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 Trading & Credit Policy

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Account credit agreement - Terms and Conditions*

 

Brook Street Foods {"the Company")

TERMS & CONDITIONS

CONDITIONS OF SALE FOR GOODS AND SERVICES

  1. APPLICATION 1.1 These Conditions alone shall govern and be incorporated in every contract for the sale of goods made by or on behalf of the Seller with any Customer ("the Buyer"). They shall apply in place of and prevail over any terms & conditions, (whether or not in conflict or inconsistent with these conditions), contained or reterr8d to in any documentation submitted by the Buyer or in correspondence or elsewhere or implied by trade custom, practice or course of dealing unless specifically excluded or varied in writing by a director or other authorised representative of the Seller and any purported provisions to the contrary are hereby excluded or extinguished.

  2. 1.2 Acceptance by the Buyer of delivery of the goods shall (without prejudice to Condition 2 or any other way acceptance of these Conditions may be evidenced) be deemed to constitute unqualified acceptance of these conditions.

  3. 1.3 If, after any contract of sale which is subject to these Conditions contracted sale is made with the same buyer without reference to any conditions of sale or purchase such contract however made shall be deemed to be subject to these Conditions.

  4. QUOTATIONS AND ACCEPTANCE 2.1 A quotation by the Seller does not constitute an offer and the Seller reserves the right to withdraw or revise the same at any time prior to the Seller's acceptance of the Buyer's order. Any quotation by the Seller shall in any event lapse unless the Seller accepts an order from the Buyer within 30 days of the date of quotation.

  5. 2.2 The Sellers acceptance of the Buyer's order (including telephone orders) shall be effective only where such acceptance is made on the Seller’s_ _printed Order Acknowledgement form.

  6. PRICES 3.1 The prices payable for the goods shall be those contained in the Seller's list prices current at the time of dispatch. The Seller shall have the right at any time to withdraw any discounts from its normal prices and/or to revise prices to take into account inflation and/or increases in costs including (without limitation) costs of any goods, materials, carriage, labour or overheads the increases or imposition of any tax, duty or other levy and any variation in exchange rates.

  7. 3.2 Unless otherwise specified all prices include packaging, delivery and transport charges where the goods are to be delivered within the United Kingdom. If the Buyer instructs the Seller to deliver by any means other than its usual mode of transport the cost of delivery shall be charged to the Buyer. The cost of delivering goods to locations outside the British Isles shall be added to the price.

  8. 3.3 Unless otherwise specified VAT and any other tax or duties payable by the Buyer shall be added to the price where applicable.

  9. TERMS OF PAYMENT 4.1 Any extension of credit allowed to the Buyer may be changed or withdrawn at any time.

  10. 4.2 Interest shall be payable on overdue accounts at the rate of 4% over Barclays Bank PLC base rate from time to time to run from the due date for payment until receipt by the Seller of the full amount whether before or after judgement.

  11. 4.3 If in the opinion of the Seller the creditworthiness of the Buyer shall have deteriorated prior to Delivery the Seller may require full or partial payment of the price prior to delivery or the provision of security for payment by the Buyer in a form acceptable to the Seller.

  12. 4.4 All payments made by the Buyer to the Seller shall be apportioned, first to goods which have been resold by the Buyer and then to goods which remain in the possession or under the control of the Buyer not withstanding any purported contrary apportionment by the Buyer.

  13. 4.5 A fix8d charge of £30.00 will apply to all customers for uncleared cheque payments that have to be "represented”,_ _“S_t_o_p_p_e_d_"_ _or "Bounced “a_s_ _a result of unclear funds

  14.  SUBJECT (WHERE APPROPRIATE) TO CONDITION Payment Invoices shall unless otherwise agreed inwriting be made in full without any deduction or set off within 28days of the delivery/invoice date charged by the Seller to the Buyer. Time of payment shall be of the essence of all C1Jntracts between the Buyer and the Seller. The Seller reserves the right to suspend the provision of goods to the Buyer where any amounts are overdue under any contract with the Buyer until all such amounts have been paid.

  15. DELIVERY 5.1 Delivery and dispatch dates mentioned in any quotation, order acceptance form or elsewhere are approximate only and not of any contractual effect and the Seller shall not be under any liability to the Buyer in respect of any failure to deliver any date or dates. Time for delivery shall not be of the essence of any contract to which these Conditions apply and shall not be made so by the service of any notice.

  16. 5.2 Delivery shall be at the Buyer's premises unless otherwise stipulated or agreed by the Seller. The Buyer shall be solely responsible for unloading of goods at the point of delivery. Unless agreed in writing the Buyer shall unload and inspect the goods immediately on the arrival at its premises. The Buyer shall indemnify the Seller against all liabilities claims or costs arising as a result of the Seller or its subcontractor assisting the Buyer in the unloading, loading or other removal of the goods from the point of delivery.

  17. 5.3 If the Buyer refuses or fails to take delivery of goods tendered in accordance with the contract or fails to take any action necessary on its part for delivery and/or shipment of the goods the Seller shall be entitled to terminate the contract with immediate effect, lo dispose of the goods as the Seller may determine, and lo recover from the Buyer any loss and additional costs incurred as a result of such refusal or failure (including without limitation storage costs from the due date of delivery).

  18. 5.4 Unless otherwise expressly agreed the Seller may affect delivery in one or more

  19. 5.5 Section 32(2) of the Sale of Goods Act 1979 shall not apply. The Seller shall not be Required to give the Buyer the notice specified in Section 32(3) of that Act.

  20. 6.1 Subject (where appropriate) to Condition 7 risk shall pass on delivery. Goods returned by the Buyer to the Seller shall always be at the Buyer's risk until delivery to the Seller's premises.

  21. 6.2 Any property of the Buyer in or under the Seller's possession or control and all property supplied to the Seller on behalf of the Buyer shall be held by the Seller at the Buyer's risk

  22. 6.3 From the time of delivery until property in the goods passes to the Buyer in accordance with Condition 8 the Buyer shall insure the goods for their lull value with a reputable Insurance office. Upon request the Buyer shall use reasonable endeavours to get the Seller's interest in the goods noted on the insurance policy. Until property in the goods

  23.  Instalment each instalment shall be treated as a separate contract.

  24. RISK & INSURANCE passed to the Buyer the proceeds of any claims on such insurance policy shall be held on trust for the Seller and the Buyer shall forthwith account to the Seller with such proceeds.

  25. EXPORT SALES 7.1 In any case where goods are sold CIF or FOB based on other international trade terms the meaning given to of such terms in into terms {as revised from time to time) shall apply except where inconsistent with any of the provisions contained in these Conditions.

  26. 7.2 The Seller reserves the right to require that the price of the goods shall be secured by an irrevocable letter of credit satisfactory to the Seller established by the Buyer in favor of the Seller immediately upon receipt of the S_e_l_l_e_r_’s_ _order acceptance form and confirmed by a United Kingdom bank acceptable to the Seller. The letter of credit shall be for the price payable for the goods inclusive of any tax or duty payable to the Seller and shall be valid for at least 6 months or such longer period as shall have been estimated by the Seller for delivery. The Seller shall be entitled to payment on presentation to such United Kingdom Bank of the documents specified by the Seller.

  27. 7.3 Unless otherwise agreed payment of invoices in respect of international supply contracts shall be made by the 10th day of the month following the month of invoice

  28. TITLE 8.1 NOT WITHSTANDING DELIVERY AND PASSING RISK, THE GOODS SHALL REMAIN THE PROPERTY OF THE SELLER UNTIL SUCH TIMEAS THE BUYER SHALL HAVE PAID TO THE SELLER THE AGREED PRICE (TOGETHER WITH ANY ACCRUED INTEREST) AND LL OTHER AMOUNTS OWED BY THE BUYER TO THE SELLER

  29. 8.2 Until property in the goods has passed the Buyer shall be in possessional the goods in a

    1. 8.3 fiduciary capacity and shall: not part with possession of the goods otherwise than in accordance with Condition B.5;

    2. take proper care of the goods and take all reasonable steps to prevent any damage to or deterioration of them;

    3. keep the goods free from any charge, lien or other encumbrance and store the goods in such a way to show clearly that they belong to the Seller;

    4.  8.4 The Seller reserves the right to repossess and resell any goods to which it has retained title and the Sellers consent to the Buyer's possession of the goods and any right the Buyer may have to possession of the goods shall in any event cease if any sum owned by the Buyer to the Seller (whether in respect of the goods or otherwise) is not paid to the Seller by the date when due or

    5. if the Buyer {being an individual) enters into a voluntary arrangement or compounds with its creditors or if a petition is presented for the making of a bankruptcy order against him or it (being a company)an order is made or a resolution is passed for the winding-up of the Buyer (otherwise than for the purposes □t_ _amalgamation or reconstruction previously approved in writing by the Seller) or if a meeting is called to approve the appointment of a liquidator of the Buyer or if a petition is presented to the Court for the appointment of a liquidator to the Buyer or if a receiver, manager, administrative receiver or an administrator is appointed or a petition is presented to the Court for the appointment of an administrator to the buyer or over any part of the Buyer’s_ _undertaking or if circumstances arise which might entitle the Court or a creditor to appoint a receiver, manager, administrative receiver or administrator or which might entitle the Court to make winding-up order or ii the Buyer takes or suffers any similar or analogous action in consequence of debt or

    6. if the Buyer commits a breach of any contract with the Seller.

    7. 8.5 The Buyer hereby grants an irrevocable right and licence to the Seller and its servants and agents to enter upon all or any of the Buyer's premises with or without vehicles during normal business hours for the purpose of inspecting and/or repossessing goods to which it has retained title. This right and licence shall continue to subsist notwithstanding the termination for any reason of any contract which is subject to these Conditions and is without prejudice to any accrued rights of the Seller under such contracts or otherwise.

    8. 8.6 Whilst the Buyer is in possession of the goods with the Seller's consent (but not otherwise) the Buyer may in the ordinary course of its business sell the goods provided that: as between the Buyer and il5sub-buyer or customer the Buyer shall sell the goods as principal and the Buyer shall not and shall not be empowered to commit the Seller to any contractual relationship with or liability to the sub-buyer or customer or any other person.

    9. as between the Seller and the Buyer, the Buyer shall sell the goods in a fiduciary capacity as agent for the Seller, and

    10. notwithstanding any agreed period of credit for payment of the price of the goods the Buyer shall pay the proceeds of such sales to the Seller forthwith upon receipt The Buyer acknowledges that as a consequence of its fiduciary relationship with the Seller it is under a common law duty to hold the proceeds of any such sales or hiring on trust for the seller and not to mingle such proceeds with any other monies or pay them into an overdrawn bank account, such common law duty being unaffected by and wholly independent of the terms of these Conditions

    11.  8.7 The Buyer agrees immediately upon being so requested by the Seller to assign to the Seller all rights and claims which the Buyer may have against its sub-buyers or customers arising from such sales until payment is made in full as stated above

    12. 8.8 Notwithstanding the provisions of this Condition8 the seller shall be entitled to bring an action against the Buyer for the price of the goods in the event of non-payment by the Buyer  by the due date even though property in the good shall not passed to the Buyer and/or shall have the right by notice to the Buyer at any time after delivery to pass property in the goods to the Buyer as from the date of such notice.

    13. 9.1 THE BUYER SHALL INDEMNIFY THE SELLER against any and all liabilities claims and costs incurred by or made against the Seller as a direct □r indirect result □i_ _the carrying out of any work required to be done on or to the goods in accordance with the requirements or specifications of the Buyer involving any infringement or alleged infringement of any rights of any third party(and including without limitation the printing of any illegal or libellous matter on the goods).

    14. 9.2 IN RESPECT OF INTERNATIONAL SUPPLY CONTRACTS ONLY, THE SELLER SHALL HAVE NO LIABILITY TO THE BUYER IN THE EVENT OF GOODS INFRINGING OR BEING ALLEGED TO INFRINGE THE RIGHTS OF ANY THIRD PARTY In the event that the goods Modify or replace the goods without detracting from overall performance thereof, so as to avoid the infringement; or

    15. Procure for the Buyer the right to continue to use the goods,  

    16. (cl) notify the Seller forthwith upon the happening or any of the events set out in Condition 8.3 (b): and (e) give the Seller such information relating to the goods as the Seller may from time to time require

  30. THIRD PARTY RIGHTS

 

Are or may be the subject of third-party rights the Seller shall be obliged to transfer to the Buyer only such title as the Seller may have. IN RESPECT OF ALL OTHER SALES; If at any time any allegation of letters patent ,copyright or design rights is made in respect of the goods or if in the Seller's reasonable opinion such an allegation is likely to be made the Seller may at its option and at its own expense

  1. .3 The Buyer shall notify the Seller forthwith of any claim made or action brought or threatened alleging infringement of the rights of any third party. The Seller shall have control over and shall conduct any such proceedings in such manner as it shall determine. The Buyer shall provide all such reasonable assistance as the Seller may request. The cost of any such proceedings shall be borne by the Seller

 

9.4 Where the Seller or its employees or agents design the goods pursuant to a commission from the Buyer {whether in consideration of an order or otherwise) then the Buyer assigns the design right in that design (and the right to apply for registration of the design, if applicable) to the Seller

  1. LIABILITY 10.1 THE SELLER SHALL NOT BE LIABLE TO THE BUYER: FOR NON-DELIVERY UNLESS A WRITTEN CLAIM IS RECEIVED BY THE SELLER AND ITS CARRIER WITHIN 7 DAYS FROM THE DATE OF THE SELLER'S INVOICE.

  2. FOR SHORTAGES IN >  DELIVERED IN EXCESS OF THOSE PERMITTED BY CONDITION 9 UNLESS THE BUYER NOTIFIED THE SELLER OF ANY CLAIM FOR SHORT DELIVERY WITHIN 10DAYS OF RECEIPT OF THE GOODS.

  3. FOR DAMAGE TOOR LOSS OF THE GOODS OR ANY PART OF THEMIN TRANSIT (WHERE THE GOODS ARE CARRIED BY THE SELLER'S OWN TRANSPORT OR BY A CARRIER ON BEHALF OF THE SELLER) UNLESS THE BUYER SHALL NOTIFY THE SELLER OFANY SUCH CLAIM WITHIN10 OAYSOF RECEIPT OF THE GOODS OR THE SCHEDULED DATE OF DELIVERY WHICH EVER SHALL BE THE EARLIER.

  4. FOR DEFECTS IN THE GOODS CAUSED BY FAIR WEAR AND TEAR. ABN>:,RMAL OR UNSUITABLE CONDITIONS OF STORAGE OR USE OF ANY ACT,NEGLECT OR DEFAULT +)F THE BUYER OR OF ANY THIRD PARTY;

  5. FOR DEFECTS IN THE GOODS CAUSED BY THE CONTACT OF IN KSUSED IN ANY PRINTING PROCESS WITH ANY ITEMS SUPPLIED BY THE BUYER OR ITS AGENTS:

  6. 10.2 WHERE LIABILITY IS ACCEPTED BY THE SELLER UNDER CONDITION 12.1 THE SELLER'S ONLY OBLIGATION SHALL BE AT ITS (1PTIC1N TO MAKE GOOD ANY SHORTAGE OR NON-DELIVERY AND/OR IS APPROPRIATE TO REPLACE OR REPAIR ANY GOODS FOUND TO BE DAMAGED OR DEFECTIVE AND/OR TO REFUND THE COST OF SUCH GOODS TO THE BUYER

  7. 10.3 THE SELLER SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR LIABILITY OF ANY KIND SUFFERED BY ANY THIRD PARTY DIRECTLY OR INDIRECTLY CAUSED BY REPAIRS OR REMEDIAL WORK CARRIED OUT WITHOUT THE SELLER'S PRIOR WRITTEN APPROVAL AND THE BUYER SHALL INDEMNIFY THE SELLER AGAINST ANY AND ALL CLAIMS AND COSTS ARISING OUT OFSUCH CLAIMS TO THE EXTENT THAT SUCH REPAIRS OR REMEDIAL WORK HAVE BEEN PERFORMED BY THE BUYER OR ITS AGENTS

  8. 10.4 THE SELLER'S AGGREGATE LIABILITY TO THE BUYER WHETHER FOR NEGLIGENCE,

  9. 10.5 SUBJECT TO CONDITIONS 11AND 12: ALL CONDITIONS WARRANTIES AND REPRESENTATIONS EXPRESSED (>A IMPLIED BY STATUTE COMMON LAW OR OTHER WISEIN RELATION TO THE GOODS ARE HEREBY EXCLUDED.

  10. 10.6 The Seller's prices are determined on the basis of the limits of liability set out in this Condition. The Buyer may by written notice to the Seller Request the Seller to agree a higher limit of liability provided insurance cover can be obtained or such higher limit. The Seller shall use reasonable endeavours to effect insurance up lo such limit and the Buyer shall pay upon demand the amount of any and all premiums. The Buyer shall disclose such information as the insurers shall require. In no case shall the Buyer to be entitled to recover from the Seller more than the amount received from the insurers.

 

(I) FOR OTHER DEFECTS IN THE GOODS UNLESS COVERED BY THE SELLER'S

WARRANTY IN CONDITION 11

BREACH OF CONTRACT, MISREPRESENTATION OR OTHERWISE SHALL IN NO CIRCUMSTANCES EXCEED THE COST OF THE DEFECTIVE, DAMAGED OR UNDELIVERED GOODS WHICH GIVE RISE TO SUCH LIABILITY AS DETERMINED BY NET PRICE INVOICED TOTHE BUYER IN RESPECT OFANY OCCURRENCE OR SERIES OF OCCURRENCES.

(bl THE SELLER SHALL BE UNDER NO LIABILITY TO THE BUYER FOR ANY LOSS, DAMAGE OR INJURY, DIRECT OR INDIRECT, RESULTING FROM DEFECTS IN DESIGN, MATERIALS OR WORKMANSHIP OR OTHERWISE HOWSOEVER ARISING (AND WHETHER ORNOT CAUSED BY THE NEGLIGENCE OF THE SELLER ITS EMPLOYEES OR AGENTS) OTHER THAN LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM THE SELLER'S NEGLIGENCE

(c) THE SELLER SHALL HAVE NO LIABILITY FOR ANY IN DIRECTOR CONSEQUENTIAL LOSSES OR EXPENSES SUFFERED BY THE BUYER, HOWSOEVER CAUSED, AND INCLUDING WITHOUT LIMITATION LOSS OF ANTICIPATED PROFITS, GOODWILL, REPUTATION, BUSINESS RECEIPTS OR CONTRACTS, OR LOSSES OR EXPENSES RESULTING FROM THIRD PARTY CLAIMS.

  1. PACKAGING

 

The Buyer shall meet the cost of any special packaging requested by the Buyer or any packaging rendered necessary by delivery by any means other than the Seller's normal means of delivery. Pallets shall be returned as soon as possible after use to the Seller's haulier’s for return to the Seller.

  1. LICENCES AND CONSENTS

 

lfanylicenceorconsentofanygovernmentorotherauthorityshallberequiredforthe acquisition, carriage or use of the goods by the Buyer the Buyer shall obtain the same at its own expense and if requested produce evidence of the same to the Seller on demand. Failure to obtain any licence or consent shall not entitle the Buyer to withhold or delay payment of the price. Any additional expenses or charges incurred by the Seller resulting 1rom such failures hall be for the Buyer's account.

  1. FORCE MAJEURE 13.1 The Seller shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of goods by the Seller being prevented hindered delayed cancelled or rendered uneconomic by reason of circumstances or events beyond the Seller's reasonable control ("force majeure" circumstances) including but not limited to Act of God war riot strike lock-out trade dispute or labour disturbance accident break-down of plant and machinery fire flood storm difficulty or increased expense in obtaining workmen materials or transport or other circumstances affecting the supply of the goods or of raw materials by the Seller's normal source of supply or the manufacture of the goods by the Seller's normal means or the delivery of the goods by the Sellers normal router means of delivery.

  2. 13.2 In force majeure circumstances the Seller may in its sole discretion terminate any contract or the supply of goods pursuant to these conditions or cancel delivery of goods to the Buyer or may, with the agreement of the Buyer, deliver goods at an agreed rate □t_ _delivery commencing after any suspension of deliveries.

  3. 13.3 If due to force majeure circumstances the Seller has insufficient stocks to meet all its commitments the Seller may apportion available stocks between its customers at its sole discretion.

  4. TERMINATION 14.1 If the Buyer (being an individual) enters into a voluntary arrange mentor if a petition is presented for the making of a bankruptcy order against him or if he compounds with his creditors or if (being a company) an application for an order is made or a resolution is passed for the winding-up of the Buyer (otherwise than for the purposes of amalgamation or reconstruction previously approved in writing by the Seller) or if a meeting is called to approve the appointment of a liquidator to the Buyer or if a petition is presented to the Court for the appointment at liquidator to the Buyer or if a receiver, manager, administrative receiver or an administrator is appointed or if a petition is presented to the Court for the appointment of an administrator to the Buyer or over any part of the Buyer's undertaking or if circumstances arise which might entitle the Court or a creditor to the Buyer to appoint a receiver, manager, administrative receiver or administrator or which might entitle the Court to make winding-up order or if the Buyer takes or suffers any similar or analogous action in consequence of debtor commits breach of any contract between the Seller and the Buyer the Seller may without prejudice to any of its other rights stop any goods in transit and/or suspend further deliveries to the Buyer and/or exercise its rights under Condition (8) and/or by notice in writing to the Buyer terminate any contract with the Buyer.

  5. 14.2 Upon termination of any contracts pursuant to Condition18.1any indebtedness of the Buyer to the Seller shall become immediately due and payable and the Seller shall be relieved of any further obligation to supply any goods to the Buyer pursuant to such contracts.

  6. ASSIGNMENT

 

None of the rights or obligations of the Buyer under these Conditions may be assigned or transferred in whole or in part without the prior written consent of the Seller. In addition, the Buyer shall not assign amounts due from the Seller to the Buyer or any subsidiary or fellow subsidiary of the Buyer, and any notice given by the Buyer or in respect of the Buyer shall be ineffective. The restriction on assignment shall be a continuing restriction and shall apply from the date of the first order placed by the Company with the Seller after these terms shall have come into effect.

  1. LIEN

 

The Seller shall be entitled to a general lien on all goods and property owned by the Buyer in the Seller's possession (although the Buyer may have paid for the same in lull) in satisfaction of the whole or part as the case may be of the unpaid price of any goods sold and delivered to the Buyer under any contract. The Seller shall be entitled to offset any sum or sums owing to it from the Buyer against any sums owed to the Buyer by the Seller.

  1. HEADINGS

 

The Headings of these Conditions do not form part of the Conditions and shall not affect their interpretation.

  1. SEVERABILITY

 

If any of these Conditions is held to be invalid, illegal or unenforceable in any respect whether in whole or in part such invalidity, illegally or unenforceability shall not prejudice the effectiveness of the rest of these Conditions or the remainder of any part of a Condition affected.

  1. WAIVER

 

Failure by the Seller to exercise or enforce any rights under any contract subject to these Conditions shall not be deemed to be a waiver any such right nor operate so as to bar the exercise or enforcement of such right at any time thereafter.

  1. NOTICES

 

Any notice hereunder shall be in writing and be deemed to have been duly given if delivered personally or sent by prepaid first class post (airmail if to an address outside the United Kingdom) telex or telefax to the party concerned at its last known address. Notices delivered personally shall be deemed to have been given when delivered, notices sent by first class shall be deemed to have been given seven days after despatch (fourteen days if given by airmail) and notices sent by telex or telefax shall be deemed to have been given on the date of despatch.

  1. GOVERNING LAW

 

Any contract to which these Conditions apply shall be governed by and construed in accordance with the Laws of England and the parties hereby submit to the exclusive jurisdiction of the English Courts.

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