1 Definition and Interpretation
1.1 The following definitions and rules of interpretation shall apply in these Terms:
“Business Day” a day (other than a Saturday, Sunday or public holiday) when banks in the United Kingdom are open for business;
“Confidential Information” all information and trade secrets (howsoever stored) including all financial, marketing and technical information, ideas, concepts, inventions, technology, processes and knowledge together with lists or details of customers, suppliers, prices, discounts, margins, information relating to research and development, current trading performance and future business strategy in each case concerning the business or affairs of the GFW, whether or not such information (if in anything other than oral form) is marked confidential;
“Contract” the contract between GFW and the Supplier for the supply of Products in accordance with these Terms;
“Delivery Date” the date and time for delivery of the Products as agreed by the parties in writing and as set out in the Purchase Order;
“Delivery Location” the address for delivery of the Products as set out in the Purchase Order;
“GFW” Good Food Wines Limited being a company registered in England and Wales with company number 01790019 and having its registered office at 3 Manor Road, Chatham, Kent, ME4 6AE;
“Insolvency Event” the other party: (a) enters liquidation or a winding up petition is presented against the company; (b) has a receiver, liquidator, administrator, trustee or an individual with a similar role appointed over any of its assets; (c) proposes to make any arrangements with its creditors or passes a resolution to place the company into liquidation; or (d) suffers an event which, under the law of a different country, is equivalent to any of the previously specified acts or events;
“Intellectual Property Rights” patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Products” the products as described in the Purchase Order;
“Price” the price payable for the Products by GFW as determined in accordance with clause 3.1 and documented in the relevant Purchase Order;
“Purchase Order” GFW’s acceptance to purchase Products from the Supplier;
“Representatives” in relation to a party, its employees, officers, representatives, contractors, subcontractors and advisers;
“Specification” the technical or other specification for the Products, including any related plans, drawings and any part numbers, that is agreed in writing by GFW and the Supplier;
“Supplier” any company, firm or individual which offers to sell and supply the Products to GFW; and
“Terms” these terms and conditions as amended from time to time in accordance with clause 12.5.
1.2 Clause and paragraph headings shall not affect the interpretation of these Terms. The Purchase Order forms part of these Terms and shall have effect as if set out in full in the body of these Terms and any reference to these Terms includes the Purchase Order.
1.3 A reference to a statute, statutory provision or any subordinate legislation made under a statute is to such statute, provision or subordinate legislation as amended or re enacted from time to time whether before or after the date of these Terms and, in the case of a statute, includes any subordinate legislation made under that statute whether before or after the date of these Terms.
1.4 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2 Order Process
2.1 The Supplier shall sell and GFW shall purchase the Products as described in the Purchase Order.
2.2 A Purchase Order constitutes an acceptance by GFW to purchase the Products in accordance with these Terms at which point and on which date this Contract shall come into existence.
2.3 This Contract constitutes the entire agreement between the parties. Each party acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the other party which is not set out in this Contract.
2.4 The parties agree that nothing in this Contract shall impose any obligation on GFW to purchase a minimum quantity of Products in any given period.
2.5 GFW shall assign a purchase order number to each Purchase Order placed with the Supplier, such purchase order number to be stated on the Purchase Order. Each party shall use the relevant purchase order number in all subsequent correspondence relating to that Purchase Order.
2.6 GFW may at any time prior to despatch of the Products amend or cancel a Purchase Order by written notice to the Supplier. If GFW amends or cancels a Purchase Order, its liability to the Supplier shall be limited to payment to the Supplier of all costs reasonably incurred by the Supplier in fulfilling the Purchase Order up until the date of receipt of the notice of amendment or cancellation.
2.7 The Supplier shall ensure no other terms and conditions are submitted (in standard form documentation or otherwise) by the Supplier during this Contract. Any such terms and conditions submitted by the Supplier in the course of ordering and/or supplying any Products under this Contract shall not replace, alter or amend the terms of this Contract.
3 Product Prices
3.1 The Price payable by GFW for the Products shall be set out in the Purchase Order.
3.2 The Prices set out in the Purchase Order shall remain fixed and may not be increased by the Supplier without the prior written consent of GFW.
3.3 Unless agreed otherwise between the parties, the Prices are exclusive of the costs of packaging, labelling, insurance, export / import duties and carriage of the Products which, if applicable, shall be set out in the Purchase Order.
4 Production, Quality and Packing
4.1 The Supplier shall produce, pack, label and supply the Products strictly in accordance with the Specification and all generally accepted applicable industry standards and practices.
4.2 The Products supplied by the Supplier under this Contract shall:
4.2.1 conform strictly to the Purchase Order and the Specification;
4.2.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by GFW; and
4.2.3 comply with all applicable laws including any statutory and regulatory requirements.
4.3 GFW shall have the right to enter the Supplier’s premises to:
4.3.1 inspect the facilities and the equipment used by the Supplier in the production of the Products;
4.3.2 inspect and take samples of the Products and the packaging; and
4.3.3 inspect stock levels of the Products.
4.4 Inspections carried out pursuant to clause 4.3 shall be carried out during business hours on reasonable notice to the Supplier. If GFW reasonably considers that the Products are not or are not likely to be as warranted under clause 4.2, GFW shall inform the Supplier and the Supplier shall immediately take such action as is necessary to ensure that the Products are or will be as warranted under clause 4.2. GFW shall have the right to re conduct inspections and take further samples after the Supplier has carried out its remedial actions.
5.1 The Supplier shall deliver the Products to the Delivery Location on the Delivery Date and time shall be of the essence in respect of such delivery.
5.2 If any Products are not delivered on the Delivery Date, then, without limiting any other right or remedy GFW may have, GFW may:
5.2.1 refuse to accept any subsequent attempted delivery of the Products and require a refund from the Supplier of any sums paid in advance for the Products that the Supplier has not supplied;
5.2.2 terminate the Purchase Order with immediate effect by giving written notice to the Supplier;
5.2.3 recover from the Supplier any costs incurred by GFW in obtaining substitute products from another supplier; and
5.2.4 claim damages for any other costs, loss or expenses incurred by GFW which are in any way attributable to the Supplier’s failure to deliver the Products on time or to carry out its obligations under this Contract.
5.3 The parties agree that if in respect of a Purchase Order the Supplier delivers up to and including 5% less than the quantity of the Products set out in the Purchase Order, then GFW shall not be entitled to reject the Products, but a pro rata adjustment shall be made to the Price payable by GFW in respect of such Products. If in respect of a Purchase Order the Supplier delivers more than the quantity of the Products set out in the Purchase Order, then GFW shall not be obliged to pay for the additional Products in respect of that delivery.
5.4 Each Purchase Order shall be accompanied by a delivery note from the Supplier showing the purchase order number (as referred to in clause 2.5), the date of the Purchase Order and the type and quantity of Products included in the Purchase Order.
5.5 Risk in Products shall pass to GFW on the later of:
5.5.1 acceptance (in accordance with clause 6.1); and
5.5.2 payment in full to the Supplier (in cash or cleared funds) for the Products.
5.6 Title to the Products shall pass to GFW on the earlier of:
5.6.1 delivery (in accordance with this clause 5); and
5.6.2 receipt by the Supplier of payment in full (in cash or cleared funds) for the Products.
6 Acceptance and Defective Products
6.1 GFW shall not be deemed to have accepted any Products until it has had a reasonable time to inspect them following delivery in accordance with clause 5 or, if later, within a reasonable time after any latent defect in the Products has become apparent. Any signature by any representative of GFW on any delivery note provided by the Supplier shall not represent acceptance by GFW of the delivered Products, nor confirmation that the delivery of the Products has been completed in accordance with the terms of the Contract.
6.2 If any Products delivered to GFW do not comply with clause 4.2, or are otherwise not in conformity with the terms of this Contract, then, without limiting any other right or remedy that GFW may have, GFW may notify the Supplier that it rejects those Products and:
6.2.1 where the Purchase Order provides that the Products are to be delivered EX Works (Incoterms 2020), require the Supplier to replace the rejected Products at the Supplier’s risk and expense within 15 Business Days of being requested to do so;
6.2.2 where the Purchase Order provides that the Products are to be delivered by any other means, require the Supplier to replace the rejected Products at the Supplier’s risk and expense within 5 Business Days of being requested to do so; or
6.2.3 require the Supplier to repay the Price of the rejected Products in full; and
6.2.4 claim damages for any other costs, expenses or losses resulting from the Supplier’s delivery of Products that are not in conformity with the terms of this Contract.
6.3 GFW’ rights and remedies under clause 6.2 are in addition to the rights and remedies available to it in respect of the statutory conditions relating to description, quality, fitness for purpose and correspondence with sample implied into this Contract by the Sale of Goods Act 1979.
6.4 This Contract shall apply to any replacement Products supplied by the Supplier.
6.5 If the Supplier fails to promptly replace the rejected Products in accordance with clause 6.2.1, GFW may, without affecting its rights under clause 6.2.4, obtain substitute products from a third party supplier, and the Supplier shall reimburse GFW for the costs it incurs in doing so.
7 Terms of Payment
7.1 The Supplier shall be entitled to invoice GFW for each Purchase Order on or at any time up to 4 weeks after delivery of the Products at the Delivery Location.
7.2 Subject to acceptance of the Products in accordance with clause 6, GFW shall pay valid invoices in full within 60 days of receipt of the invoice by GFW, unless otherwise agreed between the parties in writing. Payment shall be made by cheque or BACs to the address or bank account, as applicable, nominated in writing by the Supplier.
7.3 If GFW fails to pay an invoice in accordance with clause 7.2, the Supplier shall notify GFW in writing of the outstanding invoice and GFW shall then pay such invoice within 15 Business Days. If the Supplier fails to notify GFW in writing of the outstanding invoice, non payment of the outstanding invoice by GFW shall not constitute a material breach pursuant to clause 11.1.1.
7.4 If GFW disputes any invoice or other statement of monies due, GFW shall notify the Supplier in writing. The parties shall negotiate in good faith to attempt to resolve the dispute promptly. The Supplier shall provide all such evidence as may be reasonably necessary to verify the disputed invoice or request for payment. Where part of an invoice is disputed, the undisputed amount shall be payable in accordance with the payment terms specified in clause 7.2. The Supplier’s obligations to supply the Products and fulfil any outstanding Purchase Orders shall not be affected by any payment dispute.
7.5 If a party fails to make any payment due to the other under the Contract by the due date for payment, then the defaulting party will pay interest on the overdue amount at the rate of two per cent (2%) per annum above the Bank of England’s base rate from time to time. Such interest will accrue on a daily basis from the due date until actual payment of the overdue amount, after judgment. The defaulting party will pay the interest together with the overdue amount. This clause will not apply to payments the defaulting party disputes in good faith pursuant to clause 7.4.
8.1 The Supplier shall indemnify GFW against all liabilities, costs, expenses, damages and losses suffered or incurred by GFW arising out of or in connection with:
8.1.1 any claim made against GFW by a third party arising out of, or in connection with, the supply of the Products, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this Contract by the Supplier, its employees, agents or subcontractors; and
8.1.2 any claim made against GFW by a third party for death, personal injury or damage to property arising out of, or in connection with, defective Products, to the extent that the defect in the Products is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors.
9.1 The Supplier shall not disclose to any person any Confidential Information except as permitted by this clause 9.
9.2 The Supplier may disclose Confidential Information:
9.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising its rights or carrying out its obligations under or in connection with these Terms. The Supplier shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses Confidential Information comply with this clause 9; and
9.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3 The Supplier shall not use GFW’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with these Terms.
9.4 The provisions of this clause 9 shall continue to apply after termination or expiry of the Contract.
10 Intellectual Property Rights
10.1 The parties acknowledge and agree that unless otherwise agreed between the parties in writing, each party shall at all times remain the owner of all Intellectual Property Rights owned by it prior to the date of the Contract or created outside the scope of and independently of the Contract.
10.2 The Supplier will indemnify, keep indemnified and hold GFW harmless against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs, in each case whether or not foreseeable as at the date of the Contract, (calculated on a full indemnity basis), and all other professional costs and expenses) suffered or incurred by GFW, or made against them, as a result of or in connection with any claim made against GFW for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the supply or use of the Products, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors.
11.1 GFW shall be entitled to terminate this Contract with immediate effect by giving notice in writing to the Supplier if:
11.1.1 the Supplier commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within a period of 14 days after receipt of notice in writing requiring it to do so;
11.1.2 the Supplier commits a series of persistent minor breaches which, when taken together, amount to a material breach;
11.1.3 one or more of the following applies to the Supplier: (a) it ceases to trade; (b) it is unable to pay its debts; or (c) it suffers an Insolvency Event; or
11.1.4 any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1.3.
11.2 A breach of clause 4.2 shall be a material breach of obligations for the purposes of this clause 11.
11.3 Termination of this Contract shall not prejudice any of the parties’ rights and remedies which have accrued as at termination.
12.1 Anti bribery, Modern Slavery and Criminal Finances. Each party shall comply with the Bribery Act 2010, the Modern Slavery Act 2015 and the Criminal Finances Act 2017 and not do, or omit to do, any act that will cause the other to be in breach of the Bribery Act 2010, the Modern Slavery Act 2015 or the Criminal Finances Act 2017.
12.2 Assignment and Subcontracting. The Supplier 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 GFW.
12.3 Further Assurance. At any time, each party shall sign all documents and do or cause to be done all further acts and things as that party so requiring may reasonably require to give full effect to this Contract. This clause 12.3 shall survive termination.
12.4 Entire Agreement. The 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
12.5 Variation. GFW reserves the right to amend these Terms from time to time. Except as set out in these Terms, no variation of this Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by each party.
12.6 Waiver. No failure to exercise or delay in exercising any right or remedy provided under this Contract or by law constitutes a waiver of such right or remedy, nor shall it prevent or restrict any future exercise or enforcement of such right or remedy. No single or partial exercise of any right or remedy under this Contract shall prevent or restrict the further exercise of that or any other right or remedy.
12.7 Notices. Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered by hand or sent by pre paid first class post or by email. Any communication sent by email must be followed by a written notice to the other party’s registered office address. Any notice or communication shall be deemed to have been received if delivered by hand, on signature of a delivery receipt, or if sent by email at 9.00am on the next Business Day after transmission, or otherwise at 9.00am on the second Business Day after posting.
12.8 Severance. If a court or any other competent authority finds that any provision (or part of any provision) of this Contract is invalid, illegal or unenforceable, that provision or part provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of this Contract shall not be affected. If any invalid, unenforceable or illegal provision of this Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.9 No partnership. Nothing in this Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
12.10 Third parties. A person who is not a party to this Contract shall not have any rights under or in connection with it.
12.11 Governing Law and Jurisdiction. This Contract and any dispute or claim arising out of or in connection with it or its subject matter 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.
1.1 In these Conditions, the following definitions apply:
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 together with any special terms agreed in writing between the Customer and GFW;
Confidential Information information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, clients, customers, products, affairs and finances of GFW and trade secrets including, without limitation, technical data and know-how relating to the business of GFW or any of its suppliers, clients, customers, agents, distributors, shareholders or management, whether or not such information (if in anything other than oral form) is marked confidential;
Contract the contract between GFW and the Customer for the sale and purchase of the Goods in accordance with these Conditions;
Customer the person or firm that purchases the Goods from GFW;
Force Majeure Event has the meaning given in clause 13;
GFW Good Food Wines Limited, a company registered in England with company number 01790019 and having its registered address at:
3 Manor Road,
Kent ME4 6AE;
Goods the goods (or any part of them) set out in the Order;
Insolvency Event means a party: (i) enters liquidation; (ii) has a receiver, liquidator, administrator, trustee or an individual with a similar role appointed over any of its assets; (iii) proposes to make any arrangement with its creditors or goes into liquidation; or (iv) an event analogous to the events set out in (i) to (iii) of this definition occurs in any jurisdiction;
Intellectual Property Rights patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether
registered or unregistered and including all applications and rights to apply for and be
granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of
protection which subsist or will subsist now or in the future in any part of the world;
Minimum Order Amount 200 litres of Goods or such other volume as specified in writing by GFW;
Order the Customer’s order for the Goods, as set out in the Customer’s purchase order form or the Customer’s written acceptance of GFW’s
Price has the meaning set out in clause 9.1;
Specification any specification for the Goods that is agreed in writing between the Customer and GFW; and
Website GFW’s website at www.goodfoodwines.com.
2.1 In these Conditions, the following rules apply:
2.1.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
2.1.2 a reference to a party includes its personal representatives, successors or permitted assigns;
2.1.3 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;
2.1.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the
sense of the words preceding those terms; and
2.1.5 a reference to writing or written includes e-mail.
3. Basis of contract
3.1 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.
3.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer must ensure that the terms of the
Order submitted by the Customer are complete and accurate.
3.3 The Order shall only be deemed to be accepted when GFW issues a written acceptance of the Order (“Order Acceptance”), at which point the Contract shall
come into existence. No Contract will come into existence until an Order Acceptance is issued by GFW.
3.4 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 GFW which is not set out in the Contract.
3.5 Any samples, drawings, descriptive matter, or advertising produced by GFW and any descriptions or illustrations contained on the Website or in its catalogues or
brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract nor have any
contractual force and this is not sale by sample.
3.6 A quotation for the Goods given by GFW shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.
3.7 Acceptance of delivery of the Goods will be deemed conclusive evidence of the Customer’s acceptance of these Conditions.
4.1 The quantity and description of the Goods will be as set out in the Specification or if no Specification is provided, as set out on the Website and in GFW’s catalogues and brochures from time to time.
4.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify GFW against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by GFW in connection with any claim made against GFW for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with GFW’s use of the Specification. This clause 4.2 shall survive termination of the Contract.
4.3 GFW reserves the right to amend the Specification of the Goods if required by any applicable statutory or regulatory requirements or if any such amendment would
not materially affect the quality or performance of the Goods.
5. Supply of Goods
5.1 GFW shall supply, and the Customer shall purchase, such quantities of Goods as the Customer may order under clause 5.2 in accordance with the Contract.
5.2 Each Order placed by the Customer shall be for a volume that is no less than the Minimum Order Amount and GFW shall be under no obligation to accept any Orders placed for less than the Minimum Order Amount. The Minimum Order Amount can include mixed consignments of Goods.
6.1 GFW shall use its reasonable endeavours to ensure that:
6.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and GFW reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) (“Delivery Note”); and
6.1.2 if GFW requires the Customer to return any packaging materials to GFW, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as GFW shall reasonably request. Returns of packaging materials shall be at GFW’s expense. GFW may charge the Customer for any missing, damaged or contaminated packaging materials.
6.2 Subject to clause 6.5, GFW shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) on the date specified by GFW. The Customer shall pay delivery costs (as notified by GFW) in addition to the Price.
6.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location unless the Goods are collected from GFW in which case delivery of the Goods shall be completed on collection from GFW, regardless of whether a Delivery Note has been signed by the Customer and returned to GFW. The Customer will provide, at its expense at the Delivery Location, adequate and appropriate equipment and manual labour for off-loading the Goods. Where a Delivery Note has been signed by the Customer and returned to GFW, this shall constitute proof of delivery and acceptance by the Customer of the quantity of Goods delivered.
6.4 Where a Delivery Note has not been signed by the Customer and returned to GFW, the Customer shall have a period of 5 (five) Business Days following delivery of the Goods to notify GFW of any error in the quantity of Goods delivered. Following such notification, GFW shall investigate such discrepancy and, depending on the outcome of the investigation, may make a pro rata adjustment to the invoice for the Goods.
6.5 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. GFW shall not be liable for any delay in delivery of the Goods that is caused by: (i) a Force Majeure Event; (ii) the Customer’s failure to provide GFW with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods; or (iii) GFW holding insufficient levels of stock to supply the volume of Goods requested by the Customer in the Order.
6.6 Subject to clause 11.1, if GFW fails to deliver the Goods, its liability shall be limited to a refund of the Price together with any delivery costs paid by the Customer. Subject to clause 11.1, GFW shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide GFW with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. Subject to clause 11.1, GFW shall have no liability to the Customer for direct, indirect or consequential loss, howsoever caused (including in negligence) by any delay in delivery except as set out above.
6.7 If the Customer fails to take delivery of the Goods within 3 (three) Business Days of GFW notifying the Customer that the Goods are ready, including where such failure or delay is caused by a Force Majeure Event:
6.7.1 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 GFW notified the Customer that the Goods were ready; and
6.7.2 GFW shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
6.8 If 10 (ten) Business Days after the day on which GFW notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, GFW may:
6.8.1 store or arrange for storage of the Goods until actual delivery or sale in accordance with clause 6.7.2 and charge the Customer for all related costs and expenses (including without limitation, storage and insurance); and/or
6.8.2 following written notice to the Customer, 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.
6.9 GFW may deliver the Goods by instalments, which shall be invoiced and paid for separately in accordance with these Conditions. 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.
7.1 GFW warrants that on delivery the Goods shall:
7.1.1 conform in all material respects with their description; and
7.1.2 be free from material defects in design, material and workmanship.
7.2 Subject to clause 7.3, if:
7.2.1 the Customer gives notice in writing to GFW during the period of 5 (five)Business Days following delivery of the Goods that some or all of the Goods do not comply with the warranty set out in clause 7.1; and
7.2.2 GFW is given a reasonable opportunity of examining such Goods; and
7.2.3 the Customer (if asked to do so by GFW) returns such Goods (being all the Goods unless otherwise agreed with GFW) to GFW’s place of business at the Customer’s cost,
GFW shall, at its option, repair or replace the defective Goods, or refund the Price of the defective Goods in full.
7.3 GFW shall not be liable for Goods’ failure to comply with the warranty set out in clause 7.1 in any of the following events:
7.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 7.2;
7.3.2 the defect arises because the Customer failed to follow GFW’s oral or written instructions as to the storage and use of the Goods;
7.3.3 the defect arises as a result of GFW following any drawing, design or specification supplied by the Customer;
7.3.4 the Customer alters or repairs such Goods without the written consent of GFW;
7.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
7.3.6 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
7.4 Except as provided in this clause 7 and subject to clause 11.1, GFW shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 7.1.
7.5 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.
7.6 These Conditions shall apply to any repaired or replacement Goods supplied by GFW.
8. Title and risk
8.1 The risk of damage to or loss of the Goods shall pass to the Customer on completion of delivery (or deemed delivery in accordance with clause 6).
8.2 Ownership of the Goods shall not pass to the Customer until GFW has received payment of:
8.2.1 the Price;
8.2.2 delivery costs applicable to the Goods; and
8.2.3 sums payable for any other goods or services that GFW has supplied to the Customer in respect of which payment has become due,
in each case in full and cleared funds to the bank account nominated in writing by GFW.
8.3 Until title to the Goods has passed to the Customer, the Customer shall:
8.3.1 hold the Goods on a fiduciary basis as GFW’s bailee;
8.3.2 store the Goods (at no cost to GFW) separately from all other goods held by the Customer so that they remain readily identifiable as GFW’sproperty;
8.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full Price from the date of delivery;
8.3.5 notify GFW immediately if it becomes subject to an Insolvency Event; and
8.3.6 give GFW such information relating to the Goods as GFW may require from time to time.
8.4 Not withstanding the terms of clause 8.3, the Customer may resell or use the Goods in the ordinary course of its business before ownership has passed to it provided that:
8.4.1 any sale will be at full market value and the Customer will account to GFWaccordingly;
8.4.2 any such sale will be a sale of GFW’s property on the Customer’s own behalf and the Customer will deal as principal when making such a sale; and/or;
8.4.3 if before title to the Goods passes to the Customer the Customer becomes subject to an Insolvency Event, or GFW reasonably believes that an Insolvency 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 GFW may have, GFW may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them. GFW will be entitled to recover payment for the Goods notwithstanding that title in any of the Goods has not passed from GFW.
8.5 Where GFW is unable to determine whether any goods are the Goods in respect of which GFW’s right to possession has terminated, GFW will be deemed to have sold all goods of the kind sold by GFW to the Customer in the order in which they were invoiced to the Customer.
9. Price and payment
9.1 The price of the Goods shall be the price set out in the Order or if no price is quoted, the price set out in GFW’s published price list in force as at the date of delivery (the “Price”).
9.2 GFW may, by giving notice to the Customer at any time before delivery, increase the Price of the Goods to reflect any demonstratable current or retrospectiveincrease in the costs of the Goods that is due to:
9.2.1 any factor beyond GFW’s control (including foreign exchange fluctuations, increases in taxes, duties, and tariffs, and increases in labour, materials and other manufacturing costs);
9.2.2 any request by the Customer to change the delivery dates(s), quantities or types of Goods ordered, or the Specification; or
9.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give GFW adequate or accurate information or instructions.
9.3 The Price of the Goods is based on EXW delivery in accordance with Incoterms 2020 (the “Delivery Terms”). Any change to the Delivery Terms may result in either or both of:
9.3.1 GFW incurring costs related to the change, including but not limited to insurance, freight, packaging, transportation, duty, levies, engagement of an agent, in such circumstances GFW will invoice the Customer in respect of such costs and the Customer shall pay the invoice in accordance with clause 9.8;
9.3.2 a delay in delivery, in which case GFW may apply clause 9.4.
9.4 If the Customer requires the Goods more quickly than GFW is able to supply based on its lead times in effect from time to time, the Customer shall pay additional delivery charges notified by GFW for a third party delivery company to deliver the Goods.
9.5 The Price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from GFW, pay to GFW such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
9.6 Where the Goods are delivered in accordance with the Delivery Terms and no VAT is charged as the Customer intends to export the Goods, the Customer will:
9.6.1 provide evidence of such export to GFW immediately following export; and
9.6.2 export the Goods within 3 months of the delivery.
9.7 The Customer shall indemnify GFW in respect of any loss, costs, liabilities, taxes, fines or other sums it incurs as a result of the Customer’s failure to comply with clause 9.6.
9.8 GFW may invoice the Customer for the Goods and/or duty payments in accordance with the Customer’s agreed credit terms, which may require GFW invoice and receive payment before delivery, or otherwise permit GFW to invoice on or at any time after the completion of delivery and the Customer shall pay the invoice in full and in cleared funds within 30 (thirty) calendar days of the date of the invoice in relation to the payment for Goods, and in cleared funds within seven (7) calendar days of the date of the invoice in relation to any duty payments. Where payment is to be made before completion of delivery, as advised by GFW to the Customer in writing, delivery shall not take place until payment has been made by the Customerto GFW in full. Payment shall be made to the bank account nominated in writing by GFW. Time of payment is of the essence.
9.9 The Customer may dispute in good faith any amounts in an invoice within 5 days of the date of that invoice.
9.10 If the Customer fails to make any undisputed payments due to GFW under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate set in the Late Payment of Commercial Debts (Interest) Act 1998. 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.
9.11 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 GFW in order to justify withholding payment of any such amount in whole or in part. GFW 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 GFW to the Customer.
10.1 GFW may terminate this Contract or cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and GFW without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due if the Customer:
10.1.1 commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within a period of 10 (ten) Business Days after receipt of notice in writing requiring it to do so; or
10.1.2 an Insolvency Event applies to the Customer or GFW reasonably believes that an Insolvency Event is about to occur.
10.2 Termination of the Contract, however arising, shall not affect any of 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.
11. Limitation of liability
11.1 Nothing in these Conditions shall limit or exclude GFW’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; or
11.1.3 any other matter in respect of which it would be unlawful for GFW to exclude or restrict liability.
11.2 Subject to clause 11.1:
11.2.1 GFW shall under no circumstances 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, special or consequential loss (including at all times, without limitation, economic loss, loss of business, depletion of goodwill or similar) howsoever caused arising under or in connection with:
220.127.116.11 any of the Goods, or the manufacturer or sale or supply, or failure or delay in supply of the Goods by GFW or on the part of GFW’s business;
18.104.22.168 any breach by GFW of any of the express or implied terms of the Contract;
22.214.171.124 any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods;
126.96.36.199 any statement made or not made, or advice given or not given, by or on behalf of GFW; and
188.8.131.52 otherwise under the Contract.
11.3 Subject to clause 11.1, GFW shall under no circumstances be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty or otherwise for any losses suffered by the Customer as a result of product recall/withdrawal affecting the Goods.
11.4 Subject to clause 11.1 and clause 11.3, GFW’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Price paid by the Customer for the Order under which the liability has arisen.
11.5 GFW hereby excludes to the fullest extent permitted in law, all conditions and warranties, whether express (other than as set out in these Conditions) or implied, statutory, customary or otherwise which, but for such exclusion, would or might subsist in favour of the Customer.
12. Intellectual Property Rights
12.1 No licence is granted to the Customer in respect of the Intellectual Property Rights of GFW or any third party (including but not limited to any trade mark, logo or brand name).
13. Force majeure
13.1 Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including but not limited to strikes, lockouts or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, extremes of weather, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, pandemics, epidemics or similar events, natural disasters or extreme adverse weather conditions, or fault of suppliers or subcontractors
14. Variation and Waiver
14.1 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 GFW.
14.2 No failure to exercise or delay in exercising any right or remedy provided under this Agreement or by law constitutes a waiver of such right or remedy, nor shall it prevent or restrict any future exercise or enforcement of such right or remedy.
14.3 No single or partial exercise of any right or remedy under this Agreement shall prevent or restrict the further exercise of that or any other right or remedy.
15.1 Any notices must be in writing and may be delivered by hand, first class post, Special Delivery post, or email, addressed to the recipient at its registered office or to any other address, or at the following email firstname.lastname@example.org, or as notified in writing to the sender by the other party.
16. Entire Agreement
16.1 This Agreement constitutes the whole agreement and understanding of the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this Agreement. Each party acknowledges that it has not relied upon any warranty, representation, statement or understanding other than those expressly set out in this Agreement.
16.2 Nothing in this clause shall limit or exclude any liability for fraudulent misrepresentation.
17. Rights of Third Parties
17.1 No term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to this Agreement.
18.1 GFW may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
18.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of GFW.
19.1 The Customer shall keep confidential any Confidential Information that it may acquire and shall not sure the Confidential Information for any purpose other than to perform its obligations under the Contract and will ensure that its officers and employees comply with the provisions of this clause 19.
20.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected and the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
21. Governing Law and Jurisdiction
21.1 This Agreement, 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