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Terms and Conditions

Standard Conditions of Sales

1. Interpretation

1.1 In these Conditions

(a) The “Seller” means H Foster 1875 Ltd.

(b) The “Buyer” means the person, firm or corporation with whom the Seller contracts for the sale of the Goods upon the terms of these Conditions.

(c) The “Goods” means the products that are to be sold by the Seller and purchased by the Buyer pursuant to the Contract.

(d) The “Contract” means the contract for the sale of the Goods by the Seller to the Buyer incorporating these Conditions arising from the Seller’s acceptance of the Buyer’s order.

1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.

2. Basis of the Sale

2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller that is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.

2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.

2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract, the Buyer acknowledges that it does not rely on – and waives any claim for breach of – any such representation that is not so confirmed.

2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods that is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation that is not so confirmed.

2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

3. Orders and Specifications

3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorised representative.

3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.

3.3 The quantity, quality and description of – and any specification for – the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).

3.4 The Seller reserves the right to make any changes in the specification of the Goods, which are required to conform to any applicable statutory or EC requirements or – where the Goods are to be supplied to the Seller’s specification – which do not materially affect their quality or performance.

3.5 No order that has been accepted by the Seller may be cancelled by the Buyer, except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used and any freight charges for delivery and retrieval) damages, charges and expenses incurred by the Seller as a result of cancellation.

4. Price of the Goods

4.1 The price of the goods shall be the Seller’s quoted price or – where the price has been quoted (or a quoted price is no longer valid) – the price listed in the Seller’s published price list current at the date of acceptance of the order.

4.2 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices given by the Seller on an ex-works basis and where the Seller agrees to deliver the Goods otherwise than at the Seller premises, the Buyer shall be liable to pay the Seller’s charge for transport, packaging and insurance.

4.3 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.

4.4 The cost of pallets and returnable containers will be charged to the Buyer, in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to the Seller before the due payment date.

5. Terms of Payment

5.1 Subject to any special terms agreed in writing between the buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.

5.2 The Buyer shall pay the price of the Goods within 30 days of the date of the Seller’s invoice and the Seller shall be entitled to recover the price, notwithstanding that the delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract.

5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:

5.3.1. cancel the contract or suspend any further deliveries to the Buyer;

5.3.2. appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer);

and;

5.3.3. charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 8 per cent per annum above Barclays Bank PLC base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

5.3.4. recover the price of the Goods by action even though the property in the Goods has not yet passed to the Buyer in accordance with condition 7 below.

6. Delivery

6.1 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

6.2 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

6.3 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the amount (if any) by which the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered exceeds the price of the Goods.

7. Risk and Property

7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:

7.1.1 In the case of Goods to be delivered at the Seller’s premises by the Sellers own transport or a third parties vehicle at the time when they are unloaded from such transport or vehicle.

7.1.2 In the case of Goods to be delivered otherwise than at the Seller’s premises at the time when the Seller notifies the Buyer that the Goods are available for collection.

7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.

7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailer, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and in the case of tangible proceeds, properly stored, protected and insured.

7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and; if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

8. Warranties and Liability

8.1 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by common law are excluded to the fullest extent permitted by law.

8.2 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) order 1976) the statutory rights of the buyer are not affected by these Conditions.

8.3 Any claim by the Buyer that is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.

8.4 Where any valid claim in respect of any of the Goods that is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or at the Seller’s sole discretion refund to the Buyer the price of the Goods (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer.

8.5 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except expressly provided in these Conditions.

8.6 The Seller shall not be liable to the Buyer or deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generally of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:

8.6.1 act of God, explosion, flood, tempest, fire or accident;

8.6.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;

8.6.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;

8.6.4 import or export regulations or embargoes;

8.6.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);

8.6.6 difficulties in obtaining raw materials, labour, parts or machinery;

8.6.7 or power failure or breakdown in machinery;

8.7 The Buyer shall be responsible for ensuring that the Goods are either (i) consumed or (ii) frozen or (iii) otherwise processed within a reasonable period from the date of delivery so as to ensure that at the time they are consumed or sold to a third party they are fit for human consumption.

9. Insolvency of Buyer

9.1 This condition applies if:

9.1.1 the Buyer makes any voluntary arrangement with its creditors, becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction);

9.1.2 an encumbrance takes possession, or a receiver is appointed, or any of the property or assets of the Buyer, or the Buyer ceases, or threatens to cease, to carry on business;

9.1.3 the Buyer (being a limited company) is deemed to be unable to pay its debts within Section 123 of the Insolvency Act 1986 or the Buyer (or where the Buyer is a partnership any partner thereof) appears to be unable to pay its debts within Section 268;

9.1.4 or the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

9.2 If this clause applies, then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

10. General

10.1 The Seller shall be entitled to sub-contract the manufacture or supply of the Goods.

10.2 Any notice to be served under this Agreement shall be in writing and shall be deemed duly served if sent by either party by first class post (air mail where applicable) or by facsimile transmission followed immediately by a written copy of the facsimile transmission by first class (air mail if applicable) post to the registered office of the other party (in the case of a company) or such address as that party shall from time to time by notice in writing give to the other party at its address for service and shall be deemed to have been received by or served upon the addressee within 48 hours after posting or 24 hours after the sending of the facsimile transmission to the correct number of the addressee.

10.3 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

10.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

H Foster 1875 Ltd. records telephone calls for training, quality control and dispute resolution purposes.