BOTTLING INTERNATIONAL LTD – TERMS AND CONDITIONS OF SUPPLY OF GOODS AND SERVICES
The Customer’s attention is particularly drawn to the provisions of condition 14 (Limitation of liability).
1. Definitions and Interpretation
1.1 In these Conditions, the following words and expressions have the following meanings:
Applicable Law any rules of law, statutes, directives, regulations, orders or other instruments having the force of law, requirements, industry standards or guidance (including any applicable British Standards) codes of conduct or directions of a competent authority which touch or concern the Contract;
Business Day a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Conditions the terms and conditions set out in this document as amended from time to time in accordance with condition 16.3;
Confidential Information any and all information (in whatever form) of a confidential nature relating to the business, customers, products, affairs and finances of a party and trade secrets including, production processes, specifications and technical data and know-how relating to the business of a party or any of its or their suppliers, customers, agents, distributors, shareholders, management or business contacts which may become known to one party from the other party;
Contract the contract between the Supplier and the Customer for the sale and purchase of the Products and/or Services which incorporates these Conditions;
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures as defined in the Data Protection Legislation
Customer the person or firm who purchases the Products from the Supplier;
Data Protection Legislation the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications)[; and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party
Deliverables deliverables set out in the quotation produced by the Supplier for the Customer
Force Majeure Event has the meaning given in condition 15;
Products the Products (or any part of them) set out in the Order;
Insolvency Event has the meaning given in conditions 13.1(a) and 13.1(b);
Intellectual Property Rights patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Order the Customer’s order for the Products, as set out in the Customer’s written acceptance of the Supplier’s quotation;
Price the price payable for the Products stated in the Order or as otherwise agreed in writing by the parties;
Services the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification
Specification any specification for the Products, including any related plans and drawings, that is provided by the Supplier to the Customer upon the Customer’s request; and
Supplier Bottling International Limited (registered in England and Wales with company number 08729643) whose registered office is at Park House, 37 Clarence Street, Leicester LE1 3RW.
UK Data Protection Legislation all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended
1.2 In these Conditions, the following rules apply:
(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended, re-enacted or superseded. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(b) any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the generality of the related general words; and
(c) a reference to writing or written includes electronic communication by email and fax including all related attachments.
2. Basis of contract
2.1 These Conditions 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 An Order constitutes an offer by the Customer to purchase the Products and/or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete, accurate and meets its requirements.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence. Once the Contract comes into existence, the Customer shall not cancel or vary the Order without the Supplier’s express written consent. If such notice of cancellation is received less than 72 hours before the agreed production date in respect of Goods or the agreed supply date in respect of Services, the Supplier reserves the right to charge the Customer reasonable cancellation charges or costs should the production date need to be moved.
2.4 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Products and Services described in them. They shall not form part of the Contract or have any contractual force.
2.5 A quotation for the Products and Services given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue or such other period as is stated on the quotation or agreed between the parties.
2.6 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any document that is inconsistent with these Conditions.
3.1 The Products are described in the Specification agreed between the customer and supplier.
3.2 The Supplier reserves the right to amend the Specification if required by any Applicable Law.
3.3 To the extent that the Products are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This condition 3.3 shall survive termination of the Contract.
3.4 All testing requirements of the Customer should be specified in writing. Any tests undertaken by the Supplier will be recorded in the quotation, and should additional or specialist testing be required, the Customer will be responsible for the costs of such testing (whether undertaken by a third party specialist laboratory or the Suppler (if the test is available from the Supplier).
4.1 All products are supplied on an ex-works basis. Collection and delivery to other premises e.g. warehouse or customer premises or re-sale customer premises is the responsibility of the customer.
4.2 If the method of delivery is collection by the Customer:
(a) the Customer shall collect the Products from the Delivery Location during the Supplier’s business hours within 5 Business Days of the Supplier notifying the Customer that the Products are ready or as otherwise agreed
(b) Storage charges may apply if collection exceeds 5 business days.
4.3 If for any reason other than in accordance with condition 5.3(a), the Customer fails to collect all or any of the Products when they are ready in accordance with condition 4.2(a), except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
(a) risk in the Products shall pass to the Customer (including for loss or damage caused by the Supplier’s negligence) unless storage has been expressly agreed in writing between the parties in which case the Supplier shall store the Products until collection takes place, and charge the Customer for all related costs and expenses (including insurance, haulage costs and demurrage charges); and
(b) the Supplier may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the Price of the Products or charge the Customer for any shortfall below the Price of the Products.
4.4 The Customer shall not be entitled to reject the Products if the Supplier delivers up to and including 10% more or less than the quantity of Products ordered, but a pro rata adjustment shall be made to the relevant invoice on receipt of notice from the Customer that the wrong quantity of Products was delivered. Where the Customer has paid for the Products in advance the Supplier shall refund to the Customer (by way of credit note) the Price paid for the Products which have not been supplied.
4.5 Price is, unless agreed in writing by the parties, for:
(a) In respect of the supply of Products: bottling services only. The Price is exclusive of ingredients intended for the recipe, packing cases and packing materials (bottles, labels and caps specifically.)
(b) In respect of the supply of Services: the Services set out in the Order. The Price is exclusive of additional testing that the Customer may require or be recommended or required to undertake.
4.6 Any items to be provided by the Supplier must be agreed by the parties in writing in advance of production and itemised clearly.
4.7 Any packing cases and packing materials supplied by the Supplier, unless agreed otherwise in writing, are intended to provide adequate protection throughout normal conditions of transit of usual duration only.
5.1 The Supplier warrants that, on production, and subject to condition 5.2, for the period from the date of production to the best before end date of the Products (Warranty Period), the Products shall:
(a) conform in all material respects with the Specification; and
(b) be manufactured in accordance with and shall comply with Applicable Law,
(together, the Quality Standards).
5.2 Where the Product is carbonated, the Supplier gives no warranty or guarantee in respect of and accepts no liability in relation to the loss of carbonisation at any time after delivery.
5.3 The Customer may reject any Products delivered to it that do not comply with the Quality Standards, provided that notice of rejection is given to the Supplier:
(a) in the case of a defect that is apparent on normal visual inspection, within 48 hours of collection and confirmed in writing within 5 days after collection together with such evidence (photographic or otherwise) as the Supplier may reasonably request; and
(b) in the case of a latent defect, unless agreed otherwise in writing by the parties, prior to the expiry of the Warranty Period; the best before end date
5.4 If the Customer fails to give notice of rejection in accordance with condition 5.3, it shall be deemed to have accepted the Products.
5.5 Subject to condition 5.9, if the Product does not comply with the Quality Standards and the Customer has given notice in accordance with condition 5.3, the Supplier shall, at its option, replace the defective Products or refund the proportion of the Price relating to the Products in question. Subject to condition 5.10, the Supplier’s compliance with this condition 5.5 shall be the Customer’s exclusive remedy and shall be deemed to satisfy any claim in damages or otherwise in respect of lack of conformity of the Product with the Quality Standards.
5.6 The Supplier shall not be liable for any Products’ failure to comply with a Quality Standard:
(a) unless test results prove that the Product does not comply with the Quality Standards and it is evidenced to the Supplier’s reasonable satisfaction that this is not as a result of the Customer’s wilful damage, neglect, packaging or transport of the Product, failure to follow any instructions given by or on behalf of the Supplier (including as to the location, temperature, conditions and other instructions as to storage of the Product) or otherwise comply with good industry practice or other disturbance of whatever nature affecting the place where the Product is situated which directly or indirectly affects the Product;
(b) to the extent that the Supplier is entitled to rely on any defences under Applicable Law;
(c) the Customer makes any further use of such Products after giving notice in accordance with condition 5.3;
(d) where the circumstances in condition 5.2 apply;
(e) the Customer alters such Products without the written consent of the Supplier; or
(f) the Customer has failed to undertake additional or specialist testing that would have identified such non-compliance; or
(g) the Products differ from the Specification as a result of changes made to ensure they comply with Applicable Law. Note – customer will be notified with best endevours and customer should inform supplier if production should be halted.
5.7 Where International Article Number (also known as European Article Number) codes and symbols are applied to the Products, the Supplier will not be liable for any loss or damage suffered by the Customer arising out of the use of such codes save where the codes or symbols have been incorrectly applied by the Supplier in which case the Supplier’s liability will be limited to replacement of the Products or issuing a credit note for the proportion of the Price relating to the Products in question against any invoice raised for such Products.
5.8 These Conditions shall apply to any replacement Products supplied by the Supplier.
Conditions relating to the rejection of Products generally
5.9 The Supplier will retain at least 1 sample from each batch of Product it manufactures and the Customer shall comply with the following quality defect procedure:
(a) the Customer will retain at least 10 samples of each Product for the length of the Product’s shelf-life (i.e. until the expiry of its best before end date);
(b) if the Customer alleges a quality defect in respect of the Product, it will contact the Supplier in writing to notify the Supplier of the alleged defect and the Supplier will examine its own sample;
(c) when the Product has been examined by the Supplier, a report on the results of the Supplier’s examinations will be provided to the Customer; and
(d) in the event of a dispute arising between the Customer and the Supplier regarding the quality of the Product, the samples taken by the Customer shall be sent to the Supplier for comparison, in the first instance, against the reference sample taken by the Supplier. If the dispute is not resolved the samples will be submitted to an agreed independent accredited laboratory for testing. Both the Customer and the Supplier shall accept the findings of the agreed independent accredited laboratory, which shall be binding on both parties.
5.10 If it is established that the Product which has been rejected by the Customer does meet the Quality Standards then in addition to the Price of the Product the Customer will also be liable for all or any costs or losses incurred by the Supplier in relation to the testing and in relation to the subsequent disposal of the Product including additional haulage charges and any difference between the Price contracted to be paid by the Customer and any price received by the Supplier for the Product. If it is established that the Product which has been rejected by the Customer does not meet the Quality Standards then, in addition to its obligations under condition 5.5, the Supplier will be liable for the costs directly associated with the relevant testing.
5.11 If following an inspection, the Customer reasonably considers that the Products do not comply, or are unlikely to comply with the Quality Standards, the Customer shall inform the Supplier and the Supplier shall immediately take such action as is necessary to ensure that the Products are or will be as warranted under condition 5.1.
6. Product recall and consumer complaints
6.1 In the event that at the requirement, instruction, instigation, recommendation or suggestion of any governmental or regulatory body (whether local or national) examination of any of the Products is required to be undertaken to investigate the fitness for purpose of such Products and/or the parties otherwise agree that any of the Products should be withdrawn from sale and/or recalled after sale, the Supplier and the Customer shall bear in equal shares all costs, charges and expenses properly and reasonably incurred by either or both of them arising out of such examination, withdrawal and/or recall but excluding any indirect or consequential loss or damage thereby incurred by either or both of them.
6.2 In the event that any such examination, withdrawal or recall is carried out at the sole instigation of the Supplier or the Customer the costs, charges and expenses thereof shall be borne by that party unless agreed otherwise in writing or unless and to the extent that the reason for such examination, withdrawal or recall was attributable to the act or default of the other party in which case such costs, charges and expenses shall be borne by that other party.
6.3 The Customer shall maintain a proper and efficient procedure for reporting and dealing with consumer complaints.
7. Title and risk
7.1 Risk in the Products shall pass to the Customer:
(a) if the method of delivery is delivery by the Supplier, upon such Products’ arrival at the Delivery Location; or
(b) if the method of delivery is collection by the Customer, on collection of such Products. Risk transfers to the customer on collection.
7.2 Title to the Products shall pass to the Customer at the earlier of:
(a) the Supplier receiving payment in full (in cash or cleared funds) for the Products; and
(b) the Customer reselling the Products, in which case title to the Products shall pass to the Customer at the time specified in condition 7.5.
7.3 The Supplier shall be entitled to recover payment for the Products notwithstanding that title in any of the Products has not passed from the Supplier.
7.4 Until title to the Products has passed to the Customer, the Customer shall:
(a) store the Products separately from all other products held by the Customer so that they remain readily identifiable as the Supplier’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(c) maintain the Products in satisfactory condition and keep them insured against all risks for their full Price from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to an Insolvency Event; and
(e) give the Supplier such information relating to the Products as the Supplier may require from time to time.
7.5 Subject to condition 7.6, the Customer may resell or use the Products in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Products. However, if the Customer resells the Products before that time:
(a) it does so as principal and not as the Supplier’s agent; and
(b) title to the Products shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
7.6 If before title to the Products passes to the Customer the Customer becomes subject to an Insolvency Event then, without limiting any other right or remedy the Supplier may have:
(a) the Customer must immediately notify the Supplier of the event;
(b) the Customer’s right to resell the Products or use them in the ordinary course of its business ceases immediately; and
(c) the Supplier may at any time:
(i) require the Customer to deliver up all Products in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
7.7 The Customer may not pledge or charge the Products by way of security for any indebtedness.
8. Supply of Services
8.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
8.2 The Supplier shall use best endeavours to meet any performance dates for the Services specified in Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8.3 The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall, with best endeavours, notify the Customer in any such event with 3+ business days
8.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
9. Customer’s Obligations
9.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(d) obtain and maintain all necessary licences, permissions, test certificates and consents which may be required for the Services and the supply of the Goods before the date on which the Services are to start or the Goods manufactured;
(e) comply with all applicable laws, including health and safety laws;
(f) comply with any additional obligations as set out in the Specification.
9.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this condition 9.2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
10. Confidentiality and publicity
10.1 Each party (the Receiving Party) shall keep in strict confidence all Confidential Information which has been disclosed by the other (the Disclosing Party) or the Disclosing Party’s employees, agents or subcontractors.
10.2 The Receiving Party shall only disclose Confidential Information to those of its employees, agents and subcontractors who need to know it for the purpose of complying with the receiving party’s obligations under the Contract, and shall make sure that those employees, agents and subcontractors comply with the obligations set out in this condition 8 as though they were a party to the Contract.
10.3 Each party shall make sure that reasonable precautions are taken to protect any Confidential Information (and these shall be at least as effective as those taken to protect their own confidential information).
10.4 This condition 8 will not apply to any information where the Receiving Party can show that:
(a) such information is already lawfully in the public domain;
(b) such information was lawfully in its possession without restriction on its disclosure or use, prior to the time at which it received the same from the Disclosing Party;
(c) such information has subsequently been lawfully disclosed to it without restriction on its disclosure or use by a third party who was itself acting lawfully at the time of such disclosure; or
(d) it has independently and lawfully developed the same information itself.
10.5 The Receiving Party may disclose such Confidential Information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
10.6 The Customer will not make any announcement or publicity statement relating to the Supplier, any dispute between the parties, the Contract or any of their subject matter without the Supplier’s prior written consent (except as required by law or by any legal or regulatory authority).
10.7 The Supplier shall indemnify the Customer for all losses arising from a breach of clause 10 in respect to the Specification and the customer will indemnify the supplier for any losses associated with its IP and knowhow developed in conjunction with the client itself or the supplier’s business generally.
10.8 Prices for services
Current prices for services provided by the Supplier are available at this link: current prices for services
10.9 Refunds for help-desk tickets and collections
At the Supplier’s option, the price paid by the Customer for a help-desk ticket or a collection may be fully refunded within 14 days from the date of purchase. To obtain a refund the Customer must notify the Company within 14 days of the original purchase date, stating the reason for seeking a refund. Refunds may be made at the Supplier’s option using the same method of payment the Customer chose when paying for the help-desk ticket or collection, and will be made within three days of receiving the Customer’s request for a refund.
11. Price and payment
11.1 The Price of the Products shall be the price set out in the Order or as otherwise agreed between the parties in writing.
11.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the Price of the Products to reflect any increase in the cost of the Products that is due to:
(a) 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);
(b) any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
11.3 The Price of the Products is unless agreed otherwise in writing between the parties:
(a) exclusive of the costs and charges of packaging, ingredients, insurance and transport of the Products; and
(b) exclusive of amounts in respect of value added tax (VAT), which the Customer shall pay to the Supplier at the prevailing rate, subject to receipt of a valid VAT invoice
11.4 Unless agreed otherwise in writing by the parties, the Customer shall pay the invoice in advance and in cleared funds. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
11.5 If the Customer disputes any invoice or other statement of monies due, the Customer may withhold payment in respect of the disputed amount provided that it immediately notifies the Supplier in writing of its intention to withhold payment, the amount being withheld and the grounds for the dispute. The parties shall negotiate in good faith to attempt to resolve the dispute promptly.
11.6 The Customer shall pay all amounts in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law or permitted under condition 11.5). The Customer shall not be entitled to claim set-off or counterclaim against the Supplier in relation to the payment of the whole or part of any such amount.
12. Data Protection
12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This condition 12 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this condition 12, Applicable Laws means (for so long as and to the extent that they apply to the Supplier) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means any Data Protection Legislation and any other law that applies in the UK.
12.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor
13. Termination and suspension
13.1 Either party may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the other party is declared or becomes insolvent, has a moratorium declared in respect of any of its indebtedness, enters into administration, receivership, administrative receivership or liquidation or threatens to do any of these things or takes or suffers any similar action in any jurisdiction (an Insolvency Event);
(b) the Customer (being an individual) is declared bankrupt, enters into any composition or arrangement with his creditors, has a receiver appointed to any of his assets, or ceases to carry on business, or takes or suffers any similar action in any jurisdiction (also an Insolvency Event)) (or, the Customer being a partnership, has a partner to whom any Insolvency Event applies); or
(c) the other party commits an irremediable breach of the Contract or commits any remediable material breach and fails to remedy it within 30 days of notice in writing of the breach requiring remedy of the same.
13.2 Without limiting its other rights or remedies, the Supplier is also entitled to suspend or terminate the Contract in whole or in part, immediately by notice in writing to the Customer if:
(a) the Customer commits persistent remedial breaches of the Contract, which are together a material breach;
(b) the Customer fails to pay any amount due under the Contract on the due date;
(c) performance of the Contract would, in the Supplier’s reasonable opinion, cause the Supplier to be in breach of any Applicable Law; or
(d) the Supplier reasonably believes that the Customer is about to become subject to any Insolvency Event; or
(e) the Customer is subject of a change of control such that there is a transfer of, or change in, the beneficial ownership of more than 50% of the issued share capital of the Customer or the legal power to direct or cause the direction of the general management of the Customer.
13.3 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding un-disputed unpaid invoices and interest. For the avoidance of doubt, any disputed invoices must have been in dispute with valid rationale before the commencement of termination proceedings.
13.4 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
13.5 Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.
14. Limitation of liability
14.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for any liability which cannot legally be limited including but not limited to liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
(d) defective products under the Consumer Protection Act 1987
14.2 BIL recommends that all products are manufactured to a pH of 3.8 or below. BIL accepts no liability for micro stability and shelf life if the pH is above 4.0 and that the liability rests solely with the customer.
14.3 Subject to condition 14.1, the Supplier’s total liability to the Customer shall not exceed 200% of the total Price paid by the Customer for the Products and/or Services supplied to the Customer by the Supplier under the Contract. The Supplier’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
14.4 This condition 14.3 sets out specific heads of excluded loss:
(a) Subject to condition 14.1, the types of loss listed in condition 14.3(b) are wholly excluded by the parties.
(b) The following types of loss are wholly excluded:
(i) Loss of profits.
(ii) Loss of sales or business.
(iii) Loss of agreements or contracts.
(iv) Loss of anticipated savings.
(v) Loss of use or corruption of software, data or information.
(vi) Loss of or damage to goodwill.
(vii) Indirect or consequential loss.
14.5 The Supplier has given commitments as to compliance of the Products and Services with relevant specifications in condition 5 and condition 8. In view of these commitments, 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, to the fullest extent permitted by law, excluded from this agreement.
14.6 This condition 14 shall survive termination of the Contract.
15. Force Majeure
15.1 Neither party shall be liable for failure or delay in performing its obligations under the Contract caused by a circumstance or event which the Supplier cannot reasonably avoid, provide against or mitigate the effect of including: (a) acts of God, flood, drought, earthquake, volcanic eruption or other natural disaster or adverse weather conditions; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war (threat or preparation for war), armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (e) collapse of buildings, fire, explosion or accident; (f) strikes or industrial disputes (whether involving its workforce or that of a third party); (g) shortages of or inadequate sources of raw materials; (h) breakdown of major plant and machinery which is critical to the performance of the Supplier’s obligations under the Contract and is irreplaceable within a reasonable timeframe provided always that such plant and machinery has been maintained to a reasonable standard; or (i) interruption or failure of a utility service which is critical to the performance of the Supplier’s obligations under the Contract. In case of any shortages of raw materials or component parts the Supplier reserves the right to apportion Products on an equitable basis in its sole discretion.
15.2 If the period of delay or non-performance continues for more than 30 days, the Supplier may terminate the Contract by giving 14 days’ written notice to the Customer.
16.1 Assignment and other dealings
(a) The Supplier 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 the Supplier.
16.2 Entire agreement The Contract (incorporating these Conditions) 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. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
16.3 Variation Subject to condition 3.2, no variation of the Contract shall be effective unless it is in writing, refers to the Contract and is signed by each party (or its authorised representative).
16.4 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 or 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.
16.5 Severance If any 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 shall be deemed deleted. Any modification or deletion of a provision under this condition shall not affect the validity and enforceability of the rest of the Contract.
(a) A notice given to a party under or in connection with the Contract shall be in writing and sent to the party at the address or to the fax number or email address notified in writing to the other party.
(b) Set out below are the methods by which a notice may be sent and, if sent by that method, the corresponding delivery date and time:
(i) By hand: if delivered between 09:00 and 17.30 (UK time) on a Business Day, when so delivered, and if delivered outside such hours, at 09:00 (UK time) on the next Business Day;
(ii) Pre-paid first class post or other next Business Day delivery service providing proof of postage: 09:00 (UK time) on the second Business Day after posting;
(iii) Fax: at the time when in the ordinary course of transmission it would first be received by the addressee, provided that, where such time does not fall between 09:00 and 17.30 (UK time) on a Business Day, such notice shall be deemed served at 09:00 (UK time) on the next Business Day; and
(iv) Email: provided no error (including any delivery error message) or valid out-of-office email message is received by the sending party in response to such email notice, the earlier of: (a) acknowledgement of receipt, or in the absence of such acknowledgement, three (3) hours after the time of transmission (as recorded by the sending party’s email application) save where such time of receipt would fall after 17:30 (UK time) on a Business Day, in which case it shall be deemed received at 09:00 (UK time) on the next Business Day; or (b) if sent with “delivery receipt” functionality enabled in the sending party’s email application, when a “read receipt” is received.
(c) 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.
16.7 Third party rights No one other than a party to the Contract and their permitted assignees shall have any right to enforce any of its terms.
16.8 Relationship Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the Supplier and the Customer, constitute either party the agent of the other party or authorise either party to make or enter into any commitments for or on behalf of the other party.
16.9 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. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply to the Contract.
16.10 Jurisdiction The Customer 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 the Contract or its subject matter or formation (including non-contractual disputes or claims).
The signature below confirms that you have read and agree to these terms and conditions and that you have authority to sign this document: