(i) The “Seller” shall mean R H Amar & Co Limited (company registration number 497691).
(ii) The “Buyer” shall mean the person, firm, company or other organisation making an offer to the Seller to purchase the Goods on the basis of these Conditions.
(iii) The “Order” shall mean the Buyer's order issued in writing or placed by e-mail, facsimile or telephone incorporating these conditions.
(iv) The “Goods” shall mean all items to be supplied by the Seller as set out in the Order.
(v) The “Contract” shall mean the agreement arising between the Seller and the Buyer following the Seller's written or electronic acceptance of the Order or delivery of the Goods, whichever shall first occur. The Contract shall consist of the Order, these conditions of sale and any other documents or conditions specified or referred to therein but shall specifically exclude any conditions appearing on or referred to in the Order.
(i) All Contracts entered into by the Seller are subject to and governed by these Conditions which may only be varied by the Seller in writing and in any event acceptance of the Goods on delivery shall constitute acceptance of these Conditions.
(ii) Any quotation given by the Seller shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue, unless stated otherwise in the quotation.
(i) Prices quoted, unless otherwise stated, include delivery (subject to the set minimum order value), but not VAT (or any tax in lieu of or in substitution of VAT), which shall be added to the price.
(ii) The prices payable for the Goods shall be those referred to in the Contract.
(iii) The Seller does not supply Goods on a sale or return basis.
4. CREDIT LIMIT
(i) The granting of credit terms is at the Seller's absolute discretion and two satisfactory trade references and a bank reference must be received before the Buyer can be given such terms.
(ii) The Seller reserves the right to suspend deliveries or determine any Contract if the Seller judges that the amount outstanding between the parties is in excess of the credit limit the Seller is willing to accord to the Buyer. Credit terms can be varied at any time at the discretion of the Seller but without prejudice to the terms upon which any Goods already supplied have been sold.
5. DELIVERY AND CARRIAGE
(i) The Seller shall procure that the supplier of the Goods, shall deliver the Goods to the location set out in the Contract or such other location as the parties may agree.
(ii) Delivery of the Goods shall be completed:
(a) in the case of delivered terms, on the completion of unloading the Goods at the delivery location specified in the Contract; or
(b) in the case of collection or ex-works terms, on the completion of loading of the Goods on the Buyer’s chosen method of transport.
(iii) The Seller will use all reasonable endeavours to deliver Goods promptly but accepts no liability whatsoever for any consequences (express or implied) arising from any delay in delivery from any cause or for any loss or damage arising out of any such delay, and the time of delivery is not of the essence.
(iv) The Seller will take every care to ensure that the Goods that leave their premises are of satisfactory quality. However, the Seller can only accept responsibility for any consequences (express or implied) arising from losses or damages in transit in the circumstances where loss or damage is covered by insurance and the provisions of condition 8 are strictly complied with but not otherwise.
(v) The Seller will deliver Orders (where on delivered terms) by a method of delivery at the Seller's absolute discretion. Buyers requiring delivery outside agreed terms (for example, “Express”, overnight or timed delivery) will be charged an appropriate additional cost. The Seller reserves the right to impose a delivery surcharge for orders that do not meet these terms.
(vi) The Seller reserves the right to effect delivery by instalments.
Where delivery is delayed for reasons attributable to the Buyer or its agents, reasonable storage and other additional costs will be charged to the Buyer and the Goods will be held at the Buyer's risk from the date of commencement of such delay. The Seller reserves the right to invoice the Goods at the original delivery date.
(i) Unless otherwise agreed in writing with a Director of the Seller, payment shall be made in cleared funds on the 28th day following the date of invoice, notwithstanding that the Buyer wrongfully fails to accept delivery of the Goods. The time of payment of the price shall be of the essence to the Contract.
(ii) If the Buyer fails to settle their account on the due date the Seller reserves the right to charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 4% per annum above Barclays Bank plc Base Rate from the date payment becomes due until payment is received together with all costs associated with and/or incurred in the recovery of overdue accounts.
(iii) Should the Seller suspend delivery or terminate a Contract, the Buyer shall pay the Seller at the agreed price for all the Goods purchased prior to suspension or termination.
(iv) Any payment due shall be made in full without set-off deduction or counterclaim.
8. NOTIFICATION OF DAMAGE OR LOSS IN TRANSIT
(i) If the Buyer does not receive all or any part of the Goods within 10 days of the date of Invoice, the Buyer shall notify the Seller in writing of non-receipt within 14 days of the date of Invoice.
(ii) The Buyer upon receipt must check all goods and any shortages or damages must be marked on the Delivery Note at the time of delivery. If the Buyer receives all or any part of the Goods in a damaged condition, the Buyer shall notify the Seller of its claim in writing within five days of the delivery date.
(iii) Should the Buyer fail to notify the Seller of non-delivery of Goods or Goods damaged in transit within the relevant notice period, the Buyer shall be liable to the Seller for any loss or damage the Seller may suffer in consequence of the Seller's resultant omission to notify the carriers or insurers for the non-arrival or damage in transit of the Goods.
(iv) Failure to comply with the above time constraints shall absolve the Seller from all liability to the Buyer for any defect, shortage, non-delivery or other proper objection to the Goods or their packaging.
The Seller shall be under no liability in respect of any imperfection in the Goods arising from expiry of Best Before End date, wilful damage, negligence, abnormal storage and/or working conditions, failure to follow the Seller's written instructions, misuse or alteration or repair of the Goods without the Seller's approval.
(i) The Seller warrants that upon delivery the Goods shall:
(a) be of satisfactory quality;
(b) correspond with the description by which they are sold; and
(c) comply with the requirements of The Food Safety Act 1990, any amendments to that Act and any applicable regulations made thereunder or by the European Union (which remain applicable to English law following Brexit)
(ii) The Seller shall not be liable for any breach of the above warranties (the "Warranties"):
(a) unless the Buyer gives written notice of the non-compliance or alleged imperfection within 5 days of the discovery of the non-compliance or imperfection or of the date when such problem ought reasonably to have been discovered and in any event before the expiration of the normal shelf life of the relevant Goods;
(b) unless the Buyer gives the Seller a reasonable opportunity to inspect the Goods;
(c) if the Goods have been tampered with in any way other than by a duly authorised representative of the Seller or the Buyer; and
(d) if the Goods have been subjected to misuse, neglect, carelessness, vandalism, fire, flood, excessive heat or cold, or other commotion or disturbance of whatever nature whether affecting Goods directly or indirectly as the result of any such matter affecting the premises in which the Goods are situated.
11. RISK AND RETENTION OF TITLE
(i) The risk in the Goods shall pass to the Buyer on delivery.
(ii) Property in the Goods shall pass to the Buyer on the later of payment in full of the whole purchase price of the Goods and payment in full of every other sum whatsoever which is due from the Buyer to the Seller whether under this or any other Contract or otherwise howsoever and until the happening of the last such event the Buyer shall keep the Goods as the Seller's fiduciary agent and bailee in such a way that they are identifiable as the property of the Seller and are separate from all other Goods of the Buyer and shall, if required by the Seller insure the Goods in the joint names of the Seller and the Buyer to the satisfaction of the Seller.
(iii) If before such payment in full the Goods shall be sold or otherwise disposed of to a third party the Seller shall be entitled to all monies and rights which (but for these provisions) would otherwise be due to the Buyer arising from such sale or disposition and the Buyer shall (if required by the Seller) assign to the Seller or as the Seller may direct at the Buyer's cost any claim against such third party. All such monies received by the Buyer shall be retained in a separate designated account for the benefit of the Seller absolutely. Until all such monies have been retained as aforesaid, such monies as have been paid and howsoever received shall be received and thereafter held in trust and for the benefit of the Seller: any sums wheresoever paid shall be traceable to the beneficial ownership of the Seller and including and notwithstanding that the same may have been placed in any account whether overdrawn (and thereby reducing or extinguishing the same) or whether in credit. Further, sums standing to the credit balance of the buyer from time to time shall be deemed to be held first and beneficially in trust for the Seller to the extent of the sum of such monies received for unpaid Goods whether or not the balance at any time falls below the net sums properly to be held to the benefit of the Seller.
(iv) The Seller reserves the right to deal with its property in the Goods in any manner it thinks fit and shall be at liberty at any time to retake possession of the Goods or any part thereof and for that purpose the Buyer irrevocably authorises the Seller its officers, servants to enter without notice into or upon any premises of the Buyer or upon any premises of which the Buyer has possession or control. The Buyer irrevocably instructs all and any of its officers, servants or agents to deliver up any such Goods in their possession.
(v) The Buyer shall upon failure to pay the price in full and when due endorse on invoices, statements and similar documents addressed to its buyers of the Goods, a memorandum stating the Seller's rights over to and in the Goods and the proceeds of sale, the wording of which shall be at the sole discretion of the Seller.
(vi) Until such a time as title passes to the Buyer, the Seller gives permission for the Buyer to resell and/or use the goods in the ordinary course of its business.
12. INSOLVENCY OF BUYER
THIS CONDITION APPLIES IF:
(a) the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of a bona fide amalgamation or reconstruction); or
(b) an encumbrancer takes possession or a receiver Is appointed of any of the property or assets of the Buyer; or
(c) the Buyer ceases or threatens to cease to carry on business; or
(d) the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly. If this condition applies then without prejudice to any other right or remedy available to the Seller the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract 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 previous agreement or arrangement to the contrary.
13. LIMITATION OF SELLER’S LIABILITY
Except in so far as such liability relates to death or personal injury resulting from the Seller's proven negligence
(i) the Seller shall not be liable in any circumstances for loss of profit, use or goodwill including (but not limited to) breach of any Warranty, delay in delivery or for any indirect or consequential loss or damage of any kind whether caused by negligence or otherwise howsoever and whether or not such loss has been suffered by the Buyer or by some third party to whom the Buyer may be liable; and
(ii) if the Seller is found liable for loss or damage arising from any breach of contract or error, whether negligent or not, in connection with the Contract, the Seller’s liability shall in no event exceed the total purchase price of the Goods.
14. FORCE MAJEURE
(i) If the Seller is unable to supply the Goods by reason of events beyond its control any specified delivery date(s) shall be extended for a period equal to the delay caused by such events.
(ii) If the period of delay extends beyond three months then either party may terminate the Contract as regards any Goods then undelivered provided that if the Buyer cancels the Contract the Seller may require the Buyer to take and pay for the proper proportion of the Contract price of the Goods manufactured or purchased for the purpose of the Contract.
(i) Any notice given to a party under or in connection with this agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
(ii) Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9:00 am on the second business day after posting or at the time recorded by the delivery service.
The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or regulatory requirements (Including EU Regulations and Directives) relating to the sale of food and beverages at present in force in the United Kingdom and/or in the country of destination as stipulated in the Contract or where the Goods are to be supplied to the Seller's specification which do not materially affect their quality.
The Buyer undertakes not to use any trademarks or tradenames applied by the Seller to the Goods nor to do anything whereby the goodwill and reputation of such trademarks or tradenames is prejudiced or damaged.
The Contract is personal to the Buyer and shall not be assigned, sub-contracted or otherwise transferred in whole or part to any third party without consent of the Seller.
19. VARIATION AND WAIVER
(i) No employee or other person acting or purporting to act on behalf of the Seller is authorised to agree or effect any alteration in these Conditions unless confirmed in writing by a Director.
(ii) The failure by the Seller to enforce at any time or at any period any one (or part of one) or more of the Conditions hereof shall not be a waiver of them or of the right at any time subsequently to enforce all Conditions hereof.
If at any time any one or more of these Terms and Conditions (or any part thereof) is unenforceable for any reason the same shall be deemed omitted here from and the enforceability of the remaining provisions of these Terms and Conditions shall not in any way be affected or impaired.
21. PARAGRAPH HEADINGS
Paragraph headings are descriptive only and form no part of these Conditions.
22. THIRD PARTIES RIGHTS
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(i) If at any time the UK ceases to be a member state of the European Union (“Brexit”), a Brexit Trigger Event occurs, the Seller has the right to amend this agreement to alleviate the Brexit Trigger Event.
(ii) For the purpose of this clause 23, Brexit Trigger Event means any of the following events caused by Brexit (or any steps taken by the UK government in anticipation of or related to the preparation for Brexit):
(a) a substantial adverse impact on the Seller’s ability to perform the agreement in accordance with its terms and the law;
(b) an increase in the costs, such as tariffs or duties, incurred by the Seller in performing the agreement
(iii) Save as expressly provided for in this clause 23, a Brexit Trigger Event shall not alter (or give any party a right to alter) this agreement, or invalidate any of its terms or discharge or excuse performance under it. If there is an inconsistency between the provisions of this clause and any other provision of this agreement, the provisions of this clause shall prevail.
24. ENTIRE AGREEMENT
The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
25. GOVERNING LAW
The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
These Terms and Conditions and Contract of which they form part shall be construed in accordance with English Law and the Buyer hereby submits to jurisdiction of the English Courts.
Revised October 2018