1.1 In these Terms:
“BETA NOPS Terms and Conditions” means the British Equestrian Trade Association Terms and Conditions for Contamination of Horse Feed and Related Products by Prohibited Substances as amended from time to time which are available upon request and are also set out in full on the BETA website at http://www.beta-uk.org/media/trade/download/beta-nops-terms-and-conditio...
“GOODS means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Terms;
“CONTRACT” means the contract for the sale and purchase of the Goods;
“CUSTOMER” means the person who accepts the Seller’s quotation for the sale of the Goods or whose order for the Goods is accepted by the Seller; “INCOTERMS” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made and any term described in Incoterms has the same meaning in this agreement;
“PROHIBITED SUBSTANCES” means such substances as are found in horse feed and related products and are contained on the prohibited substance lists of the Horse Racing Authority and the Federation Equestrian Internationale;
“SELLER” means Dodson & Horrell Limited (registered in England and Wales under number 2098720);
“TERMS” means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Customer and the Seller;
1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Terms are for convenience only and shall not affect their interpretation.
2 Basis of the sale
2.1 These Terms apply to all contracts for the sale of Goods by the Seller to the Customer and supersede any previous terms and conditions of sale published by the Seller. No variation to these Terms shall be binding unless expressly agreed in writing between the authorised representatives of the Customer and the Seller.
2.2 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
2.3 Any advice or recommendation given by the Seller or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Customer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3 Orders and specifications
3.1 No contract for the supply of Goods will be created by the acceptance by the Customer of a quotation unless the Seller accepts the Customer's order or delivers the Goods
3.2 The Customer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 All brochures, catalogues, price lists, samples and other advertising or descriptive material submitted to the Customer are intended to be approximate only and to give a generalimpression of the Goods. Unless expressly incorporated the same shall not form part of theContract. The Seller reserves the right to make minor alterations to the specification of the Goods without prior notification to the Customer
3.4 No order which has been accepted by the Seller may be cancelled by the Customer except with the agreement in Writing of the Seller and on terms that the Customer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4 Price of the goods
4.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. All prices quoted are valid for 7 days only or until earlier acceptance by the Customer, after which time they may be altered by the Seller without giving notice to the Customer.
4.2 Except as otherwise stated in the Seller’s written quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Customer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Customer shall be liable to pay the Seller’s charges for transportation.
4.3 The price is exclusive of any applicable value added tax, which the Customer shall be additionally liable to pay to the Seller.
5 Terms of payment
5.1 Subject to any special terms agreed in writing between the Customer and the Seller, the Seller may invoice the Customer for the price of the Goods on or at any time after despatch of the Goods, unless the Goods are to be collected by the Customer in which event the Seller shall be entitled to invoice the Customer for the price at any time after the Seller has notified the Customer that the Goods are ready for collection.
5.2 The Customer shall pay the price of the Goods (less any discount to which the Customer is entitled, but without any other deduction) within 30 days of the date of the Seller’s invoice, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Customer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 If the Customer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may:
5.3.1 cancel the contract or suspend any further deliveries to the Customer;
5.3.2 appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Customer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Customer); and
5.3.3 charge the Customer interest (both before and after any judgment) on the amount unpaid, at the rate of 5 per cent per annum above LIBOR from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6.1 Delivery of the Goods shall be made by the Seller delivering the Goods to a place agreed with the Customer.
6.2 Unless otherwise agreed in writing between the Customer and the Seller, the Goods shall be delivered CIF
6.3 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date on giving reasonable notice to the Customer.
6.4 Where delivery of the Goods is to be made by the Seller in bulk, the Seller reserves the right to deliver up to 5 per cent more or 5 per cent less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.
6.5 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Terms or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
6.6 If the Customer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Seller’s fault) then, without limiting any other right or remedy available to the Seller, the Seller may:
6.6.1 store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
6.6.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
7 Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Customer on delivery or if the Customer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Customer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Customer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Seller’s property, but the Customer may resell or use the Goods in the ordinary course of its business.
7.4 Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold), the Seller may at any time require the Customer to deliver up the Goods to the Seller and, if the Customer fails to do so forthwith, enter on any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
7.5 The Customer shall not be entitled to pledge, create a lien over or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Customer does so all moneys owing by the Customer to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable.
8 Warranties and liability
8.1 Subject to the following provisions the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material until the expiry of the best before date printed on the Goods.
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any specification supplied by the Customer;
8.2.2 the Seller shall be under no liability in respect of any defect arising from wilful damage, negligence, abnormal storage conditions, failure to follow the Seller’s instructions (whether oral or in Writing), misuse or alteration of the Goods without the Seller’s approval;
8.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
8.3 Subject as expressly provided in these Terms, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Customer are not affected by these Terms.
8.5 All reasonable efforts are taken to avoid contamination of our Goods with Prohibited Substances. Any alleged contamination or alleged liability arising from the presence or the alleged presence in any of the Goods of a Prohibited Substance shall be governed by the BETA NOPS Terms & Conditions.
8.6 A claim by the Customer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Customer) be notified to the Seller within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Customer does not notify the Seller accordingly, the Customer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.7 Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Terms, the Seller may replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Customer the price of the Goods (or a proportionate part of the price), in which case the Seller shall have no further liability to the Customer.
8.8 Except in respect of death or personal injury caused by the Seller’s negligence, or liability for defective products under the Consumer Protection Act 1987, the Seller shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Customer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Terms.
8.9 The Seller shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
8.9.1 Act of God, explosion, flood, tempest, fire or accident;
8.9.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.9.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.9.4 import or export regulations or embargoes;
8.9.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.9.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.9.7 power failure or breakdown in machinery.
9 Insolvency of Customer
9.1 This clause 9 applies if:
9.1.1 the Customer makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters administration or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or a moratorium comes into force in respect of the Customer (within the meaning of the Insolvency Act 1986); or
9.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer; or
9.1.3 the Customer ceases, or threatens to cease, to carry on business; or
9.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
9.2 If this clause applies then, without limiting any other right or remedy available to the Seller, the Seller may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10 Export terms
10.1 Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Terms, but if there is any conflict between the provisions of Incoterms and these Terms, the latter shall prevail.
10.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 10 shall (subject to any special terms agreed in writing between the Customer and the Seller) apply notwithstanding any other provision of these Terms.
10.3 The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
11.1 The Seller is a member of the group of companies whose holding company is Dodson & Horrell (Holdings) Limited, and accordingly the Seller may perform any of its obligations or exercise any of its rights under the Contract by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Seller.
11.2 A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.3 No waiver by the Seller of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.4 If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
The Contract shall be governed by the laws of England, and the Customer agrees to submit to the non-exclusive jurisdiction of the English courts