Vitikit Limited – Terms and Conditions of Sale
1 Interpretation
1.1 Definitions:
Business Day a day other than a Saturday, Sunday or public holiday in England, when banks in London are
open for business.
Business Hours the period from 9.00 am to 5.00 pm on any Business Day.
Conditions the terms and conditions set out in this document as amended from time to time in
accordance with clause 12.4.
Contract the contract between Vitikit and the Customer for the sale and purchase of the Goods in
accordance with these Conditions.
Customer the person or firm who purchases the Goods from Vitikit.
Delivery Location has the meaning given in clause 4.1.
Force Majeure Event an event, circumstance or cause beyond a party’s reasonable control.
Goods the goods (or any part of them) set out in the Order.
Order the Customer’s order for the Goods, whether verbal or in writing, which may include the
Customer’s written acceptance of the Supplier’s
quotation.
Specification any specification for the Goods, including any related plans and drawings, that is agreed by the
Customer and Vitikit.
Supplier Vitikit Limited (registered in England and Wales with company number 08812104) whose
registered address is at Suite 9, Swallow Court,
Devonshire Gate, Sampford Peverell, Tiverton,
Devon, England, EX16 7EJ.
Warranty Period has the meaning given in clause 5.1. 1.2
Interpretation
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 successors and permitted assigns.
1.2.3 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.2.5 A reference to writing or written excludes fax but not email.
2 Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when (i) Vitikit confirms acceptance of the Order, and (ii) the Customer (a) pays the deposit (if any) in cleared funds and (b) where applicable, signs drawings to confirm the Specification, at which point and on which date the Contract shall come into existence.
2.4 Where the Customer places an Order by phone, it shall ensure that any written confirmation of the Order is marked “Confirmation Only” in order to avoid duplication of the Order. If the Customer fails to do so and the Order is duplicated, the Customer shall be obliged to accept delivery and pay for the duplicated Order.
2.5 The Customer may not amend or cancel any Order after Vitikit has accepted it without Vitikit’s written consent.
2.6 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.7 Any samples, drawings, advertising, projections, outputs or illustrations made available by Vitikit, or contained in Vitikit’s catalogues or website are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.8 A quotation for the Goods given by Vitikit shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3 Goods
3.1 The Goods are described on Vitikit’s website and in supplied PDF documents, as modified by any applicable Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Vitikit against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Vitikit in connection with any claim made against Vitikit for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Vitikit’s use of the Specification. This clause 3.2 shall survive termination of the Contract.
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3.3 Vitikit reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and Vitikit shall notify the Customer in any such event.
4 Delivery
4.1 Vitikit shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Vitikit notifies the Customer that the Goods are ready.
4.2 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. In any event, Vitikit shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Vitikit with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.4 If Vitikit fails to deliver the Goods where it has agreed to do so, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Vitikit 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 Customer’s failure to provide Vitikit with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Customer fails to promptly accept delivery of the Goods, then, except where such failure or delay is caused by a Force Majeure Event or Vitikit’s failure to comply with its obligations under the Contract in respect of the Goods:
4.5.1 delivery of the Goods shall be deemed to have been completed at 9:00 am on the day after the day on which Vitikit notified the Customer that the Goods were ready; and
4.5.2 Vitikit shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.6 If 3 Business Days after the day on which Vitikit notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, Vitikit may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
4.7 Vitikit 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 Customer to cancel any other instalment.
4.8 The Customer shall inspect the Goods for defects and shall notify Vitikit of any defects within 3 days of delivery, failing which the Customer shall be deemed to have accepted the Goods.
5 Quality
5.1 Vitikit warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period), the Goods shall:
5.1.1 conform in all material respects with their description and any applicable Specification; and
5.1.2 be free from material defects in design, material and workmanship. 5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to Vitikit during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 Vitikit is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by Vitikit) returns such Goods to Vitikit’s place of business at the Customer’s cost,
provided always that Vitikit determines the Goods to be defective, it shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in part or in full.
5.3 Vitikit shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 if:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow Vitikit’s oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.3 the defect arises as a result of Vitikit following any instruction, requirement, drawing, design or specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the written consent of Vitikit;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.6 the Goods differ from their description and any applicable Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, Vitikit shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and any other statute or law are, to the fullest extent permitted by law, excluded from the Contract.
5.6 Unless specifically and expressly warranted in writing to the Customer, the Customer shall not rely on, and Vitikit shall not be responsible for:
5.6.1 any advice or recommendation given by Vitikit to the Customer as to the storage, application, outputs or use of the Goods; or
5.6.2 any performance figures, tolerances or characteristics of the Goods which are set out in Vitikit’s catalogue, marketing materials or website; or
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5.6.3 the suitability or fitness of the Goods for any particular purpose.
5.7 These Conditions shall apply to any repaired or replacement Goods supplied by Vitikit.
5.8 Where the manufacturer of the Goods provides a warranty which can be legally assigned to the Customer, Vitikit reserves the right to assign the benefit of such warranty to the Customer in lieu of the warranty set out at clause 5.1.
6 Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until Vitikit receives payment in full (in cash or cleared funds) for the Goods.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Vitikit’s property;
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 Vitikit immediately if it becomes subject to any of the events listed in clause 9.1.2 to clause 9.1.4; and
6.3.5 give Vitikit such information as Vitikit may reasonably require from time to time relating to:
(a) the Goods; and
(b) the ongoing financial position of the Customer.
6.4 At any time before title to the Goods passes to the Customer, Vitikit may require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer 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 quoted by Vitikit, or, if no price is quoted, the price set out in Vitikit’s published price list in force as at the date of delivery.
7.2 Vitikit may, by giving notice to the Customer 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 Vitikit’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 Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give Vitikit adequate or accurate information or instructions.
7.3 The price of the Goods excludes:
7.3.1 amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Vitikit at the prevailing rate, subject to the receipt of a valid VAT invoice; and
7.3.2 the costs and charges of packaging, duties, insurance and transport of the Goods (Delivery Costs), which shall be invoiced to the Customer in addition.
7.4 With regard to clause 7.3.2, Vitikit will charge the Customer the actual Delivery Costs incurred by it for delivery of the Goods, regardless of any quotes or estimates given for the Delivery Costs.
7.5 Vitikit may invoice the Customer for the Goods and its Delivery Costs on or at any time after the dates agreed for payment. Unless otherwise agreed, Vitikit will invoice the Customer as follows:
7.5.1 50% of the price of the Goods on acceptance of the Order; and
7.5.2 50% of the price of the Goods and the full amount of the Delivery Costs before delivery is initiated.
7.6 The Customer shall pay each invoice submitted by Vitikit:
7.6.1 subject to receipt of a valid invoice, on the due date for payment agreed by the parties (and, in the absence of agreement, within 3 Business Days of the date of invoice); and
7.6.2 in full and in cleared funds to a bank account nominated in writing by Vitikit, and
7.6.3 time for payment shall be of the essence of the Contract.
7.7 Vitikit shall be entitled to charge an additional 2.5% on the full invoice sum for payments made by debit or credit card.
7.8 If the Customer fails to make a payment due to Vitikit under the Contract by the due date, then, without limiting Vitikit’s remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.7
will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.9 Notwithstanding any other provision, Vitikit shall be entitled to suspend performance of its obligations under this Contract until any overdue payments have been made.
7.10 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8 LIMITATION OF LIABILITY
8.1 The limits and exclusions in this clause reflect the insurance cover Vitikit has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess liability.
8.2 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.3 Nothing in in the Contract limits any liability which cannot legally be limited, including liability for:
8.3.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
8.3.2 fraud or fraudulent misrepresentation; or
8.3.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979.
8.4 Subject to clause 8.3, Vitikit’s total liability to the Customer shall not exceed the price of the Goods.
8.5 Subject to clause 8.3, the following types of loss are wholly excluded: 8.5.1 loss of profits;
8.5.2 loss of sales or business;
8.5.3 loss of agreements or contracts;
8.5.4 loss of anticipated savings;
8.5.5 loss of use or corruption of software, data or information;
8.5.6 loss of or damage to goodwill; and
8.5.7 indirect or consequential loss.
8.6 Nothing in this clause 8 shall in any way affect the Customer’s payment obligations under the Contract.
8.7 This clause 8 shall survive termination of the Contract.
9 Termination
9.1 Without limiting its other rights or remedies, Vitikit may terminate this Contract with immediate effect by giving written notice to the Customer if:
9.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of the Customer being notified in writing to do so;
9.1.2 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.1.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.4 the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
9.2 Without limiting its other rights or remedies, Vitikit may suspend provision of the Goods under the Contract or any other contract between the Customer and Vitikit if the Customer becomes subject to any of the events listed in clause 9.1.2 to clause 9.1.4, or Vitikit reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, Vitikit may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to Vitikit all of Vitikit’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Vitikit shall submit an invoice, which shall be payable by the Customer immediately on receipt.
9.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
10 Data Protection
10.1 Each party shall comply with the requirements of all legislation and regulatory requirements which apply to that party relating to the processing of personal data, including the Data Protection Act 2018 and UK GDPR.
11 Force majeure
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from a Force Majeure Event. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 1 month, the party not affected may terminate the Contract by giving 7 days’ written notice to the affected party.
12 General
12.1 Assignment and other dealings.
12.1.1 Vitikit may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
12.1.2 The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, 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 Vitikit.
12.2 Confidentiality.
12.2.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2.2.
12.2.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information
for the purposes of exercising the party’s rights or carrying out
its obligations under the Contract. Each party shall ensure that
its employees, officers, representatives, contractors,
subcontractors or advisers to whom it discloses the other party’s
confidential information comply with this clause 12.2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.2.3 Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
12.3 Entire agreement.
12.3.1 The Contract constitutes the entire agreement between the parties.
12.3.2 Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
12.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.5 Waiver.
12.5.1 Except as set out in clause 2.6, a waiver of any right or remedy is only effective if given in writing.
12.5.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
12.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 12.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.7 Notices.
12.7.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a
company) or its principal place of business (in any other case);
or
(b) sent by email to the email address (if any) given by each party for this purpose.
The email address of Vitikit for this purpose is info@vitikit.com.
12.7.2 Any notice shall be deemed to have been received
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by next working day delivery service, at 9:00 am on the two Business Day after posting; and
(c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business
hours resume. In this clause 12.7.2(c), business hours means
9.00am to 5.00pm Monday to Friday on a day that is not a public
holiday in the place of receipt.
12.7.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
12.8 Third party rights.
The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12.9 Governing law. The Contract, and any dispute or claim (including non contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
12.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.