Trade terms and conditions
- A.In these Terms:
- BUYER means the person who places an order to purchase Goods from the Seller via the Website or accepts Seller's Written quotation for the sale of the Goods or whose Written order for the Goods is accepted by Seller;
- CONTRACT means the contract for the sale and purchase of the Goods;
- GOODS means the goods (including any instalment of the goods) which the Seller is to supply in accordance with these Terms;
- INCOTERMS means the international rules for the interpretatio n of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made;
- SELLER means either (i) Exante Diet Limited (registered company number 07126424) or (ii) The Hut.com Limited (registered company number 05016010) both with registered office at Meridian House, Gadbrook Park, Gadbrook Way, Northwich, CW9 7RA;
- TERMS means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in Writing between the Buyer and the Seller;
- WEBSITE means the Seller’s website at either www.exantediet.com;
- WRITING , and any similar expression, includes faxes but not electronic mail or other forms of electronic communication.
- B. A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re enacted or extended at the relevant time.
- C. The headings in these Terms are for convenience only and shall not affect their interpretation.
2. Basis of the sale
- A. Unless the Buyer places an order via the Website, in which case the provisions of clauses 2.B and 2.C below shall apply, the Seller shall sell and the Buyer shall purchase the Goods in accordance with the Seller's Written quotation (if accepted by the Buyer), or the Buyer's Written order (if accepted by the Seller), subject in either case to these Terms, which shall govern the Contract to the exclusion of any other terms 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.
- B. If the Buyer places an order for Goods via the Website, the Buyer will receive an e - mail from the Seller acknowledging receipt of the Buyer's order. Please note this does not mean that the Buyer's order has been accepted. The Buyer's order constitutes an offer to the Seller to buy the Goods subject to these Terms, which shall govern the Contract to the exclusion of any other terms. All orders are subject to acceptance by the Seller who will confirm such acceptance by sending the Buyer an e - mail that confirms that the Goods have been dispatched (Dispatch Confirmation). Th e Contract will only be formed when the Seller send the Buyer the Dispatch Confirmation
- C. The Contract will relate only to those Goods whose dispatch the Seller has confirmed in the Dispatch Confirmation. The Seller will not be obliged to supply any other Go ods which may have been part of the Buyer's order until the dispatch of such Goods has been confirmed in a separate Dispatch Confirmation
- D. No variation to these Terms shall be binding unless agreed in Writing between the authorised representatives of the B uyer and the Seller.
- E. The Seller's employees or agents are not authorised 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 any such repr esentations which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
- F. Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents a s to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
- G. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice, Website or other document or information issued by the Seller shall be subject to correction without any liab ility on the part of the Seller.
- A. No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller's authorised representative.
- B. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order 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 in accordance with its terms.
- C. The quantity, quali ty and description of the Goods and any specification for them shall be as set out on the Website, or in the Seller's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Seller).
- D. The Seller reserves the right to make any changes i n the specification of the Goods which are required to conform with any applicable statutory or E.U. requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance.
- E. No order wh ich 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 of al l labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4. Price of the goods
- A. The price of the Goods shall be the Seller's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller's published price list (whether published on the Website or otherwise) current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, the Seller's published export pri ce list shall apply. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
- B. The Seller reserves the right, by giving Written notice to th e 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 r egulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any ins tructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
- C. Except as otherwise stated in the Seller's Written quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buye r 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 Seller's premises, the Buyer shall be liable to pay the Seller's charges for transport, packaging and insuranc e.
- D. The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
5. Terms of payment
- A. Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller will invoice the Bu yer for the price of the Goods on a pro forma basis prior to delivery of the Goods, or where the Goods are to be collected by the Buyer, prior to such Goods being made available for collection by the Buyer. The Seller shall be under no obligation to deliv er the Goods to the Buyer, or make the Goods available for collection by the Buyer, until such a time as payment for the Goods has been received in full by the Seller.
- B. The Buyer shall pay the price of the Goods (without any deduction or set - off) prior to the Goods being delivered to the Buyer or, as the case maybe, made available for collection by the Buyer, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not pa ssed 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.
C. If the Buyer fails to make any payment on the due date then, without limiting any other right or
lable to the Seller, the Seller may:
- i. cancel the contract or suspend any further deliveries to the Buyer;
- ii. 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 th e Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
- iii. charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent per annum above Barclays Bank plc base rate from time to t ime, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
- A. 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 for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
- B. Any dates quoted for delivery of the Goods are approximate only and the Se ller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quot ed delivery date on giving reasonable notice to the Buyer.
- C. 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 the se Terms 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.
- D. If the Seller fails to deliver the Goods (or any instalment) for any reason other than any cause 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.
- E. If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer's reasonab le control or by reason of the Seller's fault) then, without limiting any other right or remedy available to the Seller, the Seller may: . store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or i. sell the Goods at the best price readily obtainable and (after deducting all 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 below the price under the C ontract.
7. Risk and property
- A. Risk of damage to or loss of the Goods shall pass to the Buyer: . in the case of Goods to be delivered at the Seller's premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or i. in the case of Goods to be delivered otherwise than at the Seller's premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
- B. Notwithstanding delivery and the p assing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
- C. Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from those of the Buye r and third parties and properly stored, protected and insured and identified as the Seller's property, but the Buyer may resell or use the Goods in the ordinary course of its business.
- D. Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller may at any time require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
- E. 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 moneys owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable.
8. Warranties and liability
- A. Subject to the following provisions the Seller warrants to the Buyer that any Goods purchased from the Seller wi ll, on delivery, conform in all material respects with its description, be of satisfactory quality, and be reasonably fit for all the purposes for which products of that kind are commonly supplied.
- B. The above warranty is given by the Seller subject to the following conditions: . the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, failure to follow the Seller's instructions (whether oral or in Writing) or misuse of the Goods without the Seller's approval; i. the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date fo r payment; ii. the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Sell er.
- C. Subject as expressly provided in these Terms, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law a re excluded to the fullest extent permitted by law.
- D. Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Terms.
- E. A 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 delivery is refused by the Buyer) be notified to the Seller within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. 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 the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
- F. Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Terms, the Seller may replace the Goods (or the part in question) free of charge or, at the Seller's sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), in which case the Seller shall have no further liability to the Buyer.
- G. Nothing within these Terms shall exclude or restrict the Seller's liability for death or personal injury resulting from the negligence of the Seller or its employees whilst acting in the course of their employment or from liability under the Consumer Protection Act 1987.
- H. Subject to clause 8.G, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract for:
- i. loss of business;
- ii. loss of profit;
- iii. loss of reputation; and/or
- iv. any indirect, special or consequential loss or damage
whether caused by the negligence of the Seller, its employees or agents or otherwise which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supp ly the Goods in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Terms.
- J. Subject to clause 8.G and without prejudice to clause 8.H, notwithstanding that the Seller does batch test some of its products under the Informed Sport programme for WADA banned substances ( it does not batch test all its products ), the Seller shall under no circumstances be liable to the Buyer (or any of its employees or agents) for any:
- i. loss of business;
- ii. loss of profit;
- iii. loss of reputation; and /or
- iv. any indirect, special or consequential loss or damage
- v. Act of God, explosion, flood, tempest, fire or accident;
- vi. war or threat of war, sabotage, insurrection, civil disturbance or requisition;
- vii. acts, restrictions, regulations, bye laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
- viii. import or export regulations or embargoes;
- ix. strikes, lock outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
- x. difficulties in obtaining raw materials, labour, fuel, parts or machinery;
- xi. power failure or breakdown in machinery.
arising as a result of or in connection with the Buyer or any of its employees or agents or other third party to whom the Buyer supplies the Goods testing positive for any banned substances. the Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, 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 limiting the foregoing, the following shall be regarded as causes beyond the Seller's reasonable control:
9. Insolvency of buyer
- A. This clause 9 applies if: . the Buyer makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters administration or goes into liquidation (otherwise than for the purposes of a malgamation or reconstruction), or a moratorium comes into force in respect of the Buyer (within the meaning of the Insolvency Act 1986); or i. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or ii. t he Buyer ceases, or threatens to cease, to carry on business; or iii. 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.
- B. If this clause applies then, without l imiting any other right or remedy available to the Seller, the Seller may 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 bec ome immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
10. Export terms
- A. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incote rms shall have the same meaning in these Terms, but if there is any conflict between the provisions of Incoterms and these Terms, the latter shall prevail.
- B. Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 10 sh all (subject to any special terms agreed in Writing between the Buyer and the Seller) apply notwithstanding any other provision of these Terms.
- C. The Buyer shall be responsible for complying with any legislation or regulations governing the importation of th e Goods into the country of destination (and the further sale of the Goods in the country of destination) and for the payment of any duties on them.
- D. Unless otherwise agreed in Writing between the Buyer and the Seller, the Goods shall be delivered ex - works and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
- E. The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller's premises before shipment. The Seller shall h ave no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
- F. Unless otherwise required by the Seller, payment of all amounts due to the Seller shall be made by irrevocable letter of credit, in a form acceptable to the Seller, to be opened by the Buyer in favour of the Seller and confirmed by a bank in the United Kingdom acceptable to the Seller within 14 days after the Contract is conc luded.
- A. Each party undertakes that it shall not at any time disclose to any person any confidential information including details of the Goods, Goods prices, business, affairs, customers, clients or suppliers of the other party or of any member of the group of com panies to which the other party belongs, except as provided by clause 11 B below.
- B. Each party may disclose the other party's confidential information : . to those of its employees, officers, representatives or advisers who need to know that information for the purpose of carrying out the party's obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advi sers to whom it discloses the other party's confidential information comply with this clause 11 ; and i. as may be required by law, court order or any governmental or regulatory authority.
- C. Neither party shall use any other party's confidential information for any purpose other than to perform its obligations under this agreement.
- D. The provisions of this clause shall continue to apply after termination of this agreement.
- A. A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
- B. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
- C. If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
- D. The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the exclusive jurisdiction of the English courts.