Terms and conditions

Arcadia Aquatic, a division of Monkfield Nutrition Ltd’s Terms of Sale

1. Interpretation

1.1 In these Terms:

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.

1.4 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.

2. Basis of the sale

2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with the Seller’s quotation (if accepted by the Buyer), or the Buyer’s Order (if accepted by the Seller), subject in either case to these Terms, which shall govern the Contract to the exclusion of any other terms subject to which any such quotation is accepted or purported to be accepted, or any such Order is made or purported to be made, by the Buyer or which are implied by trade, customer, practice or course of dealing. In either case, the Contract will come into existence at the point of acceptance of the quotation or Order (as applicable).

2.2 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Terms. The Buyer is responsible for ensuring that the terms of the Order and any applicable specification submitted by the Buyer are complete and accurate.

2.3 A quotation for the Goods given by the Seller shall only be valid for a period of 30 calendar days from its date of issue. Any such quotation shall constitute an offer only during that period following which it shall automatically expire.

2.4 No variation to these Terms shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.

2.5 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 Buyer 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.

2.6 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by an authorised representative of the Seller is followed or acted on entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.

2.7 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 Order submitted by the Buyer shall be deemed to be accepted by the Seller unless or until it is either verbally confirmed or confirmed in Writing by the Seller’s authorised representatives at which point the Contract shall come into existence

3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order submitted by the Buyer, 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 The quantity, quality and description of the Goods and any specification for them shall be as set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s Order (if accepted by the Seller).

3.4 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or E.U. requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.

3.5 No Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of an authorised representative of the Seller and on terms that the Buyer 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. Where the Goods are supplied for export from the United Kingdom, the Seller’s published export price list shall apply. All prices quoted are valid for 30 calendar days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.

4.2 The Seller reserves the right, by giving Written notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

4.3 Except as otherwise stated in the Seller’s quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and an authorised representative of 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 Buyer shall be liable to pay the Seller’s charges for the transport, packaging and insurance of the Goods.

4.4 The price is exclusive of any applicable value added tax (VAT), which the Buyer shall be additionally liable to pay to the Seller at the prevailing rate, subject to the receipt of a valid VAT invoice.

5. Terms of payment

5.1 Where credit terms for the Buyer have been agreed in Writing between the Buyer and an authorised representative of the Seller, the Seller may invoice the Buyer for the price of the Goods, transport, packaging and insurance on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.

5.2 Where credit terms for the Buyer have been agreed in Writing between the Buyer and an authorised representative of the Seller, the Buyer shall pay the price of the Goods, transport, packaging and insurance (without any deduction or set-off) in pounds sterling within 30 calendar 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 Buyer.

5.3 In any other case the Buyer shall pay the price of the Goods, transport, packaging and insurance (without any deduction or set off) in pounds sterling at the time the Buyer places the order for the Goods, and the Seller shall be entitled to recover the price, notwithstanding that delivery will not have taken place and the property in the Goods has not passed to the Buyer. For the avoidance of doubt if the Seller has agreed credit terms with the Buyer but the Buyer does at any time reach its credit limit then any further orders placed after reaching the credit limit will be payable in accordance with this clause 5.3.

5.4 The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only on request.

5.5 If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may:

5.5.1 cancel the contract or suspend any further deliveries to the Buyer;

5.5.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and

5.5.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent per annum above Barclays Bank PLC base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount (a part of a month being treated as a full month for the purpose of calculating interest); and

5.5.4 charge the Buyer any debt collection agents costs and expenses incurred by the Seller.

6. Delivery

6.1 Unless otherwise agreed in Writing by the Seller, delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by an authorised representative of the Seller, by the Seller delivering the Goods to that place. Where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Seller shall be under no obligation under Section 32(2) of the Sale of Goods Act 1979.

6.2 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 caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. Time for delivery shall not be of the essence of the Contract unless previously agreed by an authorised representative of 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 Buyer.

6.3 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 Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

6.4 If the Seller fails to deliver the Goods (or any instalment) for any reason other than a Force Majeure Event or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited at its discretion 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.

6.5 If the Buyer fails to take or accept delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of a Force Majeure Event or by reason of the Seller’s fault) then, without limiting any other right or remedy available to the Seller, the Seller may:

6.5.1 store the Goods until actual delivery and charge the Buyer for the  reasonable costs (including insurance) of storage; or

6.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.

6.6 If the Seller delivers up to and including 5% more or less than the quantity of Goods ordered the Buyer may not reject them, but on receipt of notice from the Buyer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.

7. Risk and property

7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:

7.1 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or

7.3 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods save that in the case of Goods being delivered by an independent courier and not by the Seller then risk of damage to or loss of the Goods shall pass to the Buyer when they are loaded onto transport at the Seller’s premises.

7.4 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 Buyer 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 Buyer for which payment is then due in which case title to the Goods shall pass at the time of payment of all such sums.

7.5 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property, but the Buyer may resell or use the Goods in the ordinary course of its business.

7.6 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller may at any time require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

7.7 The Buyer 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 Buyer does so all moneys owing by the Buyer 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 on delivery the Goods will confirm in all material respects with their specification and will be free from defects in material, workmanship and be of satisfactory quality.

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 arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without the Seller’s approval;

8.2.2 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;

8.2.3 the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.

8.3 Subject as expressly provided in these Terms, ), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

8.4 Nothing in these Terms shall limit or exclude the Seller’s liability for:

8.4.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

8.4.2 fraud or fraudulent misrepresentation;

8.4.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;

8.4.4 defective products under the Consumer Protection Act 1987;

8.4.5 any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.

8.5 A claim by the Buyer 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 Buyer) be notified to the Seller within 24 hours from the time 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 Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract. In no event shall the Buyer be entitled to reject the Goods on the basis of any defect or failure which is so slight it would be unreasonable for him to reject them.

8.6 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 Buyer the price of the Goods (or a proportionate part of the price), in which case the Seller shall have no further liability to the Buyer.

8.7 The Seller shall not be liable for the Goods’ failure to comply with the warranty set out in clause 8.1 in any of the following events:

8.7.1 the Buyer makes any further use of such Goods after giving notice in accordance with clause 8.6;

8.7.2 the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

8.7.3 the defect arises as a result of the Seller following any drawing, design or Specification supplied by the Buyer;

8.7.4 the Buyer alters or repairs such Goods without the written consent of the Seller;

8.7.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

8.7.6 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

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 Buyer 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 Buyer..

8.9 The Seller shall not be liable to the Buyer 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 a Force Majeure Event.

8.10 The Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, which have not been excluded or otherwise limited, shall in no circumstances exceed the price of the Goods.

8.11 These Terms shall apply to any repaired or replacement Goods supplied by the Seller.

9. Termination

9.1 Without limiting its other rights or remedies, the Seller may terminate this Contract with immediate effect by giving written notice to the Buyer if:

9.1.1 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 14 calendar days of that party being notified in writing to do so; or

9.1.2 the Buyer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 calendar days after being notified in writing to make such payment; or

9.1.3 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), 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, ceasing to carry on business, or a moratorium comes into force in respect of the Buyer (within the meaning of the Insolvency Act 1986) or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or

9.1.4 the Buyer (being an individual or firm), becomes bankrupt;

9.1.5 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or

9.1.6 the Buyer ceases, or threatens to cease, to carry on business; or

9.1.7 the Seller reasonably apprehends that any of the events mentioned in clauses 9.1.3 to 9.1.5 above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

9.2 If this clause 9 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 Buyer, 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.

9.3 On termination of the Contract for any reason the Customer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest.

9.4 Termination of the Contract 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 this Contract that 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 shall remain in full force and effect.

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 Buyer and an authorised representative of the Seller) apply notwithstanding any other provision of these Terms.

10.3 The Buyer 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.

10.4 Unless otherwise agreed in Writing between the Buyer and an authorised representative of the Seller, the Goods shall be delivered free on board the air or sea port of shipment and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.

10.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit (including without limitation road, air or sea transit).

10.6 Unless otherwise required by the Seller, payment of all amounts due to the Seller shall be made by an irrevocable letter of credit, in a form acceptable to the Seller, to be opened by the Buyer in favour of the Seller and confirmed by a bank in the United Kingdom acceptable to the Seller within 14 calendar days after the Contract is concluded.

10.7 The Buyer shall not offer the Goods for resale in any country notified by the Seller to the Buyer at or before the time the Buyer’s order is placed, or sell the Goods to any person if the Buyer knows or has reason to believe that that person intends to resell the Goods in any such country.

11. General

11.1 This 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 this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this Agreement.

11.2 No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.3 No one other than a party to this Contract shall have any right to enforce any of its terms.

11.4 The Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

11.5 The Buyer may not assign, transfer, mortgage, charge, subcontract, 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.

11.6 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.

11.7 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

11.8 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.

11.9 The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the exclusive jurisdiction of the English courts.