Terms & Conditions
New Day Brands explicitly rejects terms and conditions of the buyer/supplier/other. In any situation where New Day Brands will act as seller and/or buyer, the here published terms & conditions will apply without exception.
1 Interpretation
1.1 In these Conditions:
1.2 “Buyer” means the person who accepts a quotation of the Seller for the sale of the Goods or the order for the Goods is accepted by the Seller.
1.3 “Goods” mean the Goods (including any instalments of the Goods or any parts of them), which the Seller is to supply in accordance with these Conditions.
1.4 “Seller” means such company as New Day Brands that issues a quotation to the Buyer for the sale of the Goods (which is accepted by the Buyer) or shall accept an order of the Buyer for the supply of the Goods.
1.5 “Contract” means the document provided by the Seller to the Buyer as binding agreement for the sales of Goods. This document will be provided with header ‘Order Confirmation’ and/or ‘Invoice’.
1.6 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.
1.7 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2 BASIS OF THE SALE
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any quotation of the Seller which is accepted by the Buyer, or any order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and Conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the buyer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorized representative of the Buyer and the Seller.
2.3 The Sellers employees or agents are not authorized to make 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.
2.4 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 of use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyers own risk, and accordingly the Seller shall not be liable for any advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list acceptance 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 ORDERS AND SPECIFICATIONS
3.1 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any (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 (Order Confirmation) in accordance with its terms.
3.2 The quantity, quality and description of any specification of the Goods (including any packaging specification) shall be those set out at the Sellers quotation (if accepted by the Buyer) or the Buyers order (if accepted by the Seller).
3.3 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 if all labor and materials used), damages, charges and expenses incurred by the seller as a result of cancellation. (Cancellation of goods within 90 – 30 days of delivery will be charged at 25% of the value of the goods. Goods cancelled within 30 days of delivery will be charged at 50% of value of the goods).
4 PRICE OF THE GOODS
4.1 The price of the Goods shall be the sellers quoted price or, where no price has been quoted (or a quoted price is no longer valid) the price specified in the sellers published special offer literature current at the date of acceptance of the order. All prices quoted are valid for 48 hours or until earlier acceptance by the Buyer after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 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, any foreign exchange fluctuation, currency regulation- alteration of duties, significant increase in the cost of labor, materials or other costs of manufacture) any change in delivery dates quantities or specification of 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.
4.3 Except as otherwise stated under the terms of any quotation or in any special offer literature published by the seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Sellers premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay the Seller.
4.5 The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to the Seller before the due payment date.
5 TERMS OF PAYMENT
5.1 Subject to any special terms agreed in Writing between the Buyer and Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after the delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the cases may be) the Seller has tendered delivery of the goods.
5.2 Save as may otherwise be agreed in Writing between the Seller and the Buyer, the Buyer shall pay the price of the Goods without any deduction within 7 days of the date of the Sellers invoice.
5.3 The Buyer shall pay the price of the Goods in accordance with the provision of clause 5.2 notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.4 If the Buyer fails to make any payments on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to: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): and
5.4.3 Charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 1% per month above ING Bank BV base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
5.5 All our prices are excluding any applicable VAT/TAX, subject to VAT which will be informed if any in the Contract by the Seller.
6 DELIVERY
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place of delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay of the Goods however 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 quoted delivery date upon given reasonable notice to the Buyer.
6.3 The Seller shall have the right to deliver a quantity of Goods up to 50% greater or less than the Contract quantity and the Buyer shall accept so delivered provided that the price to be paid by the Buyer to the Seller for the Goods so delivered shall be adjusted upwards or downwards (as the case may be) by the same percentage as the percentage by which the quantity of Goods delivered differs from the Contract quantity.
6.4 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.5 If the Seller fails to deliver the Goods for any reason other than any case 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.
6.6 If the Buyer fails to take delivery of the Goods or fails to give adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Sellers fault) then, without prejudice to any other right or remedy available to the Seller. The Seller may: –
6.6.1 Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.6.2 Sell the Goods at the best price readily obtainable and (after deducting reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall.
6.7 Where relevant the Buyer shall be responsible for complying with any legislation governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
7 RISK AND PROPERTY
7.1 Notwithstanding delivery and the passing of risk in the Goods to the Buyer full ownership (both legal and equitable) in the Goods shall remain with the Seller until such time as the Seller has received in cash or cleared funds payments of the purchase price of the Goods and payment of the purchase price of any other Goods or services previously or subsequently supplied by the Seller to the Buyer whereupon such title shall pass to the Buyer.
7.2 The Buyer shall store the Goods separate from any other Goods of the Buyer and third parties and shall identify the Goods as the property of the Seller. The Buyer shall not remove any identifying marks placed on the Goods by the Seller.
7.3 Notwithstanding the retention by the Seller of legal title to the Goods, the risk of the Goods shall pass to the Buyer on delivery and the Buyer shall insure the same against loss or destruction with a reputable insurer and shall arrange for the Seller’s interest in the Goods to be noted on insurance policies to the Goods.
7.4 The Buyer may exercise their right to sell the Goods as the fiduciary agent of the Seller in the usual course of the Buyer’s business, but such right: –
7.5 May be revoked at any time by the Seller giving notice to that effect if the Buyer is in default for longer than 7 days in the payment of any sum whatsoever due to the Seller (whether in respect of the Goods or of any other Goods or services supplied any time by the Seller to the Buyer or for any reason whatsoever) or if the Seller has bona fide doubts as to the solvency of the Buyer, and
7.6 Shall automatically cease if a receiver manager or administrator is appointed over the assets or undertaking of the Buyer, or any petition or order in bankruptcy against the Buyer is presented or made, or the Buyer goes into voluntary liquidation (otherwise than for the purpose of reconstruction or amalgamation while solvent) or calls a meeting of, or makes any arrangements or composition with creditors.
7.7 Upon determination of the Buyer’s rights of sale, the Buyer shall place the Goods at the disposal of the Seller (who shall be entitled to enter any premises of the Buyer and remove the Goods from the said premises).
7.8 The Buyer shall not be entitled to pledge 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 funds owed by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8 WARRANTIES AND LIABILITY
8.1 The Seller does not manufacture Goods but simply sells on to its customers Goods acquired for such purposes from third party suppliers. Accordingly, the Buyer shall only be entitled to the benefit of such warranty or guarantee in relation to the Goods as is given to the Seller by the third party supplier of the Goods.
8.2 Subject as expressly provided in these Conditions, and expect where the Goods are sold to a person dealing as a customer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statue or common law are excluded to the fullest extent permitted by law.
8.3 Where the Goods are sold under a consumer transaction (as defined by the consumer transaction restriction on statements) Order 1976 the statutory rights of the Buyer are not affected by these Conditions.
8.4 Any 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 delivered by the Buyer) be notified to the Seller within 7 days from the date of delivery. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and (in case payment has not taken place yet) the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions the Seller shall be entitled to replace the Goods (or refund to the Buyer the price of the Goods for a proportionate of the price), but the Seller shall have no further liability to the Buyer.
8.6 Except in respect of death or personal injury caused by the Seller’s negligence the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever and whether caused by the negligence of the Seller, its employees or agents otherwise 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
8.7 The Seller shall not be liable to the Buyer or be deemed to be in breach of Contract by reason of any delay in performing, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as cause beyond the Seller’s reasonable control: –
8.8 Act of god, flood, tempest, fire or accident;
8.9 War or threat of war, sabotage, insurrection, civil disturbance, or requisition;
8.10 Acts, restriction, regulations, by-laws, prohibitions or measure of any kind on the part of the Government, parliamentary or local authority;
8.11 Import or export regulations or embargoes;
8.12 Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.13 Difficulties in obtaining raw materials, labor, fuel, parts or machinery;
8.14 Power failure or breakdown in machinery
9 INSOLVENCY OF BUYER
9.1 This clause applies if: –
9.1.1 The Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order, (being an individual or firm) becomes bankrupt (being company) goes into liquidation otherwise than for the purpose of amalgamation or reconstruction; or
9.1.2 On encumbrance takes possession, or a receiver is appointed to any of the property or assets of the Buyer or;
9.1.3 The Buyer ceases, or threatens to cease to carry on business or:
9.1.4 The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.2 If this clause is applied, then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the buyer, and if the goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
9.2.1 Any delivered products remain property of the Seller until the full outstanding balance is paid. The Seller shall be entitled to reclaim any delivered products under the Contract without any liability to the buyer.
10 GENERAL
10.1 Any notice or other document required 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 principal place of business or such other address as may be at the relevant time have been notified pursuant to this provision to the party given the notice.
10.2 No waiver by the Seller of any breach of any provision of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provision of these Conditions and the remainder of the provisions in question shall not be affected thereby.
10.4 The Contract shall be governed by the laws of The Netherlands, with as default the Court of Justice in Groningen, Netherlands. The Seller may institute and maintain proceedings in respect of the Contract in any country.
