1. DEFINITIONS AND INTERPRETATION
1.1 The following words and expressions shall have the following meanings in this Agreement:
- Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
- Delivery Date: the date specified for delivery of an Order.
- Force Majeure Event: events, circumstances or causes beyond a party's reasonable control.
- Order: an order for the Products submitted by the Customer in accordance with clause 3.
- Trading Conditions: the existing market conditions taking into account factors such as Brexit, weather forecasts and crop availability.
1.2 In this Agreement a reference to one gender shall include reference to every gender; words denoting a singular number include the plural and vice versa; references to persons shall include firms, companies and other organisations; a reference to a statutory provision includes a reference to the same as modified, re-enacted or replaced from time to time and any subordinate legislation made under it; a reference to a legal or regulatory body includes a reference to any successor body or bodies to it; headings shall not affect the interpretation of this Agreement; the words “include”, “includes”, “including” and “in particular” shall be construed as if they were followed by the words “without limitation” and a reference to this Agreement shall include its Schedules.
2. COMMENCEMENT AND TERM
2.1 This Agreement shall commence on the Commencement Date and shall continue, as long as the parties are trading together.
3.1 Orders may be placed by the Customer via Natoora’s mobile APP. Natoora also accepts orders via phone, in writing, via e-mail or via electronic data interchange. All Orders are subject to the terms of this Agreement. .
3.2 The Customer shall place Orders by the relevant Cut Off Time. Natoora may accept or decline Orders at its absolute discretion. Natoora may, at its discretion, accept an amendment to an Order by the Customer.
3.3 Natoora shall assign an order number to each Order it accepts and notify the order number to the Customer. Each party shall use the relevant order number in all subsequent correspondence relating to the Order.
3.4 The Customer is responsible for ensuring that Orders are complete and accurate. The Customer shall give Natoora all necessary information that Natoora reasonably requires in order to fulfil each Order.
3.5 A minimum of 7 days’ notice is required to cancel a Standing Order. Natoora shall be entitled to charge in full for any Orders cancelled after this time.
3.6 In case of low stock levels and quality issues, Natoora reserves the right to substitute a Product with a similar product, at the price of the product received by the customer.
3.7 On the app, the growing ethos of our fresh produce is indicated with a three letter term. Produce that is labelled “ORG” is certified Organic at the farm gate; however it is not certified Organic when it reaches the end customer. This is due to operational constraints within our warehouse, rather than as a result of how the produce has been farmed. We would need to follow a set of stringent requirements in order to carry the Organic certification beyond the point of receiving the produce from the farm.
4.1 Natoora shall ensure that:
- 4.1.1 each delivery of Products is accompanied by an invoice, which shows the order number, the type and quantity of Products; and unless requested it will be sent in digital format via email.
4.2 Delivery is completed on the completion of unloading of the Products at the Delivery Location.
4.3 Natoora shall have no liability for any failure to deliver the Products to the extent that such failure is caused by:
- 4.3.1 a Force Majeure Event; or
- 4.3.2 the Customer's failure to provide Natoora with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
5. QUALITY AND FITNESS FOR PURPOSE
5.1 Natoora warrants that the Products shall not be defective at large. Given the fragile and fresh nature of our products a defect ratio under 5% of the order will be deemed negligible and not count towards this warrant.
5.2 Subject to clause 5.3, Natoora shall, at its option, replace any Products that are found to be defective, or refund the price of such defective Products in full, if:
- 5.2.1 the Customer gives notice to Natoora within 24 hours of delivery that some or all of the Products do not comply with the warranty set out above;
- 5.2.2 Natoora is given a reasonable opportunity of examining such Products; and
- 5.2.3 the Customer (if asked to do so by Natoora) returns such Products to Natoora's place of business in the original packaging and condition;
5.3 Natoora shall not be liable for Products' failure to comply with the warranty set out in clause 5.1 if:
- 5.3.1 the Customer makes any further use of such Products after giving notice of defects in accordance with clause 5.2;
- 5.3.2 the defect arises because the Customer failed to follow Natoora's oral or written instructions as to the storage or use of the Products or (if there are none) good trade practice regarding the same; or
- 5.3.3 The defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
5.4 Natoora's only liability to the Customer if the Products fail to comply with the warranty set out in clause 5.1 is as set out in this clause 5.
5.5 The terms of this Agreement shall apply to any replacement Products supplied by Natoora.
6 . TITLE AND RISK
6.1 It is the responsibility of the Customer to provide a delivery area at the Delivery Location. When Natoora delivers Products and there is no one to accept deliveries at the Delivery Location, Natoora shall be entitled to leave the Products in the delivery area and this shall be taken as completion of delivery. Natoora shall have no responsibility for goods stolen from the Delivery Location.
6.2 In order for Natoora to deliver the Products it may be necessary for the Customer to provide keys to Natoora. Natoora’s drivers are accustomed to carrying restaurant keys and working with alarm information. It is the Customer’s responsibility to provide Natoora with all information regarding opening hours, days of trading and any other alarm systems in advance of delivery of any Order.
6.3 Risk in Products shall pass to the Customer on completion of unloading the Products at the Delivery Location.
7. PRICE AND PAYMENT
7.1 The Customer shall pay for Products in accordance with this clause 7.
7.2 Price Lists are published by Natoora once a week and subject to changes at the sole discretion of Natoora. Natoora reserves the right to change or amend published prices at any time. No pricing made available to the Customer in any way shall constitute an offer and the Company may amend its prices at any time.
7.3 Unless the customer has an agreed fixed price then the price Natoora charges is the displayed price on the NatooraPRO App or Natoora’s ordering system which can be requested at the time of ordering
7.4 The Price excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Natoora at the prevailing rate (if applicable), subject to the receipt of a valid VAT invoice.
7.5 Fixed prices and fixed term price lists are granted by Natoora in special cases and only at the sole discretion of Natoora. Natoora reserves all rights to change, update or terminate a fixed priced agreement or a fixed term price list agreement entirely at its own discretion.
7.6 In the case of an agreement with Natoora on fixed prices, due to the volatility of pricing of Wild Mushrooms, Wild and Foraged produce, Natoora will not quote a fixed price on these products.
7.7 Natoora may invoice the Customer for the price of Products plus VAT at the prevailing rate (if applicable) on or at any time after it confirms the relevant Order to the Customer. At the beginning of each calendar month Natoora shall send a summary statement listing all invoices issued in the previous month.
7.8 Payment is by credit/debit card via Stripe unless otherwise agreed. If otherwise agreed, The Customer shall pay invoices in full in cleared funds within the terms of agreement of the invoice date. Payment shall be made either by cheque or by BACS to the bank account nominated in writing by Natoora.
7.9 If the Customer fails to make any payment due to Natoora under this Agreement by the due date for payment, then, without limiting Natoora's remedies under this Agreement, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.10 Natoora may suspend all further deliveries of Products until payment has been made in full.
7.11 In the event of any cheques, standing orders or direct debits due from the Customer to Natoora being dishonoured, Natoora reserves the right to charge £45 (or such other sum as the Natoora may from time to time advise the Customer) to the Customer's account to cover bank and administrative costs.
7.12 The Customer authorises Natoora to approach the Customer’s bank (as provided to Natoora by the Customer) for a credit reference.
7.13 The Customer shall pay all amounts due under the contract in full without set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Natoora may at any time, without limiting any of its other rights or remedies, set off any amount owing to it against any amount payable by Natoora to the Customer.
7.14 Any rebate which may be agreed between the Customer and Natoora will only be binding on Natoora if such an agreement is evidenced in writing and this Agreement is strictly complied with.
8. LIMITATION OF LIABILITY
8.1 Nothing in this Agreement shall limit or exclude Natoora's liability for:
- 8.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
- 8.1.2 fraud or fraudulent misrepresentation;
- 8.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
- 8.1.4 any matter in respect of which it would be unlawful for Natoora to exclude or restrict liability.
8.2 Subject to clause 8.1:
- 8.2.1 Natoora shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with this Agreement; and
- 8.2.2 Natoora's total liability to the Customer for all other losses arising under or in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to the total sums paid and/or payable by the Customer for Products under this Agreement in the six month period preceding the event giving rise to liability.
8.3 Except as set out in this Agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
9.1 Neither party shall use, copy, adapt, alter, disclose or part with possession of any information or data of or relating to the other party or its group companies which is disclosed or otherwise comes into its possession directly or indirectly as a result of or in connection with this Agreement and which relates to the business of the other party or its group companies (Confidential Information) except as strictly necessary to perform its obligations or exercise its rights under this Agreement provided that this clause 10 shall not apply to Confidential Information:
- 9.1.1 which the receiving party is able to prove was already in its possession at the date it was received or obtained in connection with this Agreement or which the receiving party obtains from some other person with good legal title to the same or which is independently developed by or for the receiving party; or
- 9.1.2 which comes into the public domain otherwise than through the default or negligence of the receiving party.
9.2 Each party may disclose the other party's Confidential Information:
- 9.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 9; and
- 9.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3 For the avoidance of doubt, the existence and terms of this Agreement shall be Confidential Information.
9.4 The provisions of this clause 9 shall continue in force notwithstanding termination or expiry of this Agreement.
9.5 Each party acknowledges that damages alone would not be an adequate remedy in the event of breach by the other party of the provisions of this clause 9 Accordingly, it is agreed that either party shall be entitled to seek an injunction or other equitable remedy for any threatened or actual breach of this clause 9, without prejudice to any other rights and remedies which that party may have.
10.1 This Agreement may be terminated immediately by either party by notice in writing if the other party:
- 10.1.1 commits a material breach of this Agreement and either such material breach is incapable of remedy or, if it is capable of remedy, the other party fails to remedy the breach within a period of 30 days after receiving written notice requiring it to do so; or
- 10.1.2 suspends, or threatens to suspend, payment of its debts or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1996; enters into or applies for (or calls meetings of members or creditors with a view to) one or more of a moratorium, winding up, administration, liquidation (of any kind, including provisional), or composition or arrangement with creditors; or has any of its property subjected to one or more of the appointment of a receiver (of any kind), enforcement of security, distress, or execution of a judgment (in each case to include similar events under the laws of other countries).
10.2 Without limiting its other rights or remedies, Natoora may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
10.3 Any termination or expiry of this Agreement will be without prejudice to any other rights or remedies of either party under this Agreement or at law and will not affect any accrued rights or liabilities of either party at the date of termination nor the coming into or continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination or expiry.
10.4 On termination of this Agreement, for any reason the Customer shall promptly pay any of Natoora’s outstanding invoices and all other amounts due to Natoora.
11.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:
- 11.1.1 sent by email to either Natoora Contact or the Customer Contact as appropriate.
11.2 Any notice or communication shall be deemed to have been received:
- 11.2.1 by email, at the time of transmission provided no message of non-delivery is received, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.2.3, 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.
11.3 This clause 11 does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
12. FORCE MAJEURE
12.1 A party shall not be liable to the other for failure to perform its obligations under this Agreement if that failure is caused by a Force Majeure Event. If a party is prevented or delayed in performing any of its obligations under this Agreement by a Force Majeure Event, it shall promptly tell the other in writing setting out the nature of the circumstances and its actions to mitigate its effect. The notifying party must take all reasonable steps to avoid or minimise its failure caused by such prevention or delay.
12.2 If a party is prevented from performing its obligations for 30 days or more, the other party may immediately terminate this Agreement by giving written notice to the other party.
12.3 Nothing in this clause 12 shall relieve the Customer of any obligation to make payment any monies due to Natoora under this Agreement
13.1 A person who is not a party to this Agreement has no right under this Agreements (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement.
13.2 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
13.3 A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
13.4 A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
13.5 If any provision of this Agreement is found by any competent court to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement which shall remain in full force and effect.
13.6 No variation of this Agreement will be valid unless signed by an authorised signatory of both parties.
14. GOVERNING LAW AND JURISDICTION
14.1 This Agreement shall be governed by and construed in accordance with the laws of England and Wales.
14.2 Each party irrevocably agrees to submit to the exclusive jurisdiction of the courts of England over any matter arising under or in connection with this Agreement.