Terms and Conditions
INTRODUCTION :
A) ORDERS
i. You agree that by placing an Order for any of Our Products, You are bound by these Conditions, and accept them without reservation.
ii. You are only entitled to Order Products through our System once You have registered as a User with Us, and have created a User account. We have the right to cancel your User account at any time, at Our absolute discretion.
iii. By placing an Order through Our System, You warrant that:
Ø You are acting in the course of trade, as a registered partner of MS, and User under the System
Ø You are legally capable of entering into binding contracts on behalf of the Purchaser
Ø You have authority from the Purchaser to place an Order on this System: and
Ø You will ensure that the Products purchased under any Order will only be sold through a Mr Simms or Hardys branded franchise retail store in the UK a) of which the Purchaser is a recognised MS franchisee, b) to parties/customers only within your territory (as detailed in your franchise agreement) and that c) under no circumstances will the Products be resold to any other party or business or through any other outlet or platform selling confectionery of any type anywhere globally (without our express prior Written approval) including for resale in any retail stores not trading as Mr. Simms or Hardys, or on any online platform.
B) DELIVERY
i. When your Products are delivered to You, a packing list will be provided with an item count to help you check your Order quantities. We advise You to undertake a brief inspection of all the goods as soon as You can to ensure there are no damages, shortages or issues that You would like to bring to Our attention. By doing this, and notifying Us of any issues as soon as possible thereafter, You will enable Us to start a claim with the transport company/logistics partners. You will normally be required to sign the delivery note provided with the Products delivered as being accepted, damaged or unchecked. You are required to notify us of any damage by email within 24 hours of the delivery, with details of the damage, and photographs (where relevant).
ii. Please note that neither We (or Our logistics partners/transport company) use refrigerated/temperature-controlled transport so bear this in mind during warmer or cold weather.
iii. We will not accept responsibility for failed or delayed delivery if the address You supply Us is incorrect, incomplete or unclear. Once your Order leaves Our warehouse, We are unable to change address information or redirect orders without incurring further charges, which You will need to cover.
iv. Deliveries are normally made on working days only, and at any time during working hours (7am to 6pm Monday to Friday), unless You have requested a time slot. Timed deliveries incur an extra cost which You would need to cover.
C) PRODUCT
i. We will always do our best to despatch Product with a minimum of 6 months before the best before date (for hard boiled sweets) and 3 months for all other Products (except in the case of special offers). Please be aware that Product may be from different batches so identical products may have different best before dates. Please consider this during stock rotation. Please note and take into consideration before buying that many confectionery items from Our USA selection may arrive with only 4-6 weeks before the best before date. Please ensure that You are happy with this before placing an Order. If You would like further clarification, please contact Us prior to placing an Order for Products.
ii. The Products (including those listed in our Database), except where the manufacturer states otherwise on its product labelling, are produced in facilities where nuts are present. Therefore, We cannot guarantee that the products are nut free.
iii. We endeavour to:
A. Provide a full ingredients list for every Product We supply
B. Highlight any relevant allergy information that is made available to Us from the manufacturer
C. Supply all Products with ingredients from the original manufacturers packaging
D. Ensure that the packaging on imported Product is labelled in accordance with the requirements of the Food Standards Agency
Except as specifically agreed in these conditions, We shall not be liable for any allergic reaction suffered by any of your customers as a result of consumption of Products purchased from Us.
iv. Whilst You are expressly prohibited from selling Product outside your territory, if any Products You purchase from Us are sold by You (directly or indirectly) to any territory outside the UK, it is not Our responsibility to ensure that such Products are properly labelled to comply with local regulations or laws in that territory.
D) PRICING AND PAYMENTS
i. Generally, We require prepayment from You for all Orders, before the Products are released from Our warehouse. In certain circumstances (as may be agreed), We may require a deposit payment when the Order is placed.
ii. All prices as shown in our Database are not inclusive of the delivery costs from our warehouse to your delivery location (except as We have agreed in writing in relation to any Order). Any additional delivery costs will be charged separately based on the rates we have currently agreed with the transport company, and as advised to you from time to time. Further please note that all prices in our price list exclude VAT (unless otherwise stated), and that VAT will be included at the current rate in your invoice.
iii. We accept direct payment into our bank accounts as follows:
Bank: HSBC
Account Name: Mr Simms Olde Sweet Shoppe Limited
Account Number: 22222531
Sort Code: 40-43-03
Please quote your order number as a reference on all payments
Alternatively, we accept payments via Worldpay. If you wish to pay on a debit or credit card, please inform us when placing your order, and we will send a link to your email to enable you to make your payment.
Notes:
- All payments should be made gross of any charges
- Orders will not be dispatched until evidence of payment has been received.
iv. We reserve the right to change these Standard Terms of Sale (and our pricing) at any time, and to issue and/or publish an updated version of the terms/and or Database.
E) CUSTOMER SERVICES
Our customer/purchaser service contact details are as follow:
ADDRESS: Unit 2A, Schott House, Drummond Road, Stafford ST16 3EL
TELEPHONE NO: 01785 254647
HOURS: 8am to 4pm Mon – Fri
1. Interpretation in these Conditions:
The following definitions and rules of interpretation apply to these Conditions.
(a) "MS", “Our”, “Us” and “We” means Mr Simms Olde Sweet Shoppe Limited whose registered offices are at 12 St. Mary’s Gate, Stafford, ST16 2AS
"Conditions" means the standard terms of condition of sale set out herein and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and MS
"Order" means any order placed through the System creating a contract between MS and the Purchaser for the sale or purchase of the Products incorporating these Conditions
“Order Form” means the form provided by MS through the MS software (or web link) to facilitate the placing of Orders.
“Database” means the online price list published from time to time setting out the products available for sale from MS, and the cost price to You for such Products (as well as the recommended retail price).
"Purchaser" and “You” means the person firm or the company who purchases the Products from MS
"Delivery Point" means the place where delivery of the Products is to take place, normally to your franchise store, or as You otherwise advise to Us
"Products" means any goods detailed in the Order (including any part of them) which We are to supply to the
Purchaser in accordance with these Conditions, including the packaging supplied with such Products.
"Specification" the technical or other description (whether as to quantity, quality, price, weight, packaging or otherwise) of the Products shown or referred to in any Order and any performance schedules and/or characteristics and details contained, mentioned or referred to therein or prepared in accordance therewith
“System” means this document (together with any other documents, Database or website referred to within) and processes referred to herein by which Purchasers place Orders for Product.
“User” means any party that is a UK MS franchisee, operating a Mr Simms or Hardys branded store that has registered as a user and been approved as a Purchaser on the System
"Writing/Written" includes letters, agreed forms and other documents whether by post/courier, or transmitted as a fax or email.
(b) Any reference in these Conditions to a law or any provision of a statute shall be construed as a reference to that law or provision as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it
(c) In these Conditions headings will not affect the construction of these Conditions
(d) Words in the singular include the plural and in the plural include the singular
(e) A reference to one gender includes a reference to the other gender
2. Application of Terms
1.1 Subject to variations expressly agreed in Writing and signed by MS all Orders will be subject to these Conditions to the exclusion of all other terms and conditions (including any terms and conditions which the Purchaser purports to apply under any Order, confirmation of order Specification or other document)
1.2 No terms or conditions endorsed on, delivered with or contained in the Purchaser's forecast, Order, confirmation of Order, Specification or other document shall form part of the Order simply as a result of such document being referred to in the Order.
1.3 Each Order for Products from the Purchaser shall be deemed to be an offer by the Purchaser to purchase Products subject to these Conditions
1.4 No Order placed by the Purchaser or acceptance of an MS quotation for Products shall be deemed to be accepted by MS until an acknowledgement of order is issued by MS or the order confirmed electronically or (if earlier) MS delivers the Products to the Purchaser. Each Order which is accepted by MS shall constitute an individual legally binding contract between the Purchaser and MS.
1.5 MS is not bound to accept any Orders placed by the Purchaser, or quotation confirmations.
1.6 The Purchaser must ensure that the terms of its Order and any applicable Specification are complete and accurate.
1.7 These Conditions apply to all MS sales and any variation to these Conditions and any representations about the Products shall have no effect unless expressly agreed in Writing and signed by a director of MS. The Purchaser acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of MS which is not set out in the Order. Nothing in this condition shall exclude or limit MS's liability for fraudulent misrepresentation.
1.8 Any quotation is given on the basis that no Order shall be valid until MS despatches an acknowledgement of order to the Purchaser. Any quotation is valid for a period of 30 days only from its date, provided that MS has not previously withdrawn it.
1.9 All Orders are to be submitted through the System. Should You submit an Order through any other means, MS takes no responsibility for any errors in either the type or quantity of Product delivered, or any delays or errors in making delivery, and any such issues arising with such an Order will only be rectified or resolved at the cost of the Purchaser.
3. Specification and Description of the Products
The quantity and description of the Products shall be as set out in any MS quotation, pricelist or the acknowledgement of order
3.1 Whilst We endeavour to depict and describe the Products as accurately as possible, product shapes, colours, size and packaging may be subject to change without prior notice. All descriptive matter, samples, drawings, specifications, price lists and advertising issued by MS and any descriptions or illustrations in the MS’s catalogues, brochures are issued and/or published only to give an approximate idea of the Products and packaging described in them. They do not form part of these Conditions. This is not a sale by sample
3.2 Dimensional and other physical properties of the Products are subject to any reasonable tolerances and are as specified in MS relevant product literature (copies of which are available on request) and are subject to 3.1 above
3.3 Due to a policy of continuous improvement MS reserves the right to supply Product with modified specifications without notification to You.
3.4 If the Products are to be manufactured or any process is to be applied to the Products by MS in accordance with a specification submitted by the Purchaser, the Purchaser shall indemnify MS against all loss, damages, costs and expenses awarded against or incurred by MS in connection with or paid or agreed by MS in connection with or paid or agreed to be paid by MS in settlement of any claim for infringement of any patent, copyright design, trade mark or other industrial or intellectual property rights of any other person which results from MS’s use of the Purchasers specification or instructions
- Price
4.1 Unless otherwise agreed by MS in Writing the price for the Products shall be those stated on any current price list or quotation provided by us, on the date that the Purchasers Order is received.
4.2 Unless as otherwise stated under the terms of any quotation or in any MS price list all prices quoted are exclusive of VAT. Any costs or charges in relation to loading, unloading, carriage and insurance payable by the Purchaser, will be invoiced in addition to the Order price and payable when You are due to pay for the Products.
4.3 MS reserves the right, by giving notice to the Purchaser at any time before delivery, to increase the price of the Products to reflect any increase in the cost to MS which is due to any factor beyond the control of MS (such as, without limitation, any foreign exchange fluctuation, currency regulation, price increase advised by the manufacturer of the Products, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Products which is requested by the Purchaser, or any delay caused by any instructions of the Purchaser or failure of the purchaser to give MS adequate information or instructions.
- Payment and Interest
5.1 Payment for Products is due in full and without deduction in Sterling Pounds and must be received by Us before release from Our warehouse. In all other circumstances MS shall be entitled to recover the invoice value for the Product and any other costs incurred by MS notwithstanding that delivery may have taken place and the property in the Products has not passed to the Purchaser.
5.2 Time for payment shall be of the essence and no payment shall be deemed to have been received until We have received cleared funds
5.3 If the Purchaser fails to pay Us any sum due within 10 days of the date of an invoice, the Purchaser will be liable to pay interest to MS on the sum from the due date until paid at the annual rate of 8% above the base lending rate from time to time of HSBC Bank plc accruing on a daily basis whether before or after any judgement. MS reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998
5.4 If the Purchaser fails to make payment by the due date all costs and expenses incurred by MS in recovery of the outstanding sum shall be recoverable from the Purchaser on a full indemnity basis including, without prejudice to the generality of the foregoing, all legal and administrative costs irrespective of whether or not legal proceedings are issued against the Purchaser.
5.5 All payments payable to MS under these Conditions shall become due immediately upon termination of any Order despite any other provisions or agreement between the parties.
5.6 The Purchaser shall make all payments due under these Conditions without deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Purchaser has a valid court order requiring an amount equal to such deduction to be paid by MS to the Purchaser.
- Delivery
6.1 Unless otherwise indicated on the Order Form, delivery of the Products shall take place at the Purchasers place of business, as per our records.
6.2 The Purchaser shall take delivery of the Products within seven days of MS giving You notice that the Products are ready for delivery.
6.3 Any dates specified by MS for delivery of the Products are intended to be an estimate only and time for delivery shall not be made of the essence by notice. If no dates are specified, delivery will be within a reasonable time
6.4 Subject to the other provisions of these Conditions MS will not be liable for any direct, indirect or consequential loss including but without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill, costs, damages, charges, expenses and similar loss caused directly or indirectly by any delay in the delivery of the Products (even if caused by MS’s negligence), nor will any delay entitle the Purchaser to terminate or rescind the Order.
6.5 If delivery of an Order is to be made by instalments, each part delivery of the Products shall be deemed to be the subject of a separate Order and no cancellation or termination of any one Order relating to an instalment shall entitle the Purchaser to repudiate or cancel any other Order or instalment. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Order.
6.6 If for any reason the Purchaser will not accept delivery of any of the Products when they are ready for delivery, or MS is unable to deliver the Products on time because the Purchaser has not provided appropriate instructions, documents, licences or authorisations at that time:
i. risk in the Products will pass to the Purchaser including for loss or damage caused by MS's negligence;
ii. the Products will be deemed to have been delivered; and
iii. MS may store the Products until delivery whereupon the Purchaser will be liable for all related costs and expenses (including without limitation storage and insurance) during that period
6.7 The Purchaser will provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for loading the Products. If any assistance is given to the Purchaser either voluntarily or at the Purchasers request, it will be deemed that the delivery personnel are acting for the Purchaser and no responsibility will be accepted by MS for any loss, damage or shortage however occurring
6.8 If MS delivers to the Purchaser a quantity of Products of up to 5% more or less than the quantity set out in the Order, the Purchaser shall not be entitled to object to or reject the Products or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Order rate.
6.9 The quantity of any consignment of Products as recorded by MS on despatch from MS's place of business shall be conclusive evidence of the quantity received by the Purchaser on delivery unless the Purchaser can provide conclusive evidence proving the contrary.
6.10 MS shall not be liable for any non-delivery of Products (even if caused by MS's negligence) unless the Purchaser gives written notice to MS of the non-delivery within FIVE days of the date when the Products would in the ordinary course of events have been received.
6.11 Any liability of MS for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or issuing a credit note at the pro rata Order rate against any invoice raised for such Products.
6.12 Orders for Products which the Purchaser has agreed to collect from our warehouse, should be collected within 5 days of our confirmation that the Products are ready. If the Products are not collected within this period, MS shall be entitled to invoice the Purchaser for the Products and either deliver them (at the Purchasers cost) to the Purchasers place of business, or store the Products and charge additionally for storage, with the Products being held at the Purchasers risk.
- Risk/Title
7.1 The Products are at the risk of the Purchaser from the time of delivery
7.2 Ownership of the Products shall not pass to the Purchaser until MS has received in full (in cash or cleared funds) all sums due to it in respect of:
i. the Products; and
ii. all other sums which are, or which become due to MS from the Purchaser on any account
7.3 Until ownership of the Products has passed to the Purchaser:
i. the Purchaser holds the Products on a fiduciary basis solely as bailee for MS;
ii. the Purchaser must store the Products not yet used (at no cost to MS) separately from all other Products of the Purchaser or any third party in such a way that they remain readily identifiable as MS’s property;
iii. the Purchaser must not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and
iv. the Purchaser must maintain the Products in satisfactory condition and keep them insured on MS’s behalf for their full price against all risks to the reasonable satisfaction of MS. On request the Purchaser shall produce the policy of insurance to MS
7.4 The Purchaser may resell the Products before ownership passes to it solely on the following conditions:
i. any sale shall be effected in the ordinary course of the Purchaser’s business at full market value and the Purchaser shall hold such part of the proceeds of sale as representing the amount owed by the Purchaser to MS on behalf of MS and the Purchaser shall account to MS accordingly
ii. any such sale shall be a sale of MS’s property on the Purchaser’s own behalf and the Purchaser shall deal as principal when making such a sale
7.5 The Purchaser’s right to possession of the Products shall terminate immediately if:
i. The Purchaser has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Purchaser or for the granting of an administration order in respect of the Purchaser, or any proceedings are commenced relating to the insolvency or possible insolvency of the Purchaser or documents are filed with the court for the appointment of an administrator of the Purchaser or notice of intention to appoint an administrator is given by the Purchaser or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);
ii. The Purchaser fails to observe/perform any of its obligations under the Order or any other Order with MS, or is unable to pay its debts within the meaning of s.123 of the Insolvency Act 1986 or the Purchaser ceases to trade; or the Purchaser encumbers or in any way charges any of the Products or the Purchaser suffers or allows any execution whether legal or equitable to be levied on his/its property or obtained against him/it.
iii. In the event that the Purchaser has resold the Products in the ordinary course of business subject to any retention of title in favour of the Purchaser and the Purchaser defaults in payment or ceases to have any right to resell or use, MS shall have the right to require the Purchaser to enforce or assign its rights pursuant to or under such retention of title and all monies and/or goods recovered thereby by the Purchaser shall, to the extent of any liability of the Purchaser to MS, be held by the Purchaser on trust for MS, in the case of proceeds in a separate bank account and in the case of goods, separate and distinct, properly stored, protected and insured.
7.6 MS shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from MS
7.7 The Purchaser grants MS, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored, in order to inspect them, or where the Purchaser’s right to possession has terminated, to recover them
7.8 Where MS is unable to determine whether any Products are the goods in respect of which the Purchaser's right to possession has terminated, the Purchaser shall be deemed to have sold all goods of the kind sold by MS to the Purchaser in the Order in which they were invoiced to the Purchaser.
7.9 On termination of the Order, howsoever caused, MS's (but not the Purchaser's) rights contained in this condition 7 shall remain in effect.
8 Quality and Returns
8.1 Where MS is not the manufacturer of the Products MS will endeavour to transfer to the Purchaser the benefit of any warranty or guarantee given to MS by the manufacturer of the Products
8.2 MS warrants (subject to the other provisions of these Conditions) that upon delivery the Products will be of satisfactory quality within the meaning of the Sale of Goods Act 1994 and be reasonably fit for any particular purpose for which the Products are being bought if the Purchaser had made known that purpose to MS in Writing and MS had confirmed in Writing that it is reasonable for the Purchaser to rely on the skill and judgement of MS
8.3 MS shall not be liable for a breach of any warranties in Condition 8.2 unless:
i. the Purchaser gives Written notice of the defect to the Company within 7 days of delivery; and
ii. the Purchaser has paid to MS all monies due and payable on or by the date(s) for payment; and
iii. MS is given a reasonable opportunity after receiving the notice to examine such Products and, if asked by MS, the Purchaser returns such Products to MS's place of business at the Purchaser’s cost for the examination to take place there
8.4 MS shall not be liable for a breach of any warranties in Condition 8.2 if:
i. the Purchaser makes further use of such Products after giving such notice or alters, modifies, repairs or otherwise tampers in any way with such Products without the written consent of MS; or
ii. the defect arises from the Purchaser's (or any agent, employee, servant of or third party who is acting on behalf of or performing any service for the Purchaser) misuse, wilful damage, neglect, carelessness, lack of proper care, failure to follow MS’s oral or Written instructions as to the storage, installation, commissioning, use or maintenance of the Products or (if there are none) good trade practice or other commotion or disturbance of whatever nature whether affecting the Products directly or indirectly as the result of any such matter affecting the place where the Products are situated; or
iii. and to the extent that the Products have been produced from any Specifications produced by or on behalf of the Purchaser
8.5 Subject to Condition 8.3 and Condition 8.4 if the Products do not conform with any of the warranties in 8.2 MS shall at it sole option replace such Products (or the defective part) as soon as reasonably practicable or refund the price of such Products at the pro rata Order rate provided that if MS so requests the Purchaser shall, at the Purchaser’s expense, return the Products or part of the Products which is defective to MS, or require the Purchaser to retain the Products and grant to the Purchaser an appropriate allowance against the Order price, or take such steps as MS considers necessary to make the Products comply.
8.6 If MS complies with Condition 8.5. it shall have no further liability for a breach of any warranties in Condition 8.2 in respect of such Products
9 Limitation of Liability
9.1 Subject to Condition 6, and Condition 8, the following provisions set out the entire financial liability of MS (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Purchaser in respect of:
i. any breach of these Conditions;
ii. any use made or resale by the Purchaser of any of the Products, or of any product incorporating any of the Products; and
iii. any representation, statement or tortious act or omission including negligence arising under or in connection with these Conditions.
9.2 All warranties conditions and other terms implied by statute or common law (save for the conditions implied by s12 sale of Goods Act 1979) are to the fullest extent permitted by law excluded from these Conditions provided that nothing in these Conditions shall affect the statutory rights of a Purchaser dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977).
9.3 Nothing in these Conditions excludes or limits Our liability:
i. for death or personal injury caused by Our negligence; or
ii. for fraud or fraudulent misrepresentation; or
iii. under section 2(3), Consumer Protection Act 1987; or
iv. for any matter which it would be illegal for Us to exclude or attempt to exclude its liability
9.4 Subject to Conditions 9.2 and 9.3:
i. Our total liability for breach of any duty under the common law, in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Order shall be limited to the price of Products under the Order; and
ii. MS shall not be liable to the Purchaser for any direct loss and/or expense or any indirect loss and/or expense, loss of use, profits or contracts or for any consequential loss or damage, costs, expenses or other claims for consequential, punitive or exemplary compensation whatsoever suffered by the Purchaser or liability to third parties incurred by the Purchaser (whether caused by Our negligence, employees or agents or otherwise) which arise out of or in connection with the Order
iii. We shall not be liable to the Purchaser in respect of any claims of the kind referred to in clause 9.4(i) unless legal proceedings have been issued against Us within two calendar years of the date of the event giving rise to the alleged cause of action.
9.5 Whilst such a sale is prohibited under these Conditions, in the event that the Purchaser resells the Products (directly or indirectly) to any third party, including any distributor, retailer or directly to a consumer in any jurisdiction outside of the United Kingdom, the Purchaser agrees to indemnify MS in full for any direct loss and/or expense or any indirect loss and/or expense, loss of use, profits or contracts or for any consequential loss or damage, costs, expenses or other claims for consequential, punitive or exemplary compensation whatsoever suffered by MS, fines imposed by national, federal, state or local legislation, or liability to third parties incurred by MS (whether caused by the negligence of MS, its employees or agents or otherwise) which arise out of or in connection with the Order.
10 Displays and Display Units
Any displays and display units which may be supplied by MS is on the strict understanding that they will be used only to display Products purchased from MS. MS will immediately retrieve any displays and/or display units used for the display of any other products or displays.
11 Pallets
Deliveries of Products will be made on pallets, or as otherwise agreed between us. Ownership of any pallets transfers to You on delivery of the goods, except where prearranged removal has been agreed.
12 Sale of Foods
12.1 Subject to the provision of Condition 12.3 below MS warrants that MS and/or the Products (as appropriate) shall comply with all relevant food and/or food safety legislation from time to time in force in the United Kingdom including but not exclusively the Food Safety Act 1990 and Part I of the Consumer Protection Act 1987.
12.2 MS shall not be liable for any breach of the warranty set out in this clause 12 to the extent that MS is entitled to rely on the defences provided by sections 20 and 21 of the Food Safety Act 1990 and/or section 4 of the Consumer Protection Act 1987.
13 Insolvency of Purchaser
13.1 This clause applies if:
i. the Purchaser makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
ii. an encumbrance takes possession, or a receiver is appointed, of any of the property or assets of the Purchaser; or
iii. the Purchaser ceases or threatens to cease, to carry on business; or
iv. MS reasonably apprehends that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly.
13.2 If this clause applies then, without prejudice to any other right or remedy available to MS, MS shall be entitled to cancel any Order or suspend any further deliveries under any Order without any liability to the Purchaser, and if the Products have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
14 Assignment
14.1 The Purchaser shall not be entitled to assign any Order or any part of it without the prior written consent of MS
14.2 MS may assign any Order or services or any part of it to any person, firm or company
15 Force Majeure
MS reserves the right to defer the date of delivery or to cancel the Order or reduce the volume of the Products ordered by the Purchaser and shall not be liable to the Purchaser or be deemed in breach of the Order due to any delay in performing, or any failure to perform the Order if it is prevented from or delayed in carrying on its business due to any cause beyond MS’s reasonable control including, without limitation, acts of God, explosion, flood, storm, fire or accident, war or threat of war or national emergency, acts of terrorism, civil commotion, riot, governmental action, epidemic, strikes, lock-outs or other labour disputes (whether or not relating to either party’s workforce) or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials. If the restrictions continue for a period of more than 90 days, the Purchaser will be entitled to notify MS in writing that they intend to cancel the Order.
16 General
16.1 The Conditions and any dispute or claim arising out of or in connection with them or their subject matter (including non-contractual disputes or claims) shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts
16.2 If any provision of these Conditions is found by any competent authority to be wholly or partly illegal, void, voidable, invalid, unenforceable or unreasonable it shall to the extent of such illegality, voidness, voidability, invalidity, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Conditions and the remainder of such provision shall continue in full force and effect
16.3 Failure or delay by MS in enforcing or partially enforcing any provision of these Conditions will not be construed as a waiver of any of its rights under these Conditions.
16.4 Any waiver by MS of any breach of, or any default under, any provision of these Conditions by the Purchaser will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of these Conditions.
16.5 Each right or remedy of MS under any Order is without prejudice to any other right or remedy of MS whether under the Order or not.
16.6 The parties to the Order do not intend that any term of the Order shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
17 Communications
17.1 All communications between the parties about these Conditions must be in Writing and delivered by hand or sent by pre-paid first-class post or sent by facsimile or email transmission:
i. (in case of communications to MS) to its registered office or such changed address as shall be notified to the Purchaser by MS; or
ii. (in the case of the communications to the Purchaser) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Purchaser set out in any document which forms part of these Conditions or such other address as shall be notified to MS by the Purchaser
17.2 Communications shall be deemed to have been received:
i. if sent by pre-paid first-class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after positing (exclusive of the day of posting); or
ii. if delivered by hand, on the day of delivery; or
iii. if sent by fax or email on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
Communications
addressed to Us shall be marked for the attention of the Company Secretary.