1. TERMS ON WHICH WE WILL SUPPLY YOU WITH GOODS
In these terms the following words have the following meanings:
your order for the supply of Goods by us to you, which we have accepted in accordance with these terms.
a confirmation of an order in writing by us to you to confirm we accept it.
the customer ordering the Goods, as identified in the Confirmation (you and your).
Fentimans Ltd (we and us), registered in England and Wales under company number 02967193, whose registered office is at Fearless House Beaufront Park, Anick Road, Hexham, Northumberland, NE46 4TU.
(i) a breach by us of the Agreement; and (ii) any other act or failure to act by us (including negligence), breach of statutory duty, misrepresentation or misstatement by us in connection with the Agreement.
the goods you have ordered from us, identified in our Confirmation.
a situation where any one of the following things happens in relation to a party:
a. any step or action is taken, any notice, document, petition or application is filed at court, or any resolution is passed, in connection with that party entering administration, a moratorium, provisional liquidation, a company voluntary arrangement, an arrangement under Part 26A of the Companies Act 2006 or any other composition or arrangement with its creditors (other than in relation to a solvent restructuring), bankruptcy, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring) or having a receiver appointed over any of its assets;
b. an event similar or analogous to those listed in a. above occurs under the law of any jurisdiction of a party; or
c. a party suspends, or threatens to suspend, or ceases, or threatens to cease, to carry on all or a substantial part of its business.
the amount you will pay for the Goods stated in the price list (as published or otherwise notified by us to you, which may be amended by us from time to time) or as may otherwise be agreed in writing between us and you.
Monday to Friday excluding public and bank holidays in England and Wales.
2. UNDERSTANDING THESE TERMS
2.1 The Agreement will be subject to these terms, which override any other terms which you try to apply or which are implied through business or our arrangement together.
2.2 If there is conflict or inconsistency between (i) the Confirmation (ii) these Clauses (iii) the order, the earlier listed document shall prevail to the extent there is conflict or inconsistency. For export customers where any provision in these conditions of sale conflicts with an express term of the Distribution Agreement, the provisions of the Distribution Agreement shall prevail.
2.3 We supply to businesses and trade customers only under these terms. You acknowledge that you are not acting as a consumer.
3. START AND LENGTH OF THE AGREEMENT
3.1 When you order something from us, and we accept that order by sending a Confirmation, a legal contract is created (which we will call the Agreement in this document).
3.2 The Agreement lasts until both of us have done everything we agreed to do under the Agreement.
4.1 Things we have said
4.1.1 If we have said anything about goods we offer elsewhere in any document or information provided by us this is not part of the Agreement between us.
4.1.2 Any mistake in anything we have said outside these terms was not intentional or fraudulent and you will not bring any claim against us based on one of these mistakes.
4.2 We will not trade on your terms
We will only supply the Goods based on these terms; we will not use any terms that you put forward.
4.3 How you order
4.3.1 To order Goods from us you must send us a purchase order form by email, electronic data interchange or as may otherwise be agreed between us.
4.3.2 Each order is an offer by you to buy the Goods specified in the order subject to these terms.
4.3.3 Our order process allows you to check and amend any orders before submitting your order to us. Please check the order carefully before confirming it. You are responsible for ensuring that your order is complete and accurate.
4.3.4 When you have placed an order, we will decide whether we can supply you, we will make this decision within seven (7) Working Days of receipt of your order.
4.3.5 If we decide to accept your order, we will accept by sending a Confirmation or, if earlier, delivery of the Goods, at which point the Agreement between you and us will come into existence.
4.3.6 We may choose not to accept your order for any reason, and we will not be liable to you or to anyone else in those circumstances. If we do not accept your order (whether in whole or in part) we will refund any monies paid in connection with that order (or that part of the order that we do not accept).
5. DETAILS OF WHAT WE’LL PROVIDE
5.1 What we will supply
On the basis of the Agreement, we will supply the Goods and you will accept them and pay for them.
5.2 Quality of Goods
5.2.1 Other than where clause 5.2.2 or clause 5.3 applies, we will ensure that the Goods will on delivery conform in all material respects with their description.
5.2.2 Due to the natural variation of ingredients used in our Goods, some of our Goods may be sensitive to direct sunlight which means that we cannot guarantee that the colour of the Goods accurately reflects any advertising, promotional material, illustrations and/or similar information published or issued. The colour of your Goods may vary from those images.
5.3 Goods you have to accept
5.3.1 You will not bring any claim under clause 5.2.1 if:
(a) the Price for the Goods has not been paid by the due date for payment; or
(b) any defect in the Goods is because:
6.1.1 We may invoice you at any time after you have placed an order.
6.1.2 You will pay our invoice, without deducting any amount we may owe you, within thirty (30) Working Days after the date of our bill and you must pay our invoice by paying money into a bank account we have nominated.
6.1.3 If VAT is payable in relation to our bill, you will pay the VAT.
6.2 Interest on late payments
If you are late in paying us, we may charge you interest at the rate set out in relevant legislation.
Unless we have agreed otherwise between us the price we have quoted for the Goods does not include any additional costs like transport, packaging, insurance or payments which have to be made to a third party, you will pay any of these other costs which apply to your order.
7.1 When we will deliver under the Agreement
7.1.1 Any dates or times we give you for delivery of the Goods are only estimates but we will try to deliver at the date or time you have asked us to.
7.1.2 We will contact you with an estimated delivery date, which will be within three (3) working days after the date of the Confirmation (for export orders see Clause 7.5). Occasionally our delivery may be affected by an Event Outside Our Control. See clause 16.1(Events Outside Our Control) for our responsibilities when this happens.
7.1.3 The method of delivery shall be as specified in the Confirmation and shall be determined by us in our sole discretion. For export customer see clause 7.5 below.
7.1.4 If Goods will not be exported outside the United Kingdom delivery is complete once the Goods have been made available for unloading (or we have attempted to deliver them pursuant to clause 7.2) at the delivery point requested by you in your order and confirmed in the Confirmation or as otherwise agreed in writing between us.
7.2 If you do not allow us to deliver the Goods
7.2.1 If you do not allow us to deliver or accept delivery of the Goods in accordance with these terms, the Goods will be deemed delivered and we can (at our option):
(a) store the Goods at your risk until actual delivery can take place and charge you for the reasonable costs (including insurance) in connection with such storage; or
(b) terminate the Agreement without any liability on us.
7.3 Delay in delivery
We will not compensate you if delivery of the Goods is delayed.
7.4 No Delivery due to Fentimans Fault
Subject to clause 15 (Limitation of Liability) if we do not deliver the Goods because of a Fentimans Fault, we will only be liable for the difference in price between the Price we have agreed in the Agreement and the price you paid for obtaining replacement goods of a similar description and quality in the cheapest market available. For the avoidance of doubt, we will not be liable to the extent that any failure to deliver was caused by an Event Outside Our Control, delivery of the Goods was delayed or because you failed to provide adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7.5 Additional Provisions Applicable to the Export of Fentimans Products
7.5.1 The following provisions shall apply to Agreements which relate to the export of Goods outside of the United Kingdom and shall be subject to the express terms of any agreed contract between us.
7.5.2 Goods sold outside of the United Kingdom by us will be on an FCA basis. You will arrange for the physical exportation of Goods directly from one of our UK warehouse locations (as specified in the Confirmation or as otherwise agreed in writing between us) which shall be the delivery point for the purposes of all Agreements for the export of Goods.
7.5.3 This will mean that all responsibilities, arrangement and payments from point of collection through to delivery to your location will be borne by you unless stated below, which shows our responsibilities.
7.5.4 Our export responsibilities under FCA Incoterms will be as follows, we will:
(a) load the Goods on to collecting vehicle (or attempt to load the Goods) – at this point the responsibility of safety transfers to the haulage company and/or you and delivery is complete;
(b) arrange and pay for export customs declaration; and
(c) provide supporting documents to help populate import declarations and required documentation for travel.
7.5.5 As per the FCA Incoterms, we will be the exporter of record and we will assume responsibility and cost of the export customs declaration. All other costs and responsibilities for collection, exporting and delivery to your location are the responsibility of you.
7.5.6 All Goods purchased should be inspected at the time of delivery in accordance with clause 11 and any obvious loss or damage must be noted on any delivery documents signed by or on your behalf. We accept no responsibility for loss of or damage to the Goods in transit unless you:
8. OWNERSHIP OF THE GOODS
You will own the Goods when you have paid us for them in full, including all applicable Expenses.
8.2 Control of Goods
8.2.1 If you are in possession of the Goods but do not own them you will:
(a) hold the Goods as our fiduciary bailee;
(b) keep the Goods separate from other goods, not interfere with them and keep them in a satisfactory condition; and
(c) insure the Goods in our name for their full price against all risks, holding any pay out on trust for us in a separate bank account.
8.2.2 Until you own the Goods we can get them back from you or resell them.
8.2.3 We have a licence to come onto your premises, without notice, where we know or think we know that the Goods are stored to assess if you are complying with clause 8.2.1 or to get the Goods back in accordance with clause 8.2.2.
8.2.4 You will obtain a licence for us to go onto another person's premises where the Goods are stored so that we can exercise the rights listed under clause 8.2.3.
The risk associated with loss or damage to the Goods passes from us to you when delivery happens in accordance with clause 7.
10. ACCEPTANCE OF GOODS
10.1 Goods you must accept
You must accept all Goods which comply with clause 5.2.1(Quality of Goods), but you can reject any Goods which do not comply unless the defect is so slight that you would be acting unreasonably if you rejected them.
10.2 Indicating acceptance and rejection
10.2.1 If you sell or give the Goods to a third party you will be taken to have accepted the Goods.
10.2.2 If you reject the Goods you will return them to us on the basis of our instructions and at your cost.
11. INSPECTION OF THE GOODS
11.1 Time for inspection
11.1.1 All Goods purchased should be inspected at the time of delivery in accordance with this clause 11 and any obvious loss or damage must be noted on any delivery documents signed by or on your behalf. We accept no responsibility for loss of or damage to the Goods in transit unless you:
(a) examine the Goods at the time of delivery;
(b) retain for inspection all damaged Goods and packaging material;
(c) clearly endorse any delivery documents with details of any discrepancy, obvious loss or damage; and
(d) notify us (and when applicable any independent carrier), in writing, of any claim for loss or damage before the expiry of the third day following delivery providing a copy of the endorsed delivery documents signed by or on your behalf together with photographs of any defects, of the seal used (if applicable) and whether you are rejecting the Goods.
12. OUR REMEDIES
12.1 Refund or replacement
12.1.1 If we confirm that you have a valid claim in relation to defective Goods, we shall at our option either replace the defective Goods as soon as reasonably practicable free of charge, or refund the Price paid for the defective Goods.
12.1.2 The remedies in this clause 12 shall be your sole and exclusive remedy for any defective Goods.
12.1.3 These terms apply to any replacement Goods supplied by us to you.
12.2 Set Off
We can deduct any amount owed by you to us from any amount held by us for you or due to you from us and we will pay you the balance once these deductions have been made.
12.3 Stoppage of Goods in transit
If any payment to us is overdue under the Agreement we may refuse to send the Goods to you, stop Goods which are in the process of being sent to you and take these Goods back. You must pay our costs of stopping transit and taking back the Goods.
13.1 Without limiting any of our other rights, we may suspend the supply or delivery of the Goods to you, resell the Goods at whatever price we wish and/or terminate the Agreement with immediate effect by giving written notice to you if:
13.1.1 you are in material breach of the Agreement and it cannot be corrected within thirty (30) days of you being notified in writing to do so;
13.1.2 you do not pay any sum when it is due under the Agreement;
13.1.3 you do not allow us to deliver the Goods in breach of clause 7.2;
13.1.4 you reject the Goods in breach of clause 10.1(Goods you must accept);
13.1.5 you become Insolvent; or
13.1.6 your financial position deteriorates to such an extent that in our reasonable opinion your capability to adequately fulfil your obligations under the Agreement has been placed in jeopardy.
14. WHAT HAPPENS ON TERMINATION
14.1 The termination of the Agreement does not affect:
14.1.1 any rights or liabilities either party has obtained before termination or
14.1.2 clauses 15 (liability) and 12 (Our Remedies) which will continue to apply after the termination of the Agreement.
15. LIMITATION OF LIABILITY
This clause 15 sets out our entire financial liability in respect of Fentimans Fault.
15.2 Death, personal injury and fraud
Nothing in the Agreement affects our liability for death or personal injury caused by our negligence, fraud, fraudulent misrepresentation or any other liability which cannot be excluded or limited by law.
15.3 Financial limitation
Subject to clause 15.2 and any specific limitations and exclusions under these terms, our total liability for all Fentimans Faults arising from or in connection with the Agreement is limited to the Price of the Goods.
15.4 Losses for which we will not be liable
15.4.1 Subject to clause 15.2, we will not be liable whether for a Fentimans Fault or otherwise, under or in connection with the Agreement for:
(a) loss of profit;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of damage to reputation;
(f) loss of damage to goodwill;
(g) loss of revenue;
(h) loss of or damage to data; and/or
(i) any consequential or indirect loss.
15.4.2 We will not be liable for these categories of losses whether or not they are a natural result of the breach or could be (or were) considered or foreseen by either of us, or otherwise.
15.5 No implied terms
Any terms which are not included in the Agreement but could be implied into the Agreement by law or otherwise (other than as to statutory interest or title to the Goods) are excluded from the Agreement as far as the law allows us to do so.
16.1 Events outside of our control
16.1.1 We will not be liable if we are delayed, prevented or face difficulty in performing any of our obligations under the Agreement due to circumstances beyond our reasonable control including, without limitation, acts of God, breakages of machinery, shortages of materials or utilities, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, floor, epidemic, pandemic (including Covid-19), any law or action taken by a public authority including restrictions on import or export, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials (Event Outside Our Control).
16.2 Communications between us
16.2.1 When we refer to "in writing" in these terms, this includes email.
16.2.2 Any notice or other communication given by one of us to the other under or in connection with the Agreement must be in writing and be delivered personally, sent by pre-paid first-class post or other next working day delivery service, or email.
16.2.3 A notice or other communication is deemed to have been received:
(a) if delivered personally, on signature of a delivery receipt;
(b) if sent by pre-paid first-class post or other next wording day delivery service, at 9.00am on the second working day after posting; or
(c) if sent by email, at 9.00am the next working day after transmission.
16.2.4 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
16.3 Complete agreement and amendments
16.3.1 The Agreement is the entire agreement between us in relation to the Goods, it replaces all previous representations, agreements, negotiations and understandings between you and us.
16.3.2 We both agree that we have not relied on any statement, promise or representation or assurance or warranty not contained in the Agreement.
16.3.3 No amendment to the Agreement is effective unless we both agree to it in writing.
16.4 Remedies general
16.4.1 We are entitled to exercise any and all of our rights under the Agreement and these rights do not affect each other or any other rights we have under the law.
16.4.2 Your rights under the Agreement are your only rights in relation to the Goods.
16.5 Rights of third parties
Unless we have clearly said so in the Agreement, the Agreement is not enforceable by anyone except you and us.
16.6 Waiver, assignment and no partnership
16.6.1 Any failure by us to enforce our rights under the Agreement will not affect our other rights under the Agreement and it does not affect our ability to exercise any rights in future.
16.6.2 You will not assign or transfer your rights or obligations under the Agreement to another person without our written permission.
16.6.3 We may assign or transfer our rights and obligations under the Agreement to another entity.
16.6.4 The Agreement does not create a partnership between us.
Each paragraph of these terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
16.8 Governing Law and Jurisdiction
16.8.1 This Agreement is governed by English Law;
16.8.2 The courts of England and Wales will have exclusive jurisdiction to consider disputes arising under or in relation to the Agreement.