Terms & Conditions
The customer’s attention is drawn in particular to the limitation of liability in clause 10.
1.1. 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 13.6; “Consumer”: an end user consumer who has purchased the Products from a third party to whom the Customer has sold such Products in the ordinary course of the Customer’s business subject to and in accordance with terms and conditions of these Conditions; “Consumer Complaint”: any expression of dissatisfaction made by a Consumer to the Customer, whether made orally or in writing; “Contract”: the contract between Freshpac and the Customer for the sale and purchase of the Products in accordance with these Conditions Customer”: the person or firm who purchases the Products from Freshpac: “Rental Agreement” the main distribution agreement made between Freshpac and the Customer; “Force Majeure Event”: has the meaning given in clause 11; “Freshpac”: Freshpac Teas and Coffees Limited, registered in England and Wales with company number 05958995 and with its registered office at; The Octagon Suite E2, 2nd Floor, Middleborough, Colchester, Essex, England, CO1 1TG “Minimum Order Value”: has the meaning set out in the Rental agreement; “Order”: the Customer’s order for the Products, howsoever made; and “Products”: the products (or any part of them) set out in the Order.
1.2. In these Conditions, the following rules of interpretation 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 reenacted;
1.2.4. any phrase introduced by the terms “including“, “include“, “in particular” or any similar expression shall illustrative and shall not limit the sense of the words preceding them; and
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 Products in accordance with these Conditions and the terms of the rental agreement The Order shall only be deemed to be accepted when Freshpac either issues a written acceptance of the Order or otherwise takes action (such as arranging delivery of the Products) to accept the Order (“Acceptance“), at which point the Contract shall come into existence. In the event of a conflict between the Order and the Acceptance, the terms of the Acceptance shall prevail. Unless otherwise notified in writing, Freshpac shall not accept an Order for less than the Minimum Order Value. In the event of a conflict between these Conditions and the Distribution Agreement, the terms of the rental agreement shall prevail.
2.3. The Contract and the rental agreement (and all Orders accepted by the Supplier pursuant to them from time to time) constitute 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 Freshpac, which is not set out in the Contract.
2.4. Any samples, descriptive matter or advertising produced by Freshpac are produced for the sole purpose of giving an approximate idea of the Products. They shall not form part of the Contract or have any contractual force.
3.1. Freshpac reserves the right to amend the ingredients or specification of the Products from time to time.
3.2. Save where such amendments to the ingredients or specification of the Products are required by any applicable statutory or regulatory requirements, Freshpac will endeavour to provide reasonable advance notice to the Customer of any such amendments that are likely materially and adversely to affect the quality or marketability of the Products.
4.1. Freshpac shall deliver the Products to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after Freshpac notifies the Customer that the Products are ready. Delivery of the Products shall be completed on the Products’ arrival at the Delivery Location.
4.2. Freshpac shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Customer’s failure to provide Freshpac with adequate delivery instructions.
4.3. The Customer’s failure to take or accept delivery may result in delays and Products being returned to Freshpac. Freshpac may charge the Customer for any return visits made as a result of the Customer’s failure to take delivery of the Products.
4.4. Subject to clause 4.2, if Freshpac fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Products. Freshpac shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Freshpac with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.5. If the Customer fails to take or accept delivery of the Products within three (3) Business Days of Freshpac notifying the Customer that the Products are ready, then, except where such failure or delay is caused by a Force Majeure Event or Freshpac failure to comply with its obligations under the Contract:
4.5.1. delivery of’ the Products shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Freshpac notified the Customer that the Products were ready; and
4.5.2. Freshpac shall store the Products until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.6. If ten (10) Business Days after the day on which Freshpac notified the Customer that the Products were ready for delivery the Customer has not taken delivery of them, Freshpac may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Products.
5.1. Freshpac warrants that on delivery the Products (including all ingredients therein) shall:
5.1.1. conform in all material respects with their description and any applicable specification of the Products from time to time;
5.1.2. be free from material defects in design, material and workmanship;
5.1.3. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979);
5.1.4. comply with all applicable statutory and regulatory requirements relating to the manufacture, labeling, packaging, storage, handling and delivery of the Products; and
5.1.5. be fit for any purpose expressly held out in writing by Freshpac.
5.2. Subject to clause 5.3, if
5.2.1. the Customer gives notice in writing to Freshpac within two (2) Business Days of delivery that some or all of the Products do not comply with the warranty set out in clause 5.1;
5.2.2. Freshpac is given a reasonable opportunity of examining such Products; and
5.2.3. the Customer (if asked to do so by Freshpac) returns such Products to Freshpac’s place of business at the Customer’s cost,
Freshpac shall, at its option, replace the defective Products or refund the price of the defective Products in full.
5.3. Freshpac shall not be liable for Products’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
5.3.1. the defect arises because the Customer (or its contractors, agents or employees) failed to follow Freshpac’s oral or written instructions as to the storage, handling, and use of the Products or (if there are none) good trade practice regarding the same;
5.3.2. the defect arises because of any alteration to such Products made by or on behalf of the Customer without the written consent of Freshpac;
5.3.3. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage conditions; or
5.3.4. the Products differ from their description and any applicable specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.5. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and any other warranties or conditions implied by law are, to the fullest extent permitted by law, excluded from the Contract.
5.4. Except as provided in this clause 5, Freshpac shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 5.1.
5.6. These Conditions shall apply to any replacement Products supplied by Freshpac.
6. TITLE AND RISK
6.1. The risk in the Products shall pass to the Customer on completion of delivery (including deemed delivery) as provided for in clause 4.
6.2. Title to the Products shall not pass to the Customer until Freshpac has received payment in full (in cash or cleared funds) for:
6.2.1. the Products and
6.2.2. any other goods or services that Freshpac has supplied to the Customer in respect of which payment has become due.
6.3. Until title to the Products has passed to the Customer, the Customer shall:
6.3.1. hold the Products on a fiduciary basis as Freshpac’s bailee;
6.3.2. store the Products separately from all other goods held by the Customer so that they remain readily identifiable as Freshpac’s property;
6.3.3. not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
6.3.4. maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and
6.3.5. notify Freshpac immediately if it becomes subject to any of the events listed in clause 9.2,
but the Customer may resell the Products in the ordinary course of its business.
6.4. If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2, then, provided that the Products have not been resold, and without limiting any other right or remedy Freshpac may have, Freshpac may at any time require the Customer to deliver up the Products and, if the Customer fails to do so promptly, enter any premises of the Customer in order to recover them.
7.1. Freshpac may invoice the Customer for the Products on or at any time after the completion of delivery. The Customer shall pay the invoice in full and in cleared funds at the end of the month, only if a credit facility has been approved in advance. Time of payment is of the essence. If credit has not been approved in advance the Customer must pay for all goods and services upfront.
7.2. If the Customer fails to make any payment due to Freshpac under the Contract by the due date for payment (“due date”), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above National Westminster Bank plc’s base rate from time to time. 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.
7.3. The Customer shall pay all amounts due under the Contract in full without any deduction, set-off or withholding except as required by law. Freshpac may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Freshpac to the Customer.
8. CUSTOMER COMPLAINTS AND PRODUCT RECALLS
8.1. In the event that the Customer receives any Consumer Complaint in respect of a Product, the Customer will:
8.1.1. use all reasonable endeavours to resolve such Consumer Complaint promptly including offering the Consumer a refund or replacement of the relevant Product where such Consumer Complaint is justifiable; and
8.1.2. provide a summary of such Consumer Complaint to Freshpac(including the name and address of the Consumer, details of the Product(s), relevant batch or reference number(s) and details of the steps taken to resolve the Consumer Complaint).
8.2. In the event that the Customer provides a refund or replacement to a Consumer as a result of a justifiable Consumer Complaint in respect of a Product, Freshpac will refund to the Customer the price paid by the Customer for such Product provided that:
8.2.1. the defect giving rise to the Consumer Complaint was caused by the neglect or default of Freshpac (and, for the avoidance of doubt, any defect caused by the circumstances listed in clause 5.3.1 to 5.3.4 above shall not be considered to be caused by the neglect or default of Freshpac);
8.2.2. any “use by” or “best before” date applicable to the relevant Product has not passed; and
8.2.3. the Customer has complied with its obligations under clause 8.1 above.
8.3. In the event that there is a non-compliance issue, Freshpac may (in its sole discretion) undertake a recall or withdrawal of the Products from the market. In such an event:
8.3.1. Freshpac will take full conduct of the recall or withdrawal, including handling all announcements and notifications and any communications with third parties (including any relevant statutory or regulatory bodies, authorities or agencies);
8.3.2. the Customer shall provide such assistance in respect of the recall or withdrawal as reasonably requested by Freshpac (or any relevant statutory or regulatory body, authority or agency); and
8.3.3. Freshpac may (without liability) suspend delivery of any further Products to the Customer until such non-compliance has been resolved.
8.4. For the purposes of clause 8.3, “non-compliance issue” shall mean any situation where Freshpac decides (in its absolute discretion) that the Products do not comply with any statutory or regulatory requirements applicable to the manufacture or sale of food products; or are contaminated by any substance or possess any attribute which (in Freshpac’s opinion) is actually or potentially harmful to Consumers or renders re-sale of the Products commercially unviable.
8.5. For the duration of the Contract, Freshpac shall maintain product liability insurance with a reputable insurer for a claim that the Products are fault, defective or subject to a non-compliance issue.
9.1. If the Customer becomes subject to any of the events listed in clause 9.2, then, without limiting its other rights or remedies, Freshpac may cancel or suspend all further deliveries under the Contract and/or terminate the Contract without incurring any liability to the Customer, and all outstanding sums in respect of Products delivered to the Customer shall become immediately due.
9.2. For the purposes of clause 9.1, the relevant events are:
9.2.1. the Customer is in material breach of any of the provisions of the Contract and, if such breach is capable of remedy, such breach is not remedied within ten (10) Business Days of Freshpac notifying the Customer of the breach:
9.2.2. 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;
9.2.3. 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 other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation or solvent reconstruction of the Customer;
9.2.4. (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 Customer, other than for the sole purpose of a scheme for a solvent amalgamation or solvent reconstruction of the Customer;
9.2.5. (being an individual) the Customer submits an application for its own bankruptcy is the subject of a bankruptcy petition or order or (being a partnership) has any partner to whom the foregoing applies;
9.2.6. 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 14 days;
9.2.7. (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;
9.2.8. (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
9.2.9. a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
9.2.10.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 9.2.2 to clause 9.2.9 (inclusive); and/or
9.2.11.the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business.
9.3. Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. LIMITATION OF LIABILITY
10.1. Nothing in these Conditions shall limit or exclude Freshpac’s liability for:
10.1.1.death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
10.1.2.fraud or fraudulent misrepresentation;
10.1.3.breach of the terms implied by section 12 of the Sale of Goods Act 1979;
10.1.4.defective products under the Consumer Protection Act 1987; or
10.1.5. any matter in respect of which it would be unlawful for Freshpac to exclude or restrict liabilit
10.2. Subject to clause 10.1:
10.2.1.Freshpac shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of contract, loss of opportunity, loss of reputation, loss of goodwill (in each case whether direct or indirect) or any indirect or consequential loss arising under or in connection with the Contract; and
10.2.2.subject to clause 10.2.1, Freshpac’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Products that are the subject of the Contract.
11. FORCE MAJEURE
11.1. Freshpac shall not 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 strikes 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, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, earthquakes, loss at sea, epidemics, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
12. NO PARTNERSHIP OR AGENCY
Except as expressly provided, nothing in the contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, nor authorise a party to make or enter into any commitments for or on behalf of the other party.
13.1. Assignment and subcontracting: Freshpac may at any time assign, transfer, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, subcontract or deal in any other manner with any of its rights or obligations under the Contract without the prior written consent of Freshpac.
13.2.1.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 or e-mail.
13.2.2.A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.2.1 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 e-mail, one Business Day after transmission.
13.2.3.The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
13.3. Severance: 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. 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.
13.4. Waiver: 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.
13.5. Third party rights: A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.6. Variation: Freshpac may amend these Conditions from time to time by providing notice of such variation to the Customer. Save where such variation is required by any applicable statutory or regulatory requirements, any such variation will not affect any existing Contract. Except as set out in these Conditions, 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 Freshpac and the Customer.
13.7. Governing law and jurisdiction: 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 exclusive jurisdiction of the courts of England and Wales.