Terms and Conditions of Sale
1. ORDERS
1.1 These Terms and Conditions (“Conditions”) shall be incorporated into and govern all contracts for the sale of goods (“Contracts” and “Goods”, respectively) by Nijjar Dairies Limited (“Seller”) to a legal or natural person wishing to purchase products from the Seller (“Buyer”) to the entire exclusion of all other terms or conditions.
1.2 No terms or conditions endorsed upon, delivered with, or contained in the Buyer’s order to the Seller for Goods (“Order”) or acknowledgement or acceptance of an Order, specification or similar document shall form part of the Contract and the Buyer waives any right which it otherwise might have to rely on such terms and conditions.
1.3 These Conditions apply to all sales of Goods to the Buyer and any variation to these Conditions shall have no effect unless agreed in writing and signed by an authorised signatory of the Seller.
1.4 Each Order shall be deemed to be an offer by the Buyer to buy Goods subject to these Conditions. No Order by the Buyer shall be deemed to be accepted until the Seller accepts the Order either expressly by giving notice of acceptance or impliedly by delivering the Goods to the Buyer.
1.5 The Buyer agrees to comply with all requirements of the Seller in respect of delivery, warehousing, invoicing, quality control, and other such requirements (including any amendments to the requirements) as are notified to the Buyer from time to time and these requirements will form part of each Contract. The Seller agrees to give the Buyer reasonable notice of its requirements.
1.6 If the Buyer prefers the Seller not to deliver a substitute product, should selected lines be unavailable, it should inform the Seller of this when placing an Order.
2. DELIVERY
2.1 Delivery of the Goods shall be made by the Seller to the place specified in the Order or the Buyer’s trading address, unless otherwise stipulated or agreed in writing by the Seller. Delivery of the Goods is completed on the completion of unloading of the Goods from the vehicle, or where the Buyer operates or collects from the Seller’s property, when Goods are placed in a specified area to access. Where the location is of the Buyer’s chosing, the Buyer shall ensure there is reasonable access for the Seller to deliver. The Seller shall use its reasonable endeavours to deliver during a time window agreed with the Buyer which shall be an approximate time only and time shall not be of the essence. The Seller shall not be responsible where a delivery is made outside the agreed time window. Risk passes to the Buyer on delivery.
2.2 All deliveries made from Sunday to Saturday inclusive will be invoiced by the Seller on Monday of the following week. Unless otherwise notified to the Seller, it will be deemed that the Buyer has received the previous weeks invoice by Wednesday of the following week. On receipt of the invoice, the Buyer must inform the Seller in writing of any discrepancies within 7 days of invoice date. If the Buyer fails to do so, it is deemed that the invoice value is correct and owed in full to the Seller.
2.3 Deliveries will be made to the Buyer as per their individual agreed delivery days, subject to normal trading conditions.
2.4 Delivery notes will be supplied via email or by hard copy left with the delivery. If a Buyer does not receive a delivery note, they must inform the Seller within 24 hours, otherwise the delivery will be deemed to have been made in full.
2.7 Due to some deliveries being made outside a Buyer’s trading times, delivery notes do not need to be signed by the Buyer for the Seller to prove that delivery has been made. Buyers who require signed delivery notes as proof of delivery must request this in writing and have a representative available to sign at the time of the delivery.
2.8 Where physically present, a representative of the Buyer must check that the Goods delivered correspond with the Order before signature of the delivery note. If a delivery has been made in the absence of a representative of the Buyer, then the Buyer must inform the Seller within 24 hours of any discrepancies between the amount indicated on the delivery note, and the actual amount received. If the Buyer fails to do this, then the quantity charged on the delivery note will be deemed to be correct.
2.9 Claims in respect of short deliveries, unacceptable quality or damage to Goods reasonably visible on inspection must be reported to the Seller within 24 hours of the time of delivery which gives rise to the claim. The Buyer must retain the relevant Goods for inspection and collection. Any credit for or replacement of the Goods will only be provided by the Seller if the conditions of this Condition are complied with and will be exercised in its sole discretion, acting reasonably.
2.10 Goods are not supplied on a sale or return basis.
3. DELIVERY MATERIALS AND PACKAGING
3.1 Unless informed by the Seller, all trolleys, crates, containers, glass bottles, pallets and other delivery materials remain the property of the Seller and are returnable to the Seller without unreasonable delay and in the same condition in which they were delivered to the Buyer. The Seller reserves the right to charge the Buyer for any such property which has not been returned to the Seller or have been returned and are not in a fit condition for re-use.
3.2 If the Buyer fails to return any of the Seller’s property in accordance with Condition 3.1 then the Seller may request access with reasonable notice, to the Buyer’s premises to collect such property. The Buyer shall not prohibit or prevent such access and shall provide the Seller with all reasonable assistance in the identification, access, and removal of the Seller’s property. If the Seller collects such property, they may charge for any collection costs incurred.
3.3 The value of any shortfall in the quantity of materials held and returned by the Buyer will be liable to be invoiced to the Buyer. On termination of the Contract the Buyer has 5 days to return the Seller’s materials to avoid incurring those costs.
4. PRICING AND PAYMENT TERMS
4.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set-up against the Buyer in force as at the date of delivery. VAT will be added to invoices on relevant taxable goods.
4.2 The Seller may, by giving notice to the Buyer at any time before delivery, withdraw any discount from its normal prices and revise prices to increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
4.2.1 any factor beyond the Seller’s control
4.2.2 any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
4.2.3 any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
4.3 The Seller may invoice the Buyer for the Goods on or at any time after the completion of delivery.
4.4 The Buyer shall pay each invoice submitted by the Seller which accepts payment via Bacs (bank transfer), or direct debit or debit card.
4.4.1 within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Seller and confirmed in writing to the Buyer; and
4.4.2 in full and in cleared funds to a bank account nominated in writing by the Seller, and time for payment shall be of the essence of the Contract.
4.5 The Seller reserves the right to allocate payments to the oldest debt on the account where payment is made without reference to any one or more specific invoices i.e. no remittance advice is provided.
4.6 In the event of non-payment the Seller reserves the right to charge late payment interest at the statutory rate, plus all costs involved in the recovery of overdue amounts through whatever means the Seller should deem necessary.
4.7 Any payments made by the Buyer which are subsequently reversed or subject to a charge back will result in the Buyer incurring a £25.00 admin fee.
4.8 All goods supplied remain the property of the Seller until paid in full.
4.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
5. BUYER’S RIGHT TO CANCEL
5.1 Depending on the Goods ordered by the Buyer and whether the Seller is able to use, or cancel the order from its supply, if the Buyer requests the Seller cancel an Order at any time, the Seller may require the Buyer to take delivery of the Goods ordered, acting solely at its sole discretion.
5.2 In the event that the Buyer wishes to cancel and close its account with the Seller, the Buyer must give a minimum of 7 days’ notice, or such other notice period as agreed (contractually or otherwise) between the parties, submitted in writing to the Seller’s supplying distribution centre or the Buyer’s nominated account manager.
6. SELLER’S RIGHT TO CANCEL
6.1 Without limiting its other rights or remedies, the Seller may terminate this Contract or any Order with immediate effect by giving written notice to the Buyer if:
6.1.1 the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 days of that party being notified in writing to do so.
6.1.2 the Buyer takes any step or action in connection with its entering administration, provisional liquidation, or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business, or equivalent process in a different jurisdiction.
6.1.3 the Buyer suspends, threatens to suspend, ceases, or threatens to cease to carry on all or a substantial part of its business; or
6.1.4 the Buyer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
6.2 Without limiting its other rights or remedies, the Seller may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Seller if the Buyer becomes subject to any of the events listed in Condition 6.1.1- 6.1.4 , or the Seller reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
6.3 Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
6.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer immediately on receipt.
6.5 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
6.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
7. WARRANTY AND LIABILITY
7.1 The Seller warrants that the Goods shall be of satisfactory quality (within the meaning of the Consumer Rights Act 2015) and shall at the time of delivery correspond with any agreed specification and conform with all applicable statutes and regulations relating to food supplies of the relevant kind and, if packaged then (unless packaged in the Buyer’s own label or packaged by the Seller to the instructions of the Buyer) the Goods shall comply with all applicable UK statutory labelling requirements. All other conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to the Goods are excluded to the fullest extent permitted by law.
7.2 The Seller’s only obligation in relation to Goods shall be its option to make good any shortage or non-delivery and/or as appropriate to replace any Goods found to be damaged or not of satisfactory quality and/or to refund the cost of such Goods to the Buyer.
7.3 The restrictions on liability in this Condition 7 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise
7.4 The Seller’s total liability to the Buyer whether for negligence, breach of contract, misrepresentation or otherwise shall in no circumstances exceed the price paid by the Buyer for the Goods in respect of any occurrence.
7.5 Nothing in these Conditions limits any liability which cannot legally be limited, including liability for:
7.5.1 death or personal injury caused by negligence.
7.5.2 fraud or fraudulent misrepresentation.
7.5.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
7.5.4 defective products under the Consumer Protection Act 1987.
7.6 The Seller shall not be liable to the Buyer for the following:
7.6.1 for defects in the Goods caused by unsuitable conditions of (including the way in which the Goods are stacked, moved, and stored within the Buyers storage facility) or use by, or any act, neglect, or default of, the Buyer or any third party.
7.6.2 for any indirect or consequential loss or damage, or any loss of profit, revenue, goodwill, or any other economic loss including physical damage or otherwise, costs or expenses suffered by the Buyer, howsoever caused.
7.8 This Condition 7 shall survive termination of the Contract.
8. FORCE MAJEURE
8.1 Neither party shall be in breach of the contract nor liable for delay in performing, or failure to perform, any of its obligations under the contract if such delay or failure result from any event, circumstance or cause beyond a party’s reasonable control to include but not limited to acts of God, restrictions, restraint or interference by any government or governmental or official body or any legislation rules or orders they may make, riot, strike, lock-out, trade dispute or labour disturbance, terrorist activity, accident, breakdown of plant or machinery, fire, flood, severe weather conditions, difficulty or increased expense in obtaining workmen, materials or transport, pandemic or epidemic. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed and the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 20 days the party not affected may terminate the contract by giving 10 days’ written notice to the affected party.
8.2 Save in accordance with the above Condition 8.1 the Seller shall be under no liability to the Buyer and shall have the right to cancel or suspend the whole or any part of the Seller’s unfulfilled obligations and in the event of any such cancellation or suspension to treat the terms of the Contract as having been modified accordingly by mutual consent.
9. GENERAL
9.1 Assignment and other dealings.
The Seller may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract. The Buyer may not assign, transfer, mortgage, charge, subcontract, delegate, 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 Seller.
9.2 Entire agreement.
Other than where the Buyer has a specific contractual agreement with the Seller, the Contract 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.
Each party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
9.3 Variation.
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
9.4 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 that or any other right or remedy, nor shall it 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.
9.5 Severance.
If any provision or part-provision of the Contract is or becomes invalid, illegal, or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this Condition 9.5 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
9.6 Notices.
Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company or the Seller) or its principal place of business (in any other case).
9.7 Third party rights.
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
9.8 Governing law and Jurisdiction.
The contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales and the parties irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.