Standard Conditions of Sale
1.1 Definitions. In these Conditions, the following definitions apply:
Applicable Legislation: all laws, regulations and rules in force and amended from time to time in the United Kingdom governing the supply of food, food products and packaging intended for food use to which the Goods are required to comply, including the Food Safety Act 1990, the Food and Environment Protection Act 1985, the Weights and Measures Act 1985, the Materials and Articles in Contact with Food (England) Regulations 2012 and the Materials and Articles in Contact with Food (Wales) Regulations 2012.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions, or a Supply Contract (if applicable).
Control: shall have the meaning in section 1124 of the Corporation Tax Act 2010.
Crop Year: in respect of a particular Good, the period from one year’s harvest to the next.
Customer: the person or business who purchases the Goods from the Supplier and whose details are set out in the Order.
Force Majeure Event: any circumstance not within a party’s reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident;
(g) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);
(h) non-performance by suppliers or subcontractors because of a Force Majeure Event; and
(i) interruption or failure of utility service for any reason whatsoever (other than as a result of default by the party seeking to rely on this clause).
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property Rights: patents, registered designs, rights in design, copyright, database right, rights in databases, trade marks, service marks, trade or business names, rights in domain names, logos, get-up or trade dress, inventions or secret processes, formulae, know-how and all rights or forms of protection of a similar nature or effect subsisting anywhere in the world, whether or not registered and including applications or registrations for any such right.
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be or, where applicable, an Order under a Supply Contract.
Specification: any specification for the Goods that is agreed in writing by the Customer and the Supplier.
Supplier: Whitworth Bros. Limited (registered in England and Wales with company number 465899).
Supply Contract: an agreement between the Supplier and the Customer in the Supplier’s standard form from time to time for the sale and purchase of a specific volume of Goods, or for the supply of Goods over the stated time period as detailed in the Order, or both.
1.2 Construction. In these Conditions, the following rules apply:
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 statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.3 A reference to writing or written includes e-mails.
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, except to the extent that the Supplier otherwise agrees in writing.
2.2 Save where the Order is made under a Supply Contract, the Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions.
2.3 The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.4 Save where the Order is made under a Supply Contract, the Order shall only be deemed to be accepted when a properly authorised representative of the Supplier issues a written or verbal acceptance of the Order, at which point the Contract shall come into existence. For the avoidance of doubt, unless agreed otherwise, the Supplier reserves the right to accept or reject an Order.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.6 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
3.1 No sale of Goods by the Supplier to the Customer shall be deemed to be a sale by sample within the meaning of section 15 of the Sale of Goods Act 1979.
3.2 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
4.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable).
4.2 The Supplier’s written acceptance of the Order shall specify that either:
4.2.1 the Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready; or
4.2.2 the Customer shall collect the Goods from the Supplier’s premises or such other location as may be advised by the Supplier prior to delivery (Delivery Location) within three Business Days of the Supplier notifying the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location or on the completion of loading of the Goods at the Delivery Location, as applicable.
4.4 The Supplier will use its reasonable endeavours to ensure that any dates quoted for delivery of the Goods are met, but the time of delivery is not of the essence. If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any delay or failure in delivering the Goods to the extent that such delay or failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Customer fails to take or accept delivery of the Goods (as applicable) within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, 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:
4.5.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
4.5.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including reasonable storage and insurance charges).
4.6 If, 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery, the Customer has not taken or accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.7 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.8 The Supplier shall ensure that the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition. If the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note.
4.9 Once any Goods have been delivered, the Customer shall not return them without the Supplier’s prior written consent. The Customer acknowledges that the Supplier’s drivers have no authority to accept Goods for return save where specifically authorised to do so by the Supplier in writing.
5.1 The Supplier warrants that on delivery, the Goods shall:
5.1.1 conform in all material respects with their description and any applicable Specification;
5.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979);
5.1.3 be fit for any purpose held out by the Supplier; and
5.1.4 comply in all material respects with the provisions of the Applicable Legislation.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,
the Supplier shall, at its option, replace the defective Goods or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.3 the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
5.3.4 the defect arises as a result of wilful damage, negligence, or abnormal storage or working conditions; or
5.3.5 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 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.
5.6 These Conditions shall apply to any replacement Goods supplied by the Supplier.
6 Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
6.2.1 the Goods; and
6.2.2 any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 hold the Goods on a fiduciary basis as the Supplier’s bailee and ensure the Goods are clearly identifiable as belonging to the Supplier;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and
6.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time,
but the Customer may resell or use the Goods in the ordinary course of its business.
6.4 If, before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in clause 8.2 or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, the Supplier may enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6.5 Where the Goods are exported outside the United Kingdom, the provisions of this clause 6.5 shall apply:
6.5.1 the Supplier shall deliver the Goods to the Customer on an ex works basis for collection from the Supplier’s premises (EXW) or delivered at place (DAP) in accordance with the Incoterms 2020, unless an alternative Incoterm is specified in the relevant Order;
6.5.2 in relation to DAP, the Supplier shall be responsible for complying with any legislation and regulations applicable in relation to the export of the Goods from the United Kingdom, which it may do by sub-contracting to a third party carrier and provided the Supplier provides reasonable and correct instructions to the carrier then it shall have no further liability to the Customer for any failure by the third party carrier;
6.5.3 in relation to EXW, the Customer shall be responsible for complying with any legislation and regulations applicable in relation to the export of the Goods from the United Kingdom;
6.5.4 the Customer shall be responsible for:
(i) obtain and maintaining all further licences, clearances and other consents that are necessary for the supply of Goods (including import licences);
(ii) complying with any legislation and regulations applicable in relation to the import of the Goods from the United Kingdom; and
(iii) paying all import taxes, customs duties, and other costs associated with the import of the Goods, unless otherwise agreed between the parties.
7 Price and payment
7.1 The price of the Goods shall be the price set out in the relevant Supply Contract, the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery (if applicable).
7.2 Subject to the terms of any applicable Supply Contract, the Supplier may, by giving notice to the Customer at any time up to 5 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1 in respect of a particular Good, the procession from one Crop Year to the next;
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer (where applicable). The price of the Goods is exclusive of VAT, which the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier in addition.
7.4 The Supplier may invoice the Customer for the Goods on or at any time after despatch of the Goods.
7.5 The Customer shall pay the invoice in full and in cleared funds within 28 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence of the Contract.
7.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then:
7.6.1 the Supplier may withhold or cancel any or all further deliveries to the Customer; and/or
7.6.2 the Supplier may at its option charge the Customer interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and/or
7.6.3 the Supplier may recover as a debt from the Customer all reasonable costs incurred in recovering unpaid sums from the Customer, including legal fees, court fees and debt collection agency fees.
7.7 The Customer acknowledges and accepts that the Supplier’s general practice is to obtain credit insurance cover to cover the amounts owed by the Customer to the Supplier from time to time under any Contract(s), which shall be set by the Supplier at its discretion. If the amount of unpaid invoices under this Contract or any other Contracts exceeds the credit limit of the credit insurance cover at any time then the Supplier shall be entitled to reject any Orders and/or withhold or cancel any further deliveries of the Goods. The Supplier may also request payment of such an amount of all outstanding invoices in order to bring the unpaid balance down to within the credit insurance level and/or reduce the payment terms in clause 7.5.
7.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
7.9 Where Goods are delivered on pallets, the Customer shall return the pallets to the Supplier immediately following unloading of the Goods from the pallets. Should the Customer fail to return the pallets in accordance with this provision, then the Supplier may invoice the Customer for the pallets at its then current rates, and the Customer shall pay such invoices in accordance with clause 7.5.
8 Customer’s insolvency or incapacity
8.1 If the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
8.2 For the purposes of clause 8.1, the relevant events are: the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts; or a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the Customer; or an administrator is appointed over the Customer; or an administrative receiver or a receiver is appointed over the assets of the Customer; or the Customer, being an individual, is the subject of a bankruptcy petition or order; or a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 14 days; or any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause; or the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
8.3 Termination of the Contract, however arising, shall not affect the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9 Intellectual Property
All Intellectual Property Rights in connection with the Goods shall remain the Supplier’s property and nothing in these Conditions is intended to pass ownership of such rights to the Customer.
10 Data Protection
11 Limitation of liability
11.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
11.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
11.1.2 fraud or fraudulent misrepresentation;
11.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
11.1.4 defective products under the Consumer Protection Act 1987; or
11.1.5 any matter for which it would be unlawful for the Supplier to exclude or restrict liability.
11.2 Subject to clause 11.1:
11.2.1 the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
11.2.2 the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
11.2.3 the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, shall not exceed the higher of (i) the value of the relevant Order to which a claim relates (ii) £100,000 and (iii) the amount recoverable under any relevant insurance policy held by the Supplier, with the total aggregate liability in any one year not exceeding £5,000,000.
11.3 Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that the affected party is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event. The party affected by a Force Majeure Event will use reasonable endeavours to mitigate the effect of the Force Majeure Event to carry out its obligations under the Contract in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
12.1 Anti-bribery and sanctions compliance. Each party will remain in compliance with any applicable anti-bribery, anti-slavery laws or any laws, regulations or other binding measures applicable to the parties which relate to economic or trade sanctions, export controls, non-proliferation, anti-terrorism or similar restrictions.
12.2 Confidentiality. The Customer agrees that it will keep confidential and not disclose, whether directly or indirectly, any confidential information belonging to the Supplier. In this clause 12.2, ‘confidential information’ means all information of a confidential nature (in any form) which is imparted or disclosed to, or otherwise obtained by the Customer (whether directly or indirectly) including the Supplier’s know-how, trade secrets, financial, commercial, technical, tactical, strategic, marketing or customer information, employee information, any information agreed to be or marked as confidential, any other information a party knows, or could be reasonably expected to know, is confidential and any other such information related to or concerning a the Supplier’s business.
12.3 Assignment and subcontracting.
12.3.1 Neither party may assign or transfer or sub-contract any of its rights, benefits or obligations under the Contract without the prior written consent of the other party, provided that either party may assign, transfer or sub-contract its rights and obligations under the Contract to another member of its group of companies (including, for the avoidance of doubt, to companies under common Control with that party).
12.3.2 At its own expense and when requested by the other party, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required to allow the other party to exercise its right under clause 12.3.1.
12.4.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, e-mail.
12.4.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.4.1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
12.4.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
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 Contract is deemed deleted, 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 Waiver. No failure or delay by a party to exercise any right or remedy provided under these Conditions 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.
12.7 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
12.8 Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
12.9 Governing law and jurisdiction. 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.