TERMS AND CONDITIONS OF BUSINESS
1.1 In these Conditions
BUYER means the person whose order for the Goods or Services is accepted by the Company.
COMPANY means Quality Analysis Limited of 16 Crittall Road Witham Essex CM8 3DR.
CONDITIONS means the standard terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Company.
GOODS means the goods which the Company is to supply or in respect of which the Company is to provide the services; both in accordance with these conditions.
SERVICES means edible oil processing packaging and any other services, which the Company is to provide in accordance with these conditions.
PRICE means the price of the Goods or Service specified.
DELIVERY PERIOD means the period specified.
1.2 The headings in these conditions are for convenience only and shall not affect their interpretation.
2.0 BASIS OF THE CONTRACT
2.1 Unless otherwise expressly in writing signed by the Director of the Company these Conditions shall govern all contracts between the Company and the Buyer. No condition, warranty or other term, which the Buyer may seek to impose, shall apply to the Company.
2.2 These conditions shall have effect in place of any other conditions, which may previously have been notified by the Company to the Buyer.
2.3 Any quotation by the Company (however made) and any price list published by the company may be varied withdrawn or cancelled by the Company at any time prior to acceptance.
2.4 Samples are sent and inspected solely to enable the Buyer to judge the quality of the bulk and shall not render any sale by sample under the Sale of Goods act 1979.
2.5 Any advise or recommendation given by the Company or its employees or agents to the Buyer or its employees or agents as to the storage, application or, use of the Goods or as to the mixing of the Goods or certain of them with other goods, is followed or acted upon entirely at the Buyers own risk unless confirmed in writing by the Company. Accordingly, the Company shall not be liable for any such advice or recommendation, which is not so confirmed.
3.0 QUALITY OF GOODS
3.1 The Company shall take all reasonable steps up to the time of delivery or collection to ensure that Goods supplied are in accordance with the description set out and/or any specification agreed between the parties in writing and subject thereto that:
3.1.1 Raw materials from which they have been produced will have been tested and found to be of good merchantable quality.
3.1.2 The Goods will have been freshly produced and refined and/or otherwise processed in accordance with the manufacturing practice.
3.1.3 The Goods shall not contain pesticide residues, polycyclic aromatic hydrocarbons or other similar contaminants. Beyond such limits as may from time to time to be laid down either by decree or by the self-imposed norms of good manufacturing practice.
3.1.4 The good shall be delivered in tankers, which shall have previously carried only edible oils or other foodstuffs or other products of known compatibility.
3.2 The Buyer shall take all reasonable steps to satisfy himself that the specification quality and fitness of the Goods are suitable for his purpose.
3.3 The Company shall take reasonable care in providing the services and shall take reasonable care of the Buyers property while it is in the Company’s possession and control.
3.4 Subject as provided in these Conditions all conditions and warranties as to the nature, quality of and fitness, for purpose of the Goods or the Services either express or implied by statute or otherwise are hereby excluded.
4.1 Unless otherwise agreed delivery of the Goods shall be made by the Company delivering the Goods to the Buyers premises or such other place nominated by the Buyer.
4.2 The Company’s delivery promise is to use its best endeavours, subject to the provisions of 10.4 below, to deliver the Goods within the Delivery Period and at the time notified by the Buyer under 4.4 below.
4.3 The Buyer is entitled to call off Goods under the contract evenly over the Delivery Period. Each call-off shall be construed as constituting a separate agreement to which all the, provisions of these Conditions shall (with any necessary alterations) apply.
4.4 The Buyer shall give call-off instructions to the Company not later than close of business upon Thursday in the week prior to the week in which delivery is required, failing which the Company makes no promise as to the time of delivery.
4.5 The Buyer shall take delivery of Goods promptly upon the delivery time or as soon as thereafter as he is notified by the Company that the Goods are available for delivery. If for any reason the Buyer fails to call off Goods in regular instalments, within the Delivery Period or give the delivery instructions or take delivery of any instalments of the Goods on due time or upon receipt of such notification or otherwise causes or requests a delay in delivery, then in any of such cases the Company shall be entitled to charge for its reasonable costs incurred in storing transporting reprocessing and financing (at a rate of 2% per month) any undelivered goods. This provision is without prejudice to any other rights of the Company hereunder.
5.1 Any complaint whatsoever about the Goods or Services must be notified in writing to the Company within 3 days of delivery or collection of the Goods and the Company must be given the opportunity to inspect and have the Goods tested. The Buyer shall permit the Company to enter its premises for the purpose of having samples taken for analysis by an independent analyst of the Company’s choosing. Samples for analysis shall be drawn from original containers and shall be sealed within 7 days of arrival of Goods.
5.2 If delivery is not refused or if no complaint is so notified or if testing is refused the Buyer shall not be entitled to reject the Goods and the Company shall have no liability for any defect in or loss or damage to the Goods whenever or howsoever arising and the Buyer shall be bound to pay the price.
5.3 The taking of samples as above shall be deemed a reference to arbitration under clause 13.4. If in the F.O.S.F.A.Limited or such independent analyst Goods are not defective or, are defective only as a result of circumstances for which the Company is not liable, the, Buyer shall if required by the Company pay a reasonable charge for the analysis of the Goods by the Company.
6.1 The price shall be paid in full in accordance with the payment terms. The Company may charge interest on any outstanding monies from the due date until payment received (whether before and after judgement) on a day to day basis at a rate of 2% per month from the due date until the date of actual payment.
6.2 Time of payment is in all cases of the essence.
6.3 The Buyer shall not in any circumstances or for any reason whatsoever be entitled to make any deduction or withhold any sum from the Price by way of set-off.
6.4 In the case of export sales and unless otherwise agreed in writing payment is due upon the presentation of the invoice together with the appropriate documents of title and shipping documents.
6.5 The price exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Company.
6.6 Should any duty, tax, levy or any other payment whatsoever be imposed by the European Economic Community, or any member national government thereof relating to the Goods before delivery thereof, the Buyer shall bear the burden of such duty, tax or other payment and the costs arising there from.
7.0 PASSING OF PROPERTY
7.1 Unless otherwise agreed, the provisions of this clause 7.0 shall apply to the passing of property in Goods supplied by the Company.
7.2 Notwithstanding the provisions of clause 8 as to the passing of risk, Goods supplied by the Company shall remain the sole and absolute of the Company until the Buyer has pain in full the price thereof and all other sums due from the Buyer to the Company whether under the contract or otherwise (including any interest thereon). Notwithstanding such retention of title, the Company shall be entitled to maintain an action for the Price as soon as payment falls due.
7.3 The Buyer acknowledges that it is in possession of the Goods solely as bailee and in a fiduciary capacity for the Company until such time as the agreed price thereof and all other sums due from the Buyer to the company whether under the contract or under any other contract have been paid in full or the Goods have been resold in the ordinary course of the Buyers business.
7.4 If payment for the Goods supplied under the contract or any other contract is overdue in whole or in part the Company may (without prejudice to any of its other rights) retake possession of and/or resell any Goods the title to which it has retained and the Buyer shall upon the request of the Company allow the Company to enter its premises during normal working hours for the purpose of recovering possession of such Goods.
7.5 Subject to the provisions of this clause and notwithstanding that the property in the Goods has not passed the Buyer may resell the Goods in the ordinary course of its business.
7.6 Where the Buyer resells the Goods before title thereto has passed the Buyer shall sell as agent for the Company pending payment of all sums due to the Company under the contract or under any other contract with the Company and shall keep the proceeds of sale (less the Buyers profit margin) in a separate account not using the same and holding the same on trust for the Company. Notwithstanding the provisions of this sub-clause vis-à-vis a third party the Buyer shall sell only as a principal.
7.7 The Buyer shall not in any circumstances place the proceeds of sale of Goods supplied by the Company in an overdrawn bank account so long as any sum payable to the Company in respect thereof remains outstanding.
7.8 So long as the property in the Goods remains in the Company, the Buyer shall keep the goods free from any charge, lien or other encumbrance.
8.0 PASSING OF RISK
8.1 Notwithstanding the above provisions the risk of loss or damage to the Goods will pass to the Buyer on delivery to the Buyer or, where delivery is by a carrier appointed by the Buyer, on delivery to such carrier.
9.1 Packing is included within the Price but pallets will be charged for at cost if not returned.
10.0 LIMITATIONS OF LIABILITY
10.1 Subject to these conditions the liability of the Company to the Buyer shall be limited:
10.1.1 where the loss or damage however sustained is in respect of the whole of the Goods, to replacing of the Goods or at its option repaying the invoice price of the Goods or the Services (as the case may be).
10.1.2 where the loss or damage however sustained is in respect of part of the Goods, to replacing that part of the Goods or at its option repaying the proportion of the invoice price of all of the Goods or Services (as the case may be).
10.2 The Company shall not be liable for any defect in –any circumstances if:
10.2.1 The Goods have been subjected to unsuitable storage treatment or handling prior to use or to abnormal use or to use under abnormal conditions, or
10.2.2 The defect has been caused or contributed to or by exposure to direct weather conditions.
10.3 Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term or any duty at common law or under the express terms of the contract for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by negligence of the Company, its employees or otherwise) which arise out of or in connection with the supply of the Goods or their use or re-sale by the Buyer, or the provision of the services, except as expressly provided in these conditions.
10.4 The Company shall not be liable to the Buyer or be deemed to be in breach of contract by reason of any delay in performing or any failure to perform any of the Company’s obligations if the delay or failure was due to any cause beyond the Company’s reasonable control, including (without prejudice to the generality of the foregoing), plant/machinery/transport breakdown weather or traffic conditions accidents or strikes lockouts or other industrial actions or trade disputes (whether involving employees of the Company or of a third party) and if the Company is able to fulfil some for its products the Company may allocate its available supplies amongst its customers in such manner as it shall in its absolute discretion decide.
11.1 The Buyer indemnifies the Company in respect of all damage or injury to any person or loss of or damage to any property and against all actions. Suits, claims, demands, costs, charges or expenses arising as a result of
11.1.1 the buyer failing to identify or notify the Company of any defect in the Goods as required by these Conditions
11.1.2 any manufacturing or other process to which the Goods have been subjected, any product in which they have been incorporated or any purpose for which they have been used or recommended.
12.0 INSOLVENCY OF BUYER
12.1 This clause applies if the Buyer makes a voluntary arrangement with creditors or becomes subject to an administration order or (being an individual or firm) becomes – bankrupt or (being a company) goes into liquidation (otherwise than for the purpose for amalgamation or reconstruction), or a receiver is appointed of any of the property or assets of the Buyer, or the Company apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
12.2 If this clause applies, then without prejudice to any other right or remedy available to the Company.
12.3 If Goods have been delivered or the Services provided, but not paid for, the price shall become immediately due and payable, notwithstanding any previous agreement or arrangement to the contrary.
12.4 If goods remain undelivered under the Contract the as compensation for such cancellation the Buyer shall be liable to pay the Company the difference between the Price and the market value of such Goods at the time of such occurrence.
13.1 Any notice required or permitted to be given by either party to the other shall be in writing addressed to that other party at its Registered Office or principal place of business and sent by first class post or telex. Any notice sent by post shall be deemed served three days after despatch; any notice sent by telex shall be deemed served 24 hours after despatch;
13.2 No waiver by the Company of any breach of contract by the buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Conditions and the remainder of the provision in question shall not be affected thereby.
13.4 Any dispute arising out of these conditions shall be settled by arbitration in London in accordance with the rules of arbitration and appeal of F.O.S.F.A. Ltd.
13.5 These conditions and the Contract based thereon shall be governed by English Law.