Conditions of sale

1 Definitions
1.1 In these conditions (unless the context otherwise requires):
Company means Frank Roberts & Sons Limited and also (where the context so permits) its assigns and any sub-contractor for the said company
Customer means the person, firm or company with whom the Contract is made
Company’s Premisesmeans the premises mentioned in the Company’s quotation or other contractual document in respect of the Goods or if not so mentioned means the Company’s premises at Rudheath, Northwich, Cheshire
Contract means the contract between the Customer and the Company for the sale and purchase of the Goods
Goods means the goods (or any instalment or part of them) to be supplied pursuant to the Contract
1.2 Words in the singular shall include the plural and vice versa, references to any gender shall include the others and references to legal persons shall include natural persons and vice versa.
1.3 The headings in these conditions are intended for reference only and shall not affect their construction.

2 General
2.1 These conditions shall apply to the Contract to the exclusion of any other terms and conditions contained or referred to in any order, letter, form of contract or other communication sent by the Customer to the Company and the provisions of these conditions shall prevail unless expressly varied in writing and signed by a director or the company secretary on the Company’s behalf.
2.2 Any concession made or latitude allowed by the Company to the Customer shall not affect the strict rights of the Company under the Contract.
2.3 If in any particular case any of these conditions shall be or be held to be invalid or shall not apply to the Contract the other conditions shall continue in full force and effect.

3 Orders
Notwithstanding that the Company may have given a detailed quotation no order shall be binding on the Company unless and until it has been accepted in writing by the Company.

4 Prices
4.1 Unless otherwise agreed by the Company in writing:
(a) the price payable for Goods shall be the list price of the Company current at the date of dispatch and shall be deemed to include the cost of packaging and where appropriate delivery to the Customer. Delivery arrangements will be agreed prior to contract exchange, any alternative delivery arrangements e.g. ex-works must be agreed in writing.
(b) in the case of an order for delivery by instalments the price payable for each instalment shall be the list price of the Company current at the date of dispatch of such instalment;
(c) the Company reserves the right to adjust its prices at any time to take account of any variation in the Company’s costs including (but not limited to) variations in wages, the cost of materials, exchange rate fluctuations, alteration of duties and other costs since the date of the Company’s quotation or (if no quotation is issued) the Customer’s order. The Company accordingly reserves the right to adjust the invoice price by the amount of any increase or decrease in such costs after the price is quoted and the invoice so adjusted shall be payable as if the price set out therein were the original contract price.
4.2 All prices are exclusive of value added tax and this will be charged by the Company and will be payable by the Customer at the appropriate rate.

5 Additional costs
The Customer shall indemnify the Company in respect of any loss, cost or expense incurred by the Company as a result, directly or indirectly, of the Customer’s instructions or lack of instructions or through any failure or delay whatsoever in taking delivery or through any other act, neglect or default on the part of the Customer, its servants, agents or employees.

6 Intellectual property
The Customer shall indemnify the Company against all costs, claims, losses, expenses and damages incurred by the Company or for which it may be liable due to or arising directly or indirectly out of any infringement or alleged infringement of patents, trade marks, copyright, design right or other intellectual property right occasioned by the importation, manufacture or sale of the Goods if made to the specification or special requirements of the Customer.

7 Terms of payment
7.1 Unless otherwise specified in the relevant order, the Customer shall pay for the Goods in cash not later than 30 days from the date of the invoice save that payment shall become immediately due in any event forthwith upon the occurrence of any of the events referred to in condition 15 hereof.
7.2 If the Goods are delivered in instalments the Company shall be entitled to invoice each instalment as and when delivery thereof has been made and payment shall be due in respect of each instalment whereof delivery has been made notwithstanding non-delivery of other instalments or other default on the Company’s part.
7.3 If upon the terms of the Contract the price shall be payable by instalments or if the Customer has agreed to take specified quantities of Goods at specified times a default by the Customer in the payment of any due instalment or the failure to give delivery instructions in respect of any quantity of Goods outstanding shall cause the whole of the balance of the price to become due forthwith.
7.4 The price of the Goods shall be due in full to the Company in accordance with the terms of the Contract and the Customer shall not be entitled to exercise any set-off, lien or any other similar right or claim. If the Customer fails to make payment by the due date, the Company shall be entitled to cancel or suspend further deliveries of the Goods.
7.5 The time of payment shall be of the essence of the Contract.
7.6 Without prejudice to any other rights it may have the Company is entitled (both before and after any judgment) to charge interest at a rate equal to the higher of the interest rate payable on court judgements or 2% above the base rate from time to time of Barclays Bank plc on overdue payments of the price of the Goods or the price of any instalments thereof.
7.7 Note that any discounts / overriders or rebates attributable to an invoice (or an account) are only valid if the invoice is paid in full within the agreed terms.

8 Delivery
8.1 All times dates or periods given for delivery of the Goods are given in good faith and by way of indication of estimated delivery times, but without any responsibility on the Company’s part. No liability for delay in delivery will be accepted by the Company.
8.2 Time of delivery shall not be of the essence of the Contract.
8.3 Any period for delivery shall be calculated from the time of the Company’s acceptance of the Customer’s order or from the Company’s receipt of all information necessary to enable the Company to manufacture or procure the manufacture of the Goods (whichever shall be the later).
8.4 The Customer agrees that section 32(3) of the Sale of Goods Act 1979 shall not apply to Goods sent by the Company.
8.5 No liability (whether in contract or for negligence or otherwise howsoever) for loss of or damage to the Goods occurring prior to delivery, or for any claim that any item delivered pursuant to the Contract is defective or is otherwise not in accordance with the Contract (being a defect or loss, damage or non-compliance which would be obvious upon a reasonable inspection of the Goods), or for non-delivery, will attach to the Company unless claims to that effect are notified in writing by the Customer to the Company (and in the case of claims for loss, damage or non-delivery with a copy to the carrier if the Company’s own vehicles have not been used to deliver the Goods):
(a) within 24 hours of delivery for loss, damage, defect or non-compliance with the Contract; or
(b) within ten days of the date of the invoice for non-delivery,
and are accompanied by the return to the Company of the Goods to which the claim in question relates.
8.6 In the event of a valid claim for loss, damage, or non-compliance with the Contract or non-delivery the Company undertakes to replace the items concerned at its expense but shall not be under any further or other liability in connection with such non-delivery, loss, damage or non-compliance.
8.7 If the Customer shall fail to give notice in accordance with condition 8.5 above the items delivered shall be deemed to be in all respects in accordance with the Contract and without prejudice to earlier acceptance by the Customer it shall be bound to accept and pay for the same accordingly and all claims in respect of non-delivery, loss, damage, defect or non-compliance shall (save as set out in condition 13 below) thereafter be wholly barred.
8.8 The Company shall have the right to make delivery by instalments of such quantities and at such intervals as it may decide, and any express provision as to instalments in the Contract shall be in addition to and not in derogation of this right.
8.9 Should the Customer entrust the Company’s staff with keys to his premises to facilitate deliveries of Goods, the Company will be responsible only for damage caused arising from proven acts of negligence which were reasonably foreseeable and could reasonably have been avoided by the due diligence of the Company’s staff.

9 Returns
Goods supplied in accordance with the Contract cannot be returned without the Company’s prior written authorisation. Duly authorised returns shall be sent to the Company’s Premises at the Customer’s expense.

10 Carriage
10.1 Unless otherwise agreed by the Company in writing, delivery of the Goods shall take place when the Goods are off-loaded from the Company’s transport at the Customer’s premises.
10.2 Where the Customer requests delivery in a manner other than that selected by the Company in condition 10.1 above, any difference in price shall be charged to the Customer’s account.

11 Passing of title and risk
11.1 From the time of delivery the Goods shall be at the Customer’s risk who shall be solely responsible for their custody and maintenance but, unless otherwise expressly agreed in writing, the Goods shall remain the Company’s property until all payments to be made by the Customer under the Contract and any other contract between the Company and the Customer and on any other account whatsoever have been made in full and unconditionally. Whilst the Company’s ownership continues the Customer shall keep the Goods labelled as belonging to the Company and separate and identifiable from all other goods in its possession as bailee for the Company.
11.2 The Customer may only re-sell the Goods to the Customer’s customers in the ordinary course of the Customer’s business as a fiduciary and trustee for the Company. In the event of any resale by the Customer of the Goods the Company’s beneficial entitlement shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefor shall be assigned to the Company and until such assignment shall be held on trust in a separate identified account for the Company by the Customer and such proceeds shall not be mingled with other moneys or paid into any overdrawn bank account and shall at all times be identifiable as the Company’s moneys.
11.3 Without prejudice to the equitable rules as to tracing, in the event of failure to pay the price in accordance with the Contract the Company shall have power to re-sell the Goods, such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise and for such purpose the Company and its servants and agents may forthwith enter upon any premises or land occupied or owned by the Customer to remove the Goods.
11.4 Pending payment of the full purchase price of the Goods the Customer shall at all times keep the Goods comprehensively insured against loss or damage by accident, fire, theft and other risks usually covered by insurance in the type of business carried on by the Customer in an amount at least equal to the balance of the price for the same from time to time remaining outstanding. The policy shall bear an endorsement recording the Company’s interest.
11.5 Baskets, wheels, pallets and other returnable containers (together Containers) shall remain the property of the Company and shall be returned to the Company undamaged on demand. If any Containers are lost or damaged, the Company may either (at its option) charge the Customer for their replacement at cost price (which the Customer shall pay to the Company within seven days of demand), or require the Customer to replace them with containers of equal specification and return the replacements to the Company at the Customer’s expense.
11.6 Note from 6th June 2010 The Company will deliver products in leased delivery equipment (baskets and wheels) from a company called Basco UK Ltd. Under the terms of the agreement with Basco, The Company provides no rights for the customer to use the delivery equipment for purposes other than the storage, onward distribution or merchandising of The Company’s products. Please refer to the separate Basco agreement for full terms.
11.7 The Company is hereby licensed to enter upon any premises in the ownership, possession or control of the Customer at any time to recover the Goods and any Containers.

12 Conditions and warranties
12.1 The Contract shall not constitute a sale by description or sample.
12.2 All Goods supplied hereunder are guaranteed, where appropriate, to comply with the Food Safety Act 1990 as amended or substituted and other relevant regulations relating to foodstuffs.
12.3 Subject to clause 12.2, any conditions or warranties (whether express or implied by statute or common law or arising from conduct or a previous course of dealing or trade custom or usage or otherwise howsoever) as to the quality of the Goods or their fitness for any particular purpose (even if that purpose is made known expressly or by implication to the Company) or as to the correspondence of the Goods with any description or sample are hereby expressly excluded.

13 Defective goods
13.1 In substitution for all rights which the Customer would or might have but for these conditions the Company undertakes in the case of Goods manufactured by the Company that if within two days of delivery of any item of the Goods a defect appears therein being a defect which would not be obvious on reasonable inspection thereof (whether such an inspection was carried out or not) it will at its own discretion either credit to the Customer the full price paid by the Customer to the Company for such item or supply a replacement thereof free of charge at the place of delivery specified by the Customer for the original Goods provided that in any case the original Goods have been accepted and paid for.
13.2 In order to exercise its rights under this condition the Customer shall inform the Company in writing within two days of the date when such defect appeared or ought reasonably to have been discoverable and shall at the Company’s written request return the defective Goods carriage paid to the Company’s Premises.
13.3 No liability for any shortage of or damage to any item of Goods shall attach to the Company unless notification of the same is received by the Company within 24 hours of delivery of the Goods.
13.4 Nothing herein shall impose any liability upon the Company in respect of any defect in the Goods arising out of the acts, omissions, negligence or default of the Customer, its servants or agents including in particular (but without prejudice to the generality of the foregoing) any failure by the Customer to comply with any recommendations of the Company as to storage and handling of the Goods.
13.5 Where the Goods are for delivery by instalments any defect in any instalment shall not be a ground for cancellation of the remainder of the instalments and the Customer shall be bound to accept delivery thereof.
13.6 Nothing herein shall have the effect of excluding or restricting the liability of the Company for death or personal injury resulting from its negligence in so far as the same is prohibited by United Kingdom statute.

14 Consequential loss
The Company shall not be liable for any costs, claims, damages or expenses arising out of any tortious act or omission or any breach of contract or statutory duty calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals or by reference to accrual of such costs, claims, damages or expenses on a time basis.

15 Default or insolvency of customer
If the Customer shall be in breach of any of its obligations under the Contract or if any distress or execution shall be levied on the Customer’s property or assets or if the Customer shall make or offer to make any arrangement or composition with his creditors or commit any act of bankruptcy or if any bankruptcy petition be presented against him or (if the Customer is a company) if any resolution or petition to wind up such company shall be passed or presented or if a receiver, administrative receiver or administrator of the whole or any part of such company’s undertaking property or assets shall be appointed the Company in its discretion and without prejudice to any other right or claim may by notice in writing determine wholly or in part any and every contract between the Company and the Customer or may (without prejudice to the Company’s right subsequently to determine the Contract for the same cause should it so decide) by notice in writing suspend delivery or any further deliveries (as the case may be) of Goods until any default by the Customer be remedied.
If the Customer shall make or offer to make any arrangement or composition with his creditors or commit any act of bankruptcy or if any bankruptcy petition be presented against him or (if the Customer is a company) if any resolution or petition to wind up such company shall be passed or presented or if a receiver, administrative receiver or administrator of the whole or any part of such company’s undertaking property or assets shall be appointed the Company in its discretion has the right to deduct all overriders or rebates due to the Customer from the amounts owed to the Company.

16 Limitation of liability
The aggregate liability of the Company (whether in contract or for negligence or breach of statutory duty or otherwise howsoever) to the Customer for any loss or damage of whatsoever nature and howsoever caused shall be limited to and in no circumstances shall exceed the invoice price of the Goods.

17 Representations
No statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or communication or made verbally by any of the Company’s agents or employees shall be construed to enlarge, vary or override in any way any of these conditions.

18 Force majeure
The Company shall be entitled to delay or cancel delivery or to reduce the amount of Goods delivered (and shall not be liable to the Customer for any loss or damage whatsoever) if and to the extent that it is prevented from or hindered in or delayed in manufacturing, obtaining or delivering the Goods by normal route or means of delivery through any circumstances beyond its reasonable control including (but not limited to) act of God, explosion, flood, tempest, fire or accident, war, strikes, lock-outs, accidents, war, fire, reduction in or unavailability of power at manufacturing plant, power failure or breakdown of plant or machinery, import or export regulations or embargoes, shortage or unavailability of raw materials from normal sources of supply, or measures of any kind on the part of any governmental, parliamentary or other competent authority.

19 Cancellation
Save as provided in conditions 15 and 18 hereof contracts may not be cancelled except by agreement in writing of both parties and upon the payment to the Company of such amount as may be necessary to indemnify the Company against all loss resulting from the said cancellation.

20 Sub-contracting
The Company may assign the Contract with the Customer or sub-contract the whole or any part thereof to any person, firm or company.

21 Credit reference
The Company reserves the right to make enquiries about the Customer and its principal directors with a credit reference agency at any time.

22 Proper law
The Contract shall in all respects be governed by and construed in accordance with English law and shall be deemed to have been made in England and the Customer and the Company agree to submit to the non-exclusive jurisdiction of the English courts and it is agreed that the High Court in Manchester is a convenient forum for the hearing of any dispute.

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