CASA JULIA LTD TERMS AND CONDITIONS
1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Buyer: the person or firm who purchases the Goods from the Seller, being a person who is or a firm operated by persons who are over 18 years of age.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.Contract: the contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
Force Majeure Event: has the meaning given in clause 10.
Goods: the goods (or any part of them) set out in the Order.
Order: the Buyer’s order for the Goods, as set out in the Buyer’s purchase order form.
Seller: Casa Julia Ltd (registered in England and Wales with company number 01209630).
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors or permitted assigns.
1.2.3 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.4 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.5 A reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Seller issues a written acceptance of the Order, at which point the Contract shall come into existence. The Seller reserves the right not to accept an Order. In particular, a Buyer who has not previously dealt with the Seller may be required to forward a reference of two established trade suppliers, together with the name and address of its banker, before any Order is accepted.
2.4 The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Seller which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures or on its website are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of 10 Business Days from its date of issue.
3. GOODS
3.1 The Goods are described on the Seller’s website, www.casajulia.co.uk, and in the Seller’s written published materials.
3.2 All Goods are offered subject to stock availability, and the Seller does not guarantee the availability of the Goods.
4. DELIVERY
4.1 Where the Buyer and the Seller have agreed that the Buyer will collect the Goods, the Buyer shall collect the Goods from the Seller’s premises at 11 Springwood Drive, Braintree, Essex CM7 2YN or such other location as may be advised by the Seller prior to delivery (this being the “Delivery Location” if the Goods are to be collected) within 3 Business Days of the Seller notifying the Buyer that the Goods are ready.
4.2 Where the Buyer and the Seller have agreed that the Seller is to deliver the Goods, the Seller shall deliver the Goods to the place or places specified in the Order or such other location as the parties may agree (this being the “Delivery Location” if the Goods are to be delivered) as soon as reasonably practicable after the date on which the Order is accepted. The Seller shall notify the Buyer of the estimated delivery date. Delivery of the Goods by the Seller may be performed by a carrier chosen by the Seller to be responsible for the shipment and delivery of the Goods. The mode of transport shall be at the discretion of the Seller.
4.3 Delivery of the Goods shall be completed:
4.3.1 where the Goods are to be collected, on the completion of loading of the Goods at the Delivery Location; or
4.3.2 where the Goods are to be delivered, on the Goods’ arrival at the Delivery Location.
4.4 It is the Buyer’s responsibility to ensure that an appropriate person is available at the Delivery Location in order to take delivery of the Goods. All Goods must be signed for on delivery (which, for the avoidance of doubt, includes collection) by an adult aged 18 years or over.
4.5 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Seller shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.7 If the Buyer fails to accept delivery of the Goods within 3 Business Days of the Seller notifying the Buyer that the Goods are ready or upon the Goods’ arrival at the Delivery Location (as appropriate), then, except where such failure or delay is caused by a Force Majeure Event or the Seller’s failure to comply with its obligations under the Contract:
4.7.1 delivery of the Goods shall be deemed to have been completed:
4.7.1.1 at 9.00am on the fourth Business Day after the date on which the Seller notified the Buyer that the Goods were ready (where the Goods are to be collected); or
4.7.1.2 at the time that the Goods arrived at the Delivery Location (where the Goods are to be delivered); and
4.7.2 the Seller shall be entitled to charge the Buyer the full price of the Order and the cost of delivery (if any).
4.8 The Seller shall store the Goods, at the Buyer's cost, for a period of 10 Business Days (or 2 Business Days where the Goods consist of perishable items) after the date of deemed delivery of the Goods in accordance with clause 4.7 and, if the Buyer does not accept delivery of them within that period, the Seller may resell or otherwise dispose of part or all of the Goods.
4.9 The Seller shall use all reasonable endeavours to deliver the Goods in a single delivery, but may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
5. QUALITY
5.1 The Seller warrants, that on delivery of the Goods in accordance with clause 4.3, the Goods shall:
5.1.1 conform in all material respects with their description;
5.1.2 be free from material defects in design, material and workmanship;
5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
5.1.4 be fit for any purpose held out by the Seller,
provided that the Goods are immediately stored in accordance with any storage instructions given by the Seller or, where no storage instructions are given, in accordance with good trade practice.
5.2 If:
5.2.1 the Buyer gives notice in writing to the Seller (a) in the case of a defect relating to perishable Goods or that is apparent on normal visual inspection, within 3 Business Days of delivery in accordance with clause 4.3, and (b) in the case of a latent defect, within a reasonable time of the latent defect having become apparent;
5.2.2 the Seller is given a reasonable opportunity of examining such Goods; and
5.2.3 the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Buyer’s cost,
the Seller shall, at its option, replace the defective Goods, or issue a credit note, or refund the price of the defective Goods in full.
5.3 Except as provided in this clause 5, the Seller shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.4 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.5 These Conditions shall apply to any replacement Goods supplied by the Seller.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Buyer on completion of delivery.
6.2 Title to the Goods shall not pass to the Buyer until the earlier of:
6.2.1 the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
6.2.2 the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
6.3.1 store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property (such storage to be in accordance with any storage instructions given by the Seller or, where no storage instructions are given, in accordance with good trade practice);
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.4 notify the Seller immediately if it becomes subject to any of the events listed in clause 8.2; and
6.3.5 give the Seller such information relating to the Goods as the Seller may require from time to time.
6.4 Subject to clause 6.5, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods. However, if the Buyer resells the Goods before that time:
6.4.1 it does so as principal and not as the Seller’s agent; and
6.4.2 title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs.
6.5 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 8.2, then, without limiting any other right or remedy the Seller may have:
6.5.1 the Buyer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
6.5.2 the Seller may at any time:
6.5.2.1 require the Buyer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
6.5.2.2 if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Seller’s published price list in force as at the date of delivery.
7.2 The Seller may, by giving notice to the Buyer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1 any factor beyond the Seller’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.2.2 any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered; or
7.2.3 any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
7.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be notified to the Buyer upon receipt of an Order and invoiced to the Buyer.
7.4 If the Buyer orders a minimum quantity of Goods (“Minimum Quantity”) to be delivered to the United Kingdom mainland there will be no transport costs. The relevant Minimum Quantity will vary depending on the Goods in question and further information can be obtained from the Seller. For the purpose of calculating a Minimum Quantity, a six bottle case of 75cl is counted as one case and a six bottle case of 70cl bottles counts as half a case.
7.5 The price of the Goods is exclusive of amounts in respect of value added tax (“VAT”). The Buyer shall, on receipt of a valid VAT invoice from the Seller, pay to the Seller such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.6 The Seller may invoice the Buyer for the Goods on or at any time after the completion or deemed completion of delivery.
7.7 The Buyer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Seller. Time of payment is of the essence.
7.8 If the Buyer fails to make any payment due to the Seller under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate set by the Late Payment of Commercial Debts (Interest) Act 1998 from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
7.9 The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.
7.10 Additional or alternative terms of payment may apply to Orders placed by Buyers situated outside of the United Kingdom, and for Orders to be delivered outside of the United Kingdom mainland. The Seller will inform the Buyer of any relevant additional or alternative terms.
8. TERMINATION AND SUSPENSION
8.1 If the Buyer becomes subject to any of the events listed in clause 8.2, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer.
8.2 For the purposes of clause 8.1, the relevant events are:
8.2.1 the Buyer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
8.2.2 the Buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
8.2.3 (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Buyer, other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
8.2.4 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Buyer;
8.2.5 (being a company) the holder of a qualifying floating charge over the Buyer’s assets has become entitled to appoint or has appointed an administrative receiver;
8.2.6 a person becomes entitled to appoint a receiver over the Buyer’s assets or a receiver is appointed over the Buyer’s assets;
8.2.7 a creditor or encumbrancer of the Buyer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
8.2.8 any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2.1 to clause 8.2.6 (inclusive);
8.2.9 the Buyer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business; and
8.2.10 the Buyer’s financial position deteriorates to such an extent that in the Seller’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.3 Without limiting its other rights or remedies, the Seller may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Seller if the Buyer becomes subject to any of the events listed in clause 8.2.1 to clause 8.2.10, or the Seller reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
8.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest.
8.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
8.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude the Seller’s liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
9.1.4 defective products under the Consumer Protection Act 1987; or
9.1.5 any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
9.2 Subject to clause 9.1:
9.2.1 the Seller shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
9.2.2 the Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
10. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of Sellers or subcontractors.
11. GENERAL
11.1 Assignment and other dealings
11.1.1 The Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.1.2 The Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Seller.
11.2 Notices
11.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
11.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.
11.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.3 Severance
11.3.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
11.3.2 If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.4 Waiver
A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
11.5 Third party rights
A person who is not a party to the Contract shall not have any rights to enforce its terms.
11.6 Variation
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Seller.
11.7 Governing law
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 the law of England and Wales.
11.8 Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).