RYVITA^® Terms and conditions

GENERAL TERMS AND CONDITIONS OF SALE


COMPANY:  The Jordans & Ryvita Company Limited
BUYER:………………………………………………………………

GENERAL TERMS AND CONDITIONS OF SALE
1    Orders
1.1    Each order for goods to be supplied by the Company to the Buyer (“Goods”), including any acceptance by the Buyer of the Company’s quotation, shall be deemed to be an offer by the Buyer to buy Goods subject to these Conditions.
1.2    Notwithstanding that the Company may have given a detailed quotation, no order shall be binding on the Company unless and until it has been accepted in writing, or by performance, by the Company and no order which has been accepted by the Company may be cancelled by the Buyer except with the prior written agreement of the Company.
1.3    The contract between the Buyer and the Seller (“Contract”) incorporates these Terms and Conditions  to the exclusion of any terms and conditions contained on any other documents.

2    Prices
2.1    Unless otherwise agreed by the Company in writing:
(a)    the price payable for Goods shall be the Company’s agreed current list price at the date of despatch and in the case of an order for delivery by instalments the price payable for each instalment shall be the Company’s list price current at the date of despatch of such instalment;
(b)    the price for Goods shall be inclusive of all costs or charges in relation to packaging, loading, unloading, carriage, insurance and transport, pallets and returnable containers and baskets, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods;
(c)    the Company's prices are subject to adjustment to take account of any variation in the Company's costs including the cost of materials, exchange rate fluctuations, alteration of duties and other costs since the date of the Company's quotation or (if no quotation is issued) the Buyer's order.  The Company accordingly reserves the right to adjust the invoice price by the amount of any increase or decrease in such costs after the price is quoted and the invoice so adjusted shall be payable as if the price set out therein were the original contract price; and
(d)    all prices are exclusive of value added tax (or any similar or equivalent sales taxes) which will be payable by the Buyer at the appropriate rate.

3    Additional costs
The Buyer shall indemnify the Company on demand in respect of any damage, loss, liability, cost, charge, expense, penalty, outgoing or payment (“Loss”) incurred by the Company as a result of the Buyer's specifications or instructions or lack of specifications or instructions or through any failure or delay in taking delivery, neglect or default on the part of the Buyer, its servants, agents or employees.

4    Intellectual property if Goods are made to Specific or Special Instructions
The Buyer shall indemnify the Company on demand against all Loss incurred by the Company or for which the Company may be liable due to or arising out of any infringement or alleged infringement of intellectual property rights occasioned by the importation, manufacture or sale of the Goods and their packaging if made to the specific instructions of the Buyer.

5    Terms of payment
5.1    The Company shall be entitled to invoice the Buyer for the price of the Goods on or at any time after despatch of the Goods whether or not the Buyer takes delivery of the Goods and if delivered in instalments the Company shall be entitled to invoice each instalment as and when despatch of that instalment has been made
5.2    Unless otherwise agreed by the Company in writing, the Buyer shall pay for the Goods in Pounds Sterling  not later than 30 days from the date of the invoice notwithstanding that delivery may not have taken place and property in the Goods has not passed to the Buyer.  Time for payment shall be of the essence. Payment shall become due immediately upon the occurrence of any of the events referred to in Condition 10.
5.3    If pursuant to the terms of the Contract the price is payable in instalments or if the Buyer has agreed to take specified quantities of Goods at specified times, any default by the Buyer in the payment of any due instalment or the failure to give delivery instructions in respect of any quantity of Goods outstanding shall cause the whole of the balance of the price to become due immediately.
5.4    The Buyer shall make all payments due under the Contract in full to the Company and without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
5.5    If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
(a)    cancel the Contract or suspend any further deliveries to the Buyer; and
(b)    (both before and after any judgment) charge interest at a rate equal to the higher of the interest rate payable on court judgments or 4% above the base rate from time to time of Barclays Bank plc on overdue payments of the price of the Goods or the price of any instalments thereof.

6    Delivery
6.1    All times dates or periods given for delivery of the Goods are given in good faith and are genuine estimates but without any responsibility on the Company's part.  The Buyer shall take delivery of the Goods within 7 days of the Company giving it notice that the Goods are ready for delivery.  The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Buyer.  If no delivery dates are specified, delivery shall be within a reasonable time.
6.2    Unless otherwise agreed by the Company in writing the Goods will be delivered EXWorks (as such term is defined by Incoterms 2000) at the Company's Premises.  If the Buyer requests delivery in a manner other than EXWorks, any difference in price shall be charged to the Buyer's account.
6.3    The Buyer shall provide at the delivery point adequate and appropriate equipment and labour for unloading the Goods.
6.4    The Company shall not be liable (whether in contract or for negligence or otherwise howsoever) for: (i) loss of or damage to the Goods occurring prior to delivery; (ii) any claim that any item delivered pursuant to the Contract is defective or is otherwise not in accordance with the Contract; or (iii) non-delivery, unless claims to that effect are notified in writing by the Buyer to the Company (and in the case of claims for loss, damage or non-delivery with a copy to the carrier if the Company's own vehicles have not been used to deliver the Goods):
(a)    within three days of delivery for loss, damage, defect or non-compliance with the Contract; or
(b)    within five days of the date of the invoice for non-delivery.
6.5    In the event of a valid claim for defect, loss, damage, or non-compliance with the Contract or non-delivery the Company undertakes at its option either to reprocess or replace the items concerned at its expense or provide a credit note but shall not be under any further or other liability in connection with such non-delivery, loss, damage or non-compliance.
6.6    The Company shall not be liable for any claim in relation to the Goods under Condition 6.4 if:
(a)    the Buyer makes any further use of such Goods after giving such notice; or
(b)    the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, installation, use or maintenance of the Goods or (if there are none) good trade practice; or
(c)    the Buyer alters the Goods; or
(d)    (in the event of there being a shortage or surplus of up to 10% in the quantity of Goods delivered) that shortage or surplus is properly reflected in the invoice for those Goods.
6.7    If the Buyer shall fail to give notice in accordance with Condition 6.4 above the items delivered shall be deemed to be in all respects in accordance with the Contract and without prejudice to earlier acceptance by the Buyer it shall be bound to accept and pay for the same accordingly and all claims in respect of non-delivery, loss, damage, defect or non-compliance shall (save as set out in Condition 11 below) thereafter be wholly barred.
6.8    If for any reason: (i) the Buyer fails to accept delivery of any of the Goods when they are ready for delivery; or (ii) the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations, the Company may at its sole discretion without prejudice to its other rights:
(a)    store the Goods at the Buyer's risk (including for loss or damage caused by the Company's negligence) for such period as the Company may determine and take reasonable steps to safeguard and insure them at the Buyer's cost, provided that the Buyer shall be immediately informed thereof,; and
(b)    sell the Goods at the best price readily obtainable and (after deducting all related costs and expenses of storage, insurance and sale) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall beyond the price under the Contract.
6.9    When sales are EXWorks the Buyer is responsible at its own cost for complying with all export and import legislation, regulation and controls, including obtaining export and import licences, and paying all applicable duties, and for obtaining all other consents required to deliver the Goods.
6.10    The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company's place of business shall be deemed to be the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary. 

7    Passing of title and risk
7.1    From the time of delivery the Goods shall be at the Buyer's risk, but the Goods and any pallets or baskets shall remain the Company's property until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:  (i) the Goods and (ii) all other sums which are or which become due to the Company from the Buyer on any account.  Whilst the Company's ownership continues the Buyer shall: (i) hold the Goods on a fiduciary basis as the Company’s bailee; (ii) store the Goods (at no cost to the Company) separately from all other goods of the Buyer, or any third party, in such a way that they remain readily identifiable as the Company’s property; (iii)  not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and (iv) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company.  On request the Buyer shall produce the policy of insurance to the Company.
7.2    The Buyer may sell the Goods before ownership has passed to the Buyer solely on the following conditions:  (i) any sale shall be effected in the ordinary course of the Buyer’s business at full invoice value; and (ii) any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
7.3    The Buyer’s right to possession of the Goods shall terminate immediately if:  (i) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory), except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of the Buyer’s undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer’s undertaking or notice of intention to appoint an administrator is given by the Buyer or the Buyer’s directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer’s undertaking or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the Buyer’s insolvency or possible insolvency; or (ii) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on the Buyer’s property or to be obtained by the Buyer,  or the Buyer fails to observe or perform any of the Buyer’s obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or (iii) the Buyer encumbers or in any way charges any of the Goods.
7.4    The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed to the Company.
7.5    The Buyer grants to the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
7.6    Where the Company is unable to determine where any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the  Buyer.
7.7    On termination of the Contract, howsoever caused, the Company’s (not the Buyer’s) rights contained in this Condition 7 shall remain in effect.

8    Conditions and warranties
8.1    The Buyer and the Company agree that Goods will meet (in all material respects) the specifications given in an order form at the time of despatch only and will comply with all applicable existing UK statutory requirements (including those set out in the Food Safety Act 1990 and the Weights and Measures Acts).
8.2    Except as set out in these Conditions, and except where the Goods are sold to a person dealing as a consumer, any conditions or warranties (whether express or implied by statute or common law or arising from conduct or a previous course of dealing or trade custom or usage or otherwise) as to the quality of the Goods or their fitness for any particular purpose (even if that purpose is made known expressly or by implication to the Company) or as to the correspondence of the Goods with any description or sample are hereby expressly excluded to the fullest extent permitted by law and no warranty is given by the Company for the condition of the Goods after the expiration of the shelf life (if any) of the Goods.  For the avoidance of doubt, the conditions implied by section 12 of the Sale of Goods Act 1979 are not excluded from the Contract.

9    Product Recall Procedure
9.1    The Buyer shall supply to the Company in writing the contact details of a person who will be available at any time who can deal with any crisis which may affect the Company, including product recall. 
9.2    Either party shall notify the other party as soon as they discover:
(a)    any defect in the Goods which have been delivered to the Buyer at any time;
(b)    any error or omission in the instructions for the use of the Goods;
(c)    a risk of any incident that may damage the reputation of the Company or any of its brands; or
(d)    an order from a court of competent jurisdiction for the Goods to be withdrawn from sale.
9.3    The Company may at its absolute discretion require the Buyer at the Buyer's own cost to:
(a)    recall any Goods or any other products into which the Goods have been incorporated already sold by the Buyer to its customers (whether for a refund, credit or replacement which shall in each case be undertaken by the Buyer at the Company's option); and/or
(b)    issue any notification whether in writing or otherwise to its customers about the manner of use, operation or safety of any Goods or any other products into which the Goods have been incorporated already sold by the Buyer to its customers.
9.4    The decision to recall one or more Goods will be taken by the Company in its absolute discretion and the Buyer shall not carry out a product recall of the Goods without the Company's prior written consent.
9.5    The Buyer shall not make any announcement concerning this Agreement or any product recall in relation to the Goods or any related matter or publicise this Agreement or any product recall in any way without the prior written consent of the Company, who may withhold its consent at its absolute discretion.
9.6    If there is a product recall the Buyer will cooperate with the Company to ensure that the product recall is promptly and effectively dealt with.  The parties shall have the following respective responsibilities:
(a)    the Buyer will enforce local procedures covering product recall subject to any directions received from the Company;
(b)    the Buyer must ensure that it retains all batch records and product information pertaining to the recalled Goods and that these are made available to the Company within 4 hours of notification of the recalled Goods.  The Buyer shall advise the Company of the location of all recalled Goods so that a reconciliation may be carried out;
(c)    on request from the Company the Buyer will cease delivering or otherwise selling or distributing the recalled Goods; and
(d)    If it is deemed necessary by either the Company or the Buyer acting reasonably to withdraw, recall or destroy any quantity of the Goods as a result of the failure of the Goods to comply with the provisions of these Conditions, or for any other reason bearing on quality and/or safety of the Goods, the Buyer shall comply with the Company's Goods withdrawal procedures as they may be revised from time to time.
(e)    If the Buyer fails to immediately comply with the directive from the Company to withdraw or recall the Goods, or upon the mutual decision of the Company and the Buyer to destroy such Goods, then the Company is authorised to take such action as it deems necessary to withdraw or recall the Goods (at the Buyer's cost).  Such action by the Company shall not relieve the Buyer of any of its obligations hereunder.
9.7    Save to the extent the withdrawal, recall or destruction of Goods is directly caused by the Company's wilful act or omission or negligence, the Buyer shall indemnify the Company against all Loss arising out of any withdrawal, recall or destruction of the Goods pursuant to this Condition 9 including the expenses of notification to all necessary parties, collection and destruction of any Goods withdrawn from sale.

10    Default or insolvency of Buyer
If the Buyer shall be in breach of any of its obligations under the Contract or if any distress or execution shall be levied on the Buyer's property or assets or if the Buyer shall make or offer to make any arrangement or composition with his creditors or commit any act of bankruptcy or if any bankruptcy petition be presented against him or (if the Buyer is a company) if any resolution or petition to wind up such company shall be passed or presented or if a receiver, administrative receiver or administrator of the whole or any part of such company's undertaking property or assets shall be appointed or an event analogous to any of the aforementioned events in another jurisdiction the Company in its discretion and without prejudice to any other right or claim may by notice in writing terminate wholly or in part any and every contract between the Company and the Buyer or may (without prejudice to the Company's right subsequently to terminate the Contract for the same cause should it so decide) by notice in writing suspend delivery or any further deliveries (as the case may be) of Goods until any default by the Buyer be remedied 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.

11    Limitation of liability
11.1    The following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of this contract including any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2    Nothing in these Conditions excludes or limits the liability of the Company: (a) for death or personal injury caused by the Company's negligence; or (b) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or (c) for fraud or fraudulent misrepresentation.
11.3    Subject to Condition 11.2: (a) the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price of the relevant Goods invoiced by the Company to the Buyer; and (b) the Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise (in each case whether direct or indirect) or for any indirect or consequential loss whatsoever and howsoever caused which arise out of or in connection with the Contract.

12    Force Majeure
The Company shall be entitled (without liability to the Buyer) to delay or cancel delivery or to reduce the amount of Goods delivered if and to the extent that it is prevented from or hindered in or delayed in manufacturing, obtaining or delivering the Goods by normal route or means of delivery through any circumstances beyond its control (including, but not limited to, acts of God, governmental actions, strikes or other labour disputes (whether or not relating to the Company’s workforce), lock-outs, accidents, war or national emergency, acts of terrorism, protests, riot, civil commotion, explosion, flood, epidemic, fire, reduction in or unavailability of power at manufacturing plant, breakdown of plant or machinery, restraints or delays affecting carriers, shortage or unavailability of raw materials from normal sources of supply or the amendment or coming into force of any legal provision affecting the import or export of the Goods or any ingredients or materials for production of the Goods).

13    Consumer Complaints
The Buyer shall provide the Company immediately with details of any consumer complaints in relation to the Goods.

14    General
14.1    Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
14.2    If, in any particular case, any of these Conditions shall be held to be invalid or shall not apply to the Contract the other Conditions shall continue in full force and effect.
14.3    The Company may assign the Contract with the Buyer or sub-contract the whole or any part thereof to any person, firm or company.  The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
14.4    Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing, in English and addressed to that other party at its registered office or principal place of business. 
14.5    Nothing in these Conditions shall create or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties and no employee of one party shall be deemed to be or become an employee of the other party.
14.6    The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.7    In the event of any disputes arising out of or in relation to this Contract, the parties must first use their respective best endeavours to consult and negotiate with each other, in good faith and, recognising their mutual interests, attempt to reach a just and equitable settlement of the dispute satisfactory to both parties. 
14.8    The Contract shall in all respects be governed by and construed in accordance with English law and shall be deemed to have been made in England and if the informal dispute resolution process has not succeeded within 60 days the Buyer and the Company agree to submit to the exclusive jurisdiction of the English courts.