Terms and conditions

DOVEY PREMIUM PRODUCTS LIMITED - TERMS & CONDITIONS OF SALE

1. Definitions
1.1 In these Conditions of Sale:
  Buyer: means the person, firm, body or company whose order for the Goods is accepted by the Seller.
  Claim: shall have the meaning given in clause 10.1.
  Dishonoured Payment: shall have the meaning given in clause 5.4.
  Due Date: shall have the meaning given in clause 5.2.
  Seller: means Dovey Premium Products Limited of 498 Blandford Road, Hamworthy, Poole, BH16 5BN, registered in England under Company number 1277972.
  Goods: means the goods the subject of the Order (including any item of the goods which the Seller is to supply in accordance with these Conditions).
  Conditions: means the standard terms & conditions of sale set out in this document as amended from time to time by the Seller.
  Contract: means the contract for the purchase and sale of the Goods between the Buyer and the Seller in accordance with the Conditions.
  Order means the Buyer’s order for the Goods given to the Seller either orally or in writing and accepted by the Seller orally or in writing at which time the Contract shall be formed.
  Writing includes facsimile transmission and e:mails.
1.2 Any reference in these Conditions to any Clauses are a reference to the Clauses of these Conditions.
1.3 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.
1.4 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Terms
2.1 Subject to Clause 2.3 hereof, any Order accepted by the Seller shall incorporate these Conditions which shall govern the Contract to the exclusion of any other terms, provisions, conditions and warranties (other than any conditions or warranty implied by English Law the exclusion or restriction of which is prohibited, void or unenforceable thereunder) even if included in or referred to in any document of the Buyer.
2.2 Any terms or conditions stipulated by a Buyer which are in rejection of, in addition to, or inconsistent with these Conditions and any others agreed to in Writing by the Seller shall be deemed to be a counter-offer to the Seller, and shall not be binding upon the Seller unless agreed to in Writing by the Seller. If the Seller rejects or does not accept this counter-offer then that rejection or non-acceptance shall be deemed to be a renewed offer to proceed on these Conditions and any others agreed by the Seller and accordingly performance by the Seller shall in that event be deemed to be governed by the terms of that renewed offer by the Seller.
2.3 No variation to these Conditions shall be binding unless agreed to in Writing by the Seller.
2.4 The Seller’s employees or agents are not authorised to make any variations to these Conditions or any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.
2.5 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 or handling of the Goods which is not confirmed in Writing by the Seller is followed or acted upon 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.
3. Orders
3.1 In placing an Order for Goods the Buyer acknowledges that all information regarding weights, measures, ingredients and other data relating to the Goods contained in brochures, price lists, advertisements and other promotional material produced by the Seller are approximate only and they are intended to present to the Buyer a general guide, the accuracy of which the Buyer must test for himself. The Buyer acknowledges that to the best of the Seller’s knowledge and belief the information contained in the above material is true and accurate as at the date of printing but that no representation of whatsoever nature has been made to the Buyer by the Seller or its agents and that the Buyer relied upon his own judgement as to the nature and quality of the Goods and their suitability for the Buyer’s purpose.
3.2 Any typographical, clerical, or other error or omission in any sales literature, price list, acceptances of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3.3 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order 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.
3.4 The Seller reserves the right to make any changes in the specification of the Goods if required to conform with any applicable statutory or regulatory requirements. The Seller may, on request from the Buyer, supply Goods to the Seller'’s specification if such specification does not, in the Seller’s opinion, materially affect their quality.
3.5 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing 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. Price of the Goods
4.1 Unless otherwise agreed in Writing by the Seller, the Seller reserves the right to vary the price quoted for the Goods in the Seller’s published price list or quotation rendered and the price of the Goods shall be the price current at the date of delivery of the Order.
4.2 The price of the Goods is inclusive of the costs and charges of packaging, loading, insurance and transport of the Goods. The cost of unloading is the responsibility of the Buyer.
4.3 The price is exclusive of any value added tax (if any), which the Buyer shall be additionally liable to pay to the Seller.
5. Payment
5.1 The Seller shall be entitled to invoice the Buyer for all sums due under the Contract on or at any time after delivery of the Goods.
5.2 The Buyer shall pay all sums due under the Contract on the date agreed between the parties (whether orally or in Writing) (the Due Date). The sums due are not deemed to have been paid until the Seller is in receipt of cleared funds. Time of payment is of the essence.
5.3 The Buyer shall pay the price in full without any discount, deduction, set off or abatement on any grounds whatsoever unless otherwise agreed in Writing by the Seller.
5.4 If the Buyer fails to make any payment on the Due Date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to exercise any of the following remedies:-
  5.4.1 cancel the Contract or suspend any further deliveries to the Buyer;
  5.4.2 appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer);
  5.4.3 exercise its statutory rights under the Late Payment of Commercial Debts (Interest) Act 1998, as amended; or;
  5.4.4 withdraw credit facilities at any time without prior notice; and
6. Delivery
6.1 Delivery of the Goods shall be made to such address as stipulated by the Buyer and accepted by the Seller at any time after the Seller notifies the Buyer that the Goods are ready. The Buyer or the Buyer’s agent shall make all arrangements necessary to take delivery of the Goods and unload the Goods whenever they are tendered for delivery by the Seller, and if the Buyer shall be unable to take delivery they will be held liable for the cost of transport.
6.2 Any dates given for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the estimated delivery date upon giving reasonable notice to the Buyer.
6.3 The Buyer shall in the event of non-delivery of the Goods, notify the Seller in Writing within 2 days from the date given by the Seller for delivery and the Seller’s liability shall be limited to the costs incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
6.4 In the event of short delivery the Seller’s liability shall be limited at the Seller’s option to making up the delivery or allowing credit in respect of the undelivered Goods.
6.5 If the Buyer requests in Writing before the delivery is despatched an earlier delivery than normal, then the Buyer will be held liable for any additional delivery costs.
6.6 The Contract is divisible. Each delivery made hereunder shall be deemed to arise from a separate contract and shall be invoiced separately; any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for herein, without reference to and notwithstanding any defect or default in delivery of any other instalment.
7. Title and Risk
7.1 The risk in the Goods shall pass to the Buyer on completion of delivery.
7.2 Title in the Goods supplied shall not pass to the Buyer until all sums due from the Buyer to the Seller however they shall have arisen have been received in full. Until title passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from all goods held by the Buyer, not remove, deface or obscure any identifying mark or packaging on or relating to the Goods and maintain the Goods in a satisfactory condition and insured and clearly identifiable as the property of the Seller. So long as title remains with the Seller, the Seller shall have the right, without giving notice and without incurring liability, to enter into the Buyer’s premises and to take possession of any of the Goods supplied by the Seller to which title has not passed to the Buyer. This right shall be without prejudice to any other legal rights or remedies available to the Seller.
8. Intellectual Property
8.1 Any labels, trade marks, logos, confidential records and other information connected with the Goods belonging to the Seller (if any), are supplied by the Seller on the express understanding that all copyright and other intellectual property rights shall vest solely in and remain with the Seller.
8.2 The Buyer agrees to assist the Seller and to do all such acts and things as the Seller’s legal advisers may advise as are necessary or desirable in order to give the Seller the full benefit of the provisions of Clause 8.1 above.
8.3 Where the Seller agrees to provide the Goods with the Buyer’s labels or packaging, the Buyer warrants that the Seller use of any trade marks or other intellectual property rights in the labels or packaging will not infringe the rights of any third party.
8.4 Where the Goods are provided with any trade mark logo or packaging of the Seller, the Buyer shall not (without prior written consent of the Seller) remove alter or make any addition to the mark logo labeling or packaging of any Goods supplied.
9. Warranties and Liability
9.1 The Seller warrants that at the time of delivery the Goods will:-
  9.1.1 in all respects comply with the Food Safety Act 1990 and all legislation or regulations governing the manufacture, packaging and supply of foods; and
  9.1.2 be of merchantable quality and correspond with the description given by the Seller.
9.2 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.3 Subject to clause 9.5, if the Buyer:
  9.3.1 inspects the Goods immediately on delivery or as soon as reasonably practicable thereafter and gives details of any defect, damage or loss on any carrier’s delivery note; and
  9.3.2 notifies the Seller within 24 hours by telephone, of any defect, damage or loss; and
  9.3.3 confirms any defect, damage or loss in Writing to the Seller within 3 days of delivery of the Goods in question; and;
  9.3.4 affords the Seller an opportunity to inspect the Goods in question within a reasonable time following delivery; and
  9.3.5 does not dispose of any such Goods without the express permission of the Seller and then only as directed by the Seller
the Seller shall, at its option, replace the Goods (or the item in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), and the Seller shall have no further liability to the Buyer.
9.4 Subject to clause 9.5, the Seller shall be under no liability in respect of any damage to or defect in the quality or condition of the Goods arising from:
  9.4.1 willful damages, negligence, misuse, abnormal storage conditions or alteration of the Goods without the Seller’s approval; or
  9.4.2 failure to follow any instructions issued by the Seller including instructions given on storage and handling; or
  9.4.3 changes made to ensure that the Goods comply with applicable statutory or regulatory requirements.
9.5 Nothing in these Conditions shall limit or exclude the Seller’s liability for:
  9.5.1 death or personal injury cased by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
  9.5.2 fraud or fraudulent misrepresentation;
  9.5.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
  9.5.4 defective products under the Consumer Protection Act 1987.
9.6 Subject to clause 9.5, the Seller shall not be liable to the Buyer whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any:
  9.6.1 loss of anticipated profits;
  9.6.2 damage to the Buyer’s reputation or goodwill;
  9.6.3 loss of business or expected future business;
  9.6.4 damages, costs or expenses payable by the Buyer to any third party; or
  9.6.5 any other indirect or consequential loss;
which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer except as expressly provided in these Conditions and the Seller’s liability (if any) arising under or in connection with the Contract whether in contract, tort or otherwise in respect of any defect in the Goods, or for any breach of statutory duty or otherwise shall be limited to the price of the Goods.
9.7 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform any of the Seller’s obligation in relation to the Goods, if the delay or failure was due to any cause or circumstance whatsoever beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:-
9.8 Act of God, explosion, flood, lightning, tempest, fire or accident;
  9.8.1 war, hostilities (whether declared or not), terrorism, sabotage, insurrection, civil disturbance or requisition;
  9.8.2 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any government, parliamentary or local authority (including refusal or revocation of any licence or consent);
  9.8.3 import or export regulations or embargoes;
  9.8.4 theft or malicious damage;
  9.8.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or a third party);
  9.8.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery or defaults of suppliers or sub-contractors for any reason whatsoever, or power failure or breakdown in machinery; and in these circumstances the Seller shall be entitled to cancel the Contract by providing notice in Writing to the Buyer and shall not have any liability to the Buyer for any loss or damage arising directly or indirectly from such cancellation.
10. Indemnity
10.1 The Buyer agrees to indemnify the Seller against any actions, liabilities, damages, losses, costs, claims or expenses (Claim) incurred by the Seller whether during or after the Contract including, without limitation in respect of any claims brought against the Seller by a third party for:-
  10.1.1 any loss, injury or damage wholly or partly caused by the failure on the part of the Buyer to store, display or handle the Goods in accordance with the Seller’s instructions or requirements;;
  10.1.2 any loss, injury or damage in anyway connected with the performance of this Contract;
provided that this Clause will not require the Buyer to indemnify the Seller to the extent that such Claim is caused by the Seller’s own negligence or breach of contract.
11. Storage, Handling and Product Recall
11.1 The Buyer shall fully comply with any instructions in Writing issued by the Seller and also all legal requirements in respect of the storage and handling of the Goods.
11.2 Where Goods are supplied by the Seller with a “best before” or “use by” date, the Buyer shall not sell, display or store such Goods:-
  11.2.1 where the “best before” or “use by” date supplied has expired.
  11.2.2 with other goods which have passed the “best before” or “use by” date supplied with those goods.
11.3 Subject to clause 9.5, the Seller shall have no liability for any Goods sold by the Buyer in contravention of this Clause 11.
11.4 In respect of any Goods supplied to the Buyer which the Buyer re-sells on a wholesale basis, the Buyer undertakes to maintain appropriate, up-to-date and accurate records to enable the immediate recall of any Goods or batches of Goods from any retail or wholesale markets. These records shall include records of deliveries to customers (including batch numbers, delivery date, name and address of customer, telephone number, fax number and e-mail address).
11.5 The Buyer shall, at the Seller's cost, give any assistance that the Seller shall reasonably require to recall, as a matter of urgency, Goods from the retail or wholesale market.
12. Bar Codes
  The printing of the bar codes on Goods supplied by the Seller is not required under any contract between the Seller and Buyer. The Seller will when possible endeavour to observe the rules of the GS1 Standards but will not be liable to the Buyer (whether in negligence or otherwise) for any loss, damage or expense attributable to the absence or error in such bar code printing.
13. Consumer Complaints
  In addition to the steps required under Clause 9.3, the Buyer shall immediately notify the Seller, in the event that the Buyer receives a complaint from a consumer and undertakes to the Seller that neither it or its employees or agents shall make any statement to a consumer (whether orally or in writing) which may be construed as an admission of any liability on the part of the Seller. If it is accepted by the Seller that the cause of complaint is due to a defect or lack of quality in the Goods, then all negotiators and agreements relating to a compensation payment (if any) to be paid to the consumer shall be made by the Seller and the Seller shall not be liable to pay to either the Buyer or the consumer any sum not negotiated or agreed by it.
14. General
14.1 The Buyer shall not assign or transfer the Contract or any benefit thereunder without the written consent of the Seller.
14.2 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 as its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Any such notice shall be deemed to be served:-
  14.2.1 if sent by pre-paid first class post to the party to whom it is given, on the third day after posting, or
  14.2.2 if sent by facsimile transmission to the recipient’s facsimile number on receipt.
14.3 Failure or neglect by the Seller to enforce at any time any of these Conditions shall not be construed nor shall be deemed to be a waiver of the Seller’s rights hereunder nor in any way affect the validity of the whole or any part of these Conditions nor prejudice the Seller’s right to take subsequent action.
14.4 If any provision of these Conditions is held by any competent authority to be unlawful, invalid or unenforceable in whole or in part of the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby and shall continue to be valid and enforceable to the full extent permitted by law.
14.5 A person who is not a party to the Contract shall not have any rights under or in connection with it.
14.6 These Conditions and any contract made incorporating these Conditions shall be governed and construed in accordance with English Law and the Seller and Buyer agree to submit to the exclusive jurisdiction of the English Courts in the event of any disputes.

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