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L&M FOOD GROUP LIMITED - CONDITIONS OF SALE WITH EFFECT FROM 16th JANUARY 2003 1. DEFINITIONS In these conditions: - The Supplier means L&M FOOD GROUP LIMITED and includes reference to any company which may be its holding, subsidiary or associated company. The Buyer means the person, firm or company purchasing goods from the Supplier; the Goods means the goods which the Supplier is to supply to the Buyer in accordance with these conditions. About to be shipped Immediate Shipment Prompt Shipment or similar words shall indicate that shipment of the Goods shall take place within 14 days in the case of Goods delivered within the European Community and within 28 days in the case of Goods delivered to or from any other part of the world. Shipment Date shall be the date stated on the Bill of Lading. 2. BASIS OF THE SALE 2.1 The Supplier contracts on these conditions and those stated overleaf (which in the event of any inconsistency with these conditions of sale, shall prevail) and acceptance by the Supplier of any order from a Buyer shall be upon these conditions and shall override any other terms and conditions stipulated or incorporated by the Buyer in its order or in any negotiations. Variations or representations will only be binding on the Supplier if confirmed in writing by an authorised officer of the Supplier. 3. THE GOODS 3.1 All descriptions and illustrations contained in the Supplier s catalogue, price list and advertisements or otherwise communicated to the Buyer are intended to present merely a general idea of the Goods described and shall not form part of the contract. 3.2 If a sample of Goods supplied but not manufactured or processed by the Supplier was exhibited to and inspected by the Buyer, it is hereby agreed that such samples were so exhibited and inspected solely to enable the Buyer to judge for himself the quality of the Goods and not so as to constitute a sale by sample. 3.3 The Supplier reserves the right to deliver 10% more or less than the quantity stipulated on the acknowledgment of order and the Buyer agrees to accept such quantity delivered in satisfaction of the order. The value will be pro-rata to the quantity delivered. 4. PRICE 4.1 Subject to 4.3 below the price of Goods is as stated in the sales order confirmation and is net of Value Added Tax at the appropriate rate. 4.2 Where carriage, insurance, storage or other charges are shown separately from the price of Goods, they are nevertheless payable by the Buyer at the same time as if they form part of the price and shall be treated as such for the purposes of these conditions. 4.3 Prices are subject to alteration by the Supplier in the event of an increase in the cost to the Supplier arising as a result of Force Majeure (as defined in clause 11). The Buyer shall not be entitled to cancel his order on the grounds of such price alteration or for any other reason except with the written consent of the Supplier. If such consent is given it is made on the express condition that the Buyer shall indemnify the Supplier against all loss, damage, claims or actions arising out of such cancellation unless otherwise agreed in writing. 5. PAYMENT 5.1 Subject to the provisions of clauses 5.5 and 5.6 payment is due on the payment date specified in the invoice. 5.2 In the case of overdue payment, the Supplier may charge interest to the Buyer on the amount overdue, calculated on a daily basis at the rate of 1% per month without prejudice to any other rights of the Supplier. 5.3 Payment on or before the due date is of the essence of the contract and is a condition precedent for any future deliveries to the Buyer or to its order. 5.4 All payments due from the Buyer under these Conditions shall be made without any set-off, deduction or deferment of any nature. 5.5 Notwithstanding the provisions of clause 5.1, upon the commencement of any event under clause 12.1 any period of credit allowed to the Buyer on any contract with the Supplier, whenever made, shall cease to apply and payment for all Goods shall be due or be deemed to have become due forthwith on delivery. 5.6 Without prejudice to the provisions of the clause 5.5, if between the date of acceptance by the Supplier of the Buyers order and the date upon which delivery is agreed to be made to the Buyer the Buyer s credit rating deteriorates in the opinion of the Supplier (whose decision on this matter shall be final), or the Buyer fails to supply to the supplier or its agents satisfactory credit information, then any period of credit may at the discretion of the Supplier be withdrawn or reduced. 6. DELIVERY 6.1 Anytime or date specified for delivery is given in good faith as an estimate only and the Supplier shall not be liable for any direct or indirect loss, damage or expense howsoever arising from any delay or non delivery. 6.2 The Supplier may deliver by instalments and may treat each delivery as a separate contract. 6.3 The Buyer shall accept deliveries of Goods at the address stated on the purchase order when offered and shall be liable for any additional costs suffered by the supplier in the event of wrongful refusal or delay in accepting delivery, in failing to provide premises, services or information for the Supplier to effect safe deliveries being withheld through the Buyer s non-payment. 6.4 Where Goods are delivered to a destination outside the United Kingdom the Buyer agrees that the Supplier cannot be held responsible for the failure or inability by the Supplier s seller to obtain relevant papers for export of the Goods and the Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon in such country. 6.5 Where Goods are sold on a c.i.f. basis (Cost Insurance Freight) the Supplier shall provide the Buyer with the following documents:- 6.5.1 3 Copies of invoice 6.5.2 Certificate of Insurance (for the Suppliers Indemnity in lieu thereof) 6.5.3 Bill(s) of Lading or Ship s delivery order or c.i.f. Delivery Order on Public Wharf/Warehouse (counter signed by Wharfingers/Warehousemen if required) 6.6 Unless otherwise specified, where Goods are to be delivered outside the United Kingdom the Buyer shall be responsible for all taxes, import duties, delivery costs and other charges arising. 7. RETENTION OF TITLE 7.1 Property of the Goods shall not pass to the Buyer until the Buyer has paid to the Supplier all sums owed (under this or any other contract) by the Buyer to the Supplier. Whilst the Goods remain the property of the Supplier the Buyer shall keep them separate and identifiable and not deal with them otherwise than in the ordinary course of business. 7.2 The Goods shall be at risk of the Buyer on delivery and the Buyer will keep the Goods properly insured for not less than their contract value. 7.3 Without prejudice to any other rights the Supplier may have, the Supplier may recover the Goods which have not yet been paid for and the Buyer agrees that the Supplier, its agents or employees may enter on the Buyer s premises and remove the Goods at any time, if any of the events in clause 1.1 (a)-(d) occur. 7.4 If payment of any sum is overdue the Supplier shall have the right to commence proceedings against the Buyer for the price, notwithstanding that property in the Goods has not yet passed to the Buyer. 8. WARRANTIES (SALE OF GOODS) 8.1 The Supplier hereby warrants that the Goods, which are perishable Goods, are at the date of delivery free from any material defect in workmanship and in materials and correspond with any agreed written specification, and will remain free from defects [within the specified best before end date], and the Supplier s liabilities under this warranty shall be limited to replacing any defective Goods [or (at the Supplier s option) refunding the full purchase price]. The Supplier s liability is also conditioned upon:- (a) the Goods being inspected forthwith on delivery and of the defect being advised to the Supplier and the carrier within 3 days after discovery of the same; (b) the Goods have been properly stored and used by the Buyer; (c) the Goods having been returned at the Supplier s request but at the Buyer s expense for inspection; and (d) that we have received the total price for the Goods by the due date for payment. 8.2 The warranty contained in 8.1 above is given in lieu of and shall be deemed to exclude all other warranties and conditions whether express or implied whether arising by common law, statute or otherwise, to the fullest extent permitted by law, other than the relating to the title to the Goods. 8.3 All Goods are sold on the basis that the Buyer is neither a consumer nor deals as a consumer within the meaning of the Unfair Contract Terms Act 1977 and that the Buyer has satisfied itself as to the suitability of the Goods for use or resale in accordance with its specialised knowledge and skill. 8.4 In the case of sales outside the United Kingdom and the European Union all conditions warranties and other terms whether express of implied, statutory or otherwise are hereby excluded, unless contained in this clause or otherwise expressly agreed by the Supplier in writing. 8.5 In respect of international supply contracts (as defined in section 26 of the Act) the Supplier shall have no liability to the Buyer in the event of Goods infringing or being alleged to infringe the rights of any third party. 9. LIMITATION OF LIABILITY AND BUYER S OBLIGATIONS 9.1 Nothing in these conditions excludes or limits the liability of the Supplier for death or personal injury caused by the Supplier s negligence [or liability for defective products under the Consumer Protection Act 1987]. 9.2 Subject to clause 8 and clause 9.1; (a) the Supplier shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of any agreement, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatever (whether cause by our negligence or that of our employees, agents or subcontractors or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with any agreement or at all) or their use or resale by the Buyer; and (b) the entire liability of the Supplier in contract, tort (including negligence or breach of statutory duty), misrepresentation (unless fraudulent) or otherwise arising in connection with the supply of the Goods resulting from their use shall not exceed £5,000,000 per claim, or series of claims arising from one occurrence, where the Supplier s liability for the loss or damage is not covered by the Supplier s insurance cover then the entire liability of the Supplier in accordance with the sub-clause shall not exceed the contract price. 9.3 The Supplier will at the request and expense of the Buyer use its best endeavours to transfer to the Buyer the benefit of any warranty, guarantee or undertaking given to the Supplier by the manufacturer, producer or processor of the Goods, in relation to any Goods or parts or materials. 9.4 A claim in respect of any defect, failure to comply with any agreed written specification, non-delivery of any order or any part of the order shall not entitle the Buyer to cancel the contract or refuse delivery of or payment for the Goods or any other order. 10. INDEMNITY FROM THE BUYER The Buyer agrees to indemnify the Supplier against all claims relating to the Goods sold to the Buyer in respect of any loss, damage or expense sustained by any third party save only in respect of death or personal injury caused by the negligence of the Supplier or any of its employees or agents. 11. FORCE MAJEURE The Supplier shall bear no liability for loss, damage or delay howsoever arising caused in circumstances outside its control including (but not limited to) Acts of God, war, strike, civil commotion, work to rule or go slow, over time bans, lock-outs, fire, flood, drought, crop failure, disease of whatever nature affecting the Supplier s ability to acquire the Goods or inability to procure Goods except at increased prices (which shall for the avoidance of doubt include the price at which the Supplier can obtain the goods) due to any of the foregoing causes and in these circumstances may suspend or cancel the whole or part of any delivery. The Supplier shall endeavour to notify the Buyer as quickly as reasonably possible if a force majeure event occurs. 12. DEFAULT 12.1 Without prejudice to any other rights it may have and without prejudice to the provisions of Clause 7 above, the Supplier may, by notice to the Buyer, terminate any contract between the Buyer and Supplier forthwith and/or immediately recover from the Buyer all sums due from the Buyer under any contract with the Supplier (notwithstanding any period of credit which may have been allowed) together with any accrued interest and other legitimate charges and any loss caused to the Supplier as a result of any termination if; (a) any payment due by the Buyer to the Supplier is overdue in whole or in part or (b) the Buyer shall commit any breach of any of the terms of contract with the Supplier provided that if the breach is remediable the Supplier have given to the Buyer notice of such breach which has not been remedied within seven days thereafter or; (c) a resolution is passed or a Court Order made resolving or ordering the Buyer to be placed into liquidation or ordering that an administrator be appointed over all or any of its assets, a receiver or administrative receiver is appointed over all or any of the assets of the Buyer or the Buyer (being an individual) has a petition in bankruptcy entered against him; or (d) the Buyer ceases or threatens to cease to carry on trading. 12.2 Where the Buyer is situated outside of the United Kingdom the Supplier shall be entitled to terminate the contract and/or recover all sums due pursuant to clause 12.1 if any event occurs which is analogous to the events described in 12.1(a) to 12.1(d) inclusive. 13. GENERAL 13.1 The Goods are sold and/or supplied subject to the rights of any person whether in respect of any patent, trade mark, registered design, copyright, confidential disclosure or otherwise howsoever to prevent or restrict the sale or use of the Goods in any part of the world; the Buyer will in this respect accept such title to the goods as the Supplier may have. 13.2 The Buyer undertakes to the supplier that it shall not sue the names or makes known as L&M Food or LAMEX or any name which is a variation of those names or which incorporates those names except with the prior written consent of the Supplier. 13.3 No waiver by the Supplier of any breach of contract by the Buyer shall be considered as a waiver of any subsequent breach of the same of any other provision of the contract. 13.4 The parties agree to be bound by these conditions which they consider to be reasonable. If any clause of these Conditions is held by any Court or competent authority as invalid or unenforceable in whole or in part the validity of the remainder of these Conditions and of the remainder of the provisions in question shall not be affected thereby. 13.5 The Buyer shall not assign or transfer any contract to which these Conditions apply nor the benefit thereof to any person whatsoever. 13.6 The construction, validity and performance of any contract shall be governed in all respects by the law of England and the Buyer shall at all times provide the Supplier with an address in England and Wales where it will accept service of proceedings. The English courts shall have the exclusive jurisdiction to settle any disputes which may arise out of or in connection with this contract. The parties agree to submit to the jurisdiction. 13.7 Any notice required to be given under these conditions may be sent by pre-paid first class post or facsimile to the principle place of business or registered office of the party to whom the notice is being sent. If sent by post, it shall be deemed to have been served (until the contrary is proved) on the second working day after the date of posting.
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