Terms

1 Definition

In these terms and conditions of sale all references to ‘Seller’ are to Emmy Trading Ltd t/a Zest Promotional and all references to ‘Buyer’ are to the person, firm or Seller by whom the order is placed. “The Goods” mean the Goods sold by the Seller to the Buyer. “The contract” means the contract concluded between the Seller and the Buyer for the sale and purchase of goods upon issue of the sales order confirmation by the Seller. 

2 General 
The contract is subject to these terms and conditions of sale and to the Seller’s sales order confirmation which overrides any differing conditions whether oral, on the Buyer’s order form or the Buyer’s other documents unless otherwise expressly agreed by the Seller in writing. 

3 Quotations 
A quotation by the Seller does not constitute an offer and (subject to the provisions of clause 4 below) the Seller reserves the right to withdraw or revise the same at any time prior to the Seller’s acceptance of the Buyer’s order. 

4 Price of the Goods 
The price of the Goods shall be as stated in the Seller’s sales order confirmation. 

5 Terms of Payment 
Payment shall be made in full by the Buyer to the Seller without any deduction or set off in accordance with these terms and conditions of sale. All first time orders unless agreed otherwise are 100% Pro Forma payment in advance, with confirmation of the order. All subsequent orders unless advised otherwise are 30 working days from the date of invoice. On failure by the Buyer to settle any invoice by the due date (or in accordance with the terms agreed) the Seller may charge the Buyer interest on overdue accounts at the rate of 5% above the London Interbank Offered Rate (“LIBOR”) from the due date thereof until receipt by the Seller of the full amount whether or not after judgment. If the Buyer fails to make payment on the due date for goods delivered under this contract the Buyer’s right to any agreed discount shall be forfeited.

6 Delivery Dates 
Delivery dates mentioned in any quotation, acknowledgement of order or elsewhere are given in good faith and the Seller shall use every reasonable endeavour to meet them. However the Seller shall not be under any liability to the Buyer in respect of any failure to deliver on any particular date or dates. If the Buyer refuses or fails to take delivery of Goods tendered in accordance with the Contract the Seller shall be entitled to immediate payment in full for the Goods so tendered. If the Buyer, prior to tender requests a change in the delivery date, the Seller shall be entitled to re-negotiate the price and/or cancel the contract if no new price can be agreed. The Seller shall be entitled to store at the risk of the Buyer any Goods of which the Buyer refuses or fails to take delivery and the Buyer shall in addition to the purchase price pay £2 per pallet per week for storage and any additional losses, costs, charges and expenses incurred as a result of such refusal or failure. 

7 Retention of Title 

7.1 Title 
No title in the Goods shall pass from the Seller to the Buyer unless and until the Seller has received payment in full for the Goods and for any other amounts owing by the Buyer to the Seller on any other account whatsoever. 

7.2 Recovery of the Goods 
The Seller reserves the right to repossess and uplift the Goods and thereafter to resell the same and for this purpose the Buyer hereby grants an irrevocable right and licence to the Seller’s employees and agents to enter upon all or any of its vehicles or premises in which the Goods are stored with or without vehicles during normal business hours. This right shall continue to subsist notwithstanding the termination of the contract for any reason and is without prejudice to any accrued rights of the Seller thereunder or otherwise. 

7.3 Recovery of proceeds of sale of the Goods in the event of non-payment 
If the Buyer re-sells any Goods supplied by the Seller, the proceeds of any such re-sale equivalent to all sums owing (“the Proceeds”) shall belong to the Seller until payment has been received in full. The Buyer will hold the Proceeds in a fiduciary capacity and keep them in a separate account, to be remitted forthwith to the Seller. 

7.4 Termination of Buyer’s Rights The Buyer’s right to possession shall cease forthwith in the following events: 

(a)

 

the Buyer has not paid all amounts due to the Seller on any account whatsoever;

(b)

 

the Buyer is declared bankrupt or makes or attempts to make any proposal to his creditors for composition or

other voluntary arrangement with its creditors or does or fails to do anything which would entitle a petition

for winding up or a bankruptcy order to be presented;

(c)

 

the Buyer does or fails to do anything which would entitle any person to appoint a receiver to the whole or

part of the Buyer’s assets or would entitle any person to present a petition for the administration of the

Buyer or a resolution is passed for the winding up of the Buyer;

(d)

 

a judgment against the Buyer remains unsatisfied;

(e)

 

the Buyer is unable to pay a debt to a third party as it falls due and/or is or is deemed to be insolvent;

(f)

 

any distress or execution is levied against any of the Buyer’s assets.


7.8 Insuring the Goods 
The Buyer shall at all times keep the Goods comprehensively insured against loss or damage by accident, fire, theft and other risk usually covered by insurance in the type of business for which the Goods are for the time being used in an amount at least equal to the balance of the price for the same time to time remaining outstanding. The policy shall bear an endorsement recording the Seller’s interest. 

7.9 Mitigation 
All mitigation/recovery activities by the Seller under the contract between the parties are agreed to be entirely without prejudice to any additional claims it may have against the Buyer for any failure by the Buyer to complete its obligations under the Contract.

7.10 Deduction, Set-off or Counterclaim 
In the event of any of the occurrences referred to in the sub-clause above entitled “Termination of Buyer’s Rights” arising, all sums due from the Buyer to the Seller shall become immediately due and payable without deduction, set-off or counterclaim. 

8 Notification of Failure of Delivery in accordance with Contract 
The Buyer shall notify the Seller and the carrier of any shortage in the quantity actually delivered or of any damage to or defect in the Goods. Such notification shall be reported in writing within three working days of delivery. In the event of the Buyer failing to give both the Seller and the carrier such written notice then the Buyer shall be deemed to have accepted the Goods in the quantity and state in which they are actually delivered and the Buyer shall be deemed to have waived any claim. The Seller may at its option (if it accepts or agrees liability) make good any shortage or non-delivery and/or as appropriate replace or repair any Goods found to be damaged. 

9 Liability 
The Seller shall not be liable for defects in the Goods caused by any act neglect or default of the Buyer or of any third party or for the unsuitability of the Goods for mixing with other Goods or substances. The Seller shall not be liable for any consequential losses (including loss of profit) suffered by the Buyer due to any negligence breach of contract misrepresentation or otherwise. The Seller’s aggregate liability to the Buyer in respect of any occurrence or series of occurrences whether for negligence breach of contract misrepresentation or otherwise shall in no circumstances exceed the price of the defective damaged or undelivered Goods determined by net price invoiced to the Buyer whether loss and damage is limited to the Goods or includes consequential losses. The Seller does not sell the Goods on a sale or return basis and there is no obligation on the Seller to accept returned Goods. Subject to the foregoing and unless specifically otherwise agreed in writing between the Seller and the Buyer, all conditions, warranties and representations expressed and implied by statute common law or otherwise in relation to the Goods are hereby excluded to the full extent permitted by law. None of the above seeks to exclude or limit liability caused by the Seller’s fraud or fraudulent misrepresentation or for death or personal injury caused by the negligence of the Seller. 

10 Interference with Markings 
The Buyer shall not alter, obscure, remove, conceal or otherwise interfere with any markings, or other identification of source or origin placed by the Seller on the Goods, or on their labelling or packaging. 

11 Intellectual Property 
The Buyer must not use any of the Seller’s brand names, business names, designs, logos or trade marks (“Intellectual Property Rights”) for advertising or other promotional purposes without the Seller’s express written prior permission. All Intellectual Property Rights not specifically and expressly granted to the Buyer either by these terms and conditions or by express written agreement with the Seller are reserved to the Seller and the Buyer shall not be a party to any act, matter, neglect or thing whereby those Intellectual Property Rights are prejudicially affected. 

12 Third Party Rights 
If the Buyer uses or sells the Goods in such manner as to infringe any rights of a third party the Seller shall not be responsible for such infringement nor for any alleged infringement arising from the Buyer’s action in relation to the Goods and the Buyer hereby agrees to indemnify the Seller from and against all liability arising therefrom. The Buyer shall not make any representations warranties or guarantees with reference to Goods except such as are consistent with these terms and conditions and entirely on its own behalf and not on behalf of the Seller. 

13 Force Majeure 
If the supply of Goods by the Seller is prevented, hindered, delayed or rendered uneconomical by reason of circumstances or events beyond the Seller’s reasonable control including but not limited to Act of God, restrictions, restraint or interference by any Government or governmental or official body or any legislation rules or orders they may make, riot, strike, lock-out, trade dispute or labour disturbance, accident, breakdown of plant or machinery, fire, flood, severe weather conditions, difficulty or increased expense in obtaining labour, materials or transport, or other circumstances affecting the supply of the Goods or of raw materials therefor by the Seller’s normal source of supply or the manufacture of the Goods or the means of delivery, the Seller shall be under no liability to the Buyer and shall have the right to cancel or suspend the whole or any part of the Seller’s unfulfilled obligations and in the event of any such cancellation or suspension to treat the terms of this contract as having been modified accordingly by mutual consent. 

14 Insolvency and Default 
If the Buyer shall become bankrupt or commits any act of bankruptcy or if the Buyer is or is deemed insolvent or is put into liquidation otherwise than by voluntary liquidation for the purpose only of an amalgamation or solvent reconstruction or if the Buyer shall enter into any arrangement or composition with creditors or if a Receiver or Administrative Receiver or Administrator of the Buyer’s assets or undertakings or any part thereof is appointed or if the Buyer commits any breach of this or any other contract between the Seller and the Buyer the Seller may at its option cancel this contract in whole or in part and refuse to make any further delivery. 

15 Assignment 
This contract is between the Seller and the Buyer as principals and is not capable of assignment by the Buyer except with the written consent of the Seller. 

16 Waiver 
Failure by the Seller to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter. No exercise of any one right or remedy under these terms and conditions or at law or in equity shall (save to the extent, if any, provided expressly under these terms and conditions) operate so as to hinder or prevent the exercise of any other right or remedy howsoever at law or in equity.

17 Severance of Conditions 
If any of these terms and conditions or any portion of same shall be held to be invalid or unenforceable in whole or in part under any enactment or rule of law such term or condition or portion of same shall to that extent only be deemed not to form part of these terms and conditions and the validity and enforceability of all the remaining terms and conditions shall not be affected. 

18 Law and Arbitration 
This contract shall be governed and construed in accordance with the laws of England and Wales and any dispute arising hereunder shall be submitted to amicable negotiation or alternative dispute resolution or failing resolution of same then by arbitration by the Tribunal of Arbitration of the Manchester Chamber of Commerce by reference to a single arbitrator agreed upon between the parties or failing agreement upon application of either to be appointed pursuant to the rules of the London Court of International Arbitration and as provided by the Arbitration Act 1996 or any statutory modification or re-enactment thereof from time to time in force and in such event the award of the arbitrator shall be final and binding, save that claims by the Seller against the Buyer for non-payment of the price or any part thereof of the Goods may, at the option of the Seller, be pursued in the appropriate Courts of the jurisdiction where the Buyer is resident.