B2B Terms of Sale

B2B TERMS OF SALE OF A NELSON & CO LIMITED

The Buyer’s attention is in particular drawn to the provisions of Conditions 3 and 10(d).

1: DEFINITIONS

“Buyer” means the person, firm or company purchasing the Goods from the Seller.

“Conditions” means these Conditions of Sale.

“Contract” means any contract between the Seller and the Buyer for the sale and purchase of the Goods, incorporating these Conditions.

“Force Majeure Event” means an event beyond the control of the Seller (or any person acting on its behalf), which by its nature could not have been foreseen by the Seller, or, if it could have been foreseen, was unavoidable, including without limitation, strikes, embargoes, riots, war, terror attacks, acts of hostilities, acts of the State or of public authorities, breakdown, delay in transportation, any form of labour dispute, shortage of materials, epidemics or pandemics, hurricanes, windstorms, fire, flood or act of God.

“Goods” means any goods agreed in the Contract to be supplied to the Buyer by the Seller (including any part or parts of them).

“Order” means an order placed for the Goods.

“Quotation” means any quotation issued by the Seller to the Buyer in respect of the Goods.

“Seller” means A Nelson & Co Limited.

2: PREVAILING CONDITIONS

(a) These Conditions govern all orders to and contracts with the Seller for the supply of the Goods and all orders shall be deemed to be made subject only to these Conditions which shall override and exclude any terms or conditions howsoever stipulated incorporated or referred to by that Buyer whether in the Order or at any negotiations and any course of dealing established between the Seller and the Buyer.

(b) No alterations, additions or modifications to these Conditions shall be incorporated into the Contract unless expressly accepted by a director of the Seller in writing. The signature by the Seller of any of the Buyer’s documents shall not constitute or imply such a modification or waiver.

(c) These Conditions constitute the only terms of the Contract between the Buyer and Seller for the supply of Goods and no other terms or conditions shall apply. Acceptance of delivery of the Goods by the Buyer constitutes an acceptance of, and is in accordance with, these Conditions.

(d) The Buyer acknowledges that before entering into an agreement for the purchase of any Goods from the Seller, the Buyer has expressly represented and warranted that the Buyer: (i) is not insolvent; (ii) has not committed any act of bankruptcy; or (iii) being a company with limited or unlimited liability is or has been in a position which would entitle any debenture holder or secured creditor to appoint a receiver and/or to petition for the winding up of the Buyer or apply for the appointment of an administrator or exercise any other rights over or against the Buyer’s assets.

(e) The Quotation is subject to withdrawal at any time before receipt of an unqualified Order from the Buyer and shall be deemed to be withdrawn unless so accepted within thirty (30) days from the date of the Quotation.

(f) The acceptance by the Seller of any order for Goods shall constitute an agreement to sell the Goods in accordance with these Conditions and not be a sale of them and no title to the said Goods shall pass on such acceptance to the intending Buyer.

3: THE GOODS

(a) All descriptions and illustrations contained in the Seller’s catalogues price lists and advertisements or otherwise communicated to the Buyer are intended merely to present a general idea of the Goods described therein and nothing contained in any of them shall form any part of the Contract.

(b) Notwithstanding that a sample of the Goods may have been exhibited to and inspected by the Buyer, it is agreed that such sample was so exhibited and inspected solely to enable the Buyer to judge the quality of the Goods to be delivered and not so as to constitute a sale by sample.

(c) The Seller’s employees and all agents are not authorised to make any representations, or give any advice or recommendations, concerning the Goods unless confirmed by a duly authorised officer of the Seller in writing. In entering into the Contract, the Buyer acknowledges that it does not rely on and waives any claims for breach of, any representations, advice or recommendations which are not so confirmed (save that nothing in these Conditions shall limit or exclude any liability of the Seller for fraudulent misrepresentation).

(d) Where appropriate, the Seller has affixed warnings on the exterior of the Goods. In such instances, the Buyer is prohibited from changing, deleting or obscuring the said warnings in any way. The Buyer agrees, in so far as may be permitted by law, to indemnify and hold the Seller harmless from and against any and all fines, penalties, claims, demands, damages, losses, liabilities, costs or expenses (including but not limited to solicitors fees and disbursements) arising out of or in connection with any Buyer’s breach of Condition 3(d). Nothing contained herein shall preclude the Buyer from adding such additional warnings or disclaimers as may be appropriate and/or required by law as a condition to the Buyer’s resale or use of the Goods subject to providing prior written notice to the Seller of such changes.

4: DELIVERY

(a) Whilst delivery times and dates are given in good faith and the Seller shall use its reasonable endeavours to meet the delivery time agreed. The time of delivery of the Goods shall not be (and cannot be made by notice or otherwise) of the essence and the Seller shall be under no liability whatsoever for any failure or delay in the delivery of the Goods nor shall the Buyer be entitled to terminate the Contract or refuse the delivery.

(b) The Buyer is responsible for obtaining any licences, consent, exchange control or other relevant authorisation necessary to ensure that payment is received by the Seller according to the payment terms specified below in Condition 5.

(c) Where the Goods are to be delivered in instalments, each delivery shall constitute a separate Contract and failure by the Seller to make a particular delivery, or any claim by the Buyer in relation to any particular delivery, shall not entitle the Buyer to refuse to accept further deliveries or treat the Contract as a whole as repudiated.

(d) The Buyer undertakes that its premises will at all times be safe for the Sellers’ vehicles and for the servants or agents of the Seller carrying out delivery, and the Buyer shall provide sufficient and proper storage space for each delivery. The Buyer shall provide such apparatus and labour as is necessary for the delivery of the Goods into the storage space and shall give the Seller every assistance in effecting delivery and shall indemnify the Seller against all claims whatsoever arising from such delivery operations. The Seller reserves the right for its drivers and carriers to refuse to take their vehicles onto a site nominated by the Buyer if, in the opinion of the driver or the carrier, the site conditions are such as to constitute a danger to the vehicles, the Goods or to any persons or property, in which event the provisions of Condition 4(h) shall apply.

(e) The Seller’s measurement of quality and the quantity stated on the Seller’s delivery ticket shall be accepted by the Buyer.

(f) The Seller reserves the right to carry out its obligations through agents or authorised distributors or to subcontract the whole or any part of its obligations.

(g) The Seller shall be entitled to deliver the Goods in one or more consignments unless otherwise expressly agreed.

(h) Should despatch or delivery of the Goods, or part of them, be delayed or prevented from any cause whatsoever beyond the Seller’s control or for a reason attributable to the Buyer or its customers or agents then, at the Seller’s sole discretion, either the Contract or any unfulfilled part thereof shall be terminated forthwith or the Seller may extend the time for delivery until a reasonable period after such cause shall have ceased in which event the Buyer shall be responsible for all storage and other costs incurred by the Seller in connection therewith (including, without limitation, delivery and redelivery costs). Any termination shall not prejudice the rights and obligations of either party in respect of any part of the Contract already completed but the Seller shall have the right to sell undelivered Goods and charge the Buyer for any shortfall below the price under the Contract with the Buyer.

5: PRICES AND PAYMENT

(a) The Seller reserves the right to vary its prices, on written notice. Unless otherwise agreed in writing, prices are those set out at the date of delivery. This Condition does not apply to “fixed price” Quotations expressed as such.

(b) All prices (including “fixed prices”) are exclusive of duty or tax and the Seller reserves the right to increase prices as a result of the increase or imposition of any duty or tax (including VAT) or by adjustments or alterations in currency rates of exchange. The price of Goods as stated in the Seller’s Quotation is, where applicable, based on the US dollar/Sterling Commercial exchange rate for payments in US dollars.

(c) Any sum payable by the Buyer under Condition 4(g) above shall be payable immediately on the Seller’s demand and the Buyer shall raise no objection in respect thereof always excepting the Buyer’s statutory rights as may exist.

(d) The Buyer shall, in addition to the total price, be liable to pay the amount of any tax or other Government levy on the Goods (including any increase in same) including VAT which may from time to time be payable and imposed on the Goods.

(e) The Buyer shall make payment to the Seller for the Goods net within thirty (30) days from the date of the invoice for the Goods without any deduction for any reason whatsoever.

(f) Interest shall be payable by the Buyer to the Seller on any sum outstanding beyond the period of credit allowed by the Contract (and without prejudice to any other right of the Seller) at the rate of three per cent (3%) above the Barclays Bank plc base rate from time to time in force, such interest to be compounded from month to month.

(g) Where payment is made by instalments, the failure of the Buyer to pay any instalment in due time shall entitle the Seller, at the Seller’s sole discretion, to treat such failure as repudiation of the whole Contract by the Buyer and (without prejudice to any other right) to recover damages for such breach of Contract, or, to require a payment at the time of delivery in respect of all future deliveries.

(h) The Seller shall have a general lien upon any goods of the Buyer for the time being in the possession of the Seller.

6: WARRANTY

(a) The Seller warrants that (subject to the other provisions of these Conditions) upon delivery the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.

(b) The Seller shall not be liable for a breach of the warranty in paragraph (a) above unless the Buyer gives written notice to the Seller of any defect in the Goods within fourteen (14) days of delivery.

(i) the Buyer makes any further use of those Goods after giving notice under paragraph (b); or

(ii) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or

(iii) the Buyer alters or repairs those Goods without the prior written consent of the Seller.

(d) Subject to paragraphs (b) and (c), if any of the Goods do not conform with the warranty in paragraph (a) above, the Seller shall at its option replace those Goods or refund the price of those Goods, in either case upon the Buyer returning those Goods at its own expense to such location as is nominated by the Seller.

(e) If the Seller complies with paragraph (d) above then it shall have no further liability for a breach of the warranty in paragraph (a) above in respect of such Goods.

7: COMPLIANCE: ENVIRONMENTAL, SOCIAL AND GOVERNANCE POLICIES

(a) General Clauses:

(i) The Parties acknowledge their common intention in the fulfilment of their obligations under these Conditions to minimise their impact on the environment and climate change.

(ii) The Buyer undertakes that it shall conduct its business with due diligence, in an efficient and environmentally responsible manner, in accordance with applicable laws, including applicable environmental legislation, standards and guidelines and ensuring that all its operations are carried out in accordance therewith.

(iii) The parties shall consider the ongoing impact of performance of the Contract on the environment and climate and shall plan to mitigate such impact as relevant and record any decisions in writing.

(iv) Subject to these Conditions and applicable laws, the Seller may/shall share environmental data, best practices and industry know-how with the Buyer for the purpose of minimising their impact on the environment and climate change.

(v) The Buyer further represents and warrants that in the last six (6) years from the date of the Contract, it has not been fined or convicted of any offence involving the environment, nor has it been the subject of any investigation, inquiry or enforcement proceedings regarding any offence or alleged offence of or in connection with damage to the environment.

(vi) The Buyer shall ensure that each of its subcontractors shall be bound in writing by terms equivalent in all respects to those set out in this Condition 7.

(vii) Inspection Clause and Audit. The Buyer agrees that the Seller or the Seller’s authorised representative may from time to time during the term of this Contract, on reasonable notice, inspect and audit the Buyer’s records to evaluate the Buyer’s compliance with this Condition 7. The Buyer will provide all assistance reasonably requested by the Seller for the purpose of inspecting and auditing the Buyer’s records pursuant to this Condition 7.

(b) Termination Rights:

(i) If the Buyer’s environmental practices or negative environmental impacts may bring the Seller’s reputation into disrepute because they conflict with the Seller’s environmental aim/policy targets from time to time, then this shall be deemed a material breach of these Conditions and shall entitle the Seller to terminate the Contract in accordance with this Condition 7.

(ii) If the Buyer’s acts persistently and materially in a manner that reasonably justifies the Seller’s opinion that the Buyer’s business operations or other conduct is inconsistent with good environmental practice and policy then this shall be deemed a material breach of these Conditions and shall entitle the Seller to terminate the Contract.

8: ONLINE SALES

(a) The Buyer acknowledges that the Seller may make sales of the Goods online. The Buyer acknowledges that any such sales by the Seller fall out of the terms of this Contract.

(b) For the avoidance of any doubt, the Buyer is not permitted to sell the goods on any third party online marketplace (including but not limited to Amazon), unless the Seller explicitly provides prior written consent to do so. The Buyer shall also use its best endeavours to ensure that its customers do not make any such sales and the Buyer hereby undertakes that it will on becoming aware of such sales instruct the customer concerned to immediately cease doing so.

9: SALES OUTSIDE OF THE UNITED KINGDOM

The Buyer is prohibited from actively selling the Goods, including online, in territories outside of the United Kingdom, on the basis that all such territories have either been exclusively allocated by the Seller to other distributors or resellers or reserved by the Seller.

10: LIMITATION OF LIABILITY

(a) Subject to Condition 4 and Condition 6, the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:

(i) any breach of these Conditions;

(ii) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and

(iii) any representation, statement or tortious act or omission (including negligence or misrepresentation) arising under or in connection with the Contract.

(b) All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

(i) for death or personal injury caused by the Seller’s negligence;

(ii) under section 2(3) of the Consumer Protection Act 1987;

(iii) for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or

(iv) for fraud or fraudulent misrepresentation.

(d) Subject to paragraphs (a) and (b) above:

(i) the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and

(ii) the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

(e) The Seller may assign the Contract or any part of it to any person, firm or company.

11: INTELLECTUAL PROPERTY

(a) The Buyer acknowledges that all intellectual property rights (including without limitation patents, copyrights, rights in a design and trademarks, registered or unregistered) subsisting in or in relation to the Goods vest in the Seller and nothing in these Conditions shall be construed as constituting an assignment or licence, in whole or in part, thereof. The Buyer will not seek to object to or damage such intellectual property and will not assist any other party in so doing.

(b) The Buyer represents and warrants that it shall not make any changes to its website(s) that breaches the Seller’s intellectual property rights, unless otherwise agreed and authorised by the Seller.

12: DATA PROTECTION

The Parties warrant that it has complied with and undertakes to continue to comply with the applicable data protection legislation at all times. For the avoidance of doubt, each Party shall only comply with the domestic legislation applicable to that Party. Any data processing activities shall be in accordance with the Seller’s Privacy Policy in the website footer.

13: BUYER’S POSITION

(a) The Buyer shall not be entitled to withhold payment of any amount allegedly payable by the Seller because of any disruptive claim by the Buyer against the Seller nor shall the Buyer be entitled to set off against any amount payable any monies which are not presently payable by the Seller or for which the Seller disputes liability.

(b) The Seller shall be entitled (without prejudice to its other rights against the Buyer) by notice in writing to the Buyer to rescind any Contract or other agreement between the Seller and the Buyer and/or to suspend delivery should any of the circumstances set out in Conditions apply.

14: PASSING OF RISK AND RETENTION OF TITLE

(a) The Goods are at the risk of the Buyer from the time of shipping, unless specifically agreed otherwise.

(b) Ownership of the Goods shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of

(i) the Goods; and

(ii) all other sums which are or will become due to the Seller from the Buyer on any account.

(c) Until ownership of the Goods has passed to the Buyer, the Buyer shall (i) hold the Goods on a fiduciary basis as the Seller’s bailee; (ii) store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller’s property; (iii) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and (iv) maintain the Goods in satisfactory condition and keep them insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request, the Buyer shall promptly produce a valid policy of insurance to the Seller and give the Seller such information as may reasonably be required relating to the Goods.

(d) The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:

(i) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and

(ii) any such sale shall be a sale of the Seller’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.

(e) The Buyer’s right to possession of the Goods shall terminate immediately if:

(i) the Buyer has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986 as amended by the Corporate Insolvency and Governance Act 2020), or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or

(ii) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as amended by the Corporate Insolvency and Governance Act 2020 or the Buyer ceases to trade; or

(iii) the Buyer encumbers or in any way charges any of the Goods. The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.

(f) The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.

(g) Where the Seller is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer.

(h) On termination of the Contract, howsoever caused, the Seller’s (but not the Buyer’s) rights contained in this Condition 14: shall remain in effect.

15: STATUTORY REQUIREMENTS

The Buyer warrants that all Goods supplied to the Buyer shall be stored, displayed and sold in accordance with the Seller’s instructions, that it will comply with the requirement of all competent authorities relating to the storage and use of the Goods and undertakes to observe the Buyer’s obligations under any Acts of parliament, statutory instrument, common law or other regulations or any government or competent authority for the time being in force and the Buyer indemnifies the Seller from any liability whatsoever for any loss or damage which may arise as a result of a breach of this Condition by the Buyer.

16: CONFIDENTIALITY

The Contract and its subject matter are confidential and shall not be disclosed or used for any unauthorised purpose.

17: NOTICES

Any notice, consent or the like required to be given under these Conditions shall be in writing and either sent by registered post, or delivered by hand, to the address of the other party as set out in the Contract or at such changed address as shall for that purpose be notified to the other and every such notice, or by email, consent or the like shall be deemed to have been given forty eight (48) hours after posting or at the time of the hand delivery.

18: WAIVER

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.

19: SEVERANCE

(a) If any provision of the Contract (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

(b) If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

20: THIRD PARTY RIGHTS

The parties to this Contract do not intend that any term of these Conditions shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

21: ANTI-BRIBERY AND MODERN SLAVERY

(a) It is a term of these Conditions that, in pre-contract negotiations and in the exercise of its rights or the performance of its obligations under these Conditions, each party will at all times ensure that it complies with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption, including, without limitation, the Bribery Act 2010 ("Anti-bribery Laws") and that it does not commit (or procure the commission of) any breach of any Anti-bribery Laws or do anything which would cause any other party to commit an offence under any Anti-bribery Laws.

(b) The Buyer confirms that there is no slavery, servitude, forced or compulsory labour or human trafficking occurring in its business or in its supply chain, and will comply with the Modern Slavery Act 2015 and not do anything that would constitute an offence or cause the Seller to commit an offence under that Act.

(c) Any breach of this Condition 21: by the Buyer will be deemed a material breach of these Conditions and will entitle the Seller to terminate the Contract with immediate effect.

22: JURISDICTION

These Conditions shall be construed according to and be governed by English law and the Buyer and the Seller irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.