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Vital Pet Products Limited & Associated Companies – Terms & Conditions of Sale (October 2010)

  1. General
    1.1
    In these terms and conditions, “we/us/our” means Vital Pet Products Limited (No. 2121746) or such Affiliate of Vital Pet Products Limited with which you enter into a contract for the supply of Goods; “you/your” means the person, company or other legal entity purchasing the Goods; “Affiliate” means any subsidiary or holding company of Vital Pet Products Limited and any subsidiary of any such holding company, in each case from time to time; “Goods” means all goods sold by us to you; and “Conditions” means these terms and conditions of sale and “Condition” shall be construed accordingly.
    1.2
    These Conditions are the only conditions on which we sell goods. Unless otherwise mutually agreed in writing, they will apply notwithstanding any other terms set out on or referred to in any order, letter, contract or other communication sent by you to us. None of our representatives, depot staff or drivers are authorised to agree to any other conditions or to vary these Conditions.
    1.3
    These Conditions supersede any previous conditions between you and us (whether oral or in writing) and also supersede any previous course of dealing, trade custom or understanding between you and us.
    1.4
    We reserve the right to make one or more searches about you with a credit reference agency. If we do so, we will keep a record of that search(es) and may share that information with other businesses. We may also make enquiries about your directors with a credit reference agency. We will monitor and record information relating to your trade performance and such records may be made available to credit reference agencies, who may share that information with other businesses. In accepting these Conditions, you expressly consent to us doing so.

  2. Orders
    2.1
    Our quotations do not constitute an offer by us. Orders placed by you shall not be binding on us until we accept and process your order. Each order is a separate contract.
    2.2
    Each order for Goods by you shall be deemed to be an offer by you to purchase Goods subject to these Conditions. An order for Goods may not be cancelled by you except with our written agreement (in our absolute discretion) and the payment by you to us of such amount as may be necessary to indemnify us against all loss resulting from the said cancellation.
    2.3
    No Goods are offered on a sale or return basis and our representatives are not authorised to accept orders on this basis. It is, therefore, your responsibility to sell the Goods prior to the expiry of any “sell by”, “best before”, “use by” or similar date.

  3. Prices and payment
    3.1
    The prices of the Goods shall be the price shown in our price list on the date of your order. All prices quoted are exclusive of value added tax and any charges for delivery.
    3.2
    If we believe you have been charged an incorrect price we reserve the right to rectify our invoice. If you believe you have been charged an incorrect price, you must notify us of this within five working days from the date of the invoice.
    3.3
    Unless you have an approved credit account with us or we have otherwise given our prior consent in writing, all Goods must be paid for prior to delivery/collection. If you have an approved credit account, we may invoice you for the price of the Goods on or at any time after delivery or collection of the Goods and you shall pay the price of the Goods within the period agreed by us and notified to you. Time of payment is of the essence.
    3.4
    If at any time any invoices are overdue or any cheque presented, and/or direct debit set up, by you is dishonoured or stopped, we reserve the right to declare that all unpaid balances owing to us from you shall become immediately due and payable.
    3.5
    At all times, you shall pay our invoices without deduction by way of set-off counterclaim or otherwise howsoever.
    3.6
    Interest shall be charged by us at 8% over the base rate from time to time of The Royal Bank of Scotland plc (or, if higher, at the rate specified in the Late Payment of Commercial Debts (Interest Act) 1998) on all sums overdue for payment both before and after judgment. We may also claim reasonable compensation for debt recovery costs as specified in the Late Payment of Commercial Debts Regulations 2002.
    3.7
    In the event of a cheque payment and/or direct debit payment being returned by the bank unpaid, you will be responsible for (and shall pay us on demand) all bank charges which we incur as a result, together with an administration fee of £25 (exclusive of VAT).
    3.8
    We shall endeavour to comply with reasonable requests to supply copies of delivery notes, invoices and/or statements. This service will be subject to a charge of £5 per copy (exclusive of VAT), which charge(s) shall be a debt due from you to us on demand.
    3.9
    Should you wish to pay by credit card, you will be responsible for (and shall pay us on demand) any service charge(s) which we incur (from the credit card provider and/or bank) as a result.
    3.10
    All payments must be made in sterling.

  4. Credit account
    4.1
    If we approve an application for a credit account, we may set such credit limit as we deem appropriate and we may also vary that credit limit from time to time as we deem appropriate.
    4.2
    We reserve the right, at our discretion and without prior written notice, to immediately terminate or suspend availability of the credit account if: (a) any of the circumstances detailed at paragraphs (a)-(e) of Condition 7.1 arise; or (b) any other circumstances arise which, in our view, suggest it would be prudent to do so and, in each case, all amounts outstanding from you to us will become immediately due and payable.

  5. Delivery and acceptance
    5.1
    All delivery dates quoted or agreed by us are estimates only and time of delivery shall not be of the essence. We shall not be liable for any direct or indirect loss or damage resulting from any delay in delivery, howsoever caused.
    5.2
    Requests for goods to be sent by post will incur a postage and packaging fee payable by you, which fee will be added to the invoice for those Goods.
    5.3
    Collection of Goods from our depots must be made at times convenient to the individual depot concerned.
    5.4
    If for any reason you fail to accept delivery of any of the Goods or we are unable to deliver Goods because you have not provided appropriate instructions or authorisations or you fail to collect the Goods as arranged, then we may thereafter (at our sole discretion) store the Goods for your account (and the cost (including insurance) shall be a debt due from you to us on demand) or sell the Goods at the best price readily obtainable and any shortfall below the price agreed between you and us shall be a debt due from you to us on demand, provided that nothing in this Condition shall limit any other right of ours against you or shall modify your obligations as regards payment for the Goods. In the event that we subsequently deliver the Goods to you after an initial failed delivery, you must pay us on demand for the cost of such additional delivery.
    5.5
    We may deliver the Goods in instalments. In these circumstances, the order will nonetheless be treated as a single contract and not severable and accordingly, failure by us to deliver any one or more of the instalments or any claim by you in respect of any one or more instalments shall not entitle you to treat the whole contract as repudiated. Our liability (if any) for late or non-delivery of Goods shall be limited to the price of those Goods.
    5.6
    You are responsible for providing a safe and easily accessible means of access from the public highway to the place of delivery. If our delivery staff consider that access is unsafe or not easily accessible then we will not deliver until safe and/or easy access is provided. If we are unable to deliver the Goods due to there being no safe and/or easily accessible means of access then the provisions of Condition shall apply.
    5.7
    You will pay us on demand for all pallets on which you have received Goods from us unless they are returned to us or our nominated agents in an undamaged state within a reasonable time of delivery.

  6. Damage, defects or non-compliance
    6.1
    All Goods must be signed for upon delivery/collection and should be examined by you prior to being signed for.
    6.2
    In the event that, upon delivery, you discover damaged Goods, Goods that appear to have been tampered with, Goods which are past their “sell by”, “best before”, “use by” or similar date or an incorrect delivery, you may return such Goods to us (in their original, unmarked packaging) on the vehicle in which they were delivered. The annotations or alterations should be noted on the signed delivery note (and agreed with our driver). Collection of such Goods on our behalf by the driver shall not imply that we accept the validity of the claim made by you.
    6.3
    In the event that you discover defective Goods after delivery, you must notify us within 24 hours of the delivery (or when the delivery was due), setting out full details of the damage, apparent tampering, short or incorrect delivery including a full product description and code.
    6.4
    In all cases, we must be given a reasonable opportunity following notice of complaint of examining the Goods and the Goods alleged to be defective must (upon our request) be immediately made available for collection or be returned delivery paid to our premises.
    6.5
    If you fail to give notice in accordance with Conditions 6.2 or 6.3, the Goods delivered shall be deemed to be in all respects in accordance with the contract and you shall be deemed to accept, and must pay for, the same and all claims in respect of non-delivery, loss, damage, defect or non-compliance shall thereafter be wholly barred.
    6.6
    We shall not be liable for any defects in Goods arising from, or in consequence of the manner in, or conditions under which, they are stored. In any event, our liability is limited (at our option) to replacement of the Goods (or part thereof) or refunding (by way of a credit note) the cost of the Goods which are defective/missing.

  7. Termination and force majeure
    7.1
    In the event of: a) you failing to observe or perform any of your obligations under these Conditions; or b) you being unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986; or c) any act occurring or proceedings being commenced relating to, or indicating, your bankruptcy or insolvency or possible bankruptcy or insolvency; or d) you ceasing or threatening to cease to carry on business; or e) non-payment by you of any monies due from you to us, we shall be entitled to cancel your credit account and/or suspend all or any deliveries under any order and/or, on written notice, to cancel any contract between you and us.
    7.2
    We also reserve the right to suspend delivery and/or reduce or cancel orders, and shall be released from our obligations under these Conditions, in the event of our inability through shortage of stocks or for any other reason outside our control to execute delivery wholly or in part.
    7.3
    We will not be liable for costs, damages, losses or expenses of any nature resulting from part delivery, suspension of delivery, reduction or cancellation of orders.
    7.4
    If, as a result of delivery being wholly or partially suspended pursuant to Condition, we fail to make a delivery of Goods within 8 weeks of the estimated delivery date, either you or we may cancel the order by notice in writing to the other without prejudice to any rights which have accrued before such cancellation.

  8. Property and risk
    8.1
    Risk in the Goods shall pass to you at the time of delivery of the Goods to you or your agent and you hereby undertake to insure the Goods to their full value. Title in the Goods will only pass to you when we have received cleared payment in full for the Goods plus VAT. Until all such payments have been received, full legal and equitable title shall remain with us and you shall be required to store the Goods in such a manner as to preserve their value and in such a way that they may be clearly identified as our property.
    8.2
    On the occurrence of any of the events listed at Condition 7.1 your right to possession of the Goods shall terminate immediately and, without prejudice to any of our other rights, we may recover or recall the Goods or any of them and we (and our agents) may enter upon your premises or any premises where the Goods are stored for such purpose and you hereby grant us (and our agents) an irrevocable licence to enter upon any premises occupied or controlled by you so as to recover such Goods, title to which has not passed to you (irrespective of whether such Goods can be specified, or attributed to corresponding purchase orders or delivery notes) to the value of the amount due and payable.
    8.3
    You may not pledge or in any way charge by way of security (including without limitation fixed and floating charges) for any indebtedness any of the Goods which remain our property. Without prejudice to our other rights, if you do so, all sums owing by you to us shall forthwith become due and payable.
    8.4
    We shall be entitled to recover from you payment for the Goods notwithstanding that ownership of the Goods has not passed from us.
    8.5
    Our rights contained in this Condition 8 shall continue in full force and effect notwithstanding termination of the order for Goods, howsoever caused.

  9. Warranties and liability
    9.1
    All warranties, conditions, guarantees, representations and other terms express or implied by statute, common law, trade usage, course of dealing or otherwise are, to the fullest extent permitted by law, excluded from any contract between you and us.
    9.2
    Our liability to you for any loss or damage of whatsoever nature in any way related to the sale and purchase of Goods or otherwise (whether involving our negligence or not) shall only extend to giving an appropriate credit for, or repayment of the price paid by you, for defective Goods provided always that nothing in these Conditions excludes or limits our liability for death or personal injury to humans caused by our negligence or fraudulent misrepresentation.
    9.3
    We shall not be liable to you for any pure economic loss, 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 any contract between you and us.
    9.4
    You acknowledge that the limitations of liability contained in this Condition are reasonable and that these limitation provisions have been taken into account by us in pricing the Goods.

  10. Other
    10.1
    No forbearance or delay by us in enforcing the provisions of these Conditions shall prejudice or restrict our rights, nor shall any waiver of our rights operate as a waiver of any subsequent breach, and no right, power or remedy in these Conditions conferred upon or reserved for us, is exclusive of any other right, power or remedy available to us and each such right, power or remedy shall be cumulative.
    10.2
    If any of these Conditions shall be, or held to be, invalid or shall not apply to a contract between you and us, the other Conditions shall continue in full force and effect.
    10.3
    You may not assign or transfer any contract (or any part of it) between you and us and/or your credit account with us (or any right to it) without our prior written consent. Changes in the ownership of your business must be notified to us immediately and a new account form submitted by the new owner before trading commences.

  11. Law
    11.1
    These Conditions and any contract between you and us shall be governed by English law and you agree to submit to the exclusive jurisdiction of the English courts.