Enotria

Terms & conditions

INTERPRETATION
1.1 In these Terms:-
“Buyer” means the person firm or company who
accepts the Seller’s quotation for the sale of Goods
or whose order for Goods is accepted by the
Seller.“Goods” means the goods which the Seller is
to supply in accordance with these Terms.“Seller”
means Enotria Winecellars Limited.“Terms” means
the standard terms of sale set out in this document to
which all Contracts shall be subject and (unless the
context otherwise requires) includes any special
terms and conditions agreed in Writing between the
Buyer and the Seller.“Contract” means the contract
for the sale and the purchase of the Goods.“Writing”
includes telex cable facsimile transmissions and
comparable means of communication but not
electronic mail.
1.2 Any reference in these Terms to any statute or any
provision thereof shall be construed as a reference to
that statute and/or provision as amended re-enacted
or extended at the relevant time.
1.3 The headings in these Terms are for convenience
only and shall not affect their interpretation.
THE CONTRACT
2.1 Quotations are invitations to treat only.
2.2 All orders are accepted by the Seller only under
these Terms which may not be altered except with
the written agreement of a Company Director of the
Seller. Any contrary or additional terms unless so
agreed are excluded.
2.3 Orders are accepted subject to availability of Goods
at the time of delivery. Substitutions for out of stock
items will only be made with the Buyer’s confirmation.
2.4 Orders which have been accepted by the Seller may
be cancelled only with the written agreement of a
Company Director of the Seller and on terms that the
Buyer will indemnify the Seller against all losses
damages costs and expenses incurred by the Seller
as a result of that cancellation.
2.5 The Seller reserves the right:
2.5.1 to revise or change the style of labels and
packaging at any time
2.5.2 to make any changes in the specification of
the Goods which are required to conform
with any applicable health, safety or other
statutory and/or E.U. requirements or, where
the Goods are to be supplied to the Seller’s
specification, which do not materially affect
their quality or performance.
2.6 The Seller shall not be liable in respect of any
misrepresentation made by the Seller its employees
or agents to the Buyer as to the condition or quality
of the Goods unless the representation is:
2.6.1 made or confirmed in writing by the Seller;
and/or
2.6.2 fraudulent.
2.7 Without prejudice to clause 2.6 of the Terms while
the Seller takes every precaution in the preparation
of its catalogues, price lists and other literature these
documents are for the guidance of the Buyer only
and statements therein in the absence of fraud on
the part of the Seller shall not constitute
representations by the Seller and the Seller shall not
be bound by them. If the Buyer requires advice in
relation to the Goods a specific request for written
advice should be made.
2.8 Any typographical, clerical or other error or omission
in any sales literature, price list, acceptance of offer,
invoice or other document or information issued by
the Seller shall be subject to correction without any
liability on the part of the Seller.
PRICE
3.1 Quotations and prices are based on costs and excise
duty prevailing at the time when they are given or
agreed. The price of the Goods including excise duty
shall be that ruling as at the date of the delivery. All
prices quoted are exclusive of delivery charges and
of Value Added Tax which is payable at the rate
ruling at the date of delivery unless zero rated or
exempt from VAT.
3.2 Any discounts, deductions, allowances or rebates
agreed are only available if all sums due from the
Buyer to the Seller are paid by the due date.
3.3 Prices stated or quoted are applicable to the
quantity, specification and delivery dates. If the order
placed varies or delay is caused by the Buyer’s
instructions or lack of instructions the Seller shall be
entitled to adjust the price.
3.4 The Buyer will reimburse the Seller the cost of all
labelling, packaging and other materials purchased
by the Seller for specific use with any private label
product supplied.
PAYMENT
4.1 The Seller shall be entitled to invoice the Buyer for
the price of Goods on or at any time after the Goods
are ready for collection or delivery.
4.2 The Buyer shall pay the price of the Goods (less any
discount to which the Buyer is entitled but without
any other deduction) within 30 days of the date of the
Seller’s invoice (or such other period as may have
been agreed in writing between the Buyer and the
Seller) notwithstanding that delivery may not have
taken place and/or that the property in the Goods has
not passed to the Buyer. The time of payment of the
price shall be of the essence of the Contract. Receipts
for payment will be issued only upon request.
4.3 Credit is granted and may be reviewed at any time at
the Seller’s discretion. The Seller reserves the right to
refuse to execute any order or Contract if the
arrangements for payment or the Buyer’s credit rating
is not satisfactory to the Seller.
DELIVERY
5.1 Delivery shall occur when the Goods have been
collected by the Buyer or have been delivered to the
address agreed by the Seller.
5.2 If the Buyer fails to take or make arrangements to
accept delivery or collect the Goods or if the Seller is
unable to deliver because of inadequate access or
instructions delivery shall be deemed and the Seller
may do any one or more of the following (without
prejudice to any other right or remedy the Buyer may
have):-
5.2.1 make additional charges for failed delivery;
5.2.2 store the Goods at the Buyer’s risk and cost;
5.2.3 invoice the Buyer for the Goods;
5.2.4 terminate this Contract without liability on the
Seller’s part; and/or
5.2.5 recover from the Buyer all costs and losses
incurred by the Seller.
5.3 Any dates quoted for delivery of the Goods are
approximate only and the Seller shall not be liable for
any delay in delivery of the Goods howsoever
caused. Time for delivery shall not be of the essence
unless previously agreed by the Seller in writing.
5.4 If the Seller fails to deliver the Goods for any reason
other than any cause beyond the Seller’s reasonable
control, or the Buyer’s fault, and the Seller is
accordingly liable to the Buyer, the Seller’s liability
shall be limited to the excess (if any) of the cost of
the Buyer (in the cheapest available market) of similar
Goods to replace those not delivered over the price
of the Goods.
5.5 The Seller reserves the right to make delivery by
instalments and tender a separate invoice in respect
of each instalment. Any claim which the Buyer may
have in respect of one instalment shall not affect the
Buyer’s liability in respect of any other instalment.
5.6 The Buyer will indemnify the Seller in respect of all
losses damages costs and expenses incurred as a
result of delivery in accordance with the Buyer’s
instructions. This indemnity will be reduced in
proportion to the extent that such losses damages
costs or expenses are due to the Seller’s negligence.
INSPECTION
6.1 The Buyer shall inspect the Goods at the place and
time of loading if the Goods are collected and
unloading if the Goods are delivered but nothing in
these Terms shall require the Buyer to break
packaging and/or unpack Goods.
6.2 Unless the Seller or the delivery driver is notified
forthwith and written notice is received by the Seller
within 2 working days of loading or unloading as the
case may be of any claim apparent on reasonable
inspection for loss or damage in transit, short
delivery, failure to conform to the Contract the
Goods will be deemed to have been delivered in
accordance with the delivery documents and
accepted by the Buyer and the Buyer shall not be
entitled to and waives any right to reject the Goods.
6.3 The Seller’s liability for loss or damage in transit,
short delivery, failure to conform to the Contract or
apparent on reasonable inspection is limited to
supplying the Goods as ordered and the Seller shall
not be liable for any damages whatsoever. The Buyer
remains liable to pay the full invoice price of other
Goods delivered in accordance with the Contract.
Any other claim for damages is subject to Clause 8.
TITLE AND RISK
7.1 Risk in the Goods shall pass to the Buyer when the
Goods are delivered by the Seller or collected by the
Buyer. If the Seller effects delivery by a carrier the risk
in the Goods passes to the Buyer when the Seller
delivers the Goods to the carrier.
7.2 The title to the Goods shall remain with the Seller
until the Seller has received in cash or cleared funds
payment in full of the price of the Goods and any
other sums outstanding between the Buyer and the
Seller whether in respect of this Contract or
otherwise.
7.3 Until title passes the Buyer:-
7.3.1 shall hold the Goods as the Seller’s fiduciary
agent and bailee;
7.3.2 shall keep the Goods stored separately from
any other goods, protected and insured, and
shall not interfere with any identification
marks, labels, batch numbers or serial
numbers on the Goods;
7.3.3 may sell the Goods as principal and not as the
Seller’s agent in the ordinary course of the
Buyer’s business subject to the following
express conditions:
(a) that the entire proceeds of any sale or
insurance proceeds received in respect of the
Goods are held in trust for the Seller and not
mixed with any other monies or paid into an
overdrawn bank account and shall at all times
be identifiable as the Seller’s money;
(b) that the Buyer will at the Seller’s request and at
the Buyer’s expense assign to the Seller all rights
the Buyer may have against its customer; and
(c) that the Buyer’s right to sell the Goods may
be withdrawn by Seller on notice at any time
and will automatically cease in the event of
the Buyer becoming Insolvent as defined in
clause 11.
7.4 The Seller shall be entitled at any time to recover any
or all of the Goods to which it has title and for that
purpose the Seller its employees or agents may with
such transport as is necessary enter upon any
premises occupied by the Buyer or to which the
Buyer has access and where the Goods may be or are
believed to be situated.
7.5 The Buyer shall not be entitled to pledge or in any
way charge by way of security for any indebtedness,
any of the Goods which remain the property of the
Seller, but if the Buyer does so, all monies owing by
the Buyer to the Seller shall (without prejudice to any
other right or remedy of the Seller) forthwith become
due and payable.
7.6 Without prejudice to the foregoing none of the
Goods are supplied on a “sale or return” basis.
RESPONSIBILITIES
8.1 Nothing in these Terms shall exclude or restrict the
Seller’s liability for death or personal injury resulting
from the Seller’s negligence.
8.2 If the Goods are sold under a Consumer Transaction
(as defined by the Consumer Transactions
(Restrictions on Statements) Order 1976) the statutory
rights of the Buyer are not affected by these Terms.
8.3 The Buyer and Seller acknowledge that Goods of the
type sold by the Seller retain their quality for different
periods of time and subject to this acknowledgement
and to the following provisions the Seller warrants that
taking account of the type and quality of the Goods as
at the time of the Contract of the Goods will at the
time of delivery correspond with any specification
provided by the Buyer and be of satisfactory quality for a
reasonable period.
8.4 Subject to clauses 8.1 and 8.2 the above warranty is
given by the Seller subject to the following conditions:-
8.4.1 the Seller shall be under no liability in respect of
any defect in the Goods that would have been apparent on a reasonable inspection in
accordance with clause 6 of these Terms unless
the Buyer gives the Seller notice as required by
clause 6;
8.4.2 the Seller shall be under no liability in respect of
any defect in the Goods arising from any
specification provided by the Buyer;
8.4.3 the Seller shall be under no liability in respect of
any defect in the Goods unless the defect is
discovered within a reasonable period taking
account of the type of Goods concerned and
their quality at the time of the Contract and the
Seller is notified within 10 working days of the
discovery of the defect;
8.4.4 the Seller will be under no liability for any defect
in the Goods if the defect arises from the Buyer’s
negligence or handling or storage of the Goods
or failure to follow any instructions or guidance
given by the Seller whether oral or in writing;
8.4.5 the Seller shall be under no liability under the
above warranty (or any other warranty, condition
or guarantee) if the total price for the Goods has
not been paid by the due date for payment.
8.5 Subject to clauses 8.1 and 8.2 and as expressly provided
in these Terms, and except where the Goods are sold to
a person dealing as a consumer (within the meaning of
the Unfair Contract Terms Act 1977), all warranties,
conditions or other terms implied by statute or common
law are excluded to the fullest extent permitted by law.
8.6 Where a valid claim in accordance with this clause 8 is
notified to the Seller in accordance with these Terms, the
Seller may at its sole discretion replace the Goods (or
the part in question) free of charge or return to the Buyer
the price of the Goods (or a proportionate part of the
price), in which case the Seller will have no further liability
to the Buyer.
8.7 Subject to Clauses 8.1 and 8.2 the Seller shall not be
liable for misrepresentation (unless fraudulent) or in
contract tort (including negligence or breach of statutory
duty) or otherwise howsoever and whatever the cause
thereof whether the negligence of the Seller, its
employees or agents or otherwise arising out of or in
connection with the supply of the Goods (including any
delay in supplying or any failure to supply the Goods in
accordance with the Contract or at all) or in their use or
resale by the Buyer for:
(a) any loss of profit, business, contracts, revenues or
anticipated savings; and/or
(b) any special, indirect or consequential loss or
damage, costs, expenses of any nature
whatsoever.
8.8 The Buyer will unconditionally fully and effectively
indemnify the Seller against all losses, damages,
penalties, costs on an indemnity basis and expenses
awarded against or incurred by the Seller in connection
with or paid or agreed to be paid by the Seller in
settlement of any claim by any third party arising from
the supply or use of the Goods. This indemnity will be
reduced in proportion to the extent that such losses,
damages, penalties, costs and expenses are due to the
Seller’s, its employees’ or agent’s negligence.
8.9 Without prejudice to any other provisions of these Terms
in any event the Seller’s total liability for any one claim or
for the total of all claims arising from any one act of
default on the Seller’s part (whether arising from its
negligence or otherwise) shall not exceed the amount
received by the Seller for the claim under its insurance
policy covering such risks.
DATA PROTECTION
9.1 If the Buyer is an individual or a group of individuals the
Buyer agrees that the Seller may:
9.1.1 Seek, hold and process any information obtained
about the Buyer from the Buyer or third parties
for the purpose of and as a result of any
applications or agreements the Buyer has with
the Seller. This will include a search with a
licensed credit reference agency which will keep
a record of that search.
9.1.2 Use this information for credit assessment purposes
including assessing the Buyer’s credit limit and to
administer and operate the credit account granted
to the Buyer and analyse the conduct of that credit
account. This may include further searches with
licensed credit reference agencies.
9.1.3 Disclose any information the Seller holds about
the Buyer to licensed credit reference agencies;
other suppliers and creditors to help the Seller
and others make credit decisions; to help prevent
or detect fraud or other crimes; to trace debtors;
to provide trade references; on a confidential
basis to the Seller’s agents and contractors; to
insurance companies for the purposes connected
with insurance products that relate or might
relate to the Buyer’s credit account; to any
person to whom the Seller proposes to transfer
its rights and/or responsibilities under this
Contract and to the extent the Seller is required
or permitted to do so by law.
9.1.4 Hold and use this information during and for 6
years after the trading relationship and thereafter
destroy the information except for a record of
credit limits and date of and grounds for account
closure.
9.1.5 If the Buyer is a body corporate or incorporate
the Seller may process information as above
relating to the Buyer’s directors, shareholders or
members including searches with licensed credit
reference agencies.
INTERNATIONAL SALES
10.1 In this clause 10:
“Incoterms” means the international rules for the
interpretation of trade terms of the International
Chamber of Commerce as in force at the date when the
Contract is made.
“International Sales” includes export sales from the
United Kingdom (UK) and cross border/triangulation
sales from non-UK countries to all destinations.
10.2 This clause 10 applies to International Sales.
10.3 Unless the context otherwise requires, any term or
expression which is defined in or given a particular
meaning by the provisions of Incoterms shall have the
same meaning in these Terms, but if there is any conflict
between the provisions of Incoterms and these Terms,
the latter will prevail.
10.4 The provisions of this clause shall (subject to any
special terms agreed in writing between the Buyer
and Seller) apply notwithstanding any other provisions
of these Terms.
10.5 The Buyer shall be responsible for complying with any
legislation or regulations governing the importation of
the Goods into the country of destination and for the
payment of any duties or taxes on them.
10.6 The Buyer must advise the Seller in writing of any product,
labelling, packaging or specification requirements
applicable to the country of destination otherwise Goods
will be supplied to the Supplier’s specification.
10.7 Unless otherwise agreed in Writing the Buyer shall be
responsible for arranging for testing and inspection of
the Goods before shipment. The Seller shall have no
liability for any claim in respect of any defect in the
Goods or failure to comply with any agreed specification
which would be apparent on inspection and which is
made after shipment, or in respect of any damage
during transit.
10.8 The Seller will not be liable for any claim for damages
under clause 8 of these Terms unless the Seller receives
written notice within 21 days of the arrival of the Goods
at the delivery address.
10.9 Where the Seller’s invoices are exclusive of UK tax and
excise duty the Buyer will supply evidence of shipment
satisfactory to UK/EU statutory authorities such as
HMR&C within 30 days of exportation.
The Seller reserves the right to debit the Buyer with
any costs and charges including any liability for VAT,
any other UK tax or excise duty if such evidence
is not provided.
DEFAULT & TERMINATION
11.1 “Insolvent” means the Buyer becoming unable to pay its
debts within the meanings of Section 123 (Company) or
Section 268 (Individual) of the Insolvency Act 1986 or the
Buyer ceasing to pay its debts in the ordinary course of
business or being unable to pay its debts as they become
due or the Buyer ceasing or threatening to cease to carry
on its business or the Seller reasonably apprehends that
any of the events above is about to occur.
11.2 “Associated Company” means the Buyer’s subsidiary or
holding company as defined in Section 736 and Section
736A of the Companies Act 1985 or a subsidiary of such
holding company, or any company over which the
Buyer’s directors or shareholders have control as
defined in Section 840 of the Income and Corporation
Taxes Act 1988.
11.3 If the Buyer fails to pay any invoice or any sum due to the
Seller under any contract on the due date or the Buyer’s
credit limit is exceeded or any trade credit insurance is
withdrawn from the Buyer or the Buyer or any Associated
Company becomes Insolvent or there is a material
change in the Buyer or any Associated Company’s
constitution or the Buyer commits a material breach of
this Contract and fails to remedy that breach after being
requested to do so all sums outstanding between the
Buyer and the Seller under this and any other contract
shall become immediately due and payable and the
Seller shall be entitled to do any one or more of the
following (without prejudice to any other right or remedy
the Seller may have):-
(a) require payment in cleared funds in advance of
further deliveries of Goods;
(b) charge interest on the monies outstanding at the
rate of 4 per cent above HSBC Plc Base Rate in
force from time to time from the due date until
the date of payment after as well as before
judgment;
(c) suspend or cancel any further deliveries of Goods
to the Buyer under any contract without liability
on the Seller’s part;
(d) without prejudice to the generality of Clause 7 of
these Terms exercise any of the Seller’s rights
pursuant to that Clause; and/or
(e) terminate this or any other contract with the
Buyer or any Associated Company without
liability on the Seller’s part.
11.4 Should any cheque provided by the Buyer to the Seller
(whether drawn on the Buyer’s account or not) be
dishonoured on presentation the Seller shall be entitled
to charge the Buyer a fee of £25.00 (exclusive of VAT) in
respect of each and every occurrence and such fee shall
be in addition to and not in substitution for any interest
payable under these Terms.
11.5 Without prejudice to clause 11.4 the Buyer shall
reimburse the Seller’s costs including without limit legal
costs on an indemnity basis which the Seller incurs in
enforcing the Seller’s rights under this Contract including
but not limited to recovery of any sums due.
GENERAL
12.1 This Contract shall be governed and interpreted
according to the Law of England and Wales and the
Buyer agrees to submit to the non-exclusive jurisdiction
of the English Courts.
12.2 The Seller shall not be liable for any breach of contract
delay or failure to perform any of the its obligations if the
breach delay or failure was due to any cause beyond the
Seller’s reasonable control including without limit
industrial action or trade disputes whether involving
employees of the Seller or of a third party.
12.3 The waiver by the Seller of any breach or default of these
Terms shall not be construed as a continued waiver of
that breach nor as a waiver of any subsequent breach of
the same or any other provision.
12.4 If any clause or clause of these Terms is held by a
competent authority to be invalid or unenforceable the
validity of the other clauses and clauses of these Terms
shall not be affected and they shall remain in full force
and effect.
12.5 No person may enforce any of these Terms under the
Contracts (Rights of Third Parties) Act 1999.
12.6 Any notice required or permitted to be given by either
party to the other under these Terms shall be in writing
addressed to that other party at its registered office, or
principal place of business, or such other address as may
at the relevant time have been notified pursuant to this
provision to the party giving the notice and shall be
deemed to have been received:
12.6.1 if sent by first class post: 2 working days after
posting exclusive of the day of posting;
12.6.2 if delivered by hand: on the day of delivery;
12.6.3 if sent by facsimile transmission: at the time of
confirmation of transmission of the entire fax.