ORIGINAL TASTE Conditions of Sale
1. DEFINITIONS
In these Conditions of Sale:-
"The Seller" means ORIGINAL TASTE.
"The Buyer" means the person who buys or agrees to
buy the goods from the Seller.
"The Goods" means the goods which the Seller is to
supply in accordance with these Conditions of Sale. Any reference to
"the Goods" shall, where
appropriate, include a reference to part of them.
2. TERMS OF SALE
2.1 These Conditions of Sale form the whole agreement
between the Seller and the Buyer and shall not be removed or
varied in any way. No other express terms, written or oral,
shall be incorporated into the contract.
2.2 These Conditions of Sale shall override any other terms
which the Buyer may subsequently seek to impose.
2.3 The Seller's sales representatives are not authorised to
do any of the following things on behalf of the Seller:-
2.3.1 Remove or vary any of these terms or introduce any
other terms, written or oral, into the contract.
2.3.2 Make any representation, agree any condition
or enter into any collateral contract.
2.3.3 Accept any offer or counter-offer
made by the Buyer.
3. QUOTATIONS
The Seller's quotation is based upon the information
supplied by the Buyer before the quotation is given. Where any
subsequent information is submitted which would involve a
material alteration in specification or method of manufacture
of the Goods, the Seller reserves the right at its option
either to amend the quotation to cover any additional costs arising
from such alteration or to rescind the contract. If the
Seller rescinds in these circumstances the Buyer shall have no claim
against the Seller but the Seller shall retain its other
rights and remedies.
4. THE PRICE
4.1 The price of the Goods is the price stated in the
Seller's quotation or such other price as is expressly agreed by the
Seller and the Buyer. Any quotations given by the Seller are
valid for 30 days only.
4.2 In the event of the price not being fixed by clause 4.1,
the price is the price listed in the Seller's published price list
current at the date when the contract is made. However,
where at any time before delivery of the Goods:-
4.2.1 There is an increase in the cost of materials or
labour; or
4.2.2 There are currency fluctuations increasing the cost of
materials; or
4.2.3 There is an increase in the Seller's overhead
expenses. The Seller may adjust the price accordingly.
4.3 Where the price for the Goods is made payable in a
currency other than pounds sterling and during the period
between the Seller's quotation of the price in that currency
and payment by the Buyer a change occurs in the official rate
of exchange between the foreign currency and the pound
sterling then (without prejudice to the provision for the price
escalation herein before contained) the price shall be
adjusted to such amount in the foreign currency as is equivalent at
the new official rate of exchange to the sum in pounds
sterling which was equivalent at the previous official rate of
exchange to the price quoted.
4.4 The price of the Goods in the Seller's quotation does
not unless otherwise stated on the quotation include
freight/postage and packing all of which will be charged for
and paid by the Buyer as an addition to the price shown in
the quotation.
4.5 The price of the Goods stated in the Seller's quotation
and charge for freight/ postage and packing does not include
Value Added Tax which will be added to the Invoice at the
applicable rate and paid by the Buyer.
5. DELIVERY
5.1 Delivery of the Goods shall be by the Seller delivering
the Goods to an independent carrier usually chosen by the
Seller, for onward transportation to the Buyer, in
accordance with the Buyer's delivery instructions.
5.2 If the Buyer refuses to accept the Goods or fails to
give the Seller adequate delivery instructions then the Seller may:-
5.2.1 Store the Goods until actual delivery to the Buyer or
until the Goods are disposed of under clause 5.2.2. The Buyer
shall be liable for the costs of storage and insurance of
the Goods under this clause.
5.2.2 Sell the Goods at the best price readily obtainable.
The Buyer shall be liable to pay the costs of the sale. Further, if
the Goods are sold for less than the price payable by the
Buyer, the Buyer shall be liable to pay to the Seller the difference
in price.
This does not affect any other right or remedy the Seller
may have. 5.3 Any delivery dates stated are approximate only and
the Seller is not liable for any delay in delivery of the
Goods, however caused. Time of delivery is not of the essence of the
contract.
6. PAYMENT
6.1 The Seller may invoice the Buyer for the price of the
Goods on or at any time after the Seller delivers the goods to the
independent carrier in accordance with clause 5.1.
6.2 Where credit is given, the Buyer must pay the price for
the Goods by the end of the month following the month of
Delivery of the Goods. The time for payment of the price is
of the essence of the contract.
6.3 The Seller reserves the right to suspend deliveries
where payment is not received in accordance with 6.2 or in
accordance with any alternative arrangements which shall be
agreed in writing between the parties. No cash or other
discount will be allowed.
6.4 No cash payments in excess of
Euro 15,000 or Sterling equivalent shall be accepted.
7. CANCELLATION OF ORDERS
Orders for Goods may not be cancelled or suspended without
the Seller's prior written consent. The Seller shall be under
no obligation to consent but if the Seller does consent the
Buyer agrees to indemnify the Seller against any loss incurred
by the Seller wholly or in part by such cancellation or
suspension.
8. PROPERTY AND RISK
8.1 Ownership of the Goods remains with the Seller and will
not pass to the Buyer until one of the following occurs:-
8.1.1 The Seller is paid for all of the Goods and no other
amounts are owed by the Buyer to the Seller in respect of other
goods supplied by the Seller.
8.1.2 The Buyer sells the Goods in accordance with this
agreement in which case ownership of the Goods will pass to the
Buyer immediately before the Goods are delivered to the
Buyer's customer.
8.2 The Buyer must store the Goods separately from any other
goods until; They become the Buyer's property: or They are
delivered to a purchaser from the Buyer.
8.3 If the Buyer is overdue in paying for the Goods or any
other goods sup plied by the Seller, the Seller may if still the
owner of the Goods, recover and resell them. The Seller may
enter the Buyer's premises for this purpose. This does not
affect any other right of the Seller.
8.4 Until the Buyer has paid the Seller for the Goods and
all other goods which the Seller has supplied to the Buyer:-
8.4.1 The Buyer holds the Goods on trust for the Seller.
8.4.2 If the Buyer sells the Goods, the Buyer shall hold the
proceeds of sale on trust for the Seller in a separate bank
account.
8.4.3 The Seller may trace the proceeds of sale that the
Buyer receives into any bank or other account which the Buyer
maintains.
8.4.4 If the Buyer sells the Goods, the Seller may, by
written demand, require the Buyer to assign to the Seller the Buyer's
rights to recover the price from its purchaser.
8.4.5 The Buyer must not assign to any other person any
rights arising from a sale of the Goods without the Seller's
written consent.
8.5 Risk in the Goods passes to the Buyer when the Seller's
independent carrier delivers the goods to the Buyer in
accordance with Clause 5.1. However
if the Buyer uses his own independent carrier then the Risk in the Goods passes
to
the Buyer when the carrier collects the goods from the
Seller.
9. LIABILITY
9.1 The Buyer must carefully examine the Goods immediately
on delivery of them and must notify the Seller in writing of
any short delivery or any defects reasonably discoverable on
careful examination. This notification must be received by the
Seller within 7 working days commencing with the day of
delivery to the Buyer. "Working days" means any day from
Monday to Friday (inclusive) which is not (in England and
Wales) Christmas ay, Good Friday or a statutory Bank
Holiday. In
the absence of notification the Seller excludes all
liability in respect of any short delivery or any defect which should
reasonably have been discovered on careful examination.
9.2 Except in respect of death or personal injury caused by
the Seller's negligence, the Seller shall not be liable for any
consequential or indirect loss suffered by the Buyer whether
this loss arises from breach of a duty in contract or tort or in
any other way (including loss arising from the Seller's
negligence). Non-exhaustive illustrations of indirect loss would be:-
9.2.1 Loss of profit;
9.2.2 Loss of contracts;
9.2.3 Damage to the Buyer's property or property of any
other person;
9.2.4 Personal injury to the Buyer or any other person,
other than that caused by the Seller's negligence.
The Buyer accepts that it is his responsibility to insure
against these risks.
9.3 Except in respect of death or personal injury caused by
the Seller's negligence, the Seller's total liability for any one
claim or for the total of all claims arising from any one
act or default of the Seller (whether arising from the Seller's
negligence or otherwise) shall not exceed the price of the
Goods as defined in clause 4.
9.4 The Seller shall not be liable for any failure to
deliver the Goods arising from circumstances outside the Seller's control.
9.4.1 Non-exhaustive illustrations
include act of God, war, riots, explosion, abnormal weather conditions, fire,
flood,
Government action, strikes, lockouts, delay by suppliers,
accidents and shortage of materials, labour or
manufacturing
facilities.
9.4.2 If the Seller is prevented from delivering in the
above circumstances, it will notify the Buyer of the fact in writing
within 10 days commencing with the contractual delivery
date.
9.4.3 If the circumstances preventing delivery are still
continuing 3 months from and including the date the Seller sends
such notice, then either party may give written notice to
the other cancelling the contract. Such written notice must be
received whilst the circumstances are still
continuing.
9.4.4 If the contract is cancelled in this way, the Seller
will refund any payment which the Buyer has already made on
account of the price (subject to deduction of any amount
which the Seller is entitled to claim from the Buyer) but the
Seller accepts no liability to compensate the Buyer for any
further loss or damage caused by the failure to deliver.
10. INSOLVENCY
If the Buyer:-
10.1 Being a Company.
10.1.1 Has a petition for presentation for its winding up;
or
10.1.2 Passes a resolution for voluntary winding-up (other
than for the purpose of a bona fide amalgamation or
reconstruction); or
10.1.3 Enters into a voluntary arrangement with its
creditors; or
10.1.4 Becomes subject to an administration order; or
10.1.5 Has a receiver appointed of all or any of its assets;
or
10.2 Being an individual or firm,
10.2.1 Becomes bankrupt or insolvent; or
10.2.2 Enters into a voluntary arrangement with creditors;
Then the Seller shall be entitled to treat the contract as
being at an end or suspend any further deliveries under the
contract. If the Goods have been delivered but not paid for,
the price shall become due immediately, regardless of any
previous agreement to the contrary.
11. SAMPLES
Notwithstanding that a sample of the goods has been
exhibited to and inspected by the Buyer, it is hereby declared that
such sample was so exhibited and inspected solely to enable
the Buyer to judge for himself the quality of the bulk and not
so as to constitute a sale by
sample under the Contract. The Buyer shall take the goods at his own risk as to
their
corresponding with the said sample or as to their quality, condition or sufficiency for any purpose.
12. PATENTS AND TRADE MARKS
No representation, warranty or indemnity is given by the
Seller that the Goods do not infringe any Letters Patent, Trade
Marks, Registered Designs or other
industrial rights.
13. INDEMNITY
The Buyer shall indemnify the Seller in respect of all
damage or injury occurring to any person or property and against all
actions, suits, claims, demands, charges
or expenses in connection therewith for which the Seller may become liable in
respect of the Goods sold under this Contract in the event that the damage or injury shall have been
occasioned by the
negligence of the Buyer or his servants or agents.
14. DEFECTS AFTER DELIVERY
The Seller will make good by repair or at the Seller's
option by the supply of a replacement defects which under proper
use appear in the goods within a period of 12 calendar
months after the Goods have been delivered and arise solely from
faulty design, materials or
workmanship. Provided always that the defective parts are promptly returned by
the Buyer
carriage paid to the Seller's works unless otherwise
arranged.
15. EXCLUSION OF LIABILITY
Apart from those terms set out above no other terms express
or implied, statutory or otherwise form part of this Contract
16. SEVERANCE
16.1 Each of the clauses and sub-clauses in this contract
are to be treated as separate and independent.
16.2 If a court finds that any clause or sub-clause in this
contract fails the requirements of reasonableness under the Unfair
Contract Terms Act 1977, the Seller nevertheless excludes
the relevant liability to the extent that the court finds
reasonable.
17. REJECTION
The Buyer is not entitled to reject the Goods or any part of
them for
- breach of s13 Sale of Goods Act 1979 as amended
(description)
- breach of s14 Sale of Goods Act 1979 as amended
(satisfactory quality)
- breach of any express terms relating to the description or
quality of goods
- any misrepresentation relating to the description and
quality of the goods
UNLESS EITHER
- Such breach or misrepresentation devalues the Goods by
more than 6%
OR
- The Goods delivered are substantially different in nature
from the Contract goods.
If the buyer returns the goods for reasons which are no
fault of the Seller, a restocking charge may be levied by the Seller.
18. PROPER LAW
The Contract shall be governed by and read and construed in
accordance with the Law of England and Wales.