Terms and Conditions of Supply, Business to Business
1 Interpretation
1.1 The definitions and rules of interpretation in this condition apply in these conditions:
“Buyer” the person, firm or company who purchases the Goods from Weavers;
“Contract” the contract between Weavers and the Buyer for the supply of Goods, in accordance with these conditions; “Goods” the goods (or any part of them) set out in the Order;
“Order” the Buyer’s order for Goods; and
“Weavers” Weavers (Nottingham) Limited
1.2 A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these conditions.
2 Application of Terms
2.1 Subject to any variation under condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purport to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all Weavers’ sales to persons buying in the course of their business and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of Weavers. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Weavers which is not set out in the Contract. Nothing in this condition shall exclude or limit Weavers’ liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Buyer from Weavers shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by Weavers until a written acceptance of order is issued by Weavers or (if earlier) delivery of the Goods has taken place.
2.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence until Weavers despatches an acceptance of order to the Buyer. Any quotation is valid for the period set out in the quotation (and if no period is stated, for 30 days from its date). Weavers may withdraw or vary (for example, because of currency fluctuations) a quotation at any time.
3 Description
3.1 The quantity and description of the Goods shall be as set out in Weavers’ quotation or acceptance of order, and in the absence of an acceptance of order shall be the quantity and description that was accepted by the Buyer on delivery.
3.2 Where a particular product has been ordered but is not available for delivery, either temporarily or permanently, Weavers may substitute a similar product without reference to the Buyer and the Contract price shall be varied accordingly. If the Buyer objects to the substituted product, it may return the substitute product for a refund provided it is unopened and undamaged. Weavers may not, however, rely on this right of substitution where Weavers has agreed with the Buyer in writing that this clause shall not apply in respect of a particular product or range of products.
3.3 All samples, drawings, descriptive matter, specifications and advertising issued by Weavers and any descriptions or illustrations contained in Weavers’ catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
3.4 Certain products sold by Weavers are, by reason of their age or otherwise, unpredictable as to their quality or other attributes until opened. These products will be clearly identified as such and, in respect of these products, no guarantee, warranty or representation is given whatsoever.
4 Delivery
4.1 Unless otherwise agreed in writing by Weavers, delivery of the Goods shall take place at Weavers’ place of business during Weavers normal business hours.
4.2 The Buyer shall take delivery of the Goods within 5 days of Weavers giving it notice that the Goods are ready for delivery.
4.3 Any dates specified by Weavers for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.4 Subject to the other provisions of these conditions Weavers shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss,loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by Weavers’ negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 30 days.
4.5 If for any reason the Buyer fails to accept delivery of any of the Goods within 5 days of Weavers giving it notice that the Goods are ready for delivery, or Weavers is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations: (i) risk in the Goods shall pass to the Buyer (including for loss or damage caused by Weavers negligence); (ii) the Goods shall be deemed to have been delivered; and (iii) Weavers may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.6 If the Customer has not taken delivery of the Goods within 14 days of the Supplier notifying the Customer that the Goods were ready for delivery, the Supplier may resell or otherwise dispose of all or any part of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.7 The Buyer shall provide at the point of delivery and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
4.8 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the relevant Contract.
4.9 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
4.10 Some alcohol and non alcohol goods may be shipped shipped by a third party company who is fully licensed to sell alcohol. Items containing alcohol can only be ordered by and delivered to persons aged 18 years or over.
5 Non-delivery
5.1 The quantity of any consignment of Goods as recorded by Weavers on despatch from Weavers’ place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by Weavers’ negligence) unless the Buyer gives written notice to Weavers of the non-delivery within 3 days of the date when the Goods would in the ordinary course of events have been received.
5.3 The Company shall not be liable for any shortfall in any delivery of Goods (even if caused by Weavers’ negligence) unless the Buyer gives written notice to Weavers of the non-delivery within 24 hours of delivery.
5.4 Any liability of Weavers for non-delivery or shortfall in delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6 Risk/title
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until Weavers has received in full (in cash or cleared funds) all sums due to it in respect of: (i) the Goods; and (ii) all other sums which are or which become due to Weavers from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall: (i) hold the Goods on a fiduciary basis as Weavers’ bailee; (ii) store the Goods (at no cost to Weavers) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as Weavers’ property; (iii) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and (iv) maintain the Goods in satisfactory condition and keep them insured on Weavers’ behalf for their full price against all risks to the reasonable satisfaction of Weavers.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions: (i) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and (ii) any such sale shall be a sale of Weavers’ property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
6.5 The Buyer’s right to possession of the Goods shall terminate immediately if: (i) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or (ii) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between Weavers and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or (iii) the Buyer encumbers or in any way charges any of the Goods.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Weavers.
6.7 The Buyer grants Weavers, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
6.8 Where Weavers is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by Weavers to the Buyer in the order in which they were invoiced to the Buyer.
6.9 On termination of the Contract, howsoever caused, Weavers’ (but not the Buyer’s) rights contained in this condition 6 shall remain in effect.
7 Price
7.1 Unless otherwise agreed by Weavers in writing, the price for the Goods shall be the price set out in the Order or, if there is no written order or acknowledgment of order, Weaver’s list price from time to time.
7.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
7.3 Weavers may, at its discretion, grant the Buyer a discount on the strict condition of prompt payment by the Buyer in accordance with clause 8. Accordingly, if the Buyer does not strictly adhere to the payment terms set out in clause 8 Weavers may cancel any discount given and reissue any invoice without such discount.
8 Payment
8.1 Subject to conditions 8.4 and 9, payment of the price for the Goods is due in pounds sterling on the last working day of the month following the month in which the Goods are delivered or deemed to be delivered.
8.2 Time for payment is of the essence.
8.3 No payment shall be deemed to have been received until Weavers has received cleared funds.
8.4 All payments payable to Weavers under the Contract shall become due immediately on its termination despite any other provision.
8.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by Weavers to the Buyer.
8.6 If the Buyer fails to pay Weavers any sum due pursuant to the Contract, the Buyer may be liable to pay interest to Weavers on such sum from the due date for payment at the annual rate of 4% above the official bank rate from time to time of Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment. In the alternative, Weavers reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
9 Sale or Return
9.1 Where Goods are to be supplied on a ‘sale or return’ basis: (i) Weavers reserves the right to withhold delivery of any such Goods until the Buyer has shown to Weavers’ satisfaction that they are insured with a reputable insurance company against any loss or damage to the Goods howsoever occasioned whilst they are in the Buyer’s possession or control; (ii) risk and title in any such Goods shall pass as set out in condition 6; (iii) Weavers will invoice the Buyer in respect of any such Goods on delivery, and payment in respect of such Goods shall be made in accordance with clause 8; and (iv) the Buyer shall be deemed to have sold, and therefore purchased, any such Goods to the extent they are not returned in a condition suitable for resale (in Weaver’s reasonable opinion) to Weavers within 14 days after delivery.
10 Quality
10.1 In addition to the warranties given in 10.2, where Weavers is not the manufacturer of the Goods, Weavers shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to Weavers.
10.2 The Company warrants that (subject to the other provisions of these conditions) on delivery the Goods shall: (i) be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and (ii) be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to Weavers in writing and Weavers has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of Weavers.
10.3 The Company shall not be liable for a breach of either of the warranties in condition 10.2 unless: (I) the Buyer gives written notice of the defect to Weavers, and, if the defect is as a result of damage in transit to the carrier, within 24 hours of the time when the Buyer discovers or ought to have discovered the defect; and (ii) Weavers is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by Weavers) returns such Goods to Weavers’ place of business at Weavers’ cost for the examination to take place there.
10.4 The Company shall not be liable for a breach of either of the warranties in condition 10.2 if: (i) the Buyer makes any further use of such Goods after giving such notice; or (ii) the defect arises because the Buyer failed to follow Weavers’ oral or written instructions as to the storage, transportation or use of the Goods or (if there are none) good trade practice; or (iii) the Buyer alters or repairs such Goods without the written consent of Weavers.
10.5 Subject to condition 10.3 and condition 10.4, if any of the Goods do not conform with either of the warranties in condition 10.2 Weavers shall at its option replace such Goods (or the defective part) or refund the price of such Goods at the applicable pro rata Contract rate provided that, if Weavers so requests, the Buyer shall, at Weavers’ expense, return the Goods or the part of such Goods which is defective to Weavers.
10.6 If Weavers complies with condition 10.5 it shall have no further liability for a breach of either of the warranties in condition 10.2 in respect of such Goods.
10.7 If a product is deemed corked, oxidised or appears otherwise out of condition and has been stored in suitable conditions, Weavers will arrange to replace the faulty bottle with a bottle of the same type of wine (or if not available, a bottle of another type of wine which is of equivalent value). Alternatively, if you prefer we will refund you an amount equal to the value of the bottle. Weavers reserve the right to ask you to provide evidence of the fault and return the faulty bottle and contents for inspection.
10.8 For the purposes of determining whether the wine has been stored in suitable conditions a refund cannot be offered for any reason after 90 days from date of delivery.
11 Limitation of Liability
11.1 Subject to condition 4, condition 5 and condition 10, the following provisions set out the entire financial liability of Weavers (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of: (i) any breach of these conditions; (ii) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and (iii) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2 Except as otherwise set out in these conditions, all warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these conditions excludes or limits the liability of Weavers: (i) for death or personal injury caused by Weavers’ negligence; or (ii) under section 2(3), Consumer Protection Act 1987; or
11.3.1 for any matter which it would be illegal for Weavers to exclude or attempt to exclude its liability; or (iii) for fraud or fraudulent misrepresentation.
11.4 Subject to condition 11.2 and condition 11.3: (i) Weavers’ total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and (ii) Weavers shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or [any claims for consequential compensation whatsoever (howsoever caused)] which arise out of or in connection with the performance or contemplated performance of the Contract.
12 Assignment
12.1 The Company may assign the Contract or any part of it to any person, firm or company.
12.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of Weavers.
13 Force Majeure
13.1 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Weavers including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 90 days, the Buyer shall be entitled to give notice in writing to Weavers to terminate the Contract.
14 General
14.1 Each right or remedy of Weavers under the Contract is without prejudice to any other right or remedy of Weavers whether under the Contract or not.
14.2 If any provision of the Contract is found by any court, tribunal or 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 Failure or delay by Weavers in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
14.4 Any waiver by Weavers of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
14.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.6 This 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 English law, and the parties submit to the exclusive jurisdiction of the English courts.
15 Communications
15.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax: (i) (in case of communications to Weavers) to its registered office or such changed address as shall be notified to the Buyer by Weavers; or (ii) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to Weavers by the Buyer.
15.2 Communications shall be deemed to have been received: (i) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or (ii) if delivered by hand, on the day of delivery; or (iii) if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day. Communications addressed to Weavers shall be marked for the attention of the Managing Director.