TERMS AND CONDITIONS

These Terms and Conditions shall govern the supply of Products by Dairyfresh Limited to the exclusion of all other terms, conditions, and representations, including any terms or conditions which a Purchaser may purport to apply under any document whatsoever and whenever.

1. Definitions

“Business Days” means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

“Conditions” means these terms and conditions (as may be varied from time to time, where permitted herein).

“Contract” means any contract for the supply of Products between the Supplier and the Purchaser, under these Conditions.

“Documents” means the non-exclusive list of documents in Condition 4, which are the responsibility of the Purchaser.

“Force Majeure Event” means an event, events, circumstances or causes beyond a party’s reasonable control.

“Haulier” means the party appointed by the Purchaser for carriage of the goods from the Supplier, or any other goods moved to the Supplier’s premises for consolidation in accordance with these Conditions.

“Interest Rates” means the rates of interest calculated in accordance with Condition 6.

“Products” means products supplied to the Purchaser by the Supplier, pursuant to an order placed by the Purchaser.

“Purchaser” means the person, company, firm, or other legal entity placing an order for the purchase of Products from the Supplier.

“Purchase Price” means the price of the Products in the Supplier’s price list in force on the proposed delivery date (available from the Supplier on request) or (in respect of Products not included on the Supplier’s price list) as otherwise agreed in writing by the Supplier, and any VAT thereon.

“Supplier” means Dairyfresh Limited (registered in England and Wales with company number 08028981).

“VAT” means Value Added Tax or any equivalent tax chargeable in the UK at the rate of 20%, or equivalent Value Added Tax as may be charged at a given rate in any other territory.

2. Export Orders

2.1 Dairyfresh’s terms are ex-works only. Risk will pass to the Purchaser and the Supplier shall not be liable for the Products once they have been collected by the Haulier from the Supplier’s warehouse. Any discrepancies or damages must be taken up with the Haulier.

2.2  The Supplier will use reasonable endeavours to supply the Products and, in turn, build pallets to the maximum height specified by the respective hauliers or freight forwarders. However, the Supplier will not be liable for any retrospective pallet charges or any associated losses, including but not limited to loss of profit, and such financial implications shall be assumed by the Purchaser.

2.3  Orders may be subject to an initial 50% deposit upon placing an order and prior to the order being picked, where the Supplier orders stock specifically to fulfil an export customer’s order.

2.4  Consolidation with third party suppliers can be done at the Supplier’s premises; however, there are additional charges for this service. Please contact the sales office for more information.

2.5  Paperwork for Products coming to the Supplier from third party suppliers must be emailed to creditcontrol@dairyfresh.co.uk 72* hours prior to the Products being delivered by the third party and prior to loading. If all paperwork is not received before the order is loaded, Dairyfresh will not be liable for any demurrage charges.

2.6  Products from third party suppliers must be booked in and must be accompanied by the invoice and other relevant paperwork, i.e. dangerous goods notes. Products that do not adhere to the above (72 hours*), or that arrive not booked in, or that do not have the correct paperwork, will be rejected.

2.7  The Supplier’s Incoterms are ex-works only. The Purchaser should check whether any special documentation or special instructions are required for exporting to their country prior to placing orders, including (but not limited to) the REX number, EUR1, Country of Origin, and heat-treated pallets (certification for heat-treated pallets available on request), together with the CMR form and details which the Purchaser must obtain from the Haulier. Provision of heat-treated pallets and provision of some documentation will incur additional charges. Please contact the sales office for more information.

2.8  Legal requirements from HMRC: VAT-exempt orders require two proofs of shipment for every export order. This could be a copy of the CMR note and a signed delivery note, which must be returned on receipt of the Purchaser’s order. Failure to supply these two proofs of shipment will result in any future orders being charged VAT.

2.9  The local VAT number, EORI, CIF, EU or regional equivalent will be checked for validation on every order prior to the order being processed. Should the validation check show the number as invalid, VAT will be charged on all invoices until investigated. VAT may be refunded once the investigation has been resolved.

2.10 The Supplier must be informed, in writing, if the Purchaser changes its trading methods and de-registers for VAT. The Supplier reserves the right to back-date any VAT on invoices if the Supplier becomes aware that the Purchaser has de-registered for VAT.

2.11 On delivery, the Purchaser (or the appointed agent of the Purchaser) MUST sign the back page of the invoice and return this to the Supplier as POD (proof of delivery) (see Condition 2.8).

2.12  Some countries have import restrictions on certain goods. It is the responsibility of the Purchaser to ensure all goods are eligible for export to their destinations. Any documentation provided by suppliers for goods to be exported must be verified by the Purchaser, and it is not the responsibility of the Supplier to verify that the documentation is correct.

2.13  For all orders, the Products must be paid for in full before the Supplier will arrange collection of the Products with the Purchaser.

2.14  There is no opportunity to return goods that have left the warehouse, even where a Purchaser (or an appointed agent of the Purchaser) is not available to receive goods on an agreed delivery date. There is no option for goods that have left the warehouse to be credited if returned.

2.15  Containers arriving late for loading may not be loaded in time. Any demurrage charges incurred when containers arrive late at the Supplier’s premises will be payable by the Purchaser.

2.16  Outside Transport Deliveries – the Supplier can obtain a quotation on behalf of the Purchaser for delivery to a UK destination. The Purchaser will be responsible for delivery charges in line with the quotation. Delivery quotations are available from the sales office on 0121 293 6112. Refusal of delivery at a UK destination will be the Purchaser’s responsibility, and the Supplier is not obligated to credit goods that are returned to its warehouse by hauliers.

3. Dangerous Goods

3.1  “Dangerous Goods” or otherwise hazardous goods (by reference to the Dangerous Goods Directive 2008 (Directive 2008/68/EC of the European Parliament and of the Council)) received by the Supplier for consolidation without the correct Documents will not be loaded.

3.2  The Purchaser is required to inform the Haulier in advance that there are Dangerous Goods on the loads they are collecting and to ensure that the Haulier has the correct Documents on collection from the Supplier’s premises. The Purchaser must ensure that the Haulier’s driver has the appropriate certification/training to collect Dangerous Goods.

3.3  Dangerous Goods notes and hazardous goods stickers can be provided; however, there are additional charges. Please contact the sales office for more information.

3.4  Any goods that arrive with the Supplier for consolidation that do not adhere to Conditions 3.1 to 3.3 will be rejected, and any consequential costs and losses will be assumed by the Purchaser.

4. Documents and Compliance

4.1  It is the responsibility of the Purchaser to ensure all goods are eligible for export to their intended destinations, and the Purchaser shall be responsible for ensuring the correct relevant Documents are in place and, where applicable, that such Documents have been provided to the Haulier.

4.2  The Supplier shall not be liable for any losses suffered by the Purchaser, in respect of the Products or any consolidated goods, as a result of a failure on the part of the Purchaser to ensure compliance with Condition 4.1, namely that the correct Documents are in place and, where applicable, that such Documents have been provided to the Haulier.

4.3  The Documents for which the Purchaser is responsible to obtain, and to ensure the completeness and accuracy of, shall include but not be limited to:

4.3.1  All import licences or permits necessary for the entry of the Products (together with any consolidated goods) into or passage through any territory, including delivery by the Haulier to the Purchaser’s territory or the territory of the Products’ destination. These Documents include, but are not limited to:

4.3.1.1  the REX Number;

4.3.1.2  the EUR1 Certificate;

4.3.1.3  the Country-of-Origin Certificate; and

4.3.1.4  the CMR Consignment Note (which the Purchaser must obtain from the Haulier).

4.4  Where the Purchaser requires any Documents from the Supplier which the Supplier does not provide with the Products in the ordinary course, these may be requested from the Supplier at an additional charge. Please contact the sales office for more information.

Tax

4.5  The Purchaser shall be responsible for any customs duties, clearance charges, taxes, brokers’ fees and other amounts payable in connection with the importation and delivery of the Products.

4.6  The Purchaser shall be required to provide a VAT number equivalent to the territory where the Purchaser is based. The local VAT number, CIF, EU or regional equivalent will be checked for validation by the Supplier upon each order being placed by the Purchaser. Should the validation check show the number as invalid, VAT will be charged on all invoices until investigated. VAT may be refunded once the investigation has been resolved.

4.7  The Purchaser shall be responsible for ensuring the validity of the VAT number and shall indemnify the Supplier for any losses incurred by the Supplier as a consequence of any failure by the Purchaser to provide a valid VAT number.

4.8  The Purchaser shall be required to provide two proof-of-shipment documents for Products which are exempt from VAT, as required by HM Revenue & Customs. Such proof of delivery may include, but not be limited to, a CMR Consignment Note and a signed delivery note. Any such documents should be returned to the Supplier on receipt of the Products.

4.9  The Supplier must be informed in advance, in writing, if the Purchaser intends to change its trading methods and intends to de-register for VAT (or local equivalent). The Supplier reserves the right to back-date any VAT on invoices where the Purchaser has de-registered for VAT (or local equivalent).

5. Payment Terms

5.1  The Products must be paid for in full, only in GBP Sterling, before the Supplier will arrange collection of the Products with the Purchaser or the appointed Haulier (as the case may be).

5.2  All invoices are due for payment immediately upon placement of the order and are to be paid in cleared funds, except where credit has otherwise been granted and alternative payment terms have been specified in writing by the Supplier.

5.3  All monies due from the Purchaser to the Supplier under this Contract are to be paid in pounds sterling, and all amounts due under this agreement shall be invoiced in pounds sterling.

5.4  Payment should be made by BACS to the following account details (except where otherwise agreed with the Supplier in writing):

Account name: DAIRYFRESH LTD

Account number: 10437496

Sort Code: 09-02-22

BIC: ABBYGB2LXXX

IBAN: GB11ABBY09022210437496

Bank Address: Santander Corporate & Commercial Banking, Sunderland, SR43 4GG

Time for payment shall be of the essence of the Contract.

5.5  Any payment queries should be directed to Credit Control Department, Dairyfresh Limited, 79-81 Chester Street, Birmingham B6 4AE. Telephone number 0121 293 6112. A charge will be made for returned cheques.

5.6  If the Purchaser fails to make any payment when it becomes due and payable, the amount shall be a debt immediately payable by the Purchaser. In respect of such debts, the Supplier reserves the right:

a)  to withhold all retrospective discounts and rebates otherwise due;

b)  to defer or cancel future or in-progress orders and collections arranged with any Haulier or internal transport;

c)   to charge the Interest Rates in accordance with Condition 6; and

d)   to charge all expenses, including third party collection and legal fees, which the Supplier may incur in recovering the outstanding sums.

5.7  The Purchaser shall make all payments due without any deduction by way of set-off, withholding, counterclaim, discount, awaiting stock uplifting/credits due, abatement or otherwise.

5.8  The Supplier may set off any sums due from the Purchaser for Products supplied against any sums which the Supplier may otherwise owe to the Purchaser.

5.9  The prices for the Products shown in the price list are updated at the time of printing; please request the latest order form to ensure the Purchaser is in receipt of current pricing. The Purchase Price for the Products excludes amounts in respect of value added tax (“VAT”), which the Purchaser shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice and the price for the Products.

5.10  Whilst the Supplier shall endeavour to provide the Products at the Purchase Price, prices are subject to change and are those ruling at the time of the invoice. The Supplier may increase the Purchase Price of the Products to reflect any increase in the cost of the Products that is due to any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); any request by the Purchaser to change the date for collection by the Haulier, or the quantities or types of Products ordered; or any delay caused by any instructions of the Purchaser or the Haulier, or failure of the Purchaser to give the Supplier adequate or accurate information or instructions with respect to the Products or the arrangement for collection with the Haulier.

6. Interest

6.1  If the Purchaser fails to make any payment due to the Supplier under the Contract by the date at which any such amount becomes due, the Purchaser shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after any judgment is given.

6.2  Interest under this Condition shall accrue each day at the following Interest Rates at each of the deadlines as follows, calculated as a percentage above the NatWest base rate from time to time prevailing:

6.2.1  3% per annum where the overdue sum has been overdue for more than 7 days;

6.2.2  5% per annum where the overdue sum has been overdue for more than 14 days;

6.2.3  7% per annum where the overdue sum has been overdue for more than 21 days; and

6.2.4  8% per annum where the overdue sum has been overdue for more than 28 days.

6.3  For the avoidance of doubt, each Interest Rate at Condition 6.2 shall be calculated from the day on which the sum becomes due until the date such sums are paid, so that the full Interest Rate is payable on any amounts owing. Where the Purchaser pays an outstanding sum after a deadline specified at Conditions 6.2.1 to 6.2.4, the higher Interest Rate for the next deadline shall be applied to the outstanding sum and the lower Interest Rates shall be disregarded.

7.  Retention of Title

The legal and beneficial title in any Products shall not pass to the Purchaser until the Supplier has received payment in full, in cleared funds, of the Purchase Price for those Products, including all other sums due from the Purchaser to the Supplier on any other account or invoice which is due but unpaid.

8.  Warranties and Exclusions

8.1  The Supplier is an intermediary distributor of the Products and is not the manufacturer, producer or packer of the Products. The Purchaser acknowledges that the Supplier does not manufacture the Products and has no control over their design, manufacture, composition, quality or packaging.

8.2  Accordingly, and to the fullest extent permitted by law, the Supplier gives no warranties, guarantees, conditions or representations of any kind in respect of the Products, whether express or implied, including (without limitation) any implied terms as to satisfactory quality, fitness for a particular purpose, description, or correspondence with sample. All such terms, whether implied by the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982 or otherwise, are fully excluded from the Contract permitted by law.

8.3  The Purchaser’s sole remedy in respect of any defect in, or failure of, the Products shall be a claim against the manufacturer of the Products under the terms of any applicable manufacturer’s warranty. The Supplier shall, so far as it is able, pass on or assign to the Purchaser the benefit of any warranty, guarantee or indemnity given to the Supplier by the manufacturer, but the Supplier shall have no further liability to the Purchaser in respect of the condition, quality or performance of the Products.

8.4  Nothing in this Condition 8 shall operate to exclude or limit any liability which cannot lawfully be excluded or limited.

8.5  The Purchaser’s attention is drawn specifically to the exclusions and limitations contained in this Condition 8.

9. Liability

9.1  The Purchaser’s attention is, in particular, drawn to the provisions of this Condition 9.

9.2  The restrictions on liability in this Condition 9 apply to every liability arising under or in connection with the Contract, including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

9.3  Neither party may benefit from the limitations and exclusions set out in this Condition in respect of any liability arising from its deliberate default. Nothing in the Contract limits any liability which cannot legally be limited.

9.4  The Supplier’s total liability to the Purchaser shall not exceed the total charges due to the Supplier under the Contract.

9.5  In Condition 9.4, “total charges” shall mean all sums paid by the Purchaser and all sums payable under the Contract  (but not any other contract) in respect of Products supplied by the Supplier, whether or not invoiced to the Purchaser.

9.6  This Condition 9.6 sets out specific heads of excluded loss and exceptions from them:

9.6.1  Subject to Condition 9.3, the types of loss listed in Condition 9.6.2 are wholly excluded by the parties.

9.6.2  The following types of loss are wholly excluded:

9.6.2.1  loss of profits;

9.6.2.2  loss of sales or business;

9.6.2.3  loss of agreements or contracts;

9.6.2.4  loss of anticipated savings;

9.6.2.5   loss of use or corruption of software, data or information;

9.6.2.6   loss of or damage to goodwill; and

9.6.2.7   indirect or consequential loss.

9.7  To the fullest extent permitted by law, and without prejudice to Condition 8, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are excluded from the Contract.

9.8  This Condition 9 shall survive termination of the Contract.

10. Force Majeure

Neither party shall be in breach of this agreement, nor liable for delay in performing or failure to perform any of its obligations under this agreement, if such delay or failure results from a Force Majeure Event. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 8 weeks, the party not affected may terminate this agreement by giving 7 days’ written notice to the affected party.

11. Termination

11.1  Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Purchaser if:

a)  the Purchaser commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;

b)  the Purchaser 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;

c)  the Purchaser suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

d)  the Purchaser’s financial position deteriorates to such an extent that, in the Supplier’s opinion, the Purchaser’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

11.2   Without limiting its other rights or remedies, the Supplier may suspend provision of the Products under the Contract or any other contract between the Purchaser and the Supplier if the Purchaser becomes subject to any of the events listed in Conditions 11.1(a) to (d) above, or the Supplier reasonably believes that the Purchaser is about to become subject to any of them, or if the Purchaser fails to pay any amount due under this Contract on the due date for payment.

11.3  Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Purchaser if the Purchaser fails to pay any amount due under the Contract on demand. On termination of the Contract for any reason, the Purchaser shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Products supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Purchaser immediately on receipt.

12. Notices

12.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

a)  delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

b)  sent by fax to its main fax number or sent by email to the address specified in the order form (or specified elsewhere).

12.2  Any notice or communication shall be deemed to have been received:

a)  if delivered by hand, at the time the notice is left at the proper address;

b)  if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day (Monday to Friday, excluding bank holidays) after posting, or at the time recorded by the delivery service; and

c)  if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Condition 12.2, business hours means 9.00 am to 5.00 pm on Business Days.

d)  This Condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

13. Variation

No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

14. Waiver

No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

15. Third Party Rights

15.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

15.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

16. Severance

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deemed deleted under this Condition 16, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.

17. Entire Agreement

This 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. 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.

18. Law

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 England and Wales.

19. Jurisdiction

Each Contract shall be governed by English law, and any disputes in relation thereto shall be subject to the exclusive jurisdiction of the courts of England and Wales.