Definitions. In these Conditions, the following definitions apply:
Commencement Date: has the meaning set out in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 12.7.
Contract: the contract between The Cheese Larder and the Customer for the supply of Goods in accordance with these Conditions.
Customer: the person who purchases the Goods from The Cheese Larder.
Deliverables: the deliverables set out in the Order.
Delivery Location: has the meaning set out in clause 4.1.
Force Majeure Event: has the meaning given to it in clause 12.1 (a).
Goods: the goods (or any part of them) which are the subject of the Order.
The Cheese Larder: The Cheese Larder Limited registered in England and Wales with company number 5075397.
Order: the Customer’s order for the supply of Goods.
Construction. In these Conditions, the following rules apply:
a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
a reference to a party includes its personal representatives, successors or permitted assigns;
a reference to a statute or statutory provision is a reference to such statute or statutory 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;
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; and a reference to writing or written includes faxes and e-mails.
Basis of contract
The Order constitutes an offer by the Customer to purchase Goods in accordance with these Conditions. The Cheese Larder may decline to accept an order for any reason.
The Order shall only be deemed to be accepted when The Cheese Larder accepts the Order at which point and on which date the Contract shall come into existence (Commencement Date). Following such acceptance, no Order or Contract may be cancelled without the written consent of The Cheese Larder, to be given in its absolute discretion and subject to conditions as it thinks fit.
The Contract constitutes the entire agreement between the parties relating to its subject matter. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of The Cheese Larder which is not set out or referred to in the Contract.
Any samples issued by The Cheese Larder are issued for the sole purpose of giving an approximate idea of Goods. This is not a sale by sample, and any samples shall not form part of the Contract nor have any contractual effect.
These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which would otherwise be implied by trade, custom, practice or course of dealing.
Any quotation given by The Cheese Larder shall not constitute an offer, may be withdrawn by The Cheese Larder at any time prior to a contract being entered into, and is only valid for a period of one calendar month from its date of issue. If at any time at which a quotation is outstanding, the list price of any Goods referred to in it is increased, the amount quoted in the quotation for such Goods shall be deemed to be increased to reflect the increase in the listed price.
The Goods are described in The Cheese Larder’ price list.
Delivery of Goods
Unless otherwise agreed The Cheese Larder shall deliver the Goods to the location described in the Order or such other location as the parties may agree (Delivery Location).
Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location. The Customer shall provide adequate facilities and assistance to enable the Goods to be offloaded and stored in an appropriate manner.
Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Subject to the provisions of clause 9.1, The Cheese Larder shall not in any event be liable for any delay or failure in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide The Cheese Larder with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
If The Cheese Larder fails to deliver the Goods, then while it will take reasonably practicable steps to rectify that failure, (subject to the provisions of clause 9.1) it shall not be liable to the Customer and may terminate the Contract (without liability to the Customer) by notice to the Customer.
If the Customer fails to accept or take delivery of the Goods then except where such failure or delay is caused by a Force Majeure Event or by The Cheese Larder’s failure to comply with its obligations under the Contract in respect of the Goods delivery of the Goods shall be deemed to have been completed at 9.00 am on the Business Day following the day on which The Cheese Larder attempted to make delivery.
If 24 hours after The Cheese Larder notified the Customer that the Goods were ready for delivery the Customer has not accepted or taken delivery of them, The Cheese Larder may (without prejudice to any other remedies which it may have) resell or otherwise dispose of part or all of the Goods and charge the Customer for any shortfall below the Contract price.
The Customer shall not be entitled to reject the Goods if The Cheese Larder delivers up to and including ten per cent more or less than the quantity of Goods ordered, but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
The Cheese Larder may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery of, or defect in, an instalment shall not entitle the Customer to cancel any other instalment.
Quality of Goods
The Cheese Larder warrants that on delivery and until any “best before” (or similar date) affixed to or on their packaging the Goods shall:
conform in all material respects with their description; and be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
Subject to clause 5.3, if:
the Customer gives notice in writing within 24 hours of delivery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
The Cheese Larder is given a reasonable opportunity of examining such Goods; and
the Customer (if asked to do so by The Cheese Larder) returns such Goods to The Cheese Larder’ place of business at The Cheese Larder’ cost,
The Cheese Larder shall, at its option, refund the price of the defective Goods by issue of a credit note in the event that the Customer has other indebtedness to The Cheese Larder or replace the defective Goods. In the absence of notification under clause 5.2 (a), The Cheese Larder shall (subject to the provisions of clause 9.1) have no liability for defects reasonably discoverable upon careful examination.
The Cheese Larder shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:
the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
the defect arises because the Customer failed to follow The Cheese Larder’s oral or written instructions as to the storage of the Goods, the requirements of statute or regulation, or good trade practice.
Except as provided in this clause 5, The Cheese Larder shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
The terms of these Conditions shall apply to any replacement Goods supplied by The Cheese Larder under clause 5.2.
Title and risk
The risk in the Goods shall pass to the Customer on completion of delivery.
Title to the Goods shall not pass to the Customer until The Cheese Larder has received payment in full (in cash or cleared funds) for:
the Goods; and
any other goods that The Cheese Larder has supplied to the Customer in respect of which payment has become due.
Until title to the Goods has passed to the Customer, the Customer shall:
hold the Goods on a fiduciary basis as The Cheese Larder’ bailee;
store the Goods so that they remain readily identifiable as The Cheese Larder’ property;
not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
maintain the Goods in satisfactory condition;
notify The Cheese Larder immediately if it becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(h); and
give The Cheese Larder such information relating to the Goods as The Cheese Larder may require from time to time,
but the Customer may use the Goods in the ordinary course of its business.
If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(h), or The Cheese Larder reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Goods have not been used, and without limiting any other right or remedy The Cheese Larder may have, The Cheese Larder may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
The Customer shall:
ensure that the terms of the Order are complete and accurate;
be responsible for the proper storage of the Goods following delivery.
If The Cheese Larder’ performance of any of its obligations in respect of the Goods is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
The Cheese Larder shall without limiting its other rights or remedies have the right to suspend performance of its obligations under the Contract (and all and any other contracts in place between The Cheese Larder and the Customer) until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays The Cheese Larder’s performance of any of its obligations;
The Cheese Larder shall not (subject to the provisions of clause 9.1) be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from The Cheese Larder’s failure or delay to perform any of its obligations as set out in this clause 7.2; and
the Customer shall reimburse The Cheese Larder on written demand for any costs or losses sustained or incurred by The Cheese Larder arising directly or indirectly from the Customer Default.
Charges and payment
The price for Goods shall be the price agreed in the Order or, if no price is quoted, the price set out in The Cheese Larder’s published price list as at the date of delivery. Unless otherwise agreed (for example, when delivery is to be made by courier) the price of the Goods is inclusive of all costs and charges of packaging, insurance, transport of the Goods.
The Cheese Larder reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to The Cheese Larder that is due to:
any factor beyond the control of The Cheese Larder;
any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the description of the Goods; or
The Cheese Larder shall invoice the Customer on or at any time after completion of delivery.
The Customer shall pay each invoice submitted by The Cheese Larder:
No later than the 28th day of the calendar month following the month in which the invoice is dated (“net monthly”) or as otherwise agreed in writing between The Cheese Larder and the Customer; and
in full and in cleared funds to a bank account nominated in writing by The Cheese Larder, in cash or by cheque or credit or debit card (or by standing order or direct debit or other method agreed and established between The Cheese Larder and the Customer);
and time for payment by the Customer shall be of the essence of the Contract.
All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by The Cheese Larder to the Customer, the Customer shall, on receipt of a valid VAT invoice from The Cheese Larder, pay to The Cheese Larder such additional amounts in respect of VAT as are chargeable on the supply of the Goods at the same time as payment is due for the supply of the Goods.
Without limiting any other right or remedy of The Cheese Larder, if the Customer fails to make any payment due to The Cheese Larder under the Contract by the due date for payment (Due Date), The Cheese Larder shall have the right to charge interest on the overdue amount at the rate of five per cent per annum above the then current base rate of Barclays Bank PLC accruing on a daily basis from the date on which payment is due until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against The Cheese Larder in order to justify withholding payment of any such amount in whole or in part.
Limitation of liability: IMPORTANT!
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
Nothing in these Conditions shall limit or exclude The Cheese Larder’ liability for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
fraud or fraudulent misrepresentation;
breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or
defective products under the Consumer Protection Act 1987.
any other statutory or regulatory requirement or obligation in respect of which it is not possible to limit or exclude liability.
Subject to clause 9.1:
The Cheese Larder shall under no circumstances whatever 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
The Cheese Larder’s 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.
Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
The Cheese Larder shall have no liability for any loss or damage arising as a result of the Customer’s breach of its obligations in these Conditions. The Customer shall be deemed to have full knowledge of the nature of the Goods and The Cheese Larder shall not be liable for any loss or damage arising from the storage, handling, mixing, processing or use of the goods, any failure by the Customer to obtain any permissions, consents or licences which may be necessary for the use of, or possession of the Goods following delivery, or from wilful damage or negligence on the part of the Customer, or abnormal working conditions.
This clause 9 shall survive termination of the Contract.
Without limiting its other rights or remedies, The Cheese Larder may terminate the Contract with immediate effect by giving written notice to the Customer if:
the Customer commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing of the breach;
the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
the other party (being an individual) is the subject of a bankruptcy petition or order;
an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
Without limiting its other rights or remedies, The Cheese Larder may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
Without limiting its other rights or remedies, The Cheese Larder shall have the right to suspend all further deliveries of Goods under the Contract or any other contract between the Customer and The Cheese Larder if the Customer fails to make pay any amount due under this Contract on the due date for payment.
Consequences of termination
On termination of the Contract for any reason:
the Customer shall immediately pay to The Cheese Larder all of The Cheese Larder’s outstanding unpaid invoices and interest;
the accrued rights and remedies of the parties as at termination shall not be affected; and
clauses which expressly or by implication have effect after termination shall continue in full force and effect.
For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of The Cheese Larder (including human or animal disease). The Cheese Larder shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
Assignment and subcontracting:
The Cheese Larder may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
The Customer shall not, without the prior written consent of The Cheese Larder, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
Any notice required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
Any notice shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
This clause 12.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
Waiver and cumulative remedies:
A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed [in writing and] signed by The Cheese Larder.
Data Protection: The Cheese Larder may hold data including (without limitation) personal data, about the Customer and its business. That data may be retained by The Cheese Larder and may be shared with other businesses. Administrative and other activities may also be carried out by third parties who may be provided with information (including, without limitation, personal data) which The Cheese Larder hold about the Customer and its business. The Cheese Larder reserves the right to consult, and to share information and data about the Customer, which it holds in its records, with third parties.
Governing law and jurisdiction: 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 irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.