1. All orders are received by Hockenhull Turkeys a division of Aviagen Turkeys Limited (“the Company”) subject to acceptance in writing by the company and when so accepted are subject to the following terms and conditions. The Purchaser hereby agrees that any document or part thereof subsequently given sent or delivered to the Company shall have no effect insofar as it purports to add to vary or replace these conditions of sale, unless those additions variations or replacements have been accepted by the Company in writing. No variation to the terms and conditions set out in this Agreement shall be binding unless agreed in writing between the authorised representatives of the Company and the Purchaser.
2. Every effort is made by the Company to dispatch all products in good condition and free from all diseases and defects, but the products should be examined by the Purchaser on arrival and the Company informed immediately if any of the products appear in bad condition. In the case of poults, the Company will supply at its discretion a number of poults, normally not less than 2% of the number invoiced, free of charge. In the following circumstances the Company will replace poults or, at its discretion, credit the Purchaser with the invoice price of poults in excess of the poults supplied free of charge:-
TRANSIT
Poults which the Company is satisfied died in transit to the Purchaser’s premises and the losses have been notified not later than 72 hours after receipt by the Purchaser.
MORTALITY
Poults which die within 7 days of delivery provided that:-
The Purchaser notifies the Company within 24 hours of any clinical signs of disease.
The Purchaser at his own cost consigns the dead poults to a Veterinary Surgeon who after conducting a post-mortem examination certifies in writing that the death of the birds was caused by a condition present in the birds at the date of delivery.
SEXING
If, before the end of 14 weeks from the date of delivery of any consignment of day old poults, more than 5% of that consignment are proved to the satisfaction of the Company to be other than that specified on the delivery note. In the case of sales of hatching eggs, the Company will not entertain any claims in respect of product quality which are not made in writing accompanied with full details and received by the Company within 21 days of the delivery date. In the case of sales other than poults or hatching eggs, the company will not entertain any claims which are not made in writing accompanied with full details and received by the Company within 4 days of the delivery date. In the event that the Company at its sole discretion is satisfied that a diseased or defective product was dispatched by the Company, the limit of compensation due from the Company to the Purchaser is the amount invoiced by the Company for such product. No further liability is or will be accepted by the Company. In particular, but without limitation, the Company shall not be liable by reason of any representation or implied warranty, condition or other term, or any duty at common law or under the express terms of this Agreement for any direct, indirect, special or consequential loss or damage whether for loss of profit or otherwise), or incidental or punitive damages, whether occasioned by the negligent (or otherwise) act or omission of the Company or the Company’s employees or agents. The Purchaser shall have no remedy in respect of any representation made to it by the Company except in the case of fraud. The Company warrants that it has the right to pass title to the products to the Purchaser UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, ALL CONDITIONS, WARRANTIES, STIPULATIONS OR OTHER STATEMENTS CONCERNING THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, BY STATUTE, AT COMMON LAW OR OTHERWISE ARE EXCLUDED. IN PARTICULAR (BUT WITHOUT LIMITATION OF THE FOREGOING), THE COMPANY GRANTS NO WARRANTIES REGARDING THE FITNESS FOR PURPOSE, PERFORMANCE, USE, NATURE OR QUALITY OF THE PRODUCTS. Nothing contained in this Agreement shall take effect or be construed so as to limit the Company’s liability for death or personal injury to human beings resulting from the Company’s negligence.
3. Any dates quoted for delivery of the products are approximate only and the Company shall not be liable for any delay in delivery of the products howsoever caused. Time for delivery shall not be of the essence. The products may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Purchaser.
4. If the products are carried by the Company’s vehicles or its nominated carriers, other than air carriers, delivery shall take place and risk in the products shall pass when the products reach the Purchaser’s place of business. In all other circumstances, including products carried by the Company’s nominated air carriers, delivery shall take place and risk in the product shall pass when the products come within possession or control (actual or constructive) of the Purchaser. The Purchaser or its representative shall endorse its acceptance on the Company’s delivery note.
5. Payment is due 30 days from the date of delivery. If the Purchaser fails to make any payment on that date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to charge interest (both before and after any judgement) on the amount unpaid calculated on a daily basis at the rate of the prevailing H.S.B.C. Ltd. base lending rate plus 5%.
6. Notwithstanding sale to the Purchaser, beneficial ownership and legal title to the “birds” (which includes any eggs they produce), “hatching eggs” (which includes any birds they produce) or other products shall remain with the Company until the full purchase price and any interest thereon has been received by the Company. Where payment is by cheque or other negotiable instrument, this is deemed to be conditional upon clearance of the same to the credit of the Company. If any of the “birds”, “hatching eggs” or other products are resold before such payment in full, the Purchaser shall sell the same only as bailee and fiduciary agent on behalf of the Company, and shall hold the proceeds of such resale to the Company’s account. The Purchaser shall keep the products supplied by the Company separately from any other goods supplied to the Purchaser by a third party and in a manner which clearly identifies the products as the property of the Company. The Company shall have the right at any time until title passes to the Purchaser under these conditions to deplete any “birds”, “hatching eggs” or other products by taking possession of the same, and remove them for resale to apply the proceeds of such resale to any amount outstanding to the Company. The Purchaser authorises the Company, its agents or employees to enter any premises at any reasonable time for the purpose of the Company exercising its rights under this condition.
7. All orders are accepted subject to the prices, exclusive of any taxes thereon, prevailing at the time of delivery and such prices are subject to change without notice.
8. The Company may apply, unless at the time of payment the Purchaser notifies the Company to the contrary, all or any part of any sum owing by the Company to the Purchaser in relation to any matter whatsoever in or towards its payment of any sum owing to the Company hereunder. For this purpose, reference to “the Company” or “the Purchaser” includes any company which is, for the purpose of the Companies Acts, a holding company, or a subsidiary of a holding company of the Company or the Purchaser respectively. The Company may within its sole discretion appropriate any payment made by the Purchaser to the Company against the amounts that have been owing by the Purchaser to the Company for the longest period notwithstanding any indication to the contrary by the Purchaser.
9. The Company will insofar as it is able to provide to the Purchaser, at the request of but at no cost to the Purchaser, advice on management, performance and other aspects relative to the Company’s business and will give to the Purchaser any relevant manuals or other handbooks issued by the Company. Whilst every reasonable effort will be made by the Company to ensure the soundness of such advice, (and of any other representations made by the Company, whether in writing, orally or by way of advertisement, brochures, manuals or otherwise) the same will be given on the condition that the Purchaser makes use of any such advice or other information obtained from the Company at the Purchaser’s sole risk and nothing shall in any way make the Company or any of its employees or agents personally liable for any loss whatsoever due to the negligence (or otherwise) of the Company its employees or agents or sub-contractors.
10. The Company, at its option and within its sole discretion, may assign and transfer the benefits and burden of this Agreement. The Purchaser shall not assign this Agreement to any third party without obtaining the Company’s written consent.
11. No waiver by either the Company or the Purchaser of any of its rights hereunder shall prejudice its ability to enforce any other rights accrued or accruing under these terms and conditions.
12. If any provision or portion of the terms and conditions is held to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted from these terms and conditions and shall not effect the validity of the remaining terms and conditions which shall be interpreted as though the invalid clause did not appear.
13. The Company shall not be liable to the Purchaser for any inability of the Company to perform its obligations hereunder, and the Company may, at any time thereafter, terminate its contracts with the Purchaser in respect of all or any of the products so affected if such inability is caused by strikes, material and labour shortages, adverse weather conditions, the perils incident to the production and/or hatching of its products, material change in the Purchaser’s financial conditions (if order is accepted on credit terms), war, civil commotion, legislative or administrative interference, imposition of any embargo or any other cause whatsoever (whether or not similar to the foregoing) beyond the control of the Company.
15. These Conditions of Sale and all contracts with the Company shall be governed by the laws of England and subject to the exclusive jurisdiction of the English courts.
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