MAYFAIR FOODS LIMITED
TERMS AND CONDITIONS OF SUPPLY OF GOODS
The customer’s attention is drawn in particular to the provisions of clause 9
1.1 Definitions. In these Conditions, the following definitions apply:
“Business Day” a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
“Conditions” the terms and conditions set out in this document as amended from time to time in accordance with clause 11.7.
“Contract” the contract between Mayfair Foods and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
“Customer” the person or firm who purchases the Goods from Mayfair Foods.
“Delivery Location” has the meaning given in clause 3.2.
“Delivery Note” has the meaning given in clause 3.1.1.
“Force Majeure Event” has the meaning given in clause 10.
“Goods” the goods (or any part of them) set out in the Order.
“Order” the Customer’s order for the Goods, as set out in the Customer’s acceptance of Mayfair Food’s quotation
“Specification” any specification for the Goods that is supplied to Mayfair Foods by the Customer, or produced by Mayfair Foods and agreed in writing by the Customer.
“Mayfair Foods” Mayfair Foods Limited registered in England and Wales with company number 03005642 and whose registered address is Unit 1 & 2 Wheelock Heath Business Court, Alsager Road, Winterley, Sandbach, Cheshire, CW11 4RQ.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors or permitted assigns.
1.2.3 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.
1.2.4 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.
1.2.5 A reference to writing or written includes faxes and e-mails
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.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any relevant Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when Mayfair Foods issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Mayfair Foods which is not set out in the Contract. Any samples, descriptive matter, or advertising issued by Mayfair Foods and any descriptions or illustrations contained in Mayfair Food’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 or any other contract between Mayfair Foods and the Customer for the sale of the Goods.
2.5 A quotation for the Goods given by Mayfair Foods shall not constitute an offer. A quotation shall only be valid for the period stated on it.
3.1 Mayfair Foods shall ensure that:
3.1.1 each delivery of the Goods is accompanied by a Delivery Note which shows all relevant Customer and Mayfair Foods reference numbers and the type and quantity of the Goods (including the code number of the Goods, where applicable); and
3.1.2 if Mayfair Foods requires the Customer to return any packaging materials this will be notified to the Customer in writing. The Customer shall make any such packaging materials available for collection at such times as Mayfair Foods shall reasonably request.
3.2 Mayfair Foods shall deliver the Goods to the location set out in the Order or such other location as the parties may agree including the premises of Mayfair Foods (“Delivery Location”) at any time after Mayfair Foods notifies the Customer that the Goods are ready for Delivery or as the case may be for collection.
3.3 If the Delivery Location is at the premises of Mayfair Foods or at a warehouse nominated by Mayfair Foods the Customer shall collect the Goods from the said premises or nominated warehouse within 5 Business Days of Mayfair Foods notifying the Customer that the Goods are ready.
3.4 If the Delivery Location is at the premises of the Customer delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
3.5 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Mayfair Foods 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 Mayfair Foods with an adequate delivery lead time, adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.6 If Mayfair Foods fails to deliver the Goods and the Customer is unable to obtain replacement goods of similar description and quality in the cheapest market available at a price equal to or less than the price set out in the Order, Mayfair Foods’ liability shall be limited to 15% of the price set out in the Order. Mayfair Foods shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Mayfair Foods with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
3.7 If the Customer fails to accept or take as the case may be delivery of the Goods within 5 Business Days of Mayfair Foods notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Mayfair Food’s failure to comply with its obligations under the Contract:
3.7.1 delivery of the Goods shall be deemed to have been completed at 5.00pm on the fifth Business Day following the day on which Mayfair Foods notified the Customer that the Goods were ready; and
3.7.2 Mayfair Foods shall store the Goods until delivery or collection takes place, and charge the Customer for all related costs and expenses (including insurance and storage).
3.8 If 5 Business Days after Mayfair Foods notified the Customer that the Goods were ready for delivery the Customer has not taken or as the case may be accepted delivery of them, Mayfair Foods may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
3.9 The Customer shall not be entitled to reject the Goods if Mayfair Foods delivers more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice in accordance with the Delivery Note.
3.10 Mayfair Foods 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 or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4. Transit Damage and Shortages
4.1 The Customer shall give notice in writing to Mayfair Foods within 24 hours of delivery of the Goods of discovery of transit damage or shortages and shall provide Mayfair Foods with copies of all relevant signed delivery paperwork including the signed Delivery Note.
4.2 Mayfair Foods shall not be liable to the Customer for transit damage or shortages which were not documented by the Customer on the relevant signed delivery paperwork including the signed Delivery Note at the time of the delivery.
4.3 Mayfair Foods shall not be liable to the Customer for transit damage or shortages if when the Goods are delivered the Customer signs for the delivery as ‘unchecked’.
5.1 Mayfair Foods confirms that the Goods will be of the nature substance and quality described in the Specification.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to Mayfair Foods immediately after discovery and within 7 days of delivery that some or all of the Goods do not comply with the Specification; and
5.2.2 Mayfair Foods is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by Mayfair Foods) returns such Goods to Mayfair Food’s nominated warehouse; Mayfair Foods shall, at its option, replace the defective Goods, or refund the price of the defective Goods in full.
5.3 Mayfair Foods shall not be liable to the Customer if:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2; or
5.3.2 the defect arises because the Customer failed to follow best practice as to the storage and use of the Goods or (if there are none) good trade practice; or
5.3.3 the defect arises as a result of Mayfair Foods following any specification supplied by the Customer; or
5.3.4 the defect arises as a result of wilful damage, negligence, or abnormal storage or working conditions.
5.4 Except as provided in this clause 5, Mayfair Foods shall have no liability to the Customer in respect of the Goods’ failure to comply with the Specification.
5.5 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.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by Mayfair Foods.
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 Mayfair Foods has received payment in full (in cash or cleared funds) for:
6.2.1 the Goods; and
6.2.2 any other goods or services that Mayfair Foods has supplied to the Customer.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 hold the Goods on a fiduciary basis as Mayfair Food’s bailee;
6.3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Mayfair Food’s property;
6.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.5 notify Mayfair Foods immediately if it becomes subject to any of the events listed in clause 8.2; and
6.3.6 give Mayfair Foods such information relating to the Goods as Mayfair Foods may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or Mayfair Foods reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy Mayfair Foods may have, Mayfair Foods 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.
7. Price and payment
7.1 The price of the Goods shall be the price set out in the Order.
7.2 Mayfair Foods may, by giving notice to the Customer at any time up to 30 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1 any factor beyond Mayfair Food’s control (including foreign exchange fluctuations, freight insurance, increases in taxes and duties, increases in the cost of suitable raw materials, and lack of availability of product for any reason);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give Mayfair Foods adequate or accurate information or instructions.
7.3 The price of the Goods is inclusive of the costs and charges of packaging, insurance and transport of the Goods, and any other costs agreed in writing save in respect of collection by the Customer of the Goods.
7.4 The price of the Goods is exclusive of amounts in respect of value added tax (“VAT”). The Customer shall, on receipt of a valid VAT invoice from Mayfair Foods, pay to Mayfair Foods such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5 Mayfair Foods may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.6 The Customer shall pay the invoice in full and in cleared funds 28 days from the date of the invoice. Time of payment is of the essence.
7.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount pursuant to The Late Payment of Commercial Debts (Interest) Act 1988 at the rate of 8% per annum above the Bank of England’s base lending rate from time to time. In addition, the Supplier can charge compensation arising out of late payment pursuant to The Late Payment of Commercial Debts Regulations 2002 as set out below:
Up to £999.99 £ 40
£1000 to £9999.99 £70
£10,000 or more £100
7.8 In the alternative, the Supplier can charge interest pursuant to s69 of the County Courts Act 1984 at the rate of 8% per annum. Interest shall accrue on a daily basis from the due date until the date of full payment has been received or judgment has been entered through the Courts. The Customer shall pay the interest together with the overdue amount.
7.9 If the Supplier is required to take any legal action to collect payments due under outstanding invoices the Supplier reserves the right to charge and recover from the Customer a £200 administrative fee in relation to that action.
7.10 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 Mayfair Foods in order to justify withholding payment of any such amount in whole or in part. Mayfair Foods may at any time, without limiting any other rights or remedies it may have and without notice, set off any amount owing to it by the Customer against any amount payable by Mayfair Foods to the Customer.
8. Customer’s insolvency or incapacity
8.1 If the Customer becomes subject to any of the events listed in clause 8.2, or Mayfair Foods reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to Mayfair Foods, Mayfair Foods may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and Mayfair Foods without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
8.2 For the purposes of clause 8.1, the relevant events are:
8.2.1 the Customer 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; or
8.2.2 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; or
8.2.3 (being an individual) the Customer is the subject of a bankruptcy petition or order; or
8.2.4 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 5 days; or
8.2.5 (being a company) 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 Customer; or
8.2.6 (being a company) a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; or
8.2.7 a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; or
8.2.8 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2.1 to clause 8.2.7 (inclusive); or
8.2.9 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business.
9. Limitation of liability
9.1 Nothing in these Conditions shall limit or exclude Mayfair Food’s liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2 fraud or fraudulent misrepresentation; or
9.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
9.1.4 defective products under the Consumer Protection Act 1987; or
9.1.5 any matter in respect of which it would be unlawful for Mayfair Foods to exclude or restrict liability.
9.2 Subject to clause 9.1:
9.2.1 Mayfair Foods shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the Contract; and
9.2.2 Mayfair Food’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 not exceed the price of the Goods.
10. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A “Force Majeure Event” means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including the insolvency of a supplier or a supplier ceases carrying on business, strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of Mayfair Food’s or subcontractors.
11.1 Assignment and subcontracting.
11.1.1 Mayfair Foods may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.1.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Mayfair Foods.
11.2.1 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, recorded delivery, commercial courier, fax or e-mail.
11.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2.1; if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business 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 fax or e-mail, one Business Day after transmission.
11.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.3.1 If any court or 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 to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
11.3.2 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.
11.4.1 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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 preclude or restrict the further exercise of that or any other right or remedy. 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.
11.5 Third party rights.
11.5.1 A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.7 Any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by Mayfair Foods.
11.8 Governing law and jurisdiction.
11.8.1 The 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 non-exclusive jurisdiction of the courts of England and Wales.