TERMS AND CONDITIONS FOR THE SALE OF PRODUCTS
1. INTERPRETATION
1.1 Definitions:
"Business Day" means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
"Business Hours" means the period from 9.00 am to 5.00 pm on any Business Day.
"Contract" means the contract between IBC Simply and the Customer for the sale and purchase of the Products in accordance with these Terms.
"Customer" means the person or firm who purchases the Products from IBC Simply.
"Delivery Location" means (a) if IBC Simply are to deliver the Products to the Customer, the location set out in the Order or such other location as the parties may agree in writing, and (b) if the Customer is to collect the Products from IBC Simply, IBC Simply’s warehouse at the address advised by IBC Simply in writing prior to collection.
"Delivery Note" has the meaning given in clause 4.1.
"Force Majeure Event" means an event, circumstance or cause beyond a party's reasonable control.
"IBC Simply" means Italian Beverage Company Limited (registered in England and Wales with company number 05067015) whose registered office is at Riverdale House, 19/21 High Street, Wheathampstead, St Albans, England, AL4 8BB, trading as IBC Simply.
"Losses" means all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and reasonable professional costs and expenses).
"Order" means the Customer's order for the Products, as set out in the Customer’s written acceptance of IBC Simply’s quotation.
"Products" means the products (or any part of them) set out in the Order.
"Specification" means any specification for the Products, including any related drawings, that is agreed in writing by the Customer and IBC Simply.
"Terms" means the terms and conditions set out in this document as amended from time to time in accordance with clause 12.3.
1.2 Interpretation:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its successors and permitted assigns.
1.2.3 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that legislation or legislative provision.
1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.2.5 A reference to writing or written excludes fax but not email.
2. BASIS OF CONTRACT
2.1 These Terms apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Products in accordance with these Terms. The Customer must ensure that the terms of the Order and any applicable Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when IBC Simply issues a written acceptance of the Order or when IBC Simply receives a purchase order from the Customer (as the case may be), at which point and on which date the Contract shall come into existence.
2.4 The Customer waives any right it might have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Terms.
2.5 Any samples, drawings, descriptive matter or advertising produced by or on behalf of IBC Simply and any descriptions or illustrations contained in IBC Simply’s catalogues or brochures (whether digital or otherwise) are produced for the sole purpose of giving an approximate idea of the Products referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 A quotation for the Products given by IBC Simply shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3. PRODUCTS
3.1 The Products are described in IBC Simply’s digital catalogue as modified by any applicable Specification.
3.2 The Customer shall indemnify IBC Simply against all Losses incurred by IBC Simply as a result of any claim that IBC Simply’s use of the Specification infringes the intellectual property rights of any third party. This clause 3.2 shall survive termination of the Contract.
3.3 IBC Simply reserves the right to amend the Specification if required by any applicable law or regulatory requirement and shall notify the Customer in any such event.
4. DELIVERY
4.1 IBC Simply shall ensure that each delivery of the Products is accompanied by a delivery note that shows the date of the Order, all relevant Customer and IBC Simply reference numbers and the type and quantity of the Products including the code number of the Products, where applicable ("Delivery Note").
4.2 IBC Simply shall deliver the Products to the Delivery Location at any time after IBC Simply notifies the Customer that the Products are ready, or the Customer shall collect the Goods from the Delivery Location within three Business Days of IBC Simply notifying the Customer that the Products are ready.
4.3 Delivery is completed on the completion of unloading (if IBC Simply are to deliver the Products to the Customer) or loading (if the Customer is to collect the Products from IBC Simply) of the Products at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. IBC Simply shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Customer's failure to provide IBC Simply with adequate delivery instructions or any other instructions that are relevant to the supply of the Products within a reasonable time. For the avoidance of doubt, this includes the Customer’s failure to provide a forecast of the required quantity of the Products well in advance of the date on which delivery or collection of the Products is required.
4.5 If IBC Simply fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement products of similar description and quality in the cheapest market available, less the price of the Products. IBC Simply shall not be liable for any failure to deliver the Products that is caused by a Force Majeure Event or the Customer's failure to provide IBC Simply with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.6 If the Customer fails to accept or take delivery of the Products within three Business Days of IBC Simply notifying the Customer in writing that the Products are ready for delivery, then, except where such failure is caused by a Force Majeure Event or IBC Simply’s failure to comply with its obligations under the Contract in respect of the Products:
4.6.1 delivery of the Products shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which IBC Simply notified the Customer that the Products were ready; and
4.6.2 IBC Simply shall store the Products until actual delivery takes place, and shall, without limiting its rights, be entitled to charge the Customer for all related costs and expenses (including insurance).
4.7 If 10 Business Days after the date on which IBC Simply notified the Customer that the Products were ready for delivery the Customer has not accepted or taken actual delivery of them, IBC Simply may resell or otherwise dispose of part or all of the Products.
4.8 On occasion, upon prior agreement with the Customer on a case by case basis, IBC Simply may deliver the Products by instalments, which it shall invoice and which the Customer shall pay for separately. Each instalment shall constitute a separate contract. Any delay in delivery of or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. QUALITY
5.1 IBC Simply warrants that on delivery the Products shall:
5.1.1 conform in all material respects with their description or the Specification;
5.1.2 be free from material defects in design, material and workmanship;
5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
5.1.4 be fit for any purpose held out by IBC Simply.
5.2 The Customer shall inspect the Products immediately or as soon as possible after delivery or collection. Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to IBC Simply within three Business Days of delivery or collection that some or all of the Products do not comply with the warranty set out in clause 5.1;
5.2.2 IBC Simply is given a reasonable opportunity of examining such Products; and
5.2.3 the Customer (if asked to do so by IBC Simply) returns such Products to IBC Simply’s place of business at IBC Simply’s cost, IBC Simply shall, at its option and to the extent that it agrees that such Products do not comply with the warranty set out in clause 5.1, replace the defective Products, refund the price of the defective Products in full or issue a credit note in respect of the defective Products.
5.3 IBC Simply shall not be liable for the Products’ failure to comply with the warranty set out in clause 5.1 if:
5.3.1 the Customer makes any further use of such Products after giving notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow IBC Simply’s oral or written instructions as to the storage, commissioning or use of the Products or (if there are none) good trade practice regarding the same;
5.3.3 the defect arises as a result of IBC Simply following any drawing, design or specification supplied by or on behalf of the Customer;
5.3.4 the Customer alters or repairs such Products without the written consent of IBC Simply;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal storage conditions; or
5.3.6 the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 In the event that a credit note is issued by IBC Simply in accordance with clause 5.2, the value of the credit note will be applied against any outstanding balance on the Customer’s account. If this takes the Customer’s account balance below nil, the balance can either be applied to future orders within 12 months from the date of issue of the credit note or refunded upon request by the Customer. If the credit remains unclaimed or unused beyond this point, IBC Simply reserve the right to write off the credit balance without further notice to the Customer and the Customer shall forfeit any entitlement to the credit amount.
5.5 Except as provided in this clause 5, IBC Simply shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 5.1.
5.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.7 These Terms shall apply to any replacement Products supplied by IBC Simply.
5.8 For the avoidance of doubt, IBC Simply shall not accept returns of any Products that comply with the warranty set out in clause 5.1.
6. TITLE AND RISK
6.1 The risk in the Products shall pass to the Customer on completion of delivery pursuant to clause 4.3.
6.2 Title to the Products shall not pass to the Customer until the earlier of:
6.2.1 IBC Simply receives payment in full (in cash or cleared funds) for the Products, in which case title to the Products shall pass at the time of payment; and
6.2.2 the Customer resells or uses the Products, in which case title to the Products shall pass to the Customer immediately before the time at which resale or use by the Customer occurs.
6.3 At any time before title to the Products passes to the Customer, IBC Simply may require the Customer to deliver up all Products in its possession and control that have not been resold or irrevocably incorporated into another product, and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored, to recover them. The Customer shall procure entry to any such third party’s premises if requested to do so by IBC Simply.
7. PRICE AND PAYMENT
7.1 The price of the Products shall be the price set out in the Order, or, if no price is quoted, the price set out in IBC Simply’s published price list in force as at the date of delivery or collection.
7.2 IBC Simply may, by giving notice to the Customer at any time before delivery or collection, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
7.2.1 any factor beyond IBC Simply’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other production costs);
7.2.2 any request by the Customer to change the delivery or collection date(s), quantities or types of Products ordered; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give or delay by the Customer in giving IBC Simply adequate or accurate information or instructions.
7.3 The price of the Products quoted in the Order is determined by the Customer’s projected order volume. If the Customer’s order volume deviates by more than 20% from such projected order volume, IBC Simply reserve the right to adjust the price of the Products accordingly.
7.4 The price of the Products excludes amounts in respect of value added tax ("VAT"), which the Customer shall additionally be liable to pay to IBC Simply at the prevailing rate, subject to the receipt of a valid VAT invoice.
7.5 The price of the Products may, at IBC Simply’s sole discretion, exclude the cost of delivery of the Products, which shall be quoted in the Order and paid by the Customer.
7.6 IBC Simply may invoice the Customer for the Products on or at any time after dispatch of the Products or notification that the Products are ready for collection by the Customer, unless the Customer is pro-forma, in which case IBC Simply may invoice the Customer for the Products at the time of the Order.
7.7 The Customer shall pay each invoice submitted by IBC Simply:
7.7.1 within 30 days of the date of the invoice unless otherwise agreed in writing by IBC Simply, or in accordance with any credit terms agreed in writing by IBC Simply; and
7.7.2 in full and in cleared funds to a bank account nominated in writing by IBC Simply, and time for payment shall be of the essence of the Contract.
7.8 All credit accounts will be subject to a credit reference from a third party and a review of the Customer’s trading history by IBC Simply’s management.
7.9 If the Customer fails to make a payment due to IBC Simply under the Contract by the due date, then without limiting IBC Simply’s remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.9 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.10 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).
8. LIMITATION OF LIABILITY
8.1 The limits and exclusions in this clause 8 reflect the insurance cover IBC Simply has been able to arrange. The Customer is responsible for making its own arrangements for the insurance of any excess liability.
8.2 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence) or otherwise.
8.3 Nothing in the Contract limits any liability for death or personal injury caused by negligence, fraud or fraudulent misrepresentation, breach of the terms implied by section 12 of the Sale of Goods Act 1979, defective products under the Consumer Protection Act 1987, or any liability that cannot legally be limited.
8.4 Subject to clause 8.3, IBC Simply’s total liability to the Customer shall not exceed the total sums paid by the Customer under the Contract.
8.5 Subject to clause 8.3, IBC Simply accepts no liability for loss of profits (including loss of anticipated savings), loss of sales or business, loss of agreements or contracts, loss of use or corruption of software, data or information, loss of or damage to goodwill, and indirect or consequential loss.
8.6 The parties expressly exclude IBC Simply’s liability for the consequences of the (un)usability of any Products produced in accordance with the Specification.
8.7 This clause 8 shall survive termination of the Contract.
9. TERMINATION
9.1 Without limiting its other rights or remedies, IBC Simply may terminate the Contract with immediate effect by giving written notice to the Customer if:
9.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of it being notified in writing to do so;
9.1.2 the Customer fails to pay any amount due under the Contract on the due date for payment;
9.1.3 the Customer 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, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.1.4 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.5 the Customer'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.
9.2 Without limiting its other rights or remedies, IBC Simply may suspend supply of the Products under the Contract or any other contract between the Customer and IBC Simply if the Customer becomes subject to any of the events listed in clause 9.1.3 to clause 9.1.5, or IBC Simply reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.3 On termination of the Contract for any reason the Customer shall immediately pay to IBC Simply all of IBC Simply’s unpaid invoices and interest and, in respect of Products supplied but for which no invoice has been submitted, IBC Simply shall submit an invoice, which the Customer shall pay immediately on receipt.
9.4 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
9.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
10. FORCE MAJEURE
Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from a Force Majeure Event. If the period of delay or non-performance continues for 60 days, the party not affected may terminate the Contract by giving written notice to the affected party.
11. CONFIDENTIALITY
11.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2.
11.2 Each party may disclose the other party’s confidential information:
11.2.1 to its employees, officers, representatives, contractors, subcontractors or advisors who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 11; and
11.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 Neither party may use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
12. GENERAL
12.1 Assignment and other dealings. IBC Simply may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract, provided that it gives prior written notice of such dealing to the Customer. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of IBC Simply.
12.2 Entire agreement. The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
12.3 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.4 Waiver. Except as set out in clause 2.4, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
12.5 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 or part-provision of the Contract is deemed deleted under this clause 12.5, 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.
12.6 Notices. Any notice 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 Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by email to the email address specified in writing by the party to be served. Any notice shall be deemed to have been received: if delivered by hand, at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting; or if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume. This clause 12.6 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.
12.7 Third party rights. 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. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
12.8 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. Each party 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.