Terms of Business

Middledale Foods Limited Terms and Conditions of Sale

1 1 INTERPRETATION
1.1 Definitions:
Business Day: means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Conditions: means the terms and conditions set out in this document as amended from time to time in accordance with clause 12.3.

Contract: means the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: means the person, firm or company who purchases the Goods from the Supplier.

Force Majeure Event: means an event or circumstance beyond a party’s reasonable control.

Goods: means the goods (or any part of them) set out in the Order.

Order: means the Customer’s order for the Goods, as set out in the Customer’s purchase order form, in the Customer’s written acceptance of the Supplier’s quotation, or placed by email or telephone, as the case may be.

Supplier: means Middledale Foods Limited (registered in England and Wales with company number 03188886).

1.2 Interpretation:
(a) 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 re-enacted.
(b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) a reference to writing or written includes emails.

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 Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues acceptance of the Order, whether in writing, by email, telephone or otherwise, at which point the Contract shall come into existence. An Middledale Foods Limited is Registered in England and Wales, UK No. 3188886. VAT No. UK 669 0590 03
Registered Office: The Old Post Office, 41 – 43 Market Place, Chippenham, Wiltshire SN15 3HR
2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.5 The Company reserves the right to alter and amend any specifications, illustrations, data sheets or particulars relating to the Goods from time to time. Any samples, descriptive matter or advertising produced by the Supplier and any descriptions, data sheets or other particulars of all or any of the Goods contained in the Supplier’s website or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 7 days from its date of issue or such other period as may be stated in the quotation.
2.7 No officer, official, servant, agent or employee of the Supplier or any other person whatsoever has authority to transact any business with the Customer other than on the terms set out in these Conditions, or to exclude, alter, vary, modify or qualify all or any of these Conditions unless expressly authorised in writing by a director
of the Supplier.

3 GOODS
3.1 To the extent that the Goods are to be manufactured in accordance with a specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages 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) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Customer’s specification. This clause 3.1 shall survive termination of the Contract.
3.2 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory
or regulatory requirements.

4 DELIVERY
4.1 The Customer, in placing its Order with the Supplier for Goods is not thereby obliging the Supplier to execute the whole of the Order at one time. The Supplier is entitled to execute at its discretion such part of the Order as it is able, ready and willing to execute. Due to the nature of some of the Goods, the Supplier cannot guarantee precise quantities but will use all reasonable endeavours to deliver plus or minus 5% of the whole Order. In such cases, a pro rata adjustment shall be made to the Order invoice to the Customer accordingly.
4.2 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the delivery and the type and quantity of the Goods.
4.3 All pallets, crates, trolleys and pallet boxes supplied with the Goods shall be made available by the Customer for collection at such times as the Supplier shall reasonably request and shall be returned in the same condition as when they were delivered. If the Customer fails to comply with the Supplier’s requirements regarding returnable packaging, the Supplier reserves the right to charge for such returnable packaging at the cost of repair or replacement incurred by the Supplier for the same. Returnable packaging shall not be used for any products of the Customer (other than the Goods) and shall be stored securely, at the Customer’s risk and expense, until collection.
4.4 The Supplier shall deliver the Goods to the Customer’s premises, details of which will be provided to the Supplier by the Customer at the time of the Order, or to a delivery point as otherwise specified by the Customer and agreed by the Supplier. A surcharge may apply if delivery is to be made other than at the Customer’s premises.
4.5 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall in good faith use its best efforts but shall not be liable for any failure or delay in despatch or delivery, or for the consequences of any such failure or delay, or for any loss or damage whatsoever arising out of or in connection with any such failure or delay. The Goods may be delivered by the Supplier in advance of the stated delivery date upon the Supplier giving reasonable notice to the Customer.
4.6 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5 QUALITY
5.1 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the full extent permitted by law.
5.2 The Supplier warrants that, on delivery, the Goods shall: (a) be of satisfactory quality and correspond in all material respects with the Supplier’s product specifications and any other specifications expressly agreed in writing with the Customer; and (b) comply with all applicable food safety laws relating to the Goods.
5.3 Due to the highly perishable nature of the Goods in which the Supplier trades, the Supplier shall not be obliged to entertain any claim in respect of Goods being “out of date” or otherwise of unsatisfactory quality or for any breach of the warranty in clause 5.2 unless written notice thereof is received by the Supplier in the shortest possible time and in any event no later than two days after delivery of the Goods has taken place.
5.4 The Supplier’s recommended storage conditions for Goods are set out in the product specifications for the Goods which are available on request by the Customer. No claim will be entertained from a Customer or otherwise for Goods not (in the opinion of the Supplier) stored in the proper environment.
5.5 The Customer shall inspect the Goods promptly upon delivery and is required to conduct reasonable on-site assessment of the Goods prior to use as an ingredient within its products and/or for re-sale. Where a form of Certificate of Acceptance or Certificate of Compliance is provided by the Supplier, the Customer shall note any alleged defects or deficiencies on such Certificate and return it to the Supplier within two days after delivery of the Goods.
5.6 No claim by or from the Customer for damage, whether in transit or otherwise, for shortage of or delay in delivery, for delivery of incorrect goods, for loss of or non-delivery of any Goods or consignment or any part thereof will be entertained by or on behalf of the Supplier unless the Customer gives immediate notice by telephone or email and subsequently in writing to the Supplier in accordance with clause 12.6 within two days of the date of delivery or receipt of the relevant Goods or consignment.
5.7 All claims, whether under clause 5.3 or clause 5.6, shall be followed by a fully detailed claim against the Supplier in writing within seven Business Days of the date of delivery or receipt of the relevant Goods.
5.8 Subject to clauses 5.3 and 5.4 and the Customer complying with the formalities in this clause 5, if: (a) the Supplier is given a reasonable opportunity of examining such Goods; and
(b) the Customer (if asked to do so by the Supplier) makes such Goods available for collection by the Supplier, the Supplier shall, at its option, where it determines that Goods are defective, provide replacement Goods within a reasonable time or refund the price of the defective Goods in full.
5.9 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.2.
5.10 The terms of this clause 5 shall apply to any replacement Goods supplied by the Supplier.
5.11 Where any goods supplied by the Customer which incorporate the Goods are subject to a product recall by the Customer, the Customer shall indemnify the Supplier against all costs and expenses, loss and damage suffered or incurred by the Supplier arising out of or in connection with such product recall, save to the extent that any defect in the recalled goods is proven to be directly attributable to any failure of the Goods to comply with the warranty in clause 5.2.

6 TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of: (a) the Supplier receives payment in full (in cleared funds) for the Goods and any other goods that the
Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the Customer, the Customer shall: (a) store the Goods separately from all other goods held by the Customer so that they remain readily
identifiable as the Supplier’s property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods or add any other proprietary labels; (c) maintain the Goods in satisfactory condition in line with the product specification provided and keep them insured against all risks for their full price from the date of delivery; (d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.1; (e) give the Supplier such information relating to the Goods as the Supplier may require from time to
time; and (f) allow the Supplier and its agents and employees the right at any time upon reasonable notice to enter into any premises where the Goods are stored in order to inspect them.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time: (a) it does so as principal and not as the Supplier’s agent; (b) it must do so on terms which reserve title to the Goods until the Customer’s purchaser has paid for the Goods in full; (c) the Customer shall notify its purchaser of the retention of title provisions set out in these terms and conditions; and
(d) title to the Goods shall pass from the Supplier to the Customer immediately before the time at which title to the Goods passes from the Customer to its purchaser.
6.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.1, then, without limiting any other right or remedy the Supplier may have: (a) the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and(b) the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and (ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7 PRICE AND PAYMENT
7.1 The price of the Goods shall be the price last notified to the Customer before delivery of the Goods.
7.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods, including increases arising from: (a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials, ingredients and other production or manufacturing costs); (b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the specification; (c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions; or (d) any error in the price stated in the Order.
7.3 The price of the Goods: (a) excludes amounts in respect of any applicable value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the  prevailing rate, subject to the receipt of a valid VAT invoice; and (b) includes the costs and charges of packaging, insurance and transport of the Goods, save where the value of the Order is below the minimum order value stipulated by the Supplier from time to time, in which case a reasonable delivery charge will apply.
7.4 The Supplier shall invoice the Customer for the Goods on or at any time after delivery or collection of the Goods. Invoices will be only be issued by electronic means. No hard copies will be provided.
7.5 The Customer shall pay the invoice in full and in cleared funds by electronic transfer to the bank account nominated in writing by the Supplier. Unless other payment terms have been expressly agreed in writing between the Supplier and the Customer, payment of all invoices shall be made within 30 days from the invoice date.
7.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 3% per annum above HSBC Bank PLC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.7 The Supplier reserves the right to withdraw credit terms previously agreed with the Customer at its absolute discretion at any time on written notice to the Customer. If any payment is not made on the due date, the Supplier may demand immediate payment of any outstanding balance, regardless of any previously agreed credit terms.
7.8 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier 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 the Supplier to the Customer.

8 TERMINATION
8.1 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if: (a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within five days of that party being notified in writing to do so; (b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; (c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or (d) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 8.1(a) to clause 8.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
8.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
8.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.
8.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
8.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

9 LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or
subcontractors (as applicable); (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or (d) defective products under the Consumer Protection Act 1987.
9.2 Subject to clause 9.1: (a) the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of goodwill, complaint charges, loss of business, loss of business opportunity, loss of anticipated saving or any indirect or consequential loss arising under or in connection with the Contract; and (b) the Supplier’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 paid for the defective Goods.

10 FORCE MAJEURE
10.1 Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. 
10.2 For the avoidance of doubt, a Force Majeure Event shall include the following:
(a) an act of God, explosion, flood, tempest, fire or accident;
(b) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
(c) acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
(d) import or export regulations or embargoes;
(e) strikes, lockouts or other industrial actions or trade disputes (whether involving employees of the Supplier or of a third party);
(f) difficulties in obtaining milk, cream or other raw materials, ingredients, labour, fuel, parts or machinery; and
(g) power failure or breakdown in machinery.

11 CONFIDENTIALITY
11.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, products, recipes, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 11.2. For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
11.2 Each party may disclose the other party’s confidential information: (a) to its employees, officers, representatives or advisers who need to know such information for the
purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 11.2; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
11.4 Each party reserves all rights in its confidential information. No rights or obligations in respect of a party’s confidential information other than as expressly granted by a party are granted to the other party or to be implied from the Contract. All intellectual property rights in any recipes provided by the Supplier to the Customer shall remain the property of the Supplier.

12 GENERAL
12.1 Assignment and other dealings (a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. (b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
12.2 Entire agreement (a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. (b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
12.3 Variation No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.4 Waiver 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 Severance If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
12.6 Notices (a) 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 or other next working day delivery service or commercial courier. (b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.6(a) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed. (c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.7 Third party rights No one other than a party to this Contract shall have any right to enforce any of its terms.
12.8 Governing law The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
12.9 Jurisdiction Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation