Please read these Conditions of Sale carefully before ordering any Products from Foodie Flavours Limited. By ordering any Product, the Buyer agrees to be bound by these Conditions of Sale.
The Buyer’s attention is drawn in particular to the limitation of liability provisions in Condition 9.
1 – INTERPRETATION
1.1 In these Conditions:
“Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
“Buyer” means the person, firm or company who accepts a quotation of Foodie Flavours for the sale of the Product or whose Order for the Product is accepted by Foodie Flavours.
“Product” means the product or products which Foodie Flavours is to supply in accordance with these Conditions (including any part or parts of them).
“Foodie Flavours” means Foodie Flavours Limited (registered in England under company number 06937849).
“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any amended or special terms and conditions agreed in writing between the Buyer and Foodie Flavours.
“Contract” means any contract between Foodie Flavours and the Buyer for the purchase and sale of the Product incorporating these Conditions, subject to Condition 2.2.
“Order” means the Buyer’s order for the Product, as set out in the Buyer’s written order (which shall include an order made through Foodie Flavours’ website) or the Buyer’s acceptance of Foodie Flavours’ written quotation.
“Writing” includes faxes and e-mail.
1.2 Any reference in these Conditions to any provision of a statute shall be constructed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.4 Words in the singular include the plural and in the plural include the singular.
1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
2 – BASIS OF THE SALE
2.1 By placing an Order with Foodie Flavours, the Buyer warrants that:
(a) it is legally capable of entering into binding contracts;
(b) if an individual, he is at least 18 years old;
(c) all details the Buyer provides to Foodie Flavours for the purpose of ordering or purchasing Products are true, accurate, current and complete in all respects;
(d) the Buyer is authorised to use the payment method with which it purchases any Product(s) and that there are sufficient funds in their account to cover payment of the Product(s) ordered.
2.2 Foodie Flavours shall sell and the Buyer shall purchase the Product in accordance with any Order which is accepted by Foodie Flavours, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.3 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and Foodie Flavours. Foodie Flavours’ employees or agents are not authorised to make any representations concerning the Product unless confirmed by Foodie Flavours in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4 Any samples, descriptive matter or advertising produced by Foodie Flavours and any descriptions or illustrations contained in Foodie Flavours’ catalogues, brochures or on its website are produced for the sole purpose of giving an approximate idea of the Product described in them. They shall not form part of the Contract or have any contractual force.
2.5 Save as contained in the health and safety data sheets supplied by Foodie Flavours relating to the Product, any advice or recommendation given by Foodie Flavours or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Product which is not confirmed in writing by Foodie Flavours is followed or acted upon entirely at the Buyer’s own risk and Foodie Flavours shall not be liable for any such advice or recommendation which is not so confirmed.
3 – ORDERS AND SPECIFICATIONS
3.1 Each Order which is accepted by Foodie Flavours for the Product shall be deemed to be an offer by the Buyer to buy the Product specified in it subject to these Conditions.
3.2 Save in respect of Orders submitted via the Company’s website, no order submitted by the Buyer shall be deemed to be accepted by Foodie Flavours unless and until confirmed in writing by an order acknowledgement or, if earlier, when Foodie Flavours delivers the Product to the Buyer, at which point the Contract between the parties will be formed. In the case of Orders placed through Foodie Flavours’ website the Buyer will receive (i) an e-mail acknowledging that the Order has been placed; and (ii) a further email confirming that the Product has been dispatched (the “Dispatch Confirmation”): the Contract between the parties is formed when the Dispatch Confirmation is sent by Foodie Flavours. The quantity, price, product number and description of the Product shall be those set out in Foodie Flavours’ quotation, order acknowledgement or dispatch confirmation (in the case of Orders placed through the Company’s website) subject to Condition 4. Where the Buyer places an order through Foodie Flavours’ website, Foodie Flavours shall not be obliged to supply any other Products which may have been part of the Buyer’s Order until the dispatch of such Products has been confirmed in a separate Dispatch Confirmation.
3.3 If the Product is to be manufactured or any process is to be applied to the Product by Foodie Flavours in accordance with a product or a specification submitted by the Buyer, the Buyer shall indemnify Foodie Flavours against all liabilities, damages, costs, expenses and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) awarded against or incurred by Foodie Flavours in connection with or paid or agreed to be paid by Foodie Flavours in settlement of any claim for infringement of any patent, copyright, design or other industrial or intellectual property rights of any other person which results from Foodie Flavours’ use of the Buyer’s specification. This Condition shall survive termination of the Contract.
3.4 Foodie Flavours reserves the right to amend the specification of the Product if required by any applicable statutory or regulatory requirements.
3.5 Subject to Condition 13, no Order which has been accepted by Foodie Flavours may be cancelled by the Buyer except with the agreement in writing of Foodie Flavours and on terms that the Buyer shall indemnify Foodie Flavours in full against all loss (including loss of profit) costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Foodie Flavours as a result of cancellation.
3.6 Any quotation is given on the basis that no Contract shall come into existence until Foodie Flavours dispatches an order acknowledgement (or Dispatch Confirmation, as the case may be) to the Buyer, or, if earlier, when Foodie Flavours delivers the Product to the Buyer, in accordance with Condition 3.2. Any quotation is valid for a period of 30 days only from its date, provided Foodie Flavours has not previously withdrawn it.
4 – PRICE OF PRODUCT
4.1 The price of the Product shall be Foodie Flavours’ quoted price (which shall include the price quoted on Foodie Flavours’ website from time to time, except in the case of obvious error) or, in the absence of a quoted price, the price set out in Foodie Flavours’ price list published on the date of delivery or deemed delivery.
4.2 Foodie Flavours reserves the right, by giving notice in writing from time to time to the Buyer pursuant to Condition 4.3, to increase the price of the Product at its discretion to reflect any increase in the cost to Foodie Flavours for any reason whatsoever such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, material or other costs of manufacture, any change in delivery dates, quantities or specifications for the Product which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give Foodie Flavours adequate information or instructions or for any other reason.
4.3 In circumstances where a quotation has been provided to the Buyer, Foodie Flavours shall notify the Buyer in writing of any increase in the quoted price no later than 14 days before the date of delivery. The Buyer shall notify Foodie Flavours in writing within 7 days thereafter of its desire to cancel the contract if appropriate. This Clause 4.3 shall not apply to prices stated on the Company’s website and related Orders.
4.4 Except as otherwise stated under the terms of any quotation, order acknowledgement or Dispatch Confirmation of Foodie Flavours, and unless otherwise agreed between the Buyer and Foodie Flavours, all prices are given by Foodie Flavours exclusive of delivery to the Buyer’s premises.
4.5 The price is inclusive of any applicable value added tax.
4.6 Foodie Flavours’ website contains a large number of Products and it is always possible that, despite the best efforts of Foodie Flavours, some of the Products listed on the website may be incorrectly priced. Foodie Flavours will normally verify prices as part of its dispatch procedures so that, where a Product’s correct price is less than Foodie Flavours’ stated price, it will charge the lower amount when dispatching the Product to the Buyer. If a Product’s correct price is higher than the price stated on the website, Foodie Flavours will normally, at its discretion, either contact the Buyer for instructions before dispatching the Product, or reject the Order and notify the Buyer of such rejection.
5 – TERMS OF PAYMENT
5.1 Subject to any special terms agreed in writing between the Buyer and Foodie Flavours, Foodie Flavours shall be entitled to invoice the Buyer for the price of the Product before delivery of the Product and shall be entitled to wait until full payment has been received in respect of the Order before dispatching the Product. Payment for Products ordered through Foodie Flavours’ website shall be made before the Product is dispatched and must be made by the methods set out on the website.
5.2 Where Foodie Flavours does not require full payment for the Order before dispatching the Product, the Buyer shall pay the price of the Product within 30 days of the date of the Company’s relevant invoice. The time of payment of the price shall be of the essence of the Contract. No payment shall be deemed to have been received until Foodie Flavours has received cleared funds. Receipts for payment will be issued only upon request.
5.3 If the Buyer fails to make any payment on the due date or Foodie Flavours has reasonable grounds for believing that the Buyer may default in making any payment on the due date then, without prejudice to any other right or remedy available to Foodie Flavours, Foodie Flavours will be entitled to:
5.3.1 cancel the contract or suspend any further deliveries to the Buyer; and
5.3.2 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at 5% per annum above the base rate for the time being of The Clydesdale Bank and withdraw all credit facilities given to the Buyer. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. Foodie Flavours reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
5.4 All payments payable to Foodie Flavours under the Contract shall become due immediately upon termination of the Contract despite any other provision.
5.5 The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise for breach of contract, negligence or any other remedy by any other means whatsoever whether statutory or otherwise unless the Buyer has a valid court order requiring any amount equal to such deduction to be paid by Foodie Flavours to the Buyer. Foodie Flavours may at any time, without limiting any other rights or remedies it may have, set off any amounts owing to it by the Buyer against any amount payable by Foodie Flavours to the Buyer.
6 – DELIVERY
6.1 Unless otherwise agreed, delivery of the Product shall be made by Foodie Flavours to the Buyer’s premises. Delivery of the Product shall be completed on the Product’s arrival at the Buyer’s premises.
6.2 Where Products are delivered to business customers, any dates quoted for delivery of the Product are approximate only and Foodie Flavours shall not be liable for any delay in delivery of the Product nor any direct or indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss) or damages, costs, charges or expenses caused directly or indirectly by any delay in the delivery of the Product (even if caused by Foodie Flavours’ negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 90 days. Time for delivery shall not be of the essence unless previously agreed by Foodie Flavours. The Product may be delivered by Foodie Flavours in advance of the quoted delivery date upon giving reasonable notice to the Buyer. Where Products are delivered to customers who are consumers, the Order will be fulfilled by the delivery date set out in the Dispatch Confirmation or, if no delivery date is specified, then within a reasonable time of the date of the Dispatch Confirmation, unless there are exceptional circumstances; where Foodie Flavours becomes aware that the date for delivery may be delayed, it shall notify the Buyer as soon as possible and aim to provide the Buyer with a revised date for delivery.
6.3 If the Buyer fails to take delivery of the Product or fails to give Foodie Flavours adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of Foodie Flavours’ fault) then, without prejudice to any other right or remedy available to Foodie Flavours, Foodie Flavours may store the Product until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage.
6.4 If 10 Business Days after the day on which Foodie Flavours notified the Buyer that the Product was ready for delivery, the Buyer has not taken delivery of them, Foodie Flavours may resell or otherwise dispose of part or all of the Product.
6.5 If Foodie Flavours delivers to the Buyer a quantity of Product up to 5% more or less than the quantity accepted by Foodie Flavours the Buyer shall not be entitled to object to or reject the Product or any of it by reason of the surplus or shortfall and shall pay for such Product at the pro rata Contract rate. This condition shall not apply to Orders placed by customers who are consumers.
6.6 The quantity of any consignment of Product as recorded by Foodie Flavours upon despatch from Foodie Flavours’ place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
6.7 Foodie Flavours shall not be liable for any non-delivery of the Product (even if caused by Foodie Flavours’ negligence) unless the Buyer gives written notice to Foodie Flavours of the non-delivery within 2 days of the date when the Product would in the ordinary course of events have been received.
6.8 Any liability of Foodie Flavours for non-delivery of the Product shall be limited to replacing the Product within a reasonable time or issuing a credit note against the pro rata Contract rate against any invoice raised for such Product.
6.9 Foodie Flavours may delivery the Product 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 Buyer to cancel any other instalment.
7 – RISK AND PROPERTY
7.1 Risk of damage to or loss of the Product shall pass to the Buyer:-
7.1.1 in the case of the product to be delivered at Foodie Flavours’s premises, at the time when Foodie Flavours notifies the Buyer that the Product is available for collection; or
7.1.2 in the case of the Product to be delivered otherwise than at Foodie Flavours’ premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Product, the time when Foodie Flavours has tendered delivery of the Product.
7.2 Notwithstanding delivery and the passing of risk in the Product, or any other provision of these Conditions, the property in the Product shall not pass to the Buyer until Foodie Flavours has received in cash or cleared funds payment in full of the price:-
7.2.1 of the Product; and
7.2.2 all other sums then due and payable by the Buyer to Foodie Flavours.
7.3 Until the property in the Product passes to the Buyer, the Buyer:-
7.3.1 must hold the Product on a fiduciary basis as Foodie Flavours’ bailee;
7.3.2 must maintain the goods in satisfactory condition and keep the Product separate from all other goods of the Buyer and third parties and properly stored, protected and insured (for their full price against all risks) and clearly identified as Foodie Flavours’ property (at no cost to Foodie Flavours);
7.3.3 must not destroy, deface or obscure any identifying mark or packaging on or relating to the Product;
7.3.4 must hold the proceeds of any insurance referred to in condition 7.3.2 on trust for Foodie Flavours and not mix them with any other money, nor pay the proceeds into an overdrawn bank account;
7.3.5 shall not deal with or dispose of the Product or any interest therein (other than by a sale to an independent purchaser buying for full value in the ordinary course of the Buyer’s business);
7.3.6 shall notify Foodie Flavours immediately if it becomes subject to any of the events listed in Condition 10; and
7.3.7 shall give Foodie Flavours such information relating to the Product as the Buyer may require from time to time.
7.4 Until such time as the property in the Product passes to the Buyer (and provided the Product is still in existence and has not been resold), Foodie Flavours shall be entitled at any time to require the Buyer to deliver up the Product to Foodie Flavours and if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Product is stored and repossess the Product.
7.5 The Buyer’s right to possession of the Product shall terminate immediately on the occurrence of any of the events specified in Condition 10 below.
7.6 Foodie Flavours shall be entitled to recover payment for the Product notwithstanding that ownership of any of the Product has not passed from Foodie Flavours.
7.7 The Buyer grants Foodie Flavours, its agents and employees an irrevocable licence at any time to enter any premises where the Product is or may be stored in order to inspect it, or, where the Buyer’s right to possessions has terminated, to recover such Product.
7.8 Where Foodie Flavours is unable to determine whether any product is the product in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by Foodie Flavours to the Buyer in the order in which they were invoiced to the Buyer.
7.9 On termination of the Contract, howsoever caused, Foodie Flavours’ (but not the Buyer’s) rights contained in this Condition 7 shall remain in effect.
8 – WARRANTIES
8.1 Subject to the conditions set out below Foodie Flavours warrants that the Product will correspond with its specification and be free from defects at the time of delivery and such further period (if any) as may be stated in the safety data sheets issued for the Product.
8.2 The above warranty is given to the Buyer subject to the condition that Foodie Flavours shall be under no liability in respect of the Product’s failure to comply with such warranty in any of the following events:
(a) the Buyer makes any further use of the Product after giving notice in accordance with Condition 8.4; or
(b) the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal working conditions; or
(c) the defect arises because the Buyer failed to follow Foodie Flavours’ oral or written instructions or safety data sheets as to the storage, commissioning, installation, use and maintenance of the Product or (if there are none) good trade practice regarding the same; or
(d) the Buyer alters. misuses or repairs the Product without Foodie Flavours’ approval; or
(e) the defect arises as a result of Foodie Flavours following any drawing, design or specification supplied by the Buyer; or
(f) the Product differs from their description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
8.3 Unless a certificate of conformity is issued by Foodie Flavours, the Buyer warrants to test a sample of the Product immediately after delivery of the Product to satisfy itself that the Product is of a satisfactory quality and acceptable to the Buyer, taking into account the use to which the Product is to be put.
8.4 Any claim by the Buyer which is based on any defect in the quality or condition of the Product or its failure to correspond with specification or quantity ordered shall (whether or not delivery is refused by the Buyer) be notified to Foodie Flavours within 5 days from the date of delivery in the case of a Buyer which is a business and 7 Business Days from the day after the date of delivery in the case of a Buyer who is a consumer or (where the defect or failure was not apparent on reasonable inspection) within 5 days after discovery by the Buyer of the defect or failure or by the sell by date of the Product, whichever is the earlier but, in any event, by no later than 28 days from the original delivery date. If delivery is not refused, and the Buyer does not notify Foodie Flavours accordingly, the Buyer shall not be entitled to reject the Product and Foodie Flavours shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Product had been delivered in accordance with the Contract.
8.5 Where any valid claim in respect of the Product which is based on any defect in the quality or condition of the Product or its failure to meet specification is notified to Foodie Flavours in accordance with these Conditions, Foodie Flavours shall investigate the claim and, where appropriate, may ask the Buyer to return the Product to Foodie Flavours place of business or arrange for the Product to be collected (at Foodie Flavours’ cost) and may inspect the Product and test a sample. If Foodie Flavours is satisfied that the claim is valid, it shall be entitled to replace the Product free of charge or, at Foodie Flavours’ sole discretion, refund to the Buyer the price of the Product (or a proportionate part of the price), but Foodie Flavours shall have no further liability to the Buyer.
8.6 Except as provided in this Condition 8, Foodie Flavours shall have no liability to the buyer in respect of the Product’s failure to comply with the warranty set out in Condition 8.1.
8.7 These Conditions shall apply to any repaired or replacement Product supplied by Foodie Flavours.
9 – LIABILITY
9.1 Subject to Condition 8, the following provisions set out the entire financial liability of Foodie Flavours (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:-
9.1.1 any breach of the Contract ;
9.1.2 any use made or resale by the Buyer of any Product or any part of them; and
9.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
9.2 Save in respect of Contracts with consumers, subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statue or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are excluded from the Contract to the fullest extent permitted by law.
9.3 Nothing in these Conditions excludes or limits the liability of Foodie Flavours for death or personal injury caused by Foodie Flavours’ negligence or for any damage or liability incurred by the Buyer as a result of Foodie Flavours’ fraudulent misrepresentation, or for any matter which it would be illegal for Foodie Flavours to exclude or attempt to exclude its liability.
9.4 Foodie Flavours shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform, any of Foodie Flavours’ obligations in relation to the Product, if the delay or failure was due to any cause beyond Foodie Flavours’ reasonable control.
THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 9.5
9.5 Subject to conditions 9.2 and 9.3:-
9.5.1 Foodie Flavours’ total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation of otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to £5,000,000.
9.5.2 Foodie Flavours shall not be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs or expenses or other claims for consequential compensation whatsoever (however caused) which arise out of or in connection with the Contract.
10 – INSOLVENCY OF BUYER
10.1 This Condition applies if:-
10.1.1 the Buyer 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;
10.1.2 the Buyer 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 other than (where the Buyer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
10.1.3 (being a company) 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 Buyer, other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
10.1.4 (being an individual) the Buyer is the subject of a bankruptcy petition or order;
10.1.5 a creditor or encumbrancer of the Buyer 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 14 days;
10.1.6 (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 Buyer;
10.1.7 (being a company) a floating charge holder over the Buyer’s assets has become entitled to appoint or has appointed an administrative receiver;
10.1.8 a person becomes entitled to appoint a receiver over the Buyer’s assets or a receiver is appointed over the Buyer’s assets;
10.1.9 any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Condition 10.1.1 to Condition 10.1.8 (inclusive);
10.1.10 the Buyer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
10.1.11 the Buyer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
10.1.12 (being an individual) the Buyer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation; or
10.1.13 Foodie Flavours reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this Condition applies then, without prejudice to any other right or remedy available to Foodie Flavours, Foodie Flavours shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer immediately on giving notice to the Buyer, and the Buyer shall immediately pay to Foodie Flavours all of Foodie Flavours’ outstanding unpaid invoices and interest, and if the Product has been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreements or arrangement to the contrary.
10.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.
11 – EXPORT TERMS
11.1 In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires any term or expression which is defined in or given a particular meaning by the provisions of Incoterms has the same meaning in these Conditions.
11.2 Where the Buyer so notifies Foodie Flavours and Foodie Flavours agrees in writing that the Product is supplied for export from the United Kingdom, Incoterms shall (subject to any special terms agreed in writing between the Buyer and Foodie Flavours) apply notwithstanding any other provision of these Conditions, save that if there is any conflict between the provisions of Incoterms and these Conditions the latter shall prevail.
11.3 The Buyer shall be responsible for complying with all legislation and regulations governing the importation of the Product into the country of destination and for the payment of any duties thereon, and for obtaining and paying for all applicable export and import licences and permits.
11.4 Unless otherwise agreed in Writing between the Buyer and Foodie Flavours, the Product shall be delivered F.O.B. the sea port of shipment and Foodie Flavours shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
11.5 Payment of all amounts due to Foodie Flavours shall be made in pounds sterling by irrevocable letter of credit opened by the Buyer in favour of Foodie Flavours and confirmed by a bank acceptable to Foodie Flavours or, if Foodie Flavours has agreed in Writing on or before acceptance of the Buyer’s Order to waive this requirement, by acceptance by the Buyer and delivery to Foodie Flavours of a bill of exchange drawn on the Buyer payable 30 days after delivery to the air or sea port of shipment to the order of Foodie Flavours at such branch of National Westminster Bank in England as may be specified in the bill of exchange.
12 – CONSUMER RIGHTS
12.1 If the Buyer is contracting as a consumer, it may cancel a Contract at any time within seven Business Days, beginning on the day after the Products are received. In this case, the Buyer will receive a full refund of the price paid for the Products.
12.2 To cancel a Contract, the Buyer must inform Foodie Flavours by email or in writing. The Buyer must also return the Product(s) (together with any instructions and accessories for the Product(s) and any premium offers or free gifts accompanying the Product(s)) to us immediately, in the same condition in which they were received, in the original packaging, and at the Buyer’s own cost and risk. In some cases, and at Foodie Flavours’ discretion, Foodie Flavours shall arrange for the return of the Product(s) at the Buyer’s expense.
The Buyer has a legal obligation to take reasonable care of any Product while it is in its possession. If the Buyer fails to comply with this obligation, Foodie Flavours may have a right of action against the Buyer for compensation.
12.3 The Buyer will not have any right to cancel a Contract for the supply of any Products that have been altered or made to the Buyer’s specification or Products that have already been used.
12.4 Details of this statutory right of cancellation, and an explanation of how to exercise it, are provided in the Dispatch Confirmation. This provision does not affect the Buyer’s statutory rights.
12.5 If the Buyer who is a consumer returns a Product to Foodie Flavours:
(a) because it has cancelled the Contract between the parties within the seven-day cooling-off period, Foodie Flavours will process the refund due to the Buyer as soon as possible and, in any case, within 30 days of the day the Buyer has given notice of its cancellation. In this case, Foodie Flavours will refund the price of the Product in full, including the cost of sending the item to the Buyer. However, the Buyer will be responsible for the cost of returning the item to Foodie Flavours.
(b) for any other reason, Foodie Flavours shall notify the Buyer of the applicable refund via e-mail within a reasonable period of time. Foodie Flavours shall usually process the refund due to the Buyer as soon as possible and, in any case, within 30 days of the day Foodie Flavours confirmed to the Buyer via e-mail that it was entitled to a refund for the defective Product. Products returned by the Buyer because of a defect will be refunded in full, including a refund of the delivery charges for sending the item to the Buyer and the cost incurred by the Buyer in returning the item to Foodie Flavours.
12.6 Foodie Flavours will usually refund any money received from the Buyer using the same method originally used by the Buyer to pay for its purchase.
13 – FORCE MAJEURE
Foodie Flavours reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of Product ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in performing its obligations under the Contract or from carrying on of its business due to circumstances beyond the reasonable control of Foodie Flavours including, without limitation, acts of God, government actions, war or national emergency, acts of terrorism, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), compliance with any law or governmental order, rule regulation or direction, failure of a utility service or transport network, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials or default of suppliers or sub-contractors provided that, if the event in question continues for a continuous period in excess of 180 days, the Buyer shall be entitled to give notice in writing to Foodie Flavours to terminate the Contract.
14 – GENERAL
14.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or email. Any notice shall be deemed to have been received if sent by pre-paid first class post 2 Business Days after posting (excluding the day of posting); if delivered personally on the day of delivery; 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. The provisions of this Condition shall not apply to the service of any proceedings or other documents in any legal action.
14.2 A waiver of any right or remedy under the Contract is only effective if given in writing and no waiver by Foodie Flavours of any breach of or any default under the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision and will in no way affect the other terms of the Contract.
14.3 Failure or delay by Foodie Flavours in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract, 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.
14.4 If any provision of these Conditions is held by any competent authority to be wholly or partly illegal, invalid, void, voidable, unreasonable or unenforceable it shall to the extent of such illegality, invalidity, voidness, voidability, unreasonableness or unenforceability be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect. 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.
14.5 Each right and remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
14.6 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
14.7 The Buyer shall not be entitled to assign the Contract of any part of it without the prior written consent of the Company. Foodie Flavours may assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract or any part of it to any person, firm or company.
14.8 The Contract and these Conditions constitute the entire agreement and understanding of the parties and supersede any previous agreement between the parties relating to the subject matter thereof. Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on and shall have no remedy in respect of any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether a party to the Contract or not) other than as expressly set out in the Contract and these Conditions. The only remedy available to it shall be for breach of contract under the terms of the Contract. Nothing in this Condition shall, however, operate or limit or exclude any liability for fraud.
14.9 The Contract shall be governed by and construed in accordance with the laws of England and the parties submit to the exclusive jurisdiction of the English courts.