company.
4.3 Subject to Condition 2, the risk of loss or damage to the Products shall pass to the Customer on completion of delivery, in accordance with Condition 6.3.
4.4 The Company shall not be responsible for any loss or damage to the Products which is caused due to the condition of the Delivery Location or any act, default or omission of the Customer or its representatives.
5 Payment Terms
5.1 Where credit is granted, unless otherwise agreed in writing, all sums payable in respect of the Products must be paid without deductions within 30 days from date of invoice.5.2 Failure to pay by the due date shall entitle the Company to suspend delivery of all unexecuted or future orders. The time for payment of the price of the Products shall be of the essence.
5.3 The Company reserves the right at any time in its absolute discretion to demand immediate payment of any account whether due or not and to take legal action to recover the debt and costs.
5.4 If payment is not made in accordance with this Condition, the Company reserves the right to charge Statutory Interest on the overdue balances for the period from the date on which payment became due until the date on which payment is made including any period after the date of any judgement or decree against the Customer. In addition each overdue invoice will attract a late payment compensation fee of £40.00.
5.5 In the event of any cheques, standing orders or direct debits due from a Customer to the Company being dishonoured, a charge of £45.00 (or such other sum as the Company may from time to time advise the Customer) will be made on the Customer’s account to cover bank and administrative costs.
5.6 The Company reserves the right in its absolute discretion to refuse to grant credit and in the event the Customer enters into an insolvency arrangement or the Customer’s credit rating or financial standing deteriorates in a way that presents a credit risk, the Company may remove any credit terms previously agreed with the Customer and (without prejudice to any other rights that the Company may be entitled to) impose new payment terms, including payment on delivery.
5.7 The Company may, at any time, without limiting any other rights or remedies it may have, set-off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
5.8 In the event that the Customer fails to pay any sums due to the Company by the due date, the Customer shall be liable to pay all reasonable costs incurred by the Company in collecting the debt. This may include, but is not limited to, legal fees, debt collection agency fees, and court costs.
6 Delivery
6.1 Deliveries of Products to the Customer shall be in accordance with the Company’s delivery schedule. The Company shall not be liable for any loss or damage whatsoever arising as a result of a delay or failure to deliver Products by a particular date or arising as a result of any cause beyond the Company’s control, including any force majeure event or the Customer’s failure to provide adequate delivery instructions. Time for delivery shall not be of the essence.6.2 Delivery of Products shall be made by the Company to such reasonably accessible premises as the Customer shall reasonably require. The Customer shall allow the Company reasonable access to such premises and shall use best endeavours to ensure that a responsible person shall be at the place of delivery to take delivery of the Products and to sign for them. In the event of no such person being present at the time of delivery the Customer hereby consents to the company leaving the Products at what appear to be the premises nominated by the Customer as the place of delivery and when the Products are so left risk in the Products shall pass to the Customer and no liability shall remain with the Company in respect of the Products.
6.3 Delivery of the Products shall be completed once the Products are unloaded at the Delivery Location.
6.4 If the Customer fails to take delivery or fails to give the Company adequate delivery instructions at the time stated for delivery then without prejudice to any other right or remedy available to the Company, the Company may do one or both of the following:
6.4.1 charge the customer the cost of carriage of the refused delivery both to and from the premises of the Customer in addition to the Company’s administration charges involved.
6.4.2 charge the Customer the full cost price of the Products and a sum in respect of its loss of profit provided that the Company shall use its reasonable endeavours to mitigate such loss.
7 Acceptance & Claims Procedure
7.1 The Customer must check that the quantity and specifications of Products delivered correspond with the Contract before signature of the delivery note.7.2 Claims in respect of short deliveries or damage to Products reasonably visible on inspection must be made to the Company on the day of the delivery which gives rise to the claim. The Customer must retain damaged Products for inspection and collection. Credit will only be granted by the Company if the provisions of this Condition are complied with.
8 Cancellation of an Order
The Contract may not be cancelled by the Customer without the written consent of the Company. The Company reserves the right upon consent being given to levy a cancellation charge of not less than 20% of the standard list price of the Products which are the subject of the Contract to cover the Company’s losses arising from the cancellation. Non-stock Products ordered on behalf of the Customer cannot be returned, unless the manufacturer agrees to accept them.9 Insolvency of Customer
In the event that:9.1 the Customer makes any voluntary arrangement with its creditors, proposes to enter into a company voluntary arrangement, enters into administration, is unable to pay its debts as they fall due, makes application to a Court to suspend enforcement action against it, goes into liquidation (in the event that the Customer is a company) or becomes insolvent, enters into a trust deed or voluntary arrangement for the benefit of its creditors (in the event that the Customer is an individual or firm), or if the equivalent occurs under any jurisdiction; or
9.2 an encumbrancer takes possession of, or a receiver or administrative receiver is appointed over, any of the property or assets of the Customer; or
9.3 the Customer suspends any payments hereunder or ceases, or threatens to cease, to carry on business; or
9.4 the Company reasonably considers that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly;
Then without prejudice to any other rights or remedies available to the Company, the Company shall be entitled forthwith to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and if the Products have been delivered but not paid for, the price shall become immediately payable notwithstanding any previous agreement to the contrary.
10 Warranties
10.1 The Company warrants that all Food Products (with the exception of Customer Nominated Products in respect of which the Company’s complete responsibility is set out in Condition 12) shall comply with the Food Safety Act 1990 and all relevant UK legislation from time to time in force. The Company warrants that all Non-Food Products (with the exception of Customer Nominated products in respect of which the Company’s complete responsibility is set out in Condition 12) shall comply with all relevant UK legislation from time to time in force.10.2 The Customer shall ensure that no Food it purchases from the Company is sold (or otherwise distributed) after any ‘best-before’ or ‘use-by’ dates included on the Products or their packaging. To the extent any Food is sold (or otherwise distributed) by the Customer after any such date, it shall be at the Customer’s sole risk, and the Customer shall compensate and hold the Company harmless against any losses, claims, expenses or damages it incurs howsoever relating to the same.
11 Limitation of the Company’s Liability
11.1 Nothing in these Terms and Conditions shall limit or exclude the Company’s liability for: (i) death or personal injury caused by the Company’s negligence; (ii) fraud or fraudulent misrepresentation; or (iii) for any other matter in respect of which it would be unlawful for the Company to exclude or limit liability.11.2 Subject to Condition 1 and 11.3:
11.2.1 The Company shall under no circumstances be liable to the Customer, whether in contract, tort (including negligence) or otherwise, for any loss of profit, loss of opportunity, loss of customers, loss of reputation or any indirect or consequential loss arising under or in connection with the Contract;
11.2.2 in respect of damaged or otherwise defective Products, the Company’s liability shall be limited to replacing the whole or any part of the respective Product or, at the Company’s option, refunding or crediting the purchase price or a prorated portion of the purchase price;
11.2.3 in all other circumstances, the Company’s total liability to the Customer in respect of all other losses arising under or in connection with a Contract shall in no circumstances exceed the value of the order to which the Contract relates.
11.3 Subject to Condition 1, the Company shall not be liable for any losses, expenses, claims or damages suffered or incurred by the Customer (or any third party):
11.3.1 to the extent they arise as a consequence of any damage or defect in a Product which was caused by its unsatisfactory storage, treatment or handling (other than by the Company or its representatives) or any act or omission on the part of the Customer or its employees, agents or representatives;
11.3.2 relating to damaged or defective Products where the damage or defect ought reasonably to have been noticeable at the time of delivery, and the damage or defect is not reported to the Company in accordance with Condition 7;
11.3.3 claims not notified to the Company within 3 months of the respective invoice (or, if later, when the Customer became aware, or ought reasonably to have become aware, of the claim).
12 Customer Nominated Products
In the event that any of the Products to be supplied under the Contract are Customer Nominated Products the following provisions shall apply:12.1 The Customer shall be responsible for agreeing directly with the suppliers of Customer Nominated Products all matters concerning Customer Nominated Products including the specification and delivery conditions. The Company shall have no responsibility for the selection of any supplier of Customer Nominated Products or for their performance. The Customer shall provide the Company with full details of all suppliers of Customer Nominated Products in order for the Company to fulfil its obligations under the Contract. The Customer shall be responsible for forecasting its requirements for any new Nominated Products for the first 6 weeks.
12.2 The Company shall purchase Customer Nominated Products from suppliers at the price agreed with the suppliers by the Customer. The Customer shall provide the Company with a price file for each supplier of a Customer Nominated Product showing the relevant cost.
12.3 Unless otherwise agreed, the Company shall arrange for Customer Nominated Products to be delivered into its depots for onward delivery by the Company to the Customer. Upon delivery of Customer Nominated Products into its depots the Company shall check such Products for obvious external damage and shall reject any such Products which are clearly damaged. The Company shall not be obliged to carry out any other checks or quality control inspections in relation to Customer Nominated Products and Customer Nominated Products are sold by the Company to the Customer on this basis.
12.4 The Customer acknowledges and agrees that the inability of the Company to perform any part of the Contract by reason of the performance deficiencies of any or all of the suppliers of Customer Nominated Products shall not be deemed to be a material breach of the Contract by the Company and to the extent that it is able according to law the Customer will pursue its remedies against the defaulting supplier of the Customer Nominated Product. The Customer’s remedies against the Company in such circumstances shall in any event be limited to the remedies which the Company reasonably has against the defaulting supplier of the Customer Nominated Product.
12.5 If the Customer no longer requires any particular Nominated Product, it shall give the Company not less than 14 days’ notice of the Delisted Date.
12.6 The Customer shall be responsible for ensuring that all Nominated Products, when delivered to or collected by, the Company, shall conform with all applicable laws, including, but not limited to, the Food Safety Act 1990 (as amended by the Food Standards Act, 1999) and the Company shall have no liability to the extent that this is not the case. The Customer shall be responsible for ensuring that the Nominated Products are sourced from reputable suppliers who have achieved a nationally recognised product safety standard or have been formally assessed by the Customer as acceptable on product safety, legality, and integrity grounds.
12.7 The Company shall be entitled to charge the Customer in respect of the stocking and delivery of the Nominated Products. The Company shall be entitled to adjust any such on-cost charge at its sole discretion.
12.8 The Company shall not be responsible for any costs resulting from shelf life expiry, waste, discontinuance of stock, or unordered stock of Nominated Products. In any of these events, the Company may charge the Customer the full selling price of such Nominated Products in addition to any disposal or return costs.
13 Force Majeure
The Company reserves the right to defer the date of delivery or reduce the volume of Products ordered by the Customer or to cancel the contract without liability to the Customer if it is prevented from or delayed in the carrying out of its obligations under the Contract due to circumstances beyond its reasonable control including without limitation any failure or delay on the part of the manufacturer of any of the Products to supply the Products to the Company, any strike, lock-out or other industrial action, fire, explosion, flood, closure of motorways or other roads leaving no alternative route, unusually severe weather conditions or unusually severe traffic congestion which could not reasonably have been anticipated leaving no alternative route, loss of power or telecommunications systems or computer failure or breakdown.14 Additional Terms
14.1 Failure or delay on the part of the Company in enforcing any provision of the Contract shall not be construed as a waiver of any of the Company’s rights under the Contract. Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed to be a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.14.2 If any provision of the Contract is found by any Court, tribunal or other 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.
14.3 The Company, but not the Customer, may assign its rights and obligations under the Contract.
14.4 Telephone calls (inbound and outbound) and email correspondence with the Company may be recorded or monitored. By using or accepting such communication methods, the Customer agrees to the recording or monitoring of the same for quality purposes and training.
14.5 The parties to the Contract do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
14.6 If the Customer is a partnership the liability of the individual partners to the Company shall be joint and several.
14.7 The Contract shall be governed by the laws of England and the Company and the Customer agree to submit to the non-exclusive jurisdiction of the English Courts.
14.8 The signature on behalf of a Customer who is a limited company by any person purporting to sign with the Customer’s authority shall bind the Customer and the Customer shall be liable to comply with the terms of the Contract.
14.9 Customer shall be liable to comply with the terms of the Contract and pay for any Products which are ordered using its Customer account number.
14.10 The Company reserves the right to amend these Terms and Conditions from time to time by posting updated versions on its website.