Unless expressly agreed in writing every sale or agreement to sell whether verbal or in writing shall include and be subject to the following terms and conditions which apply to the exclusion of any other terms that the Buyer seeks to impose or incorporate.All goods are sold to and accepted by the Buyer with all their faults and imperfections and save as herein expressly provided all terms conditions and warranties whether express or implied by statute common law trade usage or custom or otherwise are excluded.
Without prejudice to the generality of the foregoing it is hereby specifically agreed that it shall not be a condition or warranty of any contract that the Seller enters into that the goods are free of latent disease or infection not capable of discovery at the time of delivery and the Seller shall not be liable to the Buyer for any loss or damage direct or consequentially caused by such latent disease or infection. The Buyer shall indemnify the Seller from and against all claims made against the Seller by third parties which are in any way the result of the sale and supply of goods by the Seller to the Buyer.
Right of Set Off or Appropriation
The Seller may apply all or any part of any sum owing by the Seller to the Buyer in relation to any matter whatsoever in or towards payment of any sum owing to the Seller hereunder. For this purpose reference to ‘the Seller’ or ‘the Buyer’ includes any company which is a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 .
Death in Transit
If birds die in transit the Delivery Instructions Receipt shall be amended by the Buyer and returned at once to the Seller and provided that the Seller is notified thereof within 24 hours of receipt by the Buyer from the Carrier and subject to inspection by the Seller if required the price of the dead birds will be refunded.
Delay or failure to deliver consequent upon any cause shall not entitle the Buyer to damages
Inspection and approval
All goods must be inspected by the Buyer immediately on delivery and if not as per the order or contract this must be reported but if the Buyer does not inform the Seller within 48 hours of delivery they shall be deemed to have accepted delivery in performance of the Contract and the Seller accepts no liability for any loss howsoever arising.
Mortality within 7 days of delivery
Solely at the Seller’s discretion compensation will be paid to the Buyer should the mortality rate of the chicks delivered to the Buyer exceed 2% within the first 7 days of delivery. Any compensation will be limited to the purchase price of the chicks at the time of delivery and will require veterinary evidence that the cause of death was a latent disease or infection existing at the time of delivery. The Seller to be notified within 10 days of delivery once this percentage has been reached.
Cash with order or within 28 days of the invoice date unless otherwise agreed at time of ordering. If payment is not made within 28 days interest at 3% per month may be charged on the outstanding amount.
If the Buyer within 30 days prior to the earliest estimated delivery date of any order for day-old chicks cancels such order the Buyer shall pay the Seller (by way of liquidated damages and not otherwise) a sum equal to 50% of the invoice price of such order without any deduction whatsoever.
Ownership and Risk
(i) The risk in the birds shall pass to the Buyer on delivery and the Seller shall not thereafter be liable for any loss damage or deterioration to any of the birds and the Buyer shall not be entitled to reject or return the birds except as specifically provided for in these conditions. As part of this transfer of risk aspect it is noted that the Seller strongly advises the Buyer to insure the birds for any risks that they feel are appropriate to protect their own financial interests.
(ii) Notwithstanding the sale of the goods to the Buyer beneficial ownership and the legal title to the goods shall remain with the Seller until payment in full (in cash or cleared funds) has been received by the Seller and until title passes the Seller may at any time require the goods to be returned to it by the Buyer. If such requirement is not met within 3 days of the Seller’s request the Seller may retake possession of the goods and may enter any premises of the Buyer (including locked premises) for that purpose. The Buyer shall hold the goods as the Seller’s fiduciary agent and custodian keeping them properly stored protected and insured identified as the property of the Seller and separate from the Buyer’s property and from that of third parties.
(iii) The Buyer shall not be entitled to sell the birds or create any charge or lien over them until payment in full (in cash or cleared funds) has been received. If the Buyer does sell otherwise disposes of or processes the goods (or any part of them) before payment in full (in cash or cleared funds) has been received by the Seller it shall receive and hold as trustee for the Seller the proceeds of such sale disposal or process or other moneys derived from or representing the goods (or any part of them) including insurance proceeds and shall keep such proceeds or other moneys separate from any moneys or property of the Buyer or third parties and shall as soon as possible after receipt of the same pay such moneys to the Seller or into a separate account in trust for the Seller.
(iv) The Seller shall be entitled to sue for the sums due to it notwithstanding that property in the goods has not passed to the Buyer. Nothing in this clause shall prejudice any rights that the Seller shall have against the Buyer by reason of the Buyer’s breach of this Agreement whether in contract tort bailment restitution or under the law of equity and trusts
All contracts will be governed by English law unless specially agreed otherwise in writing.
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