TERMS AND CONDITIONS OF SALE

 

Basis of Supply

These Terms set out the basis on which Filbert's Fine Foods limited (the "Supplier") will supply all products ("Goo ds") to the person or entity named as the customer in the Filbert's Fine Foods limited account opening form (the "Buyer").

These Terms are incorporated into each order for Goods placed by the Buyer (an order). Each Order shall (subject to the provisions of clause 2) form a separate contract between the Supplier and the Buyer including these Terms.

In the event of a conflict between these Terms and the content of any Order, these Terms shall prevail.

These Terms apply to the exclusion of any other terms and conditions stipulated by the Buyer.

The Supplier makes no warranties concerning the Goods except as expressly set out in these Terms or (insofar as they may not be excluded) as implied by law.

 

Orders

The Buyer may place Orders in writing, by email or verbally. Orders must specify the Goods required by the Buyer and the quantity, and shall be made on the basis of the most recent product and price list provided to the Buyer by the Supplier (the "Price list"). Any purported departure from the Price List or inclusion of additional terms shall render the Order invalid (save to the extent that the Order specifies an agreed deposit payment as referred to in clause 3.4).

The Supplier may at its discretion send an email or fax to the individual placing the Order or the Supplier's regular contact within the Buyer's organisation, confirming the Supplier's understanding of the terms of the Order placed. If this confirmation inaccurately describes the Buyer's understanding of the Order the Buyer may respond in the same medium to the individual within the Supplier's organisation sending the confirmation, no later than close of business on the working day after despatch of the Supplier's email to cancel the Order. In the absence of such a response from the Buyer, the Supplie r’s confirmation shall be deemed accurately to describe the Order placed.

The Supplier may also at its discretion contact the Buyer no later than close of business on the working day after its receipt of an Order, to indicate that the Order is not validly placed or that it cannot be met by the Supplier, or that it cannot be met without a deposit payment being made. In that case the Order shall be deemed cancelled.

Subject as provided above, a valid Order placed in accordance with this clause 2 shall become binding upon the Supplier and the Buyer in accordance with these Terms upon the Supplier's receipt of the Order, and no Order may be cancelled by the Buyer without the Supplier's written agreement.

 

Price and Payment

Subject to clause 3.2 the price of Goods shall be as stated in the Price list. Where the Price list does not specify Value Added Tax ("VAT") and VAT is due, the price in the Price list excludes such VAT which shall be additionally payable in accordance with this clause 3.

The price stated in the Price List may be increased by an amount notified in writing by the Supplier to the Buyer being its reasonable cost of overcoming a Force Majeure (as defined in clause 5) and the Buyer shall not be entitled to cancel any Order on the basis of such increase, save as provided in clause 2.4.

Where carriage , insurance, storage or other ancillary charges ( Ancillary Charges") are not specified within the Price List. they are nevertheless payable by the Buyer at the same time as if they form part of the price for the Goods to which they relate and shall be

treated as such for the purposes of these Terms. The Supplier shall give a fixed figure or reasonable estimate as to its Ancillary Charges for any Order or part thereof at the Buyer's request.

Invoices are normally issued by the Supplier at delivery but the Supplier may invoice for a deposit in advance of delivery where this has been agreed with the Buyer. The Buyer shall pay the Supplier's invoices (without any deduction or withholding on any grounds) by cheque, credit card or BACS:

within 5 days of issue in the case of such a deposit: or

in all other cases, within 30 days of issue.

Any extension or credit granted to the Buyer may be changed or withdrawn at any time.

Without prejudice to the Supplier's other remedies under these Terms or at law, late payment of any invoice shall attract interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.

 

Delivery

Any time(s) or date(s) (including without limitation lead time(s)) specified or agreed by the Supplier for delivery (including without limitation in the Price List or any confirmation from the Supplier as referred to in clause 2.2) are given in good faith but are an estimate only and the Supplier shall not be liable for any direct or indirect loss, damage or expense howsoever arising from any failure of the Supplier to deliver at such time(s) or date(s).

The Supplier reserves the right to deliver Goods by instalments and may treat each such instalment delivery as a separate contract.

Delivery shall take place upon the Supplier making the Goods available at the address stated in the account opening form (or at any address notified by the Buyer for the purpose or any address to which deliveries have previously been made by the Supplier). The Buyer shall be liable for any additional costs suffered by the Supplier in the event of the Buyer's refusal or delay in accepting delivery, in failing to provide premises, services or information for the Supplier to effect safe delivery, or in the event of future deliveries being withheld through the suspension of any Order under clauses 9.1.1, 9.1.2 or 9.1.3.

The Goods are supplied subject to the customary tolerance, which expressly includes reasonable variations from any prior sample or description including without limitation as to the colour and design of packaging.

 

Force Majeure

The Supplier shall not be liable for any failure or delay in performing its obligations arising from circumstances outside its control ("Force Majeure") which shall included without limitation Acts of God, war, strike, civil commotion, defaults of suppliers, work to rule or go slow, overtime bans, lock-outs, fire, flood, drought. crop failure, disease of whatever nature, in each case affecting the Supplier's ability to acquire the Goods or any raw materials or to manufacture, package or deliver the same except at increased prices.

In circumstances of Force Majeure the Supplier shall endeavour to notify the Buyer as soon as reasonably practicable and may at its discretion: make such reasonable alternative arrangements as may be necessary to enable it to resume performance in whole or in part. subject to clause 3.2: and/or suspend any Order in whole or in part; and/or cancel any Order in whole or in part.

 

Ownership and Risk

Ownership of the Goods comprised in any Order shall not pass to the Buyer until the Buyer has paid to the Supplier all sums owed in respect of that Order. Whilst the Goods remain the Supplier's property, the Buyer shall keep them secure, separate and identifiable and shall not dispose or part with possession of, charge, or deal with them in any way.

If payment of any sum is overdue in respect of any Goods, the Supplier shall have the right (without prejudice to any other remedy which may exist under these Terms or at law):

to commence proceedings against the Buyer for the price of such Goods, notwithstanding that property in the Goods has not yet passed to the Buyer; or

to repossess such Goods at the Buyer's cost. and for this purpose the Buyer hereby grants an irrevocable right and licence to the Supplier and its representatives to enter upon all or any of its premises with or without vehicles during normal business hours and shall indemnify the Supplier for its costs incurred in doing so.

The Goods shall be at the Buyer's risk as from delivery and from that time the Buyer will keep them properly insured for not less than their price until ownership in such Goods has passed to the Buyer under this clause 6.

 

Defects and Returns

Save in the case of defects which are not immediately apparent from a reasonable inspection (Latent Defects). any defect in delivered Goods or failure to comply with the terms of an Order must be notified to the Supplier in writing within 7 days of delivery.

In the case of Latent Defects, such defects or failures must be notified to the Supplier in writing within 7 days of them becoming reasonably apparent to the Buyer.

The Supplier reserves the right to replace defective Goods as soon as it is reasonably able which shall discharge its responsibility in respect of such Goods.

Goods may only be returned to the Supplier where the Supplier has agreed to this in writing and such a return shall not be deemed acknowledgement of any defect. Any such Goods must be returned in their original packaging at the Buyer's cost save where the Supplier has agreed otherwise in writing.

 

Liability and Insurance

The Supplier's maximum liability to the Buyer for any breach of contract. negligence or breach of statutory duty in respect of any individual contract as referred to in clause 1.2 or delivered instalment as referred to in clause 4.2 shall be the price paid by the Buyer to the Supplier in respect of that contract or instalment (excluding applicable VAT).

The Supplier shall under no circumstances be liable for any loss of profit. business, data or anticipated gain or any special. indirect or consequential loss of the Buyer.

The Buyer shall indemnify the Supplier against all loss, liability or costs resulting from any claim or demand against the Supplier by the Buyer's customers or any other person acquiring the Goods directly or indirectly through the Buyer, save where such claim or demand arises from a failure of the Goods to comply with applicable law relating to food safety, hygiene or labelling.

The Buyer shall maintain insurance at a level reasonably required by the Supplier from time to time to cover the Buyer's potential liability to the Supplier under clause 8.3 and to persons acquiring the Goods directly or indirectly from it. and shall at any time on request by the Supplier provide evidence that such insurance is currently in force.

Nothing in this clause 8 or these Terms as a whole shall operate to exclude any liability of the Supplier for death or personal injury caused by its negligence or any other liability which it is not possible to limit or exclude at law.

 

Completion , Suspension and Cancellation of Orders

The Supplier may suspend or cancel any undelivered Order in whole or in part by giving notice to the Buyer where:

any sums owed to the Supplier by the Buyer under any contract or otherwise are outstanding other than within the 5/30 day payment terms in clause 3; or

the Buyer is otherwise materially in breach of its obligations under these Terms (which shall include without limitation any breach whatsoever of clause 8.4): or

the Buyer is unable to pay its debts as they fall due, makes any voluntary arrangement or composition with creditors, is adjudicated bankrupt or enters into administration or liquidation, or suffers/takes any similar or equivalent measure in this or any other jurisdiction; or

the Buyer refuses to provide a guarantee as referred to in clause 11.

Upon cancellation of any Order the Buyer shall have no further liability to pay for such Order save in respect of Goods already delivered, but in the case of cancellation in the circumstances in clauses 9.1.1 to 9.1.3 shall also meet the Supplier's reasonable costs incurred in relation to such Order prior to its cancellation. The Supplier shall refund any deposit taken if cancellation occurs in the circumstances in clauses 5.2.3 or 9.1.4 but not in the circumstances in clauses 9.1.1 to 9.1.3.

The conclusion of any Order, or the cancellation or suspension of any Order under this clause 9 or otherwise, shall not affect any accrued rights of the Supplier and liabilities of the Buyer or the continuation in force of any provision of these Terms to the extent that

it is expressly or by implication intended to continue in force thereafter, including without limitation clauses 1, 3, 6, 7, 8, 10 and 12.

 

Intellectual Property and Packaging

The Buyer shall not acquire any rights in the Supplier's brand or any other intellectual property owned or used by the Supplier from time to time, save for the right to sell the Goods to its own customers (subject always to clause 6) in the packaging provided by the Supplier. The Buyer shall take no action inconsistent with the Supplier's ownership of all such intellectual property and shall notify the Supplier in writing or by email upon becoming aware any actual or likely, current or future infringement of the Supplier's intellectual property by any person including without limitation its customers.

The Buyer shall not sell the Goods other than in the packaging provided by the Supplier.

 

Guarantee

If in the opinion of the Supplier there is deterioration in the creditworthiness of the Buyer, the Supplier reserves the right to ask the Buyer to provide such guarantees as the Supplier may deem proper to ensure the full performance of all the Buyer's obligations. Such request may be made before or after delivery of all or part of any order. Should the Buyer fail to meet any demand for such guarantee, the Supplier shall have the right to cancel in accordance with clause 9.1.

 

General

Headings included in these Terms are for convenience only and shall not affect interpretation.

The Filbert's Fine Foods Limited account opening form completed by the Buyer, these Terms, the Price List and each valid Order set out the Supplier's and the Buyer's entire agreement relating to that Order and supersede all prior representations and arrangements (including without limitation any indications given by or on behalf of the Supplier concerning prices, terms of delivery or otherwise).

If any provision of these Terms is held to be invalid or unenforceable in any jurisdiction, that provision shall to that extent be deemed not to form part of these Terms, but this shall not affect the validity or enforceability of any other provision in that jurisdiction (or the validity or enforceability of that provision or any other, in any other jurisdiction).

No variation to the account opening form, these Terms, the Price List or any Order shall be valid unless it is in writing signed by the authorised representatives of the Buyer and the Supplier.

The contract constituted by the items referred to in clause 12.2 is subject to English law and the exclusive jurisdiction of the English courts.