In these conditions:
|Conditions:||Are these terms and condition of sale, any special terms and conditions on the face of the Vendor’s Tender or the Vendor’s written acceptance of the Buyer’s order (as the case may be).|
|Contract:||Is the contract for the purchase and sale of Goods|
|Goods:||Are the goods which the Vendor is to supply|
|Vendor:||Is Thompsons Food Service Ltd. 26-28 Southgates Road, Great Yarmouth, Norfolk NR30 3LL|
1. Basis of the Sale
1.1. All goods are sold subject to the Vendor’s prior approval of the Buyer’s credit and to the Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any Tender is accepted or purported to be accepted, or any order is made or purported to be made by the Buyer,
1.2. No variation to these Conditions shall be binding unless agreed in writing by a director of the Vendor.
1.3. The Vendor’s employees or agents are not authorised to make any representations concerning the Goods order unless confirmed by the Vendor in writing. In entering into the Contract the Buyer acknowledges that is does not rely on, and irrevocably waives any claim it may have for damages for or right to rescind the Contract for an such representations which are not so confirmed (unless such representations were fraudulently made).
1.4. Any typographical clerical or other error or omission and any sales literature, quotation, price list, acceptance of offers, invoice or other document or information issued by the vendor shall be subject to correction without any liability on the part of the Vendor.
2.1. No order submitted by the Buyer shall be deemed to be accepted by the Vendor unless and until confirmed in writing by the Vendor.
2.2. The Buyer is responsible for ensuring the accuracy of the terms of any order.
2.3. The quantity and description of and any specification for the Goods shall be those set out in the Vendors quotation (if accepted by the Buyer) or the Vendor’s acceptance of the Buyer’s order
3.1. Unless otherwise stated on the Vendor’s written acceptance of order, delivery of the Goods shall be charged by consignment, which may only be waived at the discretion of the Vendor.
3.2. Any dates given for the delivery of the Goods are approximate only and the Vendor shall not be liable for any less, direct or indirect, which may arise from delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence.
3.3. The Goods may be delivered in instalments. Each delivery shall constitute a separate contract and failure by the Vendor to delivery any one or more of the instalments, in accordance with the conditions 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.
3.4. If the Buyer fails to take delivery of the Goods or fails to give the Vendor adequate delivery instructions at the time states for delivery then the Vendor may:
3.4.1. Store the Goods until actual delivery and charge the Buyer for the costs (including insurance) or the storage, or
3.4.2. Sell the Goods at the best price readily obtainable and (after deducting all storage, selling and other expenses) account to the Buyer for the excess sums owing by the Buyer or charge the buyer for any shortfall.
3.5. Any periods or times stated for delivery or for compliance with any other contractual obligation on the Vendor’s part (“Estimated times”) are estimates only. The Vendor shall not be responsible for loss or damage resulting from delay or failure to notify the Buyer of any delay. Changed specifications or instructions may result in changes to Estimated Times.
4.1. All prices quoted in the Vendor’s price list are subject to an increase. Which may occur as a result of factors falling outside the control of the Vendor. The effective price that the Buyer shall pay for the Goods shall be that price ruling at the date of the despatch of the Goods.
4.2. VAT and any other duties or taxes where applicable will be added to all invoices at the rate ruling at the date of despatch.
4.3. The Buyer shall pay the Vendor’s invoices without any deduction of set off. The Vendor may recover the price notwithstanding that deliver may not have taken place and property in the Goods has not passed to the Buyer. The time of payment shall be of the essence.
4.4. Tenders may be withdrawn at any time prior to acceptance of order.
5. Acceptance/Return of Goods
5.1. The Buyer shall inspect Goods on delivery and unless the Buyer notifies and defects in writing within 2 days or delivery shall be deemed to have accepted them. After acceptance the Buyer shall not be entitled to reject Goods which are not in accordance with the contract. In no event shall the Buyer be entitled to reject the Goods on the basis of any defect or failure which is so slight that it would be unreasonable for the Buyer to reject the Goods.
5.2. Any Goods returned to the Vendor without prior consent will not be accepted by the Vendor and will be returned to the Buyer freight collect.
5.3. Refunds are subject to the discretion of the Vendor and 5.2, above. All goods must be in original packaging, non-perishable and not special order items.
6. Payment Goods shall be accepted on a cash on delivery basis unless the Buyer has a credit account with the Vendor. It shall be at the Vendor’s sole discretion whether or not to grant the Buyer a credit account. If the Buyer has a credit account with the Vendor, payment shall be made in the date on which the Vendor issues the invoice (the ‘Invoice Date’). In the event that the invoice is not paid by the Buyer within 30 days from the Invoice Date then the Vendor shall be entitled to charge interest on late payments from the Invoice Date at a rate equivalent to the rate prevailing at the Invoice Date (as prescribed by the Secretary of State pursuant to Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998.
7. Retention of Title and Risk
7.1. The risk in the Goods shall pass to the Buyer on delivery. At that moment, the Buyer shall become responsible for the care and protection of the goods and shall take out at its own expense adequate and comprehensive all risks cover on the Goods (with a note of the Vendor’s interest endorsed therein until the Vendor has received payment of the price in full).
7.2. Notwithstanding delivery and the passing of risk in the goods, title in the goods (including full legal and beneficial ownership) shall not pass to the Buyer until the Vendor has received (in cash or cleared funds) payment in full for all Goods supplied by the Vendor to the Buyer under all contracts between them. Payment of the full price for the Goods shall include the amount of any interest or other sums payable under contracts between the Vendor and the Buyer.
7.3. Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the goods as the Vendor’s fiduciary agent and Bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Vendor’s property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business but shall account to the Vendor for the proceeds of the sale or otherwise of the goods, whether tangible or intangible including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds properly stored protected and insured.
7.4. 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) and the Vendor shall be entitled in any time to require the Buyer to deliver up the Goods to the Vendor and if the Buyer fails to do so forthwith to enter upon any premises to vehicles of the Buyer or any third party where the goods are stored and repossess the goods are stored and repossess the Goods.
7.5. The Buyer shall not be entitled to pledge or in any way charge by way of security for an indebted ness any of the Goods which remain the property of the Vendor.
8.1. The Vendor shall have the right immediately to terminate, or suspend any further deliveries under the Contract or any other contract with the Buyer without any liability to the Buyer and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previously agreement or arrangement in the contrary if:
8.1.1. The Buyer fails to make any payment without due or breaches any provision of the Contract;
8.1.2. The Buyer makes any voluntary arrangement with its creditors or becomes subject to and administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation, or an encumbrance takes possession, if a receiver is appointed, of any of the property or assets of the Buyer or the Buyer copies or threatens to cease to carry on business or the Vendor reasonably apprehends that any of these events is about to occur in relation to the Buyer.
8.2. The right or termination given by Clause 8.1 shall be without prejudice to any other right or remedy of either party in respect of any breach committed under the terms of this remedy of either party in respect of any breach committed under the terms of this Agreement.
9. Default The Buyer shall fully and effectively indemnify the Vendor against the total expense to the Vendor arising out of the Buyer’s breach or breaches of these conditions of sale. Such expenses shall include (without limitation) (1) all expertise incurred by the Vendor in sourcing and building the goods; (2) all court fees (3) all amount payable to the Vendor’s professional advisers (payable on an indemnity basis) in pursing claims against the Buyer for breach or breaches of these conditions of sale and for enforcing any judgement/s and/or order/s (4) all amounts payable to the Vendor’s insurers and/or debt recovery agents in the case including anticipated sims payable by the Vendor only after payment of any sums from the Buyer.
10.1. The Vendor shall not be liable for any increased costs, expenses, loss of profits, goodwill, business, contracts, revenues or anticipated savings or any type of special indirect or consequential loss including loss or damage suffered by the Buyer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Vendor had been advised of the possibility of the Buyer incurring the same. In any events, the Vendor’s entire capability under any contract shall be limited to damages of an amount equal to the price of the goods. The Vendor does not attempt to limit liability for personal injury or death caused by its negligence or the negligence of its employees or agents
10.2. Subject to the provisions of the Food Safety Act 1990 and the Unfair Contract Terms Act 1977 all warranties, conditions, representations or other terms implied by statute or common law are excluded to the fullest extent permitted by law. Without detracting from the generality of the foregoing the Vendor shall not be liable in respect of losses arising out of the negligence of the Buyer or the Buyer’s failure to store use or prepare the Goods in accordance with the instructions appearing on the packaging of the Goods.
10.3. To the extent the law does not permit the liabilities concerned to be excluded and save as otherwise expressly provided the Vendor’s entire aggregate liability for all claims shall be limited to damages of an amount equal to the upper limit of the Vendor’s liability insurance.
11. Force Majure The Vendor shall (1) in any event not be liable for the loss or damage and (2) be entitled to cancel or rescind the contract if the performance of its obligations under the contract is in any way adversely affected by any cause whatsoever beyond the Vendor’s control including (but not limited to) the delays or default of any sub-contractors, war, strikes, kick out, trade disputes. Flood, accident to plant or machinery, shortage of material or labour.
12.1. The Vendor may assign its rights and obligations. The Buyer may not assign its rights and obligations.
12.2. No delay or failure by the Vendor in enforcing any provision of the Contract shall constitute a waiver of that provision or any other provision. No waiver by the Vendor or any breach of the Contract by the Buyer shall be considered as s waiver of any subsequent breach of the same or any other provision. No waiver by the Vendor shall be effective unless in writing.
12.3. If any provision of these Conditions is held by any competent authority to be limited or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
12.4. These Conditions and the Vendor’s acceptance or order constitute the entire agreement between the Vendor and the Buyer concerning the supply of the Goods and replace and supersede any prior arrangements, understanding warranty or representation (other any fraudulent misrepresentation).
12.5. The Contract shall be governed by the laws of England and the parties submit to the non-exclusive jurisdiction of the English courts.