Terms and conditions of supply: T. Soanes & Son
The Customer's attention is drawn in particular to the provisions of clause 9.
1.1 Definitions. In these Terms, the following definitions apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Contract: the contract between TSS and the Customer for the sale and purchase of the Goods in accordance with these Terms.
Customer: the person or firm who purchases the Goods from TSS.
Force Majeure Event: has the meaning given in clause 10.
Goods: the goods (or any part of them) set out in the Order.
Order: the order by the Customer for the Goods, as set out in the purchase order form of the Customer.
Specification: any specification for the Goods that is agreed in writing by the Customer and TSS.
Terms: the terms and conditions set out in this document.
TSS: T Soanes & Son (Poultry) Ltd (registered in England and Wales with company number 05217234).
1.2 Construction. In these Terms, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to writing or written excludes faxes but includes emails.
2. Basis of contract
2.1 These Terms apply to the Contract 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 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Terms. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when TSS issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of TSS which is not set out in the Contract.
2.5 Any samples or descriptions or illustrations of Goods contained on the website or in other promotional material of TSS shall neither form part of the Contract nor have any contractual force.
2.6 A quotation for the Goods given by TSS shall not constitute an offer. A quotation shall only be valid for a period of 2 (two) Business Days from its date of issue.
The Goods are described in the Specification, taking into account always the variations that occur in natural produce. TSS reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
4.1 TSS shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) and at each time as set out in the Order or such other time as the parties may agree (Delivery Time).
4.2 Delivery of the Goods shall be completed on the arrival of the Goods at the Delivery Location.
4.3 Delivery Times are approximate only, and the time of delivery is not of the essence. TSS shall not be liable for any delay in delivery of the Goods caused by a Force Majeure Event or the failure of the Customer to provide TSS with adequate delivery instructions.
4.4 If TSS fails to deliver the Goods, its liability shall be limited to the Customer’s costs and expenses incurred in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. TSS shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the failure of the Customer to provide TSS with adequate delivery instructions.
4.5 If the Customer fails to take delivery of the Goods at the Delivery Time then, except where such failure or delay is caused by a Force Majeure Event or the failure of TSS to comply with its obligations under the Contract:
(a) Delivery of the Goods shall be deemed to have been completed at the Delivery Time; and
(b) TSS may at its discretion, taking into account the Goods’ perishable nature, store the Goods until delivery takes place and charge the Customer for all related costs and expenses.
4.6 If the Customer does not take delivery of the Goods at the Delivery Time, TSS may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs (as applicable), charge the Customer for any shortfall below the price of the Goods. The Customer shall be liable in full for the full cost of perishable Goods if such Goods perish during storage or their saleability is reduced by a shortening of their shelf life.
4.7 The Customer, recognising the nature of the industry in which the parties trade, shall not be entitled to reject the Goods if TSS delivers less than the quantity (by weight) of Goods ordered, but if this occurs then TSS shall make a pro rata adjustment to the Order invoice.
4.8 TSS may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 TSS warrants that on delivery the Goods shall:
(a) conform with the Specification; and
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) (SGA).
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to TSS within 24 hours of delivery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) TSS is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by TSS) returns such Goods to the place of business of TSS at the cost of TSS,
TSS shall, at its option, either replace the non-compliant Goods, or refund (including by way of credit note) the price of the non-compliant Goods in full.
5.3 TSS shall not be liable for failure of the Goods to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the Customer sells such Goods after having given notice in accordance with clause 5.2; or
(b) the defect arises because the Customer failed to follow the oral or written instructions of TSS as to the storage of the Goods or (if there is none) good trade practice regarding the same; or
(c) the defect arises as a result of wilful damage, negligence, or abnormal storage or working Conditions; or
(d) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, TSS shall have no liability to the Customer in respect of the failure of the Goods to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the SGA are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Terms shall apply to any replacement Goods supplied by TSS.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
(a) TSS receiving payment in full (in cash or cleared funds) for the Goods and any other goods that TSS has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b) The Customer reselling the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the property of TSS;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify TSS immediately if it becomes subject to any of the events listed in clause 8.2; and
(e) give TSS such information relating to the Goods as TSS may require from time to time.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before TSS receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as the agent of TSS; and
(b) title to the Goods shall pass from TSS to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2 then, without limiting any other right or remedy TSS may have:
(a) the right to resell the Goods by the Customer or use them in the ordinary course of its business ceases immediately; and
(b) TSS may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold; and
(ii) 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.
7. Price and payment
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the published price list of TSS in force as at the date of delivery.
7.2 TSS may, by giving notice to the Customer at any time up to 2 (two) Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods.
7.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from TSS, pay to TSS such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5 TSS may invoice the Customer for the Goods on, or at any time after, the completion of delivery.
7.6 Payment is due in full and in cleared funds upon presentation of TSS’s invoice. Payment shall be made to the bank account nominated in writing by TSS. Time of payment is of the essence.
7.7 If the Customer fails to make any payment due to TSS under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 6% (six per cent) per annum above the Bank of England 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 Customer shall pay the interest together with the overdue amount.
7.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). TSS 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 TSS to the Customer.
8. Termination and suspension
8.1 If the Customer becomes subject to any of the events listed in clause 8.2, TSS may terminate the Contract with immediate effect by giving written notice to the Customer.
8.2 For the purposes of clause 8.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer;
(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(g) (being a company) the holder of a qualifying charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a) to clause 8.2(h) (inclusive);
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
(k) the financial position of the Customer deteriorates to such an extent that in the opinion of TSS the capability of the Customer to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8.3 Without limiting its other rights or remedies, TSS may suspend provision of the Goods under the Contract or any other contract between the Customer and TSS if the Customer becomes subject to any of the events listed in clause 8.2(a) to clause 8.2(i), or TSS reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.4 On termination of the Contract for any reason the Customer shall pay immediately to TSS all of the outstanding unpaid invoices of TSS, together with any accrued interest.
8.5 Termination of the Contract, however arising, shall not affect the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
8.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9. Limitation of liability
9.1 Nothing in these Terms shall limit or exclude the liability of TSS for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); or
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 12 of the SGA; or
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for TSS to exclude or restrict liability.
9.2 Subject to clause 9.1:
(a) TSS shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the total liability of TSS to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 300% (three hundred per cent) of the price of the Goods.
10. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract 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, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, 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 TSS or subcontractors.
11.1 Assignment and other dealings.
(a) TSS 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.
(b) The Customer 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 TSS.
(a) Any notice or other communication 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, fax or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2(a); if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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.
11.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
11.6 Variation. Except as set out in these Terms, no variation of the Contract, including the introduction of any additional terms and Terms, shall be effective unless it is in writing and signed by TSS.
11.7 Governing law. The Contract, 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 the law of England and Wales.
11.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).