Terms and Conditions of Supply - January 2002

1. Definition

For the purpose of these Terms and Conditions of sale, the following definitions shall apply:
‘the Company’ means THE HANDMADE CAKE COMPANY LIMITED of 55 St Marks Road, Maidenhead, Berkshire SL6 6DP; ‘the Buyer’ means the person(s), firm or company who purchases the Goods from the Company; ‘the Contract’ means any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions; ‘the Goods’ means any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).

2. Application of Terms

2.1 Subject to any variation under condition 2.3 the Contract will be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 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 duly authorised representative of the Company.
2.4 Each order for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
2.6 The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no contract will come into existence until the Company dispatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.8 Dispatch or delivery of the Goods by the Company to the Buyers shall be deemed conclusive evidence of the Buyer’s acceptance of these conditions.
2.9 The Goods are sold subject to the Rules of the United Kingdom Provision Trade Federation 1980, save to the extent that they are inconsistent with these conditions.

3. Delivery

3.1 Unless otherwise agreed in writing by the Company delivery of the Goods shall take place at the Company’s place of business.
3.2 Where the Company has agreed to arrange delivery of the Goods they will be delivered to the location stated on the purchase order as accepted by the Company.
3.3 Any dates specified by the Company 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 will be within a reasonable time.
3.4 Subject to the other provisions of these conditions the Company will not be liable for any loss (including loss of profit), 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 will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 30 days.
3.5 Delivery notes must be checked and signed by a representative of the Buyer at the time of delivery.
3.6 It shall be the duty of the Buyer to examine the Goods upon delivery to ensure that the delivery is complete and that the Goods have not been damaged in transit.
3.7 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate documents, instructions, licences or authorisations:
3.7.1 risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company’s negligence);
3.7.2 the Goods will be deemed to have been delivered; and
3.7.3 the Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance).
3.8 If the Buyer properly rejects any of the Goods which are not in accordance with the Contract the Buyer shall nonetheless pay the full price for such Goods unless: (i) the Buyer gives notice of rejection to the Company within three working days of delivery; and (ii) returns such Goods to the Company at its own cost with the prior consent of the Company before the date when payment of the Goods is due.
3.9 The Company shall not be liable whatsoever if the Buyer fails to give such notice of damage or non-delivery and any such damage to the goods shall be deemed to have occurred after transit or delivery, unless the contrary is proven by the Buyer.

4. Prices

4.1 Unless otherwise agreed by the Company in writing the price for the Goods shall be the price set out in the Company’s price list published on the date of delivery or deemed delivery (‘the Price’).
4.2 The Company may, by giving up to 7 days notice before delivery, increase the Price to reflect any increase to the cost to the Company which are beyond the reasonable control of the Company, provided the Buyer may cancel the Contract within (5) days of any such notice from the Company.
4.3 The Price is exclusive of VAT which shall be due at the rate ruling on the date of VAT invoice.

5. Payment

5.1 Payment of the price for the Goods plus VAT is due within 15 (fifteen) days of the date of the Company’s monthly statement. Time for payment shall be of the essence.
5.2 Payment may be made by cheque, credit transfer, direct debit or cash. No payment shall be deemed to have been received until the Company has received cleared funds.
5.3 The Buyer shall make all payments due under the Contract 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.
5.4 In the event that payment is not received by the Company by the due date, the Company shall be entitled to suspend all other deliveries until payment is received and/or repudiate the Contract. In such event, the Company shall be entitled to sell any Goods in its possession and the Buyer shall indemnify the Company for any loss thereby.
5.5 If the Buyer fails to pay the Company any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 2% above the base lending rate from time to time of National Westminster Bank Plc, accruing on a daily basis until payment is made, whether before or after any judgment.
5.6 All payments payable to the Company under the Contract shall become due immediately upon termination of the Contract despite any other provision.
5.7 The Buyer will be liable for all costs incurred by the seller in the recovery of debts not paid by the due date.
5.8 The Company may in its absolute discretion, refuse any application for a credit account or for an extension of any existing line of credit.
5.9 The Company reserves the right to demand cash on delivery.

6. Representation and Warranty

6.1 The description of the Goods shall be as set out in the Company’s specifications and they shall be made in accordance with all relevant and applicable United Kingdom Standards and European Community Regulations.
6.2 The Company warrants that (subject to the other provisions of these conditions) upon delivery the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1994.
6.3 The Company shall not be liable for a breach of any of the warranties unless:
6.3.1 The Buyer notifies the Company in writing within 6 (six) weeks of any date of delivery of the Goods or expiration of the ‘sell-by’ or ‘best by’ dates applicable to the Goods (whichever is the earlier of the two) of any breach.
6.3.2 The Buyer does not make any further use of such Goods after giving such notice.
6.3.3 The Buyer have followed the Company’s oral or written instructions as to the storage and/or preparation of the goods or (if there are none) proper trade practice.
6.3.4 The Goods have not been carried or stored by the Buyer or on his instruction by parties not appointed by the Company.
6.4 Subject to condition 6.3 if any of the Goods do not conform with any of the warranties the Company shall at its option replace that part of the Goods free of charge or issue to the Buyer a credit note equivalent to the price of that part of the Goods failing to comply with the warranty. Any such Goods will belong to the Company.
6.5 If the Company complies with condition
6.4 it shall have no further liability for a breach of any of the warranties in respect of such Goods.
6.6 All 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 will not form part of this Contract.
6.7 The Company reserves the right to make alteration to the design, appearance and technical specifications of its products from time to time and at such time or at any other times, to make alterations to its advertised information concerning such Goods. Where such alterations are, in the reasonable opinion of the Company, of sufficient significance the Company shall give the Buyer reasonable notice of the alteration.

7. Liabilities

7.1 Subject to condition 6, 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:
7.1.1 any breach of these conditions; and
7.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
7.2 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.
7.3 Nothing in these conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 7.4
7.4 Subject to conditions 7.2 and 7.3:
7.4.1 the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the price stated in the Contract; and
7.4.2 the Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

8. Assignment

8.1 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
8.2 The Company may assign or subcontract the Contract or any part of it to any person, firm or company.

9. Title and Risk

9.1 The Goods are at the risk of the Buyer from the time of delivery.
9.2 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 the Goods and all other sums which are or which become due to the Company from the Buyer on any account.
9.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
9.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
9.3.2 store the Goods (at no cost to the Company) in such a way that they remain readily identifiable as the Company’s property;
9.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
9.3.4 maintain the Goods in satisfactory condition 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; and
9.3.5 hold the proceeds of the insurance referred to in condition 9.3.4 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
9.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
9.4.1 any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
9.4.2 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.
9.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
9.5.1 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 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 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
9.5.2 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/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
9.5.3 the Buyer encumbers or in any way charges any of the Goods.
9.6 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.
9.7 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.

10. General

10.1 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
10.2 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
10.3 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, 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 Provided that, if the event in question continues for a continuous period in excess of 30 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
10.4 The interpretation of any export terms shall be in accordance with ‘INCOTERMS 2000’ unless these terms are inconsistent with the express written terms of the Contract.
10.5 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.

11. Interference with Markings

The Buyer shall not alter, obscure, remove or otherwise interfere with any markings, or other identification, of source or origin, placed by the Company or its agent on the Goods, or on their labeling or packaging. The Buyer is advised to keep the labels for tracking purposes until the Goods have been consumed.