The following are the standard conditions of sale of Synergy Flavours Limited of Hillbottom Road, High Wycombe, Buckinghamshire, England (hereinafter called “the Seller”). All goods sold by the Seller are sold subject to these conditions of sale. The person, firm or company purchasing goods from the Seller shall hereinafter be called “the Buyer”.
(a) These conditions of sale shall apply to all sales of goods by the Seller. Terms and conditions on the Buyer’s order form or other similar document shall not be binding on the Seller. The placing of an order for or the acceptance of the goods by the Buyer shall indicate unqualified acceptance of these conditions of sale. No variation or purported variation (shall have effect unless expressly agreed to in writing by the Seller.
(b) There shall be no contract between the Seller and the Buyer until the Buyer’s order is accepted by the Seller.
(c) Each order accepted by the Seller shall create a separate contract between the Seller and the Buyer.
2. Transfer of Ownership
(a) The ownership in the goods shall remain with the Seller until the Seller has received payment in full for all goods supplied by the Seller. .
(b) If the Buyer wishes to sell or otherwise dispose of the goods before payment in full has been made to the Seller, the Buyer shall in such case act on his own account and not as agent for the Seller and shall hold all monies received by him from such sale or disposal in trust for the Seller and shall furnish the Seller on request with the names and addresses of the persons to whom such disposals have been made together with all necessary particulars to enable the Seller to recover any outstanding sums due from such persons.
(c) So long as the ownership in the goods remains with the Seller, the Buyer shall hold the goods as fiduciary agent of the Seller and store the goods so as to clearly show them to be property of the Seller, and the Seller shall have the right, without prejudice to the obligations of the Buyer to purchase the goods, to retake possession of or repossess the goods at any time (and for that purpose to go upon any premises occupied by the Buyer.)
(d) Nothing in this clause shall confer any right upon the Buyer to return the goods. The Seller may maintain an action for the price notwithstanding that ownership in the goods shall not have been vested in the Buyer.
3. Risk of loss or damage
(a) Notwithstanding that the ownership in the goods may not have been passed to the Buyer, the Buyer shall carry all risk of and damage to the goods from the time when the goods are delivered to a carrier for transmission to the Buyer or the prior delivery of the goods to the stipulated place of delivery, either of which events shall constitute delivery to the Buyer.
(b) From when the risk of loss of damage to the goods commences to be carried by the Buyer until the Seller is paid in full for the goods, the Buyer shall
(i) indemnify and keep indemnified the Seller against all loss of and damage to the goods and against reduction In the re-sale value thereof below the price to be paid therefore by the Buyer,
(ii) insure and keep insured the goods in an amount at least equal to the price to be paid therefore by the Buyer, and
(iii) hold upon trust for the Seller absolutely all proceeds of such insurance.
(a) Any times quoted for delivery are estimates only and the Seller shall not be liable for failure to deliver within the time quoted. Fees imposed by the buyer for non-compliance will not be accepted.
(b) If the goods are not received by the Buyer within six days from the date of the relevant invoice, the carrier and the Seller must at once be informed.
(c) The Seller shall be entitled to make partial deliveries or deliveries by installments and the terms and conditions herein contained shall apply to each partial delivery.
(d) Deviations in quantity of the goods (representing not more than 10 per cent by value) from that stated in the contract shall not give the Buyer any right to reject the goods or to claim for damages and the Buyer shall be obliged to accept and pay at the contract rate for the quantity of the goods delivered.
5. Remedies for any defects etc
Except in those cases where the Seller is not permitted to limit or exclude its liability as a matter of law, the Seller shall not be under any liability whatsoever howsoever arising (including without prejudice to the generality of the foregoing liability whether founded in common law or statute arising from the Seller’s negligence or that of any persons for whom the Seller is vicariously liable) save as follows: :-
(a) Any defects in the goods which should reasonably have been discovered by the Buyer on inspection or test prior to using them
(b) If by reason of any defect in the goods there shall be a breach of any implied condition or warranty applicable thereto, the Seller shall at its option either repair or replace the goods or issue a credit note to the Buyer for the invoice value of the goods, provided that
(i) the Seller is notified in writing within seven days after delivery,
(ii) the relevant goods are returned to the Seller at the cost of the Buyer,
(iii) examination of such goods by the Seller shall disclose to its satisfaction (that the defect or failure to conform to specifications existed at the time of the delivery or) that a breach of an implied condition or warranty shall have occurred as aforesaid, and in particular that the goods shall not have been affected by misuse, negligence, accident, improper storage, installation or handling by repair or alteration not affected by the Seller; and
(iv) the Buyer shall pay to the Seller the cost (as stated by the Seller) of any examination of the goods as a result of which the Seller does not admit liability.
(c) The Seller’s liability for any claim, whatsoever in contract, tort (including negligence) or otherwise, for any loss or damage arising out of or in connection with or resulting from the manufacture, sale, delivery, re-sale, replacement or any use of any of the goods shall in no case exceed the price paid by the Buyer to the Seller for the goods which give rise to the claim, plus expenses of customs, taxes, freight and insurance for carriage. In no event shall the Seller be liable for any loss of profits, revenues or business, third party claims or any special, indirect or consequential losses suffered by the Buyer, including interest charges. Nothing contained in this paragraph shall by implication create any liability or obligation on the part of the Seller, or effect or diminish any disclaimer or liability elsewhere contained herein.
(d) Except as expressly stated above all other warranties, conditions and representations, express or implied, statutory or otherwise, in relation to the quality or fitness for any particular purpose of the goods are hereby excluded to the fullest extent permitted by law and the Seller shall not be liable in contract, tort or otherwise for any loss, damage, expense or injury of any kind whatsoever, consequential or otherwise, arising out of or in connection with the goods sold or in any defect in them or from any other cause, whether or not any such matter amounts to a fundamental breach or a fun¬damental term of the contract.
(e) Any claim against the Seller arising out of or in connection with the goods must be made within one year from the date of receipt of the goods in question by the Buyer.
(f) Cancellation of an order once placed will not be accepted (with the exception of (5g)). The order is contractually binding once accepted by the Seller
(g) The Buyer shall not reject any goods or cancel or purport to cancel an order or any part of it because of an alleged default unless the Seller shall have failed to correct such alleged default within thirty days of written notice specifying the default.
(h) Nothing in this condition affects or will affect the statutory rights of a consumer.
6. Default by Buyer
(a) if the Buyer
(i) fails to comply with any of these conditions of sale (including stipulations as to payment)
(ii) commits an act of bankruptcy, makes an arrangement or composition with creditors or suffers any distress or execution, or
(iii) resolves or is ordered to be wound up or has had a receiver appointed
then, in any such event, the Seller shall have the right, (without prejudice to any other remedies), to cancel any uncompleted order and withhold or suspend delivery of further goods, and to demand payment forthwith of all sums due by the Buyer to the Seller.
(b) In the event the Seller exercises any rights it may have to stop goods in transit because of the Buyer’s financial condition, the Seller may at its option resell such goods at public or private sale without notice to the Buyer and without affecting the Seller’s rights to hold the Buyer liable for any loss or damage caused by breach of contract by the Buyer.
Net monthly account Payment terms are 30 days End of Month in which the invoice is dated, unless specifically agreed otherwise.
8. Force Majeure
The Seller shall not be under any liability of whatever kind for non-performance in whole or in part of its obligations under the contract due to causes beyond the control of the Seller or beyond the control of the Seller’s suppliers including, but not limited to, war, (whether an actual declaration thereof Is made or not), sabotage, insurrection, riot or other act of civil disobedience, acts of the Buyer or a third party, failure or delay in transportation, acts of any Government or any agency or sub-division thereof, Government regulations, Judicial actions, labour disputes, strikes, embargoes, illness, accident, fire explosion, flood, tempest or other acts of God, delay in delivery to the Seller or the Seller’s suppliers or shortage of labour, fuel, raw materials or machinery or technical failure. In any such event, the contract including, but not limited to, extending the lime for performing the contract of at least equal to the time lost by reason of such causes.
The Buyer shall not assign or transfer or purport to assign or transfer to any other person the contract or the benefit of any condition, warranty or guarantee or other term or condition (express or implied) forming part thereof or relating to the goods.
10. Intellectual property and confidentiality
All intellectual property rights in the goods (including but not limited to copyright, patents, design rights and confidential rights) shall remain the absolute property of the Seller. Any intellectual property or any confidential information passed to the Buyer shall be treated as confidential by the Buyer, its employees, agent and contractors. It shall not be reproduced or disclosed to any third party for any purpose other than for the purpose for which it was disclosed or until it is lawfully in the public domain or comes into the Buyer’s possession bona fide from a third party.
The Seller undertakes that it will use its reasonable endeavors to ensure the goods supplied correspond with any samples or specification provided by the Buyer. However, such samples or specification do not constitute a warranty or guarantee of the properties or condition of the goods or their suitability for the intended purpose. It is the responsibility of the Buyer to satisfy itself that the goods meet its requirements. The Buyer shall examine the goods upon receipt and prior to processing them to ascertain that the goods s correspond with any sample and comply with any specification provided by the Buyer. The Seller shall be under no liability if such goods s are not fit for any purpose whether the same be made known to the Seller or not. Where type samples have been submitted for general consideration by the Buyer they shall not be regarded as definitive Nothing in these conditions shall limit the statutory rights of a Buyer who is a purchasing the goods as a consumer.
12. Governing law and jurisdiction
The construction and validity of these conditions of sale shall be governed by English law and the parties agree to submit any dispute to the jurisdiction of the English courts. However, the Seller shall be permitted to bring legal proceedings in any other court of competent jurisdiction including the jurisdiction where the Buyer is based.