TERMS & CONDITIONS OF SALE
THE BUYER’S ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS OF CONDITION 10
1.1 These Conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to impose or incorporate under any purchase order confirmation of order or similar document, or which are implied by law, trade custom, practice or course of dealing.
1.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
1.3 Acceptance of delivery of the Goods in accordance with these Conditions shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
1.4 No variation to these Conditions (including any special terms and conditions agreed between the parties) shall be applicable unless it is in writing and signed by the parties (or their authorised representatives).
2.1 In these Conditions subject to condition 15.2 the following terms shall have the meaning set opposite them:
means any brand licensed to the Seller which the Seller may notify the Buyer of from time to time.
means the person firm company or organisation who purchases Goods from the Seller.
means the terms and conditions of sale set out in this document as amended from time to time in accordance with condition 1.4.
means all information of a confidential nature disclosed whether in writing, orally or by another means and whether directly or indirectly by the Seller to the Buyer whether before or after the date of the Contract including, without limitation, information relating to the Seller’s products, operations, processes, plans or intentions, product information, know-how, design rights, trade secrets, market opportunities and business affairs.
means the contract for the purchase and sale of the Goods entered into in accordance with these Conditions.
‘Force Majeure Event’
has the meaning set out in condition 14.
means the goods (including any instalment of the goods or any part of them) set out in the Order.
means all damages, losses, loss of profit, liabilities, settlements, penalties, fines, costs, expenses (including legal and other professional charges and expenses) and charges whether arising under statute, contract or at common law, or in connection with judgments, proceedings, internal costs or demands or howsoever otherwise arising under or in connection with the Contract including any loss of reputation and any indirect, special or consequential loss or damage and without limitation any damages which the Seller must pay to its suppliers with whom the Seller has contracted in furtherance to the performance of the Contract.
means the Buyer’s order for the Goods as accepted by the Seller in accordance with condition 3.1.
means a party to these Conditions and “parties” shall be interpreted accordingly.
any governmental, statutory or regulatory bodies and any other competent authorities or entities in any jurisdiction having responsibility for the regulation or governance of either party or these Conditions.
means All About Food Limited registered in England and Wales under Company Number 03411600 whose registered office is at The Tree House, Maple View, Whitemoss Business Park, Skelmersdale, Lancashire, WN8 9TG.
means Great Britain and any other countries which the Seller shall notify to the Buyer in writing or which are otherwise agreed between the parties in writing in each case in respect of specific Brands from time to time.
includes email but excludes fax.
2.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended re-enacted or extended at the relevant time
2.3 The headings in these Conditions are for convenience only and shall not affect their interpretation
3 Basis of the sale
3.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with:
3.1.1 any written quotation of the Seller accepted by the Buyer; or
3.1.2 any written Order of the Buyer accepted by the Seller;
subject in either case to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions.
3.2 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed in writing.
3.3 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed in writing.
3.4 Any typographical clerical or other error or omission in any sales literature quotation price list acceptance of offer invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
4 Orders and specifications
4.1 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions.
4.2 No Order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller or its authorised representative.
4.3 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
4.4 The quantity quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s Order (if accepted by the Seller). In the event of a conflict between the two the Seller’s quotation will prevail.
4.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or where the Goods are to be supplied to the Seller’s specification, which in any case do not materially affect their quality or performance.
4.6 No Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all Losses incurred by the Seller as a result of cancellation.
5 Price of the Goods
- 5.1 The price of the Goods shall be the Seller’s quoted price or where no price has been quoted (or a quoted price is no longer valid) the price listed in the Seller’s published price list current at the date of acceptance of the Order. Except where there is written notice to the contrary from the Seller all prices quoted are valid for 7 days only or until earlier acceptance by the Buyer after which time they may be altered by the Seller without giving notice to the Buyer.
5.2 The Seller may increase the price of the Goods by giving notice to the Buyer at any time before delivery in order to to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller, such cost include by way of example and without limitation:
5.2.1 any foreign exchange fluctuation;
5.2.2 currency regulation;
5.2.3 alteration of duties;
5.2.4 significant increase in the costs of labour materials or other costs of manufacture;
5.2.5 any change in delivery dates;
5.2.6 quantities or specifications for the Goods which is requested by the Buyer;
5.2.7 any delay caused by any instructions of the Buyer; or
5.2.8 failure of the Buyer to give the Seller adequate information or instructions.
5.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller and unless otherwise agreed in writing between the Buyer and the Seller all prices are given by the Seller on an ex works basis and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises the Buyer shall be liable to pay the Seller’s charges for transport packaging and insurance.
5.4 The price is exclusive of any applicable value added tax which the Buyer shall be additionally liable to pay to the Seller and any other applicable tax which is from time to time in force.
6 Terms of payment
6.1 Subject to any special terms agreed in writing between the Parties the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after the delivery of the Goods unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
6.2 The Buyer shall pay the price of the Goods within 30 days of the date of the Seller’s invoice notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
6.3 The Seller shall have a general and particular lien over any property of the Buyer in its possession in respect of any monies due to the Seller from the Buyer from time to time.
6.4 If the Buyer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Seller the Seller shall be entitled to:
6.4.1 cancel the Contract or suspend any further deliveries to the Buyer until payment is made by the Buyer;
6.4.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
6.4.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 4% a year above Bank of England base rate from time to time, (but 4% a year for any period where the base rate is below 0%) until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6.5 The Seller may from time to time notify the Buyer of a credit limit and without prejudice to the remainder of these Conditions shall be entitled to take one of the following steps whenever the Buyer has exceeded the credit limit notified to it:
6.5.1 to revoke its acceptance of any order placed by the Buyer;
6.5.2 to require the Buyer to pay in advance of delivery for outstanding orders for Goods notwithstanding any credit terms agreed between the parties;
6.5.3 to suspend deliveries of Goods.
6.6 The credit limit referred to in condition 6.5 may be adjusted up or down or withdrawn as the Seller may consider reasonable in the circumstances.
7.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place save that where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Seller shall be under no obligation under Section 32(2) of the Sale of Goods Act 1979.
7.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date (and by one or more deliveries) upon giving reasonable notice to the Buyer.
7.3 Where the Goods are to be or are delivered in instalments each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these 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.
7.4 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault and the Seller is accordingly liable to the Buyer the Seller’s liability shall be limited to the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered less the price of the Goods provided that the Seller’s liability under this Condition 7.4 shall not exceed an amount equivalent to 50% of the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, except where such failure or delay is caused by a Force Majeure Event or the Seller’s failure to comply with its obligations under the Contract and without prejudice to any other right or remedy available to the Seller, the Seller may:
7.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
7.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable costs and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7.6 The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that:
7.6.1 such discrepancy in quantity shall not exceed 5%; and
7.6.2 the Price shall be adjusted pro rata to the discrepancy.
7.7 No Goods delivered to the Buyer in accordance with the Contract will be accepted for return without the prior written approval of the Seller on terms to be determined at the absolute discretion of the Seller.
7.8 If the Seller agrees to accept any such Goods for return the Buyer shall be liable to pay a handling charge of 10% of the invoice price. Such Goods must be returned by the Buyer with transport costs paid to the Seller in their original packaging.
7.9 Goods returned without the prior written approval of the Seller may at the Seller’s absolute discretion be returned to the Buyer or stored at the Buyer’s cost without prejudice to any rights or remedies the Seller may have.
8 Risk and title
8.1 Risk of damage to or loss of the Goods shall pass to the Buyer on delivery.
8.2 Title to the Goods shall not pass to the Customer until the earlier of:
8.2.1 the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
8.2.2 the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in condition 8.4.
8.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
8.3.1 store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;
8.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
8.3.4 notify the Seller immediately if it becomes subject to any of the events listed in conditions 11.1.1 to 11.1.4; and
8.3.5 give the Seller such information relating to the Goods as the Seller may require from time to time.
8.4 Subject to condition 8.5, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) beforethe Seller receives payment for the Goods. However, if the Seller resells the Goods before that time:
8.4.1 it does so as principal and not as the Seller’s agent; and
8.4.2 title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs.
8.5 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in conditions 11.1.1 to 11.1.4, then, without limiting any other right or remedy the Seller may have:
8.5.1 the Buyer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
8.5.2 the Seller may at any time:
(a) require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(b) if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
9 Product Recall
9.1 If the Seller:
9.1.1 is made aware of or is subject to any request, court order or other directive of a Regulatory Body to recall; or
9.1.2 is otherwise required to or chooses to recall or withdraw;
from the market any Goods supplied to the Buyer in accordance with these Conditions, the Seller shall promptly notify the Buyer in writing providing sufficient details of the recall or withdrawal request to enable the Buyer to comply with its obligation under this Condition 9.
9.2 The Buyer shall take all appropriate action to comply with any recall or withdrawal request and shall cooperate with the reasonable instructions of the Seller, the Seller’s representative, the court, or Regulatory Body and adhere to any relevant documented policies and procedures from time to time in force in relation to any such recall or withdrawal.
9.3 Save where the recall or withdrawal is required owing to the non-compliance by the Buyer with its obligations under the Contract the Seller shall reimburse the Buyer for all reasonable and proportionate expenses suitably evidenced to the satisfaction of the Seller to the extent they are reasonably and properly incurred by the Buyer in complying with its obligations under this condition 9.
9.4 The Buyer shall not make any public statement in respect of any recall without the prior written consent of the Seller unless such statement is mandated by law or a Regulatory Body.
10 Warranties and limitation of liability
10.1 Subject to the conditions set out below the Seller warrants that the Goods will be of satisfactory quality and will correspond with the specifications (if any) referred to in condition 4.3 at the time of Delivery until the expiry of the ‘best before’, ‘sell by’ or similar date as marked on the Goods
10.2 The warranty set out in condition 10.1 is given by the Seller subject to the following conditions:
10.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any specification supplied by the Buyer;
10.2.2 the Seller shall be under no liability in respect of any defect arising from wilful damage negligence abnormal (including unhygienic) working conditions failure to follow the Seller’s reasonable instructions (whether oral or in writing) accidents which the Goods cannot reasonably be expected to withstand misuse or inadequate storage or alteration of the goods without the Seller’s approval;
10.2.3 the Seller shall be under no liability under the above warranty (or any other warranty condition or guarantee) if the total price for the goods has not been paid by the due date for payment;
10.2.4 the warranty does not extend to ingredients not manufactured or supplied by the Seller in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer or supplier to the Seller.
10.3 Subject as expressly provided in these Conditions and except where the Goods are sold to a person dealing as a consumer (within the meaning of the unfair contract terms act 1977) all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
10.4 The Buyer shall check the Goods thoroughly forthwith upon delivery or as soon as reasonably practicable thereafter and any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days of the date of Delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defects or failure. If Delivery is not refused and the Buyer does not notify the Seller accordingly the Buyer shall not be entitled to reject the Goods and the Buyer shall be bound to pay the price as if the Goods had been delivered 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 them.
10.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with and subject to these Conditions the Seller shall be entitled to rectify or replace the defective Goods free of charge or at the Seller’s sole discretion refund to the Buyer the price of the Goods (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer whatsoever.
10.6 The restrictions on the Seller’s liability in this clause 10 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
10.7 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
10.7.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
10.7.2 fraud or fraudulent misrepresentation;
10.7.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
10.7.4 defective products under the Consumer Protection Act 1987.
10.8 Subject to condition 10.7, the Seller’s total liability to the Buyer shall not exceed the price of the Goods except as expressly provided in accordance with these Conditions.
10.9 Subject to condition 10.7, the following types of loss are wholly excluded:
10.9.1 loss of profits;
10.9.2 loss of sales or business;
10.9.3 loss of agreements or contracts;
10.9.4 loss of anticipated savings;
10.9.5 loss of use or corruption of software, data or information;
10.9.6 loss of or damage to goodwill; and
10.9.7 indirect, special or consequential loss.
10.10 Unless the Buyer notifies the Seller that it intends to make a claim in respect of an event within the notice period, the Seller shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of its having grounds to make a claim in respect of the event and shall expire three months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
10.11 This condition 10 shall survive termination of the Contract.
11 Solvency of Buyer
11.1 Without limiting its other rights or remedies, the Seller may terminate this Contract with immediate effect by giving written notice to the Buyer if:
11.1.1 the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of the Buyer being notified to do so;
11.1.2 the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
11.1.3 the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
11.1.4 the Buyer’s financial position deteriorates to such an extent that in the Seller’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.2 Without limiting its other rights or remedies, the Seller may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Seller if the Buyer becomes subject to any of the events listed in conditions 11.1.1 to condition
11.1.4, or the Seller reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
11.3 Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
11.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer immediately on receipt.
11.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
11.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
12.1 The Seller may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligation under the Contract.
12.2 The Buyer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Seller.
12.3 This 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.
12.4 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Conditions.
12.5 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
12.6 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.7 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Conditions. If any provision of the Contract is deemed deleted under this condition 12.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.8 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.
12.9 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
12.10 The Contract shall be governed by the laws of England and the Buyer shall submit to the non-exclusive jurisdiction of the English courts.
13 Intellectual Property
13.1 All Goods sold in retail packaging may be resold by the Buyer only in the packaging supplied by the Seller and in no case may any trade mark other than those applied by the Seller (“Trade Marks”) be marked on or applied in relation to the Goods. The Buyer shall not make any addition to the labelling or packaging of the Goods or any marketing materials displaying the Trade Marks. The Buyer shall not alter, deface or remove any reference to the Trade Marks, any reference to the Seller, Brand or any other name or information displayed on the Goods or their packaging or labelling or any marketing materials.
13.2 The Buyer shall market and sell the Goods only under the Trade Marks, and not in association with any other trade mark, brand or trade name.
13.3 The Buyer shall not do, or omit to do, anything that could adversely affect the Trade Marks validity or reputation.
13.4 The Seller makes no representation or warranty neither as to the validity or enforceability of the Trade Marks nor as to whether they infringe any intellectual property rights of third parties in the Territory.
13.5 The Buyer acknowledges that these Conditions do not operate to vest any right, title or interest in the Trade Marks in the Buyer. The Buyer shall give prompt notice to the Seller if it becomes aware of:
13.5.1 any actual, threatened or suspected infringement of the Trade Marks or any other intellectual property rights relating to the Goods within the Territory;
13.5.2 any actual or threatened claim that any of the Trade Marks are invalid;
13.5.3 any actual or threatened opposition to the Trade Marks;
13.5.4 any claim that any Goods or the manufacture, use, sale or other disposal of any Goods within the Territory, whether or not under the Trade Marks, infringes the rights of any third party; or
13.5.5 any other form of attack, charge or claim to which the Trade Marks may be subject.
13.6 In respect of any matter that falls within condition 13.5:
13.6.1 the Seller shall in its absolute discretion, decide what action to take in respect of the matter (if any);
13.6.2 the Seller shall conduct and have sole control over any consequent action it deems necessary;
13.6.3 the Seller shall pay all costs in relation to that action and shall be entitled to all damages and other sums that may be paid or awarded as a result of that action; and
13.6.4 the Buyer shall provide all reasonable assistance to the Seller.
13.7 The Buyer shall immediately bring to the notice of the Seller any improper or wrongful use in the Territory of the Trade Marks and the Buyer shall on being so requested by the Seller and at the Seller’s cost assist in taking all steps to defend the rights of the Seller at the Seller’s cost of any actions which it may deem necessary to commence for the protection of any of its rights.
13.8 No right or licence is granted under these Conditions to the Buyer under any patent trade mark copyright registered design or other intellectual property right except the right to use or resell the Goods.
14 Force Majeure
14.1 If the performance of a party’s obligations hereunder is affected (or it becomes apparent that it will be affected) as a result of any act, event, non-happening, omission or accident beyond its reasonable control (a “Force Majeure Event”), the provisions of this condition 14 shall apply.
14.2 Force Majeure Events shall include but not be limited to:
14.2.1 acts of God, flood, drought, earthquake or other natural disaster;
14.2.2 epidemic or pandemic;
14.2.3 terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations;
14.2.4 nuclear, chemical or biological contamination, or sonic boom;
14.2.5 any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
14.2.6 collapse of buildings, fire, explosion or accident;
14.2.7 any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this condition, or companies in the same group as that party); and
14.2.8 interruption or failure of utility service.
14.3 Any failure to perform or delay in performance by any sub-contractor or supplier of the Seller shall not be a Force Majeure Event unless the sub-contractor or supplier was itself subject to a Force Majeure Event.
14.4 If either party is affected by a Force Majeure Event, it shall notify the other party within 5 working days of becoming aware of the Force Majeure Event. The affected party will (where feasible) in its notification of a Force Majeure Event to the other party give details of the Force Majeure Event, its likely duration (if such duration can reasonably be calculated) and the manner and extent to which its obligations are likely to be prevented or delayed.
14.5 The Seller shall not be liable to the Buyer for any unfulfilled, cancelled, incomplete or missing orders or for any delay or interruption to the delivery of the Goods (together “Non-Performance Failures”) if such Non-Performance Failures are due to a Force Majeure Event suffered by it, its employees, agents, suppliers and sub-contractors.
14.6 If the period of delay or non-performance arising from any Force Majeure Event continues for a period of or exceeding 30 days, the party not affected by the Force Majeure Event shall have the right to terminate the Contract forthwith on written notice to the affected party. Each party shall use its reasonable endeavours to minimise the effects of any Force Majeure Event.
15.1 The provisions of this condition 15 shall apply where the Buyer is a Wholesaler.
15.2 In this condition 15 the following terms shall have the meaning set opposite them:
(a) Online retailers selling predominantly food and beverages;
(b) Wholesalers and cash and carry operators that serve retailers selling predominantly food and beverage products;
(c) Retailers that sell predominantly food and beverage products as agreed in writing by the Seller;
in each case excluding all Variety Discounters and the Excluded Channels.
means within the Territory the customers operating in Approved Channels approved in writing by the Seller such approval not to be unreasonably withheld or delayed but for the avoidance of doubt excluding the Reserved Customers.
the owner or authorised licensor of each of the Brand the details of which will be made known to the Buyer from time to time.
all retail distribution channels other than the Approved Channels including without limitation the national multiples, discounters and international distribution.
each of the customers, which comprise the customer groups in respect of which the Seller has appointed another sole or exclusive distributor or has reserved itself, being other than Approved Customers.
‘Reserved Customer List’
means a list of the Reserved Customers to be maintained by the Seller and notified to the Buyer from time to time.
means those discounters including (but not limited to) Poundland, Poundworld, Home Bargains, B & M Bargains, Wilkinson/Wilko, Poundstretcher and any other entities operating on a similar basis.
means wholesalers and cash and carry operators that sell to other retailers and not directly to consumers.
15.3 The Buyer shall market and distribute the Goods to the Approved Customers in the Territory.
15.4 The Buyer shall refrain from making active sales of the Goods to Reserved Customers or to customers outside the Territory. For these purposes, active sales shall be understood to mean actively approaching or soliciting customers, including but not limited to, the following actions:
15.4.2 direct mail, including the sending of unsolicited emails;
15.4.3 advertising in media, on the internet or other promotions, where such advertising or promotion is specifically targeted at Reserved Customers;
15.4.4 online advertisements addressed to Reserved Customers and other efforts to be found specifically by users belonging to the Reserved Customers, including the use of territory based banners on third party websites and paying a search engine or online advertisement provider to have advertisements or higher search rankings displayed specifically to users belonging to the Reserved Customers; and
15.4.5 advertising or promotion in any form, or translation of the Buyer’s website into a language other than an official language of any country forming part of the Territory, that the Buyer would not reasonably carry out but for the likelihood that it will reach Reserved Customers.
15.5 The Buyer shall not sell the Goods directly to consumers.
15.6 The Buyer shall not:
15.6.1 represent itself as an agent of the Seller for any purpose; or
15.6.2 pledge the Seller’s credit; or
15.6.3 give any condition or warranty on the Seller’s behalf; or
15.6.4 make any representation on the Seller’s behalf; or
15.6.5 commit the Seller to any contracts; or
15.6.6 otherwise incur any liability for or on behalf of the Seller; or
15.6.7 do or omit anything which may bring the Seller into disrepute.
15.7 The Buyer shall not, without the Seller’s prior written consent, make any promises, guarantees or representations about the Goods beyond those contained in the promotional material supplied by the Seller.
15.8 The Buyer shall not sell, distribute or otherwise make available the Goods to distributors or resellers outside the UK or the European Union.
15.9 The Buyer shall not do, or omit to do, any act or thing which may cause reputational damage to the Seller or Brand Owners (“Interested Parties”) or otherwise cause any damage to the Brands which may cause the Interested Parties to be brought into disrepute.
15.10 The Buyer shall:
15.10.1 not resell the Goods at a price exceeding the maximum resale price from time to time specified by the Seller in writing;
15.10.2 keep all stocks of the Goods which it holds in conditions appropriate for their storage, and provide appropriate security for the Goods, all at its own cost; and
15.11 insure at its own cost with a reputable insurance company all stocks of the Goods as are held by it against all risks which would normally be insured against by a prudent businessman to at least their full replacement value.
16.1 The Buyer undertakes that it shall not at any time disclose to any person any Confidential Information, except as provided by condition 16.2.
16.2 The Buyer may disclose the Confidential Information:
16.2.1 to those of its employees, officers, representatives or advisers who need to know such information for the purpose of carrying out the Buyer’s obligations under the Contract (“Required Recipient”) subject to the Buyer ensuring that each Required Recipient complies with conditions 16.1 to 16.6; and
16.2.2 as may be required by law, court order or any governmental regulatory authority.
16.3 Before disclosure of Confidential Information to a Required Recipient, the Buyer shall if required by the Seller ensure that the Required Recipient executes a confidentiality agreement and at all times complies with such confidentiality agreement.
16.4 Conditions 16.1 and 16.3 do not apply to Confidential Information which;
16.4.1 is at the date of the Contract or at any time after the date the Contract comes into the public domain other than through breach of these Conditions by the Buyer or a Required Recipient;
16.4.2 can be shown by the Buyer to the Seller’s reasonable satisfaction to have been known by the Buyer before disclosure by the Seller to the Buyer; or
16.4.3 subsequently comes lawfully into the possession of the Buyer from another.
16.5 The Buyer shall not use the Confidential Information for any purpose other than to perform its obligations under the Contract.
16.6 The Buyer shall have in place industry-standard policies, procedures and draft confidentiality agreements so as to ensure that its employees are able to identify, and label Confidential Information disclosed by the Seller and deal with it in accordance with the obligations imposed under these conditions 16.1 to 16.6