Terms and Conditions for the sale of Animal Feeds
1.1 In these Conditions:
BUYER means the person, firm, business or company who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller.
GOODS mean the goods (including any instalment of goods) which the Seller has agreed to supply in accordance with these Conditions.
SELLER means Humphrey Feeds Limited, Hazeley Road, Twyford, Winchester, Hampshire, SO21 1QA, company number 00884405.
CONDITIONS means the standard terms and conditions of sale set out in this document and (unless the content otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
CONTRACT means the contract for the purchase and sale of the Goods between the Seller and Buyer, incorporating the Conditions.
DELIVERY POINT means the place at which delivery is to take place under condition 4.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.4 In these Conditions, words denoting the singular shall include the plural and vice versa: words denoting any gender shall include all genders, and words denoting persons shall include bodies corporate, partnerships and individuals.
2 BASIS OF THE SALE
2.1 Subject to any variation under condition 2.3 the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Seller's sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of the Seller. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract. Nothing in this condition shall exclude or limit the Seller's liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Buyer from the Seller shall be deemed to be an offer by the Buyer to buy Goods subject to these Conditions. The Buyer acknowledges and agrees that acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer's acceptance of the Conditions.
2.5 An order is deemed to have been received from a Buyer either when placed by phone, fax, email or online ordering. Written confirmation may be requested by the Buyer.
2.6 The validity period of any quotation is stated on the quotation, and the Seller reserves the right to withdraw the quotation prior to the expiry time.
2.7 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted on entirely at the Buyer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.8 No oral or written information or advice given by the Seller, its employees, distributors, dealers or agents shall create any warranty of any kind. Unless otherwise agreed between the parties, advice by the Seller to the Buyer shall not form part of the Contract.
3.1 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.2 The details of the Goods and any specification for them shall be as set out in the Seller's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Seller).
3.3 Where Goods are made to the Buyer’s specific specification, the Seller’s has no liability for damage caused as a result of such specification being nutritionally inadequate for the animals for which it is used by the Buyer.
3.4 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or E.U. requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance.
3.5 No order which has been accepted by the Seller may be cancelled by the Buyer except (i) as expressly permitted by these Conditions or (ii) with the agreement of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4.1 Delivery of the Goods shall be made by either the Seller delivering the Goods to the Buyer's premises within the agreed delivery window or the Buyer collecting the Goods at the Seller's premises at a pre agreed collection time.
4.2 Any dates specified by the Seller for delivery of the Goods are intended to be an estimate and time for delivery shall be made within a reasonable time as agreed between the parties.
4.3 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Seller is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Seller's negligence);
(b) the Goods shall be deemed to have been delivered; and
(c) the Seller may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.4 The Buyer shall provide at the Delivery Point and at its expense adequate, safe and appropriate access, equipment and labour for loading or unloading the Goods, as applicable. From a health and safety perspective any assistance given by employees, sub-contractors or others of the Seller shall be at the risk of the Buyer. Without prejudice to the foregoing, the conditions and area for delivery of the Goods must meet the Seller’s health and safety requirements.
4.5 The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
4.6 If the Seller fails to deliver the Goods (or any instalment) for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault, and the Seller is accordingly liable to the Buyer, the Seller's liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
5 RISK AND PROPERTY
5.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
(a) in the case of Goods to be delivered at the Seller's premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
(b) in the case of Goods to be delivered other than to the Seller's premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
5.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of all sums due or owing by the Buyer to the Seller on any account whatsoever.
5.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee and shall keep the Goods properly stored, protected and insured, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property, but the Buyer may resell or use the Goods in the ordinary course of its business.
5.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller may at any time require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
5.5 The Buyer shall not be entitled to pledge, create a lien over or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable.
5.6 The recovery by the Seller of any Goods from the Buyer under this Condition shall be without prejudice to the rights of the Seller to sue for the sale price. Furthermore, the Seller may sue for the price of the Goods even if property in the Goods has not passed to the Buyer.
6.1 Unless otherwise agreed by the Seller, the price for the Goods shall be the price notified to the Buyer. Additives will be priced separately.
6.2 The notification given to the Buyer shall specify whether the goods are to be delivered, or collected and packaging if any. The price shall be exclusive of any value added tax.
6.3 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, currency regulation or alteration of duties), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
6.4 The price of the Goods is subject to alteration by reason of the imposition of or alteration by the EU or by the United Kingdom Government in the rates and/or manner of collection of any tax, duty, levy or any other statutory charge upon goods of this description, whether at the time of or if the change is retrospective at any time after the date of the Contract provided that the change is applicable to the date of delivery.
7.1 Subject to condition 7.3, the payment of the price for the Goods shall be due on such timescale as is specified by the Seller. Time for payment shall be of the essence.
7.2 No payment shall be deemed to have been received until the Seller has received cleared funds.
7.3 All payments payable to the Seller under the Contract shall become due immediately on its termination despite any other provision. If the Seller has contracted for the forward purchase of raw materials on the Buyer’s behalf or at the Buyer's request for any period, the Seller reserves the right to recover any costs that the Seller incurs as a result of such contract on termination of the Contract, including but not limited to the cost of disposal of those raw materials.
7.4 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.
7.5 If the Buyer fails to pay the Seller any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Seller on such sum from the due date for payment at the rate of 2% per month, accruing on a daily basis until payment is made, whether before or after any judgment.
7.6 Without prejudice to any other rights available to it, the Seller may suspend performance of its obligations under the Contract if the Buyer is in breach of any of its obligations under the Contract or under any other contract with the Seller, including but not limited to the payment of any monies due or owing. The right to suspend shall continue until the breach is remedied in full.
8.1 The Seller shall provide the Buyer with a statutory statement (as defined in the Agriculture Act 1970) (the "Statutory Statement") as and when required. The Statutory Statement shall contain the actual amounts and other particulars required by the Agriculture Act 1970, as at any time amended, and a warranty as to the accuracy of the Statutory Statement and a warranty in accordance with section 72 of the Agriculture Act 1970, if applicable, shall be the only warranties given by the Seller under this Contract. Such warranties shall be specific to the condition of the Goods at the time of delivery.
8.2 References to the Agriculture Act 1970 shall be deemed to include any replacement or amendment of that Act.
8.3 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.1 A claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within five days after discovery of the defect or failure. Where the Buyer or his nominated haulier collects the Goods it is the responsibility of the Buyer, or its haulier on the Buyer's behalf, to inspect and accept the Goods before loading.
9.2 All claims other than those in condition 9.1 above must be notified so as to be received by the Seller within 28 days of arrival of the Goods at their ultimate destination within the United Kingdom or of their collection by or on behalf of the Buyer.
9.3 The Seller shall not be liable for a breach of any of the warranties in condition 8.1 unless:
(a) the Buyer gives written notice of the defect to the Seller the Seller is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Seller) returns such Goods to the Seller's place of business at the Seller's cost for the examination to take place there.
9.4 The Seller shall not be liable for a breach of the warranties in condition 8.1 if
(a) the Buyer makes any further use of such Goods after giving such notice; or
(b) the defect arises because the Buyer failed to follow the Seller's instructions as to the storage or use of the Goods or (if there are none) good industry practice.
9.5 Subject to condition 9.3 and condition 9.4, if any of the Goods do not conform with any of the warranties in condition 8.1, the Seller shall at its option replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Seller so requests, the Buyer shall, at the Seller's expense, return the Goods or the part of such Goods which is defective to the Seller.
9.6 If the Seller complies with condition 9.5 it shall have no further liability for a breach of any of the warranties in condition 8.1, in respect of such Goods.
9.7 The Seller and the Buyer shall endeavour to deal with all claims in a fair and confidential manner.
10 FORCE MAJEURE
10.1 The Seller shall not be liable or be deemed to be in breach of this Agreement for any delays or failures in performance of the Contract Agreement which result from circumstances beyond the reasonable control of the Seller including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, telecommunication or computer system failure, breakdown of plant, machinery or vehicles, lock-outs, strikes or other labour disputes (whether or not relating to the Seller's workforce), restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, or failure or delay of suppliers to the Seller. Where it is possible to do so the Seller shall use its reasonable endeavours to offer suitable alternative goods but shall not be bound to do so at the same price(s) as may be in the Contract.
10.2 Without prejudice to the generality of condition 10.1, in the event that a raw material supplier is unable to fulfil its contracts with the Seller for any reason, the Seller reserves the right to:
(a) cease the supply of the Goods to the Buyer (without any liability to the Buyer for so doing); or
(b) renegotiate the Contract price with the Buyer; or
(c) offer a reformulation of the compound feed maintaining the original price.
If the Buyer will not accept a revised Contract price or reformulation, the Seller may terminate the Contract with no liability to the Buyer.
11.1 The Buyer shall be responsible for ensuring that its employees, servants and agents shall, take all necessary protective precautions in the handling and use of the Goods to comply with such COSHH and medicated feed regulations that apply. Product information literature can be supplied by the Seller on request by the Buyer.
12.1 Subject to condition 4, condition 8 and condition 9, the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these Conditions;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
12.2 Subject to condition 8.3 and condition 12.3:
(a) the Seller's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the value of the consignment of Goods to which the claim relates; and
(b) the Seller shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
12.3 Nothing in these Conditions shall limit the Seller's liability to the Buyer for:
(a) death or injury resulting from the Seller's negligence;
(b) fraud or fraudulent misrepresentation;
(c) any matter, liability for which the Seller cannot legally limit or exclude or attempt to limit or exclude.
13 SALMONELLA & MYCOTOXINS
13.1 The Seller will observe DEFRA’s Code of Practice for the control of salmonella in the production of final feed for livestock, or any amendment thereof.
13.2 The Buyer acknowledges and agrees that salmonella and mycotoxins are ubiquitous, and as such cannot be completely eliminated from animal feeds. Therefore, where the Seller has complied with DEFRA's Code of Practice for the control of salmonella in the production of final feed for livestock, the Seller shall have no liability if there are salmonella or mycotoxins present in any Goods.
13.3 The Goods shall be available for delivery or collection as required under the Contract irrespective of salmonella sampling/monitoring/testing.
13.4 In the event that DEFRA issues an order preventing the movement of the contractual Goods prior to the date of delivery under the Contract (the "Order"), the Seller shall notify the Buyer in writing within 2 business days of the Order and the delivery shall then be delayed until the Order is lifted, provided this does not exceed 30 consecutive days.
13.5 If the Order delays delivery in excess of 30 consecutive days then the Buyer shall have the option of cancelling the delayed portion of the Contract, such option to be exercised by the Buyer giving notice to be received by the Seller not later than the first business day after the 30 day period. If the Buyer does not exercise this option, such delayed portion shall be automatically extended for a further period of 30 days.
13.6 If delivery is prevented for more than the further 30 consecutive days extension, the Contract shall automatically terminate.
13.7 The Buyer shall have no claim against the Seller for delay or non-fulfilment due to an Order provided that the Seller shall have supplied to the Buyer, if required, satisfactory evidence justifying the delay.
14 ADVENTITIOUS CONTAMINATIONS
14.1 It is not possible to purchase raw materials that are 100% biologically pure, so raw materials and therefore finished feeds are susceptible to adventitious contamination from weed seeds, vetches, bacteria, moulds and mycotoxins. Due to the nature of organic raw materials and feeds where chemicals such as pesticides, fungicides and many preservatives are prohibited, contamination may more severely impact on organic livestock performance. The Seller shall not be liable for any damages incurred, whether direct, indirect or consequential, due to contamination and anti-nutritional factors inherent in conventional and organic feeds.
15 ALTERNATIVE DISPUTE RESOLUTION
15.1 If any dispute arises in connection with the Contract directors or other senior representatives of the parties with authority to settle the dispute will, within 10 days of a written request from one party to the other, meet in a good faith effort to resolve the dispute.
15.2 If the dispute is not resolved at that meeting, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (the "ADR notice") to the other party to the dispute requesting a mediation. A copy of the request should be sent to CEDR Solve. The mediation will start not later than 20 days after the date of the ADR notice.
15.3 Subject to condition 15.4, no party may commence any court proceedings in relation to any dispute arising out of the Contract until it has attempted to settle the dispute by mediation and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
15.4 Neither party shall be obliged to follow procedures set out above where that party intends (in good faith) to apply to a court for an interlocutory injunction or other equitable remedy against the other. Furthermore, neither party shall be obliged to follow such procedures where it wishes to bring a claim for payment of an undisputed amount which is overdue for payment.
16.1 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
16.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
16.3 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
16.4 Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
16.5 The Seller may assign the Contract or any part of it to any person, firm or company. The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
16.6 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
16.7 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principle place of business or such other address as may at the relevant time have been notified pursuant to this condition to the party giving the notice.
16.8 The Contract 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 submit to the non-exclusive jurisdiction of the English courts.