Terms & Conditions
1.1These terms of trading describe the basis for the purchase by you and sale by us of the goods described in this document. This document is issued by Divine Importers Limited, Unit A4 Springhead Enterprise Park, Northfleet. Kent. DA11 8HB.
1.2 If you are a consumer, you have certain statutory rights regarding the return of defective goods and claims in respect of losses caused by our negligence or failure to carry out our obligations. These terms shall not affect your statutory rights.
1.3 We may change or supplement these terms and conditions from time to time and, by continuing to place orders through Divine Importers Limited after such changes or supplements have been made, you will be bound by such changes or supplements even if you do not obtain an updated copy of this document.
1.4 If we fail to enforce a right under this agreement, that failure will not prevent us from enforcing other rights or the same type of right on a later occasion.
1.5 If any provision of these terms and conditions is held to be unlawful, invalid or unenforceable, that provision shall be deemed severed and the validity and enforceability of the remaining provisions of these terms and conditions shall not be affected.
2.1 Any information we provide in respect of the goods (including price lists) does not constitute an offer to sell but constitutes an invitation to treat only, and is subject to the availability of the goods, which may change from time to time.
2.2 Orders shall be accepted at our sole discretion but are normally accepted if the goods are available, at our current price at the date of delivery (plus any delivery charges or other applicable charges payable by you) and is deemed accepted by us unless we notify you otherwise, and you are registered as a customer with us.
2.3 We reserve the right to substitute goods of a similar quality, quantity and value for those ordered by you. Notification of any such substitution will be made by such means as are reasonably practicable to us in the light of the value of the order placed by you and the requested delivery time.
3.1 We reserve the right to accept or reject in our absolute discretion any orders we may receive for any reason, including, without limitation, the rejection of your application for credit, you failing to pay for other goods that you have ordered, the unavailability of goods, an error in the price or the description of goods, or an error in the order placed by you.
We may cancel an order at any time or vary payment terms (e.g. COD) without liability for compensation if you are unable (in response to a written request) to satisfy us that you are able to pay for the order and all prior orders then outstanding (whether then due for payment or not).
4. GOODS SPECIFICATIONS
4.1 We may change the specifications or ingredients of any goods from time to time and we are not required to notify you of such a change.
5.1 Payment terms, Unless otherwise agreed, all invoices must be paid in cash at the time of delivery. Where a credit facility has been granted, these are 30 days Net following delivery, unless special terms have been agreed in writing. Delivery of goods without payment or delivery of goods whilst an account is over terms does not constitute an implicit revision to the prevailing credit terms under any circumstances. We reserve the right to pass on any costs associated with particular forms of payment (for example merchant fees charged on credit card payments). If payment falls due on a weekend or public holiday, payment is required by the preceding working day.
If payments are not made on time, we may, in our absolute discretion refuse to supply you with further goods; or require you to pay for all goods in full prior to the goods being supplied to you.
5.2 If an amount is payable by you to us, we are entitled to set-off that amount against any amount payable by us to you.
5.3 You are not entitled to set off, cross claim or in any way withhold payment due on an invoice because of claims relating to other matters. If you have a valid claim you must nonetheless pay by the due date for all goods prior to any claim being actioned or credit being raised.
6.1 We warrant that at the date of delivery the goods will comply with the warranties implied by the Sale of Goods Act 1979 (as amended) and with the requirements of the Food Safety Act 1990 and all other applicable laws and regulations.
7. DEFAULT IN PAYMENT
7.1 You will be in default if you breach these terms and conditions or any Supply Contract including if:(1)payment in full for the goods is not made by the due date;(2)you dispose of or give any security over your business or a material part of your business;(3) you attempt to assign or transfer the benefit of these terms and conditions or a Supply Contract without first obtaining our consent in writing; (4)if you are a corporation, and you suffer a change in majority control – whether by a change in voting shareholders or by a change in directors without first obtaining our consent in writing;(5)if you are an individual, and you are declared or commit an act of bankruptcy, enter into an arrangement or composition with your creditors, sign an authority under Part X of the Bankruptcy Act or any execution is levied against your property; or (6)if you are a corporation, and you suffer the appointment of controller, administrator, receiver, receiver and manager, provisional liquidator or liquidator, have winding up proceedings initiated against you, have any execution levied against your property or cease or threaten to cease carrying on business.
7.2 Overdue invoices will bear interest on a daily basis at 2% over the base rate from time to time of our bank, any payments to be credited first against interest and then against the invoice.
7.3 Where invoices are overdue we shall be entitled to cancel the contract and inform you that you are no longer in possession of the goods with our consent, and/or to suspend or cancel further deliveries. We shall be entitled to recover possession of our goods and you will immediately be under an obligation to deliver the goods to our representative (and the goods shall be at your risk until so delivered) in accordance with the instructions we give you. We shall be entitled and it shall be a term of the contract that we have your consent to enter on to your premises or those of a third party where the goods are stored for the purpose of repossessing and removing them.
If a cheque sent by you in payment is not paid by your bank when properly presented for payment, then we will be entitled to charge an administration fee of £15 for that and each further occasion upon which we re-present the cheque for payment. This fee will be added to your account for payment on the following due date. We will not be obliged to notify you before exercising our rights as outlined above and these rights will be in addition to any other rights that we may have.
8 DELIVERY & RISK
8.1 The goods shall be delivered to the address specified in the order. Risk in the goods passes to you at the place of delivery or, where goods are collected by you or your carrier from us, risk passes to you at the time of collection. Unless written instructions are given to the contrary, the signature of any person at the place of delivery shall constitute proof of delivery.
8.2 Every effort will be made to deliver the goods within the time or times agreed upon, but any time quoted for delivery is an estimate only and failure to deliver by that time will not constitute a breach of contract. We will not be liable for any loss or damage howsoever arising as a result or consequence of any delay in delivery or any failure to deliver. You will not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery.
8.3 We have the right to deliver by installments and to invoice separately for each installment. If an installment is incorrect for any reason this will not entitle you to repudiate the entire contract.
8.4 If we are entitled to delay delivery or if delivery is not reasonable because of your actions or inaction then we will be entitled to make reasonable extra charges for storage or inconvenience, and shall have the option at any time to terminate the order without prejudice to our accrued rights.
8.5 Where you receive any invoice (or statement from us referring to an invoice) in respect of which no delivery has been made then you must notify us of non-delivery on the day of the scheduled delivery or within 24 hours.
8.6 To comply with the Food and Safety Act and its guarantees of temperature control, frozen and chilled foods can only be returned at the time of delivery.
8.7 You must notify us in writing (including sufficient particulars) within 1 day of delivery if you claim that the goods were defective, short delivered or otherwise not the goods specified in the Supply Contract. If you fail to notify us as set out in this clause, then to the fullest extent permitted by law, the goods must be treated as having been accepted by you, and you must pay for the goods and, to the fullest extent permitted by law, we will be discharged from any liability in respect of the goods being wrong or defective or short delivered.
8.8 Delivery will occur when the goods are first left with you or at your premises or at any other place nominated by you and agreed by us. We will not be required to obtain your signature as proof of delivery. All the risk in the goods passes to you upon delivery.
9. TITLE TO GOODS
9.1 Ownership of the goods shall not pass to you until payment has been made in full of all sums owed by you whether in respect of those goods or otherwise, and whether or not such sums are then due or owing. Until ownership passes you must insure the goods for our benefit, ensure they remain identifiable as our goods while in your control and safeguard all markings on the goods.
9.2 If payment is made by way of cheque or other negotiable instrument, title in the goods will not pass to you until the cheque or other negotiable instrument has been honored or cleared by our bankers.
9.3 From the time that the goods are delivered to you by us until the time that title passes to you in accordance with clause 8.1, you take custody of the goods and retain them as the fiduciary agent and bailee of us.
9.4 If you fail to pay us for the goods by the due date for payment in accordance with these terms and conditions, you (without prejudice to our full rights and remedies to retake possession of the goods from you and recover the debt in full) hereby agree to deliver up to us upon demand, and consent to us entering premises in which the goods are stored and retaking possession of, those goods for which you have not paid. Thereupon, we will be entitled to sell the goods to a third party.
8.5 The parties acknowledge that by supplying goods on these terms and conditions, it is not intended to create a charge, mortgage or other security interest over any of the goods supplied.
In the event of a product recall over goods you have acquired from us, you shall give us such assistance as we reasonably require in relation to that recall.
11.1 Where you have a claim for breach of contract, we shall be entitled at our option to replace the goods, make up shortfalls or refund the price paid by you for the goods (or a proportionate part of the price).
11.2 You must inspect the goods at the time of delivery with the delivery driver present (and weigh the goods sold by weight) so that you are able to notify us of short delivery, wrong delivery or other visible breach of contract (such as visible damage or circumstances giving rise to suspicion of damage or loss in transit, or inadequate “best before” or “use by” dates) within 24 hours of delivery in the case of fresh or chilled meat, otherwise within 3 days of delivery.
11.3 Our aggregate liability to you in connection with this agreement shall not exceed the value of the goods ordered by you.
11.4 Claims not discoverable by inspection must be notified within 8 days of discovery.
11.5 If an oral claim or complaint has been made then it must be confirmed in writing within a further 2 days.
11.6 No claims for contingent or consequential losses (excepting public liability and death) will be accepted as a result of using Divine Importers Limited or any products supplied by Divine Importers Limited. No financial offset can be accepted for any claims under any circumstances whatever unless supported by a duly issued Divine Importers Limited contract.
11.7 You must voluntarily co-operate in any claim we may make against suppliers, carriers or insurers and this includes the obligation without charge by you not to dispose of (and to properly store) the goods for a reasonable time, to promptly provide us with a copy of any Condemnation Warning Notice, Detention Notice or any other notice issued under the Food Safety Act (1990) or subsequent act or any other legislation issued in respect of the goods, not to dispose of the goods before giving us a reasonable opportunity to remove them, to provide reasonable facilities to enable us or our agents to inspect the goods before disposal and to assist us by providing witness or documentary evidence. It is your obligation to arrange for the full co-operation of any third party contracting with you (other than those third parties contracting with us). You must retain the packing and consignment note for inspection.
12.1 In the absence of manifest error, our written records in relation to a delivery of goods will be conclusive evidence of the type and quantity of goods delivered and of the date and time of delivery.
12.2 In the absence of manifest error, certification from our authorised representative will be conclusive evidence of the amount owed for the goods.
13. WARRANTIES AND LIABILITIES
13.1 Except as expressly provided in clause 13.5, all conditions and warranties, whether express or implied by law or otherwise, in respect of: (1) the state, quality or condition of goods; or (2) the advice, recommendations, information or services regarding the goods, their use and/or their application, (3) which may apart from this clause be binding on us are excluded to the fullest extent permitted by law. The only conditions and warranties which are binding on us in respect of: (4) the state, quality or condition of the goods supplied by us to you; or (5) advice, recommendations, information or services supplied by us, our employees, servants or agents to you regarding the goods, their use and/or their application, are those conditions and warranties which cannot lawfully be excluded.
13.2 Our sole liability for any breach of any actual or implied condition or warranty that cannot lawfully be excluded will be limited to, at our election: (1) replacement of the goods or the supply of equivalent goods; or (2) the payment of the cost of replacing the goods or of purchasing or acquiring equivalent goods.
13.3 You acknowledge that you do not rely, and it is unreasonable for you to rely, on our skill or judgment as to whether the goods supplied are reasonably fit for any purpose for which you are acquiring them.
13.4 Any description of the goods contained in the order or invoice is given by way of identification only and the use of such description will not constitute a contract of sale by description.
We warrant that we will provide you with good title to the goods and that the goods will be of merchantable quality.
Except to the extent provided in clause 13.1, 13.5 and such liability as may not otherwise be lawfully excluded or limited, the we have no liability (including liability in contract, negligence or under statute) to any person for: (1) any loss or damage consequential or otherwise suffered or incurred by that person in relation to the goods or advice, recommendations, information or services in relation to the goods; and (2) in particular, but without limiting clause 13.6 (1), any loss or damage, consequential or otherwise, suffered or incurred by that person caused by or resulting directly or indirectly from any failure, defect or deficiency of any kind of or in the goods or advice, recommendations, information or services in relation to the goods.
13.5 We will take all reasonable care to keep your order secure, but in the absence of our sole negligence we cannot be held liable for any loss you may suffer if a third party obtains unauthorised access to any data you provide when accessing or ordering from the Website.
13.6 Divine Importers Limited reserves the right to amend product specifications and prices at any time and without prior notice.
14.1 To the fullest extent permitted by law, you indemnify us, and agree to keep us indemnified, against:
(1) all losses we incur; (2) all liabilities we incur; and (3) all costs actually payable by us to our own legal representatives (whether or not under a costs agreement) and other expenses we incur in connection with a demand, action, arbitration or other proceeding (including mediation, compromise, out of court settlement or appeal), arising directly or indirectly as a result of or in connection with the supply of goods by us to you: (4) except to the extent that we incur such losses, liabilities and/or costs as a result of our breaching the warranties set out in clause 13.5 or a condition or warranty which cannot lawfully be excluded under clause 13.1; or (5) unless we incur such losses, liabilities and/or or costs due to willful misconduct on the part of us or any of our employees or agents acting within the scope of their employment.
14.2 You must pay to us all liabilities, costs and other expenses referred to in clause 12.1, whether or not we have paid or satisfied them.
15 FORCE MAJEURE
15.1 We shall not be responsible for any failure or delay in performance of any obligation arising from any cause or causes beyond our reasonable control such as acts of God, riot, explosion, abnormal weather conditions, fire, flood, trade disputes, acts or omissions of any independent third parties (such as carriers or suppliers), or government intervention or regulations (UK or otherwise).
16.1 Either of us may serve notice on the other by facsimile and also by sending any notice (as well as in any other manner) to the facsimile number or address shown from time to time on that party’s note paper or documents.
17.1 If you are acting as the trustee of any trust (whether disclosed or not), then you declare that you are entering any Supply Contract both in your own capacity and as trustee of the trust with the ability to bind, and the intention of binding, both.
17.2 If anything in these terms and conditions or a Supply Contract is unenforceable, illegal or void then it is severed and the rest of these terms and conditions or the Supply Contract remains in force
17.3 These terms and conditions represent the entire agreement and understanding between the parties on everything connected with its subject matter except to the extent that any terms are imposed by law and cannot be excluded; and supersede any prior agreement or understanding on anything connected with that subject matter.
17.4 You may not assign or otherwise deal with a Supply Contract without our consent which we may give or withhold at our absolute discretion. We may assign or otherwise deal with a Supply Contract without your consent.
17.5 These terms and conditions and each Supply Contract will be read and construed in accordance with the laws of the State of Victoria and both parties agree to submit to the jurisdiction of the courts and tribunals of that State and of the Commonwealth.
17.6 All of the rights and obligations of each party under these terms and conditions which are expressed as surviving termination and/or expiry, or which by their nature or context must survive termination and/or expiry, will survive the termination and/or expiry of these terms and conditions.
17.7 Personal data of customers who are persons or partnerships, and its use
you expressly agree that we may keep and process data about you as altered from time to time. Data about you may be used by us or our group companies to perform the contract, for credit rating purposes, in connection with monitoring the service provided, for analysis for management purposes, for making statutory returns, for forecasting, and for future marketing and selling.
17.8 Law and Jurisdiction
This agreement shall be governed by and construed in accordance with English law and the Courts of England shall have exclusive jurisdiction to which both parties submit.
17.9 All prices are exclusive of VAT