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 as amended from time to time in accordance with Clause 14.4.
Contract: the contract between the Customer and the Supplier for the sale and purchase of the Goods and/or the provision of Services in accordance with these Conditions.
Customer: The Secret Walled Garden, Old Monmouth Road, Mitchel Troy, Monmouth, NP25 4HX.
Delivery Date: the date specified in the Order, or, if none is specified, within seven (7) days of the date of the Order.
Delivery Location: the address for delivery of Goods as set out in the Order. Goods: the goods (or any part of them) set out in the Order.
Mandatory Policies: the Customer's business policies which can be found at www.thesecretwalledgarden.com, as amended from time to time.
Order: the Customer's order for the Goods and/or Services, as set out in the Customer's purchase order form.
Services: the services to be provided by the Supplier as set out in the Order. Specification: any specification for the Goods and/or Services, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Supplier: the person or firm from whom the Customer purchases the Goods and/or Services.
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;
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
a reference to writing or written includes emails.
BASIS OF CONTRACT
These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
The Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions.
The Order shall be deemed to be accepted on the Supplier issuing a written confirmation of the Order or completing delivery of the Goods (including the completion of unloading and stacking of the Goods at the Delivery Location) or Services specified in the Order, at which point the Contract shall come into existence.
The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.
The Supplier shall ensure that the Goods shall:
correspond in all respects with their description and any applicable Order or Specification;
be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer expressly or by implication, and in this respect the Customer relies on the Supplier's skill and judgement;
where they are manufactured products, be free from defects in design, material and workmanship and remain so for 12 months after delivery;
comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods; and
where the Goods are food and/or drink products, be of a quality that is (in the sole discretion of the Customer) acceptable to the Customer (acting reasonably).
The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract and will hold such relevant current industry accreditations as the Customer may require. All industry accreditations must be forwarded onto the Customer to hold on record, on request.
The Supplier warrants that any premises used in its business operations complies with all relevant statutes, laws, rules and regulations.
In the event that the Goods are food and/or drink products, the Supplier warrants that it will maintain a quality and safety management system, which includes an effective product recall procedure and processes for the control of food safety hazards, which covers vendor assessment, intake labelling, storage, handling and delivery. The Customer reserves the right to conduct, or order a third party to conduct, an audit or inspection of the Supplier's premises to verify compliance with this clause.
The Customer may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract.
If following such inspection or testing the Customer considers that the Goods do not conform or are unlikely to comply with the Supplier's undertakings at Clause 3.1, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
The Customer may conduct further inspections and tests after the Supplier has carried out its remedial actions.
The Supplier will immediately notify the Customer of any critical event that may impact the Customer's business in any way, including, but not limited to, the reputation or goodwill of the Customer or the Customer's relationship with its customers. Examples of critical events include, but are not limited to:
a recall of Goods;
a serious accident or incident which causes, or may cause, danger or harm to the Customer, its employees, property or members of the public on its premises;
an outbreak of food poisoning or contamination; or
a failure to meet the required standards of food labelling during the production and/or packaging process.
DELIVERY OF GOODS AND PROVISION OF SERVICES
The Supplier shall ensure that:
the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.
The Supplier shall deliver the Goods:
on the Delivery Date;
at the Delivery Location; and
during the Customer's normal business hours, or as instructed by the Customer.
Delivery of the Goods shall be completed on the completion of unloading and stacking of the Goods at the Delivery Location.
The Supplier shall:
co-operate with the Customer in all matters relating to delivery of the Goods and the supply of the Services, and comply with all instructions of the Customer;
perform all deliveries and Services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;
use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with the Contract;
ensure that deliveries and Services conform with all descriptions and specifications set out in the Order and/or the Specification and that they shall be fit for any purpose expressly or impliedly made known to the Supplier by the Customer;
provide all equipment, tools and vehicles and such other items as are required to complete delivery of the Goods or provide the Services;
use the best quality goods, materials, standards and techniques, and ensure that all goods and materials supplied and used in the delivery of the Services or transferred to the Customer, will be free from defects in workmanship, installation and design;
obtain and at all times maintain all licenses and consents which may be required for delivery of the Goods and provision of the Services;
comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply from time to time to delivery of the Goods and provision of the Services,
observe all health and safety rules and regulations and any other security requirements that apply at the Customer's premises and at any other location where the Services are performed;
hold all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier (Customer Materials) in safe custody at its own risk, maintain the Customer Materials in good condition until returned to the Customer, and not dispose or use the Customer Materials other than in accordance with the Customer's written instructions or authorisations;
not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Customer may rely or act on the - Services;
not do anything or omit to do anything with regard to the Services which may cause or causes the Customer to be in breach of any of its obligations or duties under any other contract; and
comply with any and all additional obligations as set out in any Order or Specification.
The Supplier shall not deliver the Goods in instalments without the Customer's prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all, or any defect in an instalment shall entitle the Customer to the remedies set out in Clause 5.
If the Goods and/or Services are not delivered on the Delivery Date, or do not comply with the undertakings set out in Clause 3.1 or Clause 4.4, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods and/or Services, the Customer may exercise any one or more of the following remedies:
to terminate the Contract;
to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier's own risk and expense;
to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
to require the Supplier to re-perform the Services to the Customer's satisfaction, or to provide a full refund of the cost of the unsatisfactory Services (if paid);
to refuse to accept any subsequent delivery of the Goods and/or Services which the Supplier attempts to make;
to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods or services from a third party; and
to claim damages for any other costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier's failure to carry out its obligations under the Contract.
These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
The Customer's rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
TITLE AND RISK
Title and risk in the Goods shall pass to the Customer on completion of delivery.
PRICE AND PAYMENT
The price of the Goods and/or Services shall be the price set out in the Order.
The price of the Goods and/or Services:
excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
includes the costs of packaging, insurance and carriage of the Goods.
No extra charges shall be effective unless agreed in writing with the Customer.
The Supplier may invoice the Customer for price of the Goods and/or Services plus VAT at the prevailing rate (if applicable) on or at any time after the completion of delivery. The Supplier shall ensure that the invoice includes the date of the Order, the invoice number, the Customer's order number, the Supplier's VAT registration number and any supporting documents that the Customer may reasonably require.
The Customer shall pay correctly rendered invoices within 30 days of receipt of the invoice, unless alternative terms are agreed in writing with the Supplier. Payment shall be made to the bank account nominated in writing by the Supplier.
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 shall pay interest on the overdue amount at the rate of 2% per annum above Barclays Bank's 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 defaulting party shall pay the interest together with the overdue amount. This clause shall not apply to payments the defaulting party disputes in good faith.
The Customer may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier.
The Supplier shall keep the Customer indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Customer as a result of or in connection with:
any claim made against the Customer 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 Goods and/or Services, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
any claim made against the Customer by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods and/or Services, to the extent that the defects in the Goods and/or Services are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods and/or Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
This Clause 8 shall survive termination of the Contract.
During the term of the Contract and for a period of 2 years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Customer's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
This Clause 10 shall survive termination of the Contract.
COMPLIANCE WITH RELEVANT LAWS AND POLICIES
In performing it obligations under the Contract, the Supplier shall:
comply with all applicable laws, statutes, regulations and codes from time to time in force; and
comply with the Mandatory Policies.
The Customer may immediately terminate the Contract for any breach of Clause 11.
The Customer may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract.
Without limiting its other rights or remedies, the Customer may terminate the Contract with immediate effect by giving written notice to the Supplier if:
the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 days when the Goods and/or Services are the provision of food and/ or drink or 7 days for all other Goods and/or Services, of that party being notified in writing to do so;
the Supplier 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 or ceasing to carry on business;
the Supplier takes any step or action in connection with the Supplier being made bankrupt, entering any composition or arrangement with his creditors, having a receiver appointed to any of his assets, or ceasing to carry on business;
the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
the Supplier's financial position deteriorates to such an extent that in the Customer's opinion the Supplier's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination.
Clauses that expressly or by implication survive termination of the Contract shall continue in full force and effect.
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure results from an event, circumstance or cause beyond its reasonable control. If the period of delay or non-performance continues for four (4) days, the party not affected may terminate the Contract by giving 7 days' written notice to the affected party.
Assignment and other dealings
The Customer may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract.
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 the Customer.
Subcontracting. The Supplier may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of the Customer; save that the Supplier may engage a courier or other agent to deliver the Goods. If the Customer consents to any subcontracting by the Supplier, or where the Supplier appoints a courier or agent to deliver the Goods, the Supplier shall remain responsible for all the acts and omissions of its subcontractors, couriers or agents as if they were its own.
Entire agreement. The Contract (together with all other documents to be entered into pursuant to it) 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.
Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Customer.
Waiver. Except as set out in Clause 2.4, no failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
Any notice given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service or commercial courier.
A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 14.7(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed.
This clause does not apply to the service of any proceedings or other documents in any legal action, or other method of dispute resolution.
Third party rights. No one other than a party to the Contract and their permitted assignees shall have any right to enforce any of its terms.
Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.