The Customer's attention is drawn to the provisions of condition 6.2 .
1. INTERPRETATION
1.1 The following definitions apply in these conditions. Customer: the person, firm or company who purchases the Goods from the Company. Business Days means any day on which the banks in the city of London are open for business; Company: Savant Distribution Limited (company number 3181523) Contract: any contract between the Company and the Customer for the sale and purchase of the Goods, incorporating these conditions; Goods: any health foods, related equipment or other goods agreed in the Contract to be supplied to the Customer by the Company (including any part or parts of them); Traditional Herbal Medicinal Products means those traditional herbal medicinal products as are the subject of the Medicines (Traditional Herbal Medicinal Products for Human Use) Regulations 2005, and more particularly refers to those products supplied by the Company under its Wholesale Dealers Licence; Wholesale Dealers Licence means a licence granted to the Company under the Medicines Act 1968.
1.2 A reference to a particular 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 The Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 These conditions apply to all the Company's sales 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 the Company. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company's liability for fraudulent misrepresentation.
2.3 Each order placed by a Customer, or acceptance by the Customer of a quotation given by the Company for the supply of specified Goods, shall be deemed to be an offer by the Customer to buy Goods subject to these conditions.
2.4 No order placed by the Customer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Customer.
2.5 The Customer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.6 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an acknowledgement of order to the Customer.
3. DESCRIPTION
3.1 The quantity and description of the Goods shall be as set out in the Company's quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's 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.
4. DELIVERY
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Customer’s place of business or residential address (as the case may be).
4.2 Any date or time specified by the Company 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.
4.3 Subject to the other provisions of these conditions the Company 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 the Company's negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 15 Business Days.
4.4 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 Contract.
4.5 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
5. NON-DELIVERY
5.1 The quantity of any consignment of Goods as recorded by the Company on despatch from the Company's place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
5.2 Where the Customer can prove to the Company’s reasonable satisfaction that Goods were damaged in transit, the Company will (at its discretion) replace such damaged items. The Customer must notify the Company of any damage to any of the Goods within 3 Business Day of the time of delivery.
5.3 Any liability of the Company for the non-delivery of the Goods shall be limited to either 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. The course of action taken shall be at the Company’s absolute discretion.
6. RISK/TITLE
6.1 The risk in the Goods shall pass from the Company to the Customer, either from the time that the goods are dispatched by the Company from its premises to the Customer; or from the time that the goods are collected by the Customer from the Company (as the case may be).
6.2 Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to the Company from the Customer on any account.
6.3 Until ownership of the Goods has passed to the Customer, the Customer shall:
6.3.1 hold the Goods on a fiduciary basis as the Company's bailee;
6.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Customer or any third party, or in such a way that they remain readily identifiable as the Company's property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
6.3.4 maintain the Goods in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company.
6.4 The Customer may resell the Goods before ownership has passed to it solely on the following conditions:
6.4.1 any sale shall be effected in the ordinary course of the Customer's business at full market value; and
6.4.2 any such sale shall be a sale of the Company's property on the Customer's own behalf and the Customer shall deal as principal when making such a sale.
6.5 The Customer's right to possession of the Goods shall terminate immediately if:
6.5.1 the Customer 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 Customer or notice of intention to appoint an administrator is given by the Customer 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 Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
6.5.2 the Customer 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 the Company and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
6.5.3 the Customer 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 the Company.
6.7 The Customer grants the Company, 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 Customer's right to possession has terminated, to recover them.
6.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Customer's right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer.
6.9 On termination of the Contract, howsoever caused, the Company's (but not the Customer's) rights contained in this condition shall remain in effect.
7. PRICE
7.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Company's price list published on the date of delivery or deemed delivery.
7.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging and carriage, all of which amounts the Customer shall pay in addition when it is due to pay for the Goods.
7.3 Value added tax shall (if applicable) be added to the price of the Goods at the rate of 15%.
7.4 Postal and packaging charges will be charged to the Customer in accordance with the Company’s scale of charges from time to time.
8. PAYMENT
8.1 Subject to condition
8.4, payment of the price for the Goods is due in pounds sterling in accordance with the payment terms agreed between the Company and the Customer from time to time.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds.
8.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.5 The Customer 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 Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
8.6 If the Customer fails to pay the Company any sum due pursuant to the Contract, the Customer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of the Bank of England, accruing on a daily basis until payment is made, whether before or after any judgment.
9. QUALITY
9.1 The Company warrants that (subject to the other provisions of these conditions) the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
9.2 The Company shall not be liable for a breach of the warranty in condition 9.1 unless:
9.2.1 the Customer gives written notice of the defect to the Company within 3 Business Days of the time when the Customer discovers or ought to have discovered the defect; and
9.2.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Company's cost for the examination to take place there.
9.3 The Company shall not be liable for a breach of the warranty in condition 9.1 if:
9.3.1 the Customer sells or otherwise makes any further use of such Goods after giving such notice; or
9.3.2 the defect arises because the Customer failed to follow the Company's oral or written instructions as to the storage or use of the Goods or (if there are none) good trade practice; or
9.3.3 (where applicable) the Customer alters or repairs such Goods without the written consent of the Company.
9.4 Subject to condition 9.2 and condition 9.3 , if any of the Goods do not conform with the warranty in condition 9.1, the Company shall at its option replace such goods or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Customer shall, at the Company's expense, return to the Company the Goods or the part of such Goods which are defective.
9.5 If the Company complies with condition 9.4, it shall have no further liability for a breach of the warranty in condition 9.1 in respect of such Goods.
9.6 Any Goods returned (in exchange for replacement Goods) shall belong to the Company. 10. RETURNS
10.1 Subject to condition 10.2 and condition 10.3, and to prior agreement between the Customer and the Company, the Company will accept the return of any Goods which are in a resalable condition and which have not less than 1 month to go before the date after which they may no longer be sold.
10.2 The Company cannot resell any Traditional Herbal Medicinal Products which have left its control and accordingly, subject to clause 9, the Company cannot accept the return of these products.
10.3 In relation to Goods which are returned by the Customer to the Company after the expiry of 20 Business Days from the date of delivery, the Company will charge the Customer a ‘restocking’ charge equal to 15% of the price paid for the returned Goods under this Contract.
11. LIMITATION OF LIABILITY
11.1 Save and to the extent as is otherwise provided, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
11.1.1 any breach of these conditions;
11.1.2 any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods; and
11.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2 Nothing in these conditions excludes or limits the liability of the Company:
11.2.1 for death or personal injury caused by the Company's negligence; or
11.2.2 for fraud or fraudulent misrepresentation; or
11.2.3 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability.
11.3 Subject to condition 11.2:
11.3.1 the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance, contemplated performance or non-performance (in part or in full) of the Contract shall be limited to the price payable by the Customer to the Company under the Contract; and
11.3.2 the Company shall not be liable to the Customer for the 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 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 Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
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 Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company 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 15 Business Days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
14. GENERAL
14.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company 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 the Company 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 the Company of any breach of, or any default under, any provision of the Contract by the Customer 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 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by 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:
15.1.1 (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Customer by the Company; or
15.1.2 (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Customer.
15.2 Communications shall be deemed to have been received:
15.2.1 if sent by pre-paid first class post, two Business Days after posting (exclusive of the day of posting); or
15.2.2 if delivered by hand, on the day of delivery; or
15.2.3 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.
15.3 Communications addressed to the Company shall be marked for the attention of the Managing Director.