Terms & Conditions

Calder Foods Manufacturing Ltd Terms and Conditions of Sale and Supply


1. Definitions

“Buyer” means the person, firm or company who purchases the Goods from the Company
“Company” means Calder Foods Manufacturing Ltd, all of its divisions and any member of its Group
“Conditions” means these terms and conditions of sale
“Contract” means any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these conditions
“Delivery Point” means the place where delivery of the Goods take place under condition 4
“Goods” means any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them)
“Group” means in relation to the Company, any of its Subsidiaries, any company of which it is a Subsidiary and any other Subsidiaries of any such holding company
“Subsidiary” means a subsidiary as defined in the Companies Act 2006

2. Application of Terms

2.1 Subject to any variation under condition 2.2 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply either orally, or under any documentation, including but not limited to purchase orders, confirmation of orders, specifications or other documents which the Buyer may supply to the Company)
2.2 These conditions apply to all the Company's sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a Director of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company, which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company's liability for fraudulent misrepresentation
2.3 Each order for Goods received by the Company from the Buyer shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions
2.4 No order placed by the Buyer shall be accepted by the Company until that order is acknowledged either orally or in writing by the Company. For the avoidance of doubt, all orders are accepted and executed on the understanding that the Buyer is bound by these terms and conditions
2.5 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate

3. Description

3.1 The quantity and description of the Goods shall be as set out in the Company's invoice
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample

4. Delivery

4.1 Unless otherwise agreed in writing by the Company, all Goods shall be delivered to the Buyer
4.2 The term “delivery” shall also cover ex factory collections by the buyer or the buyer’s agent.
4.3 The Buyer shall take delivery of the Goods within 5 days of the Company, or its delivery agent, giving the Buyer notice that the Goods are ready for delivery
4.4 Any dates specified by the Company, or it’s delivery agent, for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time
4.5 Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company's negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days
4.6 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company, or it’s delivery agent, is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.6.1 risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company's negligence);
4.6.2 the Goods shall be deemed to have been delivered; and
4.6.3 the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance)
4.7 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for unloading the Goods
4.8 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.9 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment

5. Non-delivery, damage or loss

5.1 The quantity of any consignment of Goods as recorded by the Company on despatch from the Company's place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company's negligence), nor claims in respect of price, quality or condition of goods, unless the Buyer gives written and/or verbal notice to the Company of the issue within 24 hours of the date when the Goods would in the ordinary course of events have been received
5.3 Any liability of the Company for non-delivery of the Goods shall be limited, at the option of the Company, to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods

6. Risk/title

6.1 The Goods are at the risk of the Buyer from the time of delivery
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to the Company from the Buyer on any account
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
6.3.1 hold the Goods on a fiduciary basis as the Company's bailee
6.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company's property
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
6.3.4 maintain the Goods in satisfactory condition and keep them insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company
6.3.5 hold the proceeds of insurance referred to in condition 6.3.4 on trust for the Company and not mix them with any other money, nor pay them into an overdrawn bank account
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
6.4.1 any sale shall be effected in the ordinary course of the Buyer's business at full market value; and
6.4.2 any such sale shall be a sale of the Company's property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale
6.5 The Buyer's right to possession of the Goods shall terminate immediately if:
6.5.1 the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision 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 documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
6.5.2 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
6.5.3 the Buyer encumbers or in any way charges any of the Goods
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company
6.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them
6.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer's right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer
6.9 On termination of the Contract, howsoever caused, the Company's (but not the Buyer's) rights contained in this condition 6 shall remain in effect.

7. Price

7.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in writing by the account manager dealing with the transaction.
7.2 The price for the Goods shall be inclusive of any value added tax (if applicable) and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods
7.3 Should the delivery note state that the chep pallets, containers and /or packages in which the goods are delivered are returnable to the seller, then such chep pallets, containers and/or packages shall remain the property of the Seller and shall be returned to the Seller in good clean condition or made available for collection by the seller in good clean condition within four weeks of delivery. Otherwise, such chep pallets, containers and/or packages will be chargeable at replacement value and no credit will be due on chep pallets, containers and /or packages for which a charge shall have been made by the seller.

8. Payment

8.1 Subject to condition 8.4, payment of the price for the Goods is due in either pounds sterling or euro, as nominated by the Company, payment is due 30 days from date of invoice document.
8.2 Time for payment shall be of the essence
8.3 No payment shall be deemed to have been received until the Company has received cleared funds
8.4 The seller may, at its discretion, cancel or suspend deliveries of further goods until payments due are received.
8.5 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision
8.6 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer
8.7 The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998

9. Warranty

9.1 The Company warrants that all Goods shall comply with the Food Safety Act 1990 and all relevant UK legislation from time to time in force

10. Limitation of Liability

10.1 Subject to conditions 4 and 5 the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
10.1.1 any breach of these conditions
10.1.2 any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
10.1.3 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract
10.3 In respect of Goods which are food products, the company limits its liability to those food products which are consumed up to and including the “best before” or “use by” date;
10.4 Nothing in these conditions excludes or limits the liability of the Company:
10.4.1 for death or personal injury caused by the Company's negligence; or
10.4.2 for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
10.4.3 for fraud or fraudulent misrepresentation
10.5 Subject to condition 10.2 and condition 10.4:
10.5.1 the Company's total liability 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 Contract shall be limited to the Contract price; and
10.5.2 the Company shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract

11. Force Majeure

The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes 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

12. Consent to Use of Personal Data - Data Protection Act 1998

12.1 The Buyer consents to personal data provided to the Company or otherwise obtained about it, including the names of personnel with whom the Company deals (“Data”) being recorded and retained in a manner consistent with the Company’s responsibilities as a Data Controller under the Data Protection Act 1998 (“DPA”).
12.2 The Buyer confirms its awareness that the Company and companies associated with it may use the Data for training purposes, credit or financial assessments, market and product analysis, making payments, compiling a customer list, recovering monies and preparing statistics. Data may also be used to develop, improve and market the Company’s products and services and to protect its interests (including establishing credit limits or obtaining settlement of any liability), as well as to detect and prevent fraud and money laundering. The Data may also be used by the Company or provided to others in relation to any sale or transfer of its business or assets (or any part thereof), or its seeking, granting, making or receiving credit, financial services or investment. The Company may also give Data to (i) insurers, for the purposes of obtaining coverage or assessing claims; (ii) any relevant guarantor or surety; (iii) either party’s bankers for the purpose of carrying out their services; and (iv)any party to whom the Company transfers its rights under any contract concluded with the Buyer.
12.3 The Buyer further agrees that the Company may use the Data to decide whether to continue the parties’ relationship or vary its terms. The Company may from time to time review the Buyer’s records at credit reference agencies, which may include searches made and information given by other businesses, and records of the Company’s enquiries may be retained by those agencies and made available to third parties.

13. General

13.1 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect
13.2 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it
13.3 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English courts