TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS BY MRS J C ALTHAM & SONS (MORECAMBE) LTD T/A ALTHAMS BUTCHERS
The customer's attention is drawn in particular to the provisions of clause 9.
1. Interpretation
1.1 Definitions:
Althams Butchers: Mrs J C Altham & Sons (Morecambe) Ltd (registered in England and Wales with company number 00842705).
Conditions: The terms and conditions set out in this document.
Contract: The contract between Altham Butchers and the Customer for the supply of the Goods in accordance with these Conditions.
Customer: The person or firm who purchases the Goods from the Althams Butchers.
Goods: The goods (or any part of them) set out in the Order.
Order: The Customer's order for the Goods.
Price List: Althams Butchers current published price list from time to time.
1.2 Interpretation:
(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) a reference to writing or written includes faxes and emails, any electronic data interchange and web portals.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate. Althams Butchers may decline to accept any Order for any reason. The leaving of a voicemail message by the Customer shall not constitute an Order.
2.2 The Order shall only be deemed to be accepted when Althams Butchers:
(a) issues a written acceptance of the Order; or
(b) verbally repeats to the Customer the line and volume requested verbally by the Customer,
2.3 at which point the Contract shall come into existence and the Customer shall not be entitled to cancel it. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.4 Any samples or advertising produced by Altham Butchers and any descriptions or illustrations contained in Althams Butchers’ catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.5 A quotation for the Goods given by Althams Butchers shall not constitute an offer. The quotation may be withdrawn at any time. Unless stated otherwise in the quotation, the quotation shall only be valid for a period of 20 days from its date of issue. If at any time at which a quotation is outstanding, the price of any Goods referred to in it is increased on the Price List, the amount quoted in the quotation for such Goods shall be deemed to be increased to reflect the increased price as stated in the Price List. If a quotation for the Goods expires but an Order for the same lines and quantities of Goods is subsequently made by the Customer, then such Order shall be deemed to be made at the prices stated in the Price List.
3. Goods
3.1 The Goods are described in the Price List.
4. Delivery
4.1 Unless the Customer agrees to collect the Goods, Althams Butchers shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location). If an Order is placed for delivery on the same day, or after 11pm for delivery on the next day, then Althams Butchers reserves the right to charge for delivery.
4.2 Delivery is completed on the completion of unloading of the Goods at the Delivery Location or collection by the Customer of the Goods at the Delivery Location.
4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Altham Butchers shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide Althams Butchers with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.4 If Altham Butchers fails to deliver the Goods;
(a) it shall take commercially reasonable steps to rectify the situation but Altham Butchers shall have no liability to the Customer for any such failure to deliver the Goods;
(b) it shall not be entitled to charge for Goods which are not delivered;
(c) it shall be entitled to terminate the contract by notice to the Customer.
4.5 If the Customer fails to take delivery of the Goods then, except where such failure or delay is caused by a Force Majeure Event or Althams Butchers’ failure to comply with its obligations under the Contract delivery of the Goods shall be deemed to have been completed at 9.00 am on the day after the day on which Althams Butchers attempted to make delivery.
4.6 If 24 hours after the day on which Althams Butchers notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, Althams Butchers may resell or otherwise dispose of part or all of the Goods and, charge the Customer for any shortfall below the Contract price.
4.7 The Customer shall not be entitled to reject the Goods if Althams Butchers delivers up to and including 10% more or less than the quantity of Goods ordered the Customer. If Althams Butchers delivers the wrong quantity of Goods and if the Customer accepts the quantity of Goods delivered, then the actual quantity of Goods delivered shall be recorded on the delivery note and signed by the Customer and the driver (acting on behalf of Althams Butchers). Althams Butchers shall then issue any necessary credit note or adjustments to invoices to reflect this.
4.8 Althams Butchers may deliver the Goods by instalments, which shall be invoiced and paid for separately. Althams Butchers will notify the Customer of any such instalments. Any delay in delivery, defect in an instalment, or failure to so notify, shall not entitle the Customer to cancel any other instalment.
4.9 if Althams Butchers requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Althams Butchers shall reasonably request. Returns of packaging materials shall be at Althams Butchers’ expense.
5. Quality
5.1 Althams Butchers warrants that on delivery, and until any “best before” (but not “used by”) date affixed to or on their packaging, the Goods shall:
(a) conform in all material respects with their description; and
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to Althams Butchers within 24 hours of delivery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) the Customer follows Althams Butchers’ Returns Policy; and
(c) Althams Butchers is given a reasonable opportunity of examining such Goods;
(d) the Customer (if asked to do so by the Supplier) returns such Goods to Althams Butchers’ place of business at the Althams Butchers cost,
Althams Butchers shall, at its option, (a) refund the price of the defective Goods by issue of a credit note if the Customer has other indebtedness to Althams Butchers; or (b) replace the defective Goods in full. If there is no notification pursuant to clause 5.2(a), then Althams Butchers shall (subject to the provisions of clause 9.1) have no liability for defects readily discoverable on careful examination.
5.3 Althams Butchers shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(b) the failure to comply with the warranty does not bear on the quality of the Goods and the Goods are consistent with the description and other matters contained on their label(s); and
(c) the defect arises because the Customer failed to follow Althams Butchers’ oral or written instructions as to the storage of the Goods, statutory or regulatory requirements or (if there are none) good trade practice regarding the same.
5.4 Except as provided in this clause 5, Althams Butchers shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any replacement Goods supplied by the Supplier.
6. Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of the time at which:
(a) the Goods have been paid for in full in cash or cleared funds; and
(b) the Goods are prepared, cooked or consumed.
6.3 The Customer use the Goods in the ordinary course of its business (but not otherwise) before Altham Butchers receives payment for the Goods.
7. Price and payment
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Price List in force as at the date of delivery as varied by agreement in writing between the Customer and Althams Butchers in relation to any given core lines of Products and quantities.
7.2 Althams Butchers may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond Althams Butchers’ control; or
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered.
7.3 The price of the Goods excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Altham Butchers at the prevailing rate, subject to the receipt of a valid VAT invoice.
7.4 Althams Butchers may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.5 The Customer shall pay the invoice submitted by Althams Butchers:
(a) within the credit terms as agreed between Althams Butchers and the Customer; and
(b) in full and in cleared funds to the bank account nominated in writing by the Supplier.
7.6 If the Customer fails to make any payment due to Altham Butchers under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above National Westminster Bank PLC's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount. If the Customer attempts to make payment to Altham Butchers by cheque and the bank on which it is drawn fails to honour it, then Althams Butchers shall be entitled to charge the Customer a fee of £20 per dishonored cheque and reserves the right to alter any credit terms it may have permitted the Customer prior to such attempted payment.
7.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Althams Butchers may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Althams Butchers to the Customer. If the Customer fails to pay on time or if there is a negative change to its credit score, then any variations to the Price List which have been agreed between the Customer and Althams Butchers shall immediately cease. All Orders which have not then been paid in full shall immediately be deemed varied so as to reflect the prices stated in the Price List without any adjustment.
8. Termination
8.1 Without limiting its other rights or remedies, Althams Butchers may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;
(d) the Customer's financial position deteriorates to such an extent that in Althams Butchers’ opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(e) Althams Butchers reasonably believes that the Customer is about to become subject to any of the above.
8.2 Without limiting its other rights or remedies, Altham Butchers may suspend delivery of any further Goods or terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
8.3 On termination of the Contract for any reason the Customer shall immediately pay to Altham Butchers all of Althams Butchers’ outstanding unpaid invoices and interest.
8.4 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
8.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9. Limitation of liability
9.1 Nothing in these Conditions shall limit or exclude Altham Butchers’ liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for Altham Butchers to exclude or restrict liability.
9.2 Subject to clause 9.1:
(a) Althams Butchers shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) Althams Butchers’ total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the relevant Goods sold under the Contract.
10. General
10.1 Force Majeure
Althams Butchers shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract directly or indirectly as a result of an event beyond Althams Butchers’ reasonable control (including human and animal diseases).
10.2 Assignment and other dealings.
(a) Althams Butchers may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
10.3 Confidentiality.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10.3(b). The Customer shall not disclose to any third party any information relating to Altham Butchers’ recipes or product specifications except as permitted by clause 10.3(b).
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 10.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
10.4 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
10.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
10.6 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 10.6(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the [second] day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by or email, one day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
10.7 Third party rights. No one other than a party to this Contract shall have any right to enforce any of its terms.
10.8 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
10.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
