1. Basis of Supply

1.1 These Terms set out the basis on which Filbert’s Fine Foods Limited (the “Supplier”) will supply products (“Goods”) to the person or entity purchasing Goods from the Supplier (the “Buyer”).

1.2 These Terms are incorporated into each order for Goods placed by the Buyer (an “Order”). Each Order shall (subject to acceptance in accordance with clause 2) form a separate contract between the Supplier and the Buyer (each a “Contract”) comprising the relevant Order, these Terms, the Price List (as defined in clause 2.1) and any other terms agreed by the parties.

1.3 In the event of a conflict between these Terms and the content of any Order, these Terms shall prevail unless the content of the relevant Order has been expressly agreed in writing between the parties. 

1.4 These Terms apply to the exclusion of any other terms and conditions stipulated or proposed in any way by the Buyer or which are implied by trade, custom, practice or course of dealing.

2. Orders

2.1 The Buyer may place Orders by email, on the Supplier’s or one of its partner’s websites, or verbally. Orders must specify the Goods required by the Buyer and the quantity and shall be made on the basis of the most recent product and price list provided to the Buyer by the Supplier (the “Price List”). Any purported departure from the Price List or inclusion of additional terms shall, unless otherwise agreed by the Supplier, not form part of the Contract.

2.2 Each Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Terms. The Buyer is responsible for ensuring that the terms of each Order are complete and accurate.

2.3 Following receipt of an Order placed by the Buyer, the Supplier may accept the Order by email, online or by supplying the Goods to the Buyer. No Contract shall come into effect until the Supplier has accepted the Order in this way. 

2.4 The Supplier shall endeavour to notify the Buyer if an Order is not accepted or cannot be met by the Supplier. The Supplier shall notify the Buyer if an Order cannot be met without a deposit payment being made, in which case the relevant Order shall only become binding on the parties once such deposit payment has been made. 

2.5 A valid Order placed by the Buyer in accordance with this clause 2 shall become binding upon the Supplier and the Buyer upon acceptance by the Supplier in accordance with these Terms, and no such Order may be amended or cancelled by the Buyer without the Supplier’s written agreement.

2.6 If the Buyer requires the Goods to comply with any laws relating to food safety, hygiene, packaging or labelling in any jurisdiction outside the United Kingdom, it shall notify the Supplier in writing of such laws before placing its order, and shall promptly notify the Supplier of any changes or proposed changes in such laws which may be relevant to future orders.

3. Price and Payment

3.1 Subject to clause 3.2, the price of the Goods shall be as stated in the Price List. All amounts referred to in the Price List shall, unless otherwise specified, be interpreted as being amounts exclusive of value added tax, any similar sales tax or any tax that replaces such sales taxes (together “VAT”), which shall be paid in addition to those amounts. If the Buyer is required under any applicable law to withhold or deduct any amount from the payments due to the Supplier (or if any payment due to the Supplier is subject to any banking or other similar charges), the Buyer shall increase the sum it pays to the Supplier by the amount necessary to leave the Supplier with an amount equal to the sum it would have received if no such withholdings or deductions had been made (or if no such charges had applied).

3.2 The Buyer shall be additionally responsible for carriage, insurance, storage and other ancillary charges (including, without limitation, the cost of obtaining any export licenses where relevant) (“Ancillary Charges”) which shall be payable by the Buyer at the same time as the price, as if they form part of the price for the Goods to which they relate and shall be treated as such for the purposes of these Terms. The Supplier shall give a fixed figure or reasonable estimate as to its Ancillary Charges for any Order or part thereof at the Buyer’s request.

3.3 Invoices are normally issued by the Supplier at the time of delivery in accordance with clause 5.3. However, if it has been agreed that the Buyer will pay a deposit or pay for the Goods in full in advance of delivery, the Supplier will issue an invoice for the relevant amount as soon as reasonably practicable following the relevant Order being accepted. The Buyer shall pay the Supplier’s invoices (without any deduction or withholding on any grounds) by whatever means agreed between the parties:

3.3.1 in the case of a deposit or other payment in advance of delivery, within 5 days of issue; or

3.3.2 in all other cases, within 30 days of issue. 

3.4 Any extension or credit granted to the Buyer may be changed or withdrawn at any time.

3.5 Without prejudice to the Supplier’s other remedies under these Terms or at law, late payment of any invoice shall attract interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.

4. Warranty

4.1 The Supplier warrants that, as at the date of delivery, the Goods shall:

4.1.1 conform in all material respects to their description and any applicable specification for the Goods that has been agreed in writing between the parties;

4.1.2 be of satisfactory quality (within the meaning of the sale of Goods Act 1979).

4.2 All other warranties or conditions (whether express or implied) as to quality, condition, description, compliance with sample or fitness for purpose (whether statutory or otherwise) are excluded to the fullest extent permitted by law.

4.3 Subject always to clause 9.3, the Supplier shall refund or replace (at its option) any Goods which do not comply with the warranty contained in clause 4.1, provided that the Buyer notifies the Supplier within the timescales specified in clause 8.

5. Delivery

5.1 Any time(s) or date(s) for lead times or delivery are given in good faith but are approximate estimates only and time is not of the essence for delivery of the Goods. The Supplier shall not be liable for any direct or indirect loss, damage or expense howsoever arising from any failure of the Supplier to deliver at such time(s) or date(s).

5.2 The Supplier reserves the right to deliver Goods by instalments (which shall be invoiced and paid for separately) and may treat each such instalment delivery as a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.

5.3 Delivery shall take place upon the Supplier making the Goods available at the address specified by the Buyer in the Order or such other address as the parties shall have agreed.

5.4 The Buyer shall be liable for any additional costs suffered by the Supplier in the event of the Buyer’s refusal or delay in accepting delivery, in failing to provide premises, services or information for the Supplier to effect safe delivery, or in the event of deliveries being withheld following the suspension of any Order under clause 10.1.

5.5 The Goods are supplied subject to customary tolerances, which expressly include reasonable variations from any prior sample or description, including, without limitation, as to the colour and design of packaging. The Buyer shall not be entitled to reject the Goods if the quantity actually delivered is no greater than 10% more or less than the quantity of Goods ordered and the Buyer shall pay for the actual quantity delivered.

6. Force Majeure

6.1 The Supplier shall not be liable for any failure or delay in performing its obligations arising from circumstances outside its reasonable control affecting the Supplier’s ability to acquire the Goods or raw materials, or to manufacture, package or deliver the same, except at increased prices (“Force Majeure”).

6.2 In circumstances of Force Majeure, the Supplier shall endeavour to notify the Buyer as soon as reasonably practicable and may at its discretion:

6.2.1 make such reasonable alternative arrangements as may be necessary to enable it to resume performance in whole or in part; and/or

6.2.2 suspend any Order in whole or in part; and/or

6.2.3 cancel any Order in whole or in part.

7. Ownership and Risk

7.1 Subject to clause 7.2, ownership of the Goods comprised in any Order shall not pass to the Buyer until the Buyer has paid to the Supplier all sums owed by the Buyer to the Supplier in respect of that Order. Whilst the Goods remain the Supplier’s property, the Buyer shall:

7.1.1 keep the Goods secure and store them separately from all other goods held by the Buyer so that they remain readily identifiable as the property of the Supplier;

7.1.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

7.1.3 adequately store the Goods and maintain them in satisfactory condition;

7.1.4 not dispose or part with possession of, charge or deal with the Goods in any way; and

7.1.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.

7.2 If the Buyer has paid for the Goods in full in advance of delivery, ownership of the Goods comprised in the relevant Order shall pass to the Buyer on delivery in accordance with clause 5.3.

7.3 If payment of any sum is overdue in respect of any Goods or if the Buyer, having taken delivery of the Goods, becomes subject to any of the events in clause 10.1, the Supplier shall have the right (without prejudice to any other remedy which may exist under these Terms or at law):

7.3.1 to commence proceedings against the Buyer for the price of such Goods, notwithstanding that property in the Goods has not yet passed to the Buyer; or

7.3.2 to require the Buyer to deliver up all Goods in its possession or itself to repossess such Goods at the Buyer’s cost and, for this purpose, the Buyer hereby grants an irrevocable right and licence to the Supplier and its representatives to enter upon any premises where the Goods are stored with or without vehicles during normal business hours and shall indemnify the Supplier for its costs incurred in doing so.

7.4 The Goods shall be at the Buyer’s risk as from delivery to the Buyer in accordance with clause 5.3 and, from that time, the Buyer will keep them properly insured for not less than their price until ownership in such Goods has passed to the Buyer under clause 7.1.

8. Defects and Returns

8.1 Save in the case of defects or failures which are not apparent from a reasonable inspection of the Goods (“Latent Defects”), any failure of the Goods to comply with the warranty contained in clause 4.1 must be notified to the Supplier in writing within 7 days of delivery.

8.2 In the case of Latent Defects, any such failure to comply with the warranty contained in clause 4.1 must be notified to the Supplier in writing within 7 days of them becoming reasonably apparent to the Buyer (and, in any event, within three months of delivery).

8.3 The Supplier’s sole and exclusive liability in respect of any such failure of the Goods to comply with the warranty at clause 4.1 shall (at its option) be to replace, or refund the price of, such Goods, as soon as it is reasonably able.

8.4 Goods may only be returned to the Supplier where the Supplier has agreed to this in writing and such a return shall not be deemed acknowledgement of any defect. Any such Goods must be returned in their original packaging at the Buyer’s cost, save where the Supplier has agreed otherwise in writing.

9. Liability and Insurance

9.1 The Supplier’s maximum liability to the Buyer (whether such liability arises in contract, tort (including negligence), breach of statutory duty or otherwise) in respect of any individual Contract shall be the price paid by the Buyer to the Supplier in respect of that Contract (excluding applicable VAT).

9.2 The Supplier shall under no circumstances be liable to the Buyer for any loss of profit, revenue, reputation, goodwill, business, data or anticipated gain or any special, indirect or consequential loss of any kind (even if the Supplier is advised in advance of the possibility of any such losses) or for any loss arising from a failure or delay on the part of the Supplier in performing its obligations under a Contract to the extent that such failure or delay was caused or contributed to by an act or omission of the Buyer.

9.3 The Supplier shall not be liable (whether under the warranty at clause 4.1 or otherwise) for:

9.3.1 any loss, defect or failure arising from the Buyer’s misuse of the Goods on or after delivery;

9.3.2 any loss, defect or failure arising out of the Buyer’s wilful damage or negligence (or that of its agents or employees), or any failure to follow any oral or written instructions issued by the Supplier as to the transportation and storage of the Goods or (if no such instructions have been issued) good trade practice regarding the same;

9.3.2 any defect or failure in the Goods unless it is notified to the Supplier within the timescales specified in clause 8;

9.3.3 any failure of the Goods to conform to their description or any applicable specification as a result of changes made to ensure compliance with applicable statutory or regulatory requirements in any relevant jurisdiction; or

9.3.4 any damage to, or loss of, all or part of the Goods in transit where the Goods are carried by the Buyer’s own transport or by a carrier on behalf of the Buyer (including, without limitation, as a result of poor freight handling or storage conditions); or

9.3.5 any loss, failure or defect arising as a result of the Supplier following the Buyer’s instructions or specifications.

9.4 The Buyer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses suffered or incurred by the Supplier in connection with any claim or demand against the Supplier by the Buyer’s customers or any other person acquiring the Goods directly or indirectly through the Buyer, save where such claim or demand arises from a failure of the Goods to comply with any applicable laws relating to food safety, hygiene, packaging or labelling (provided that, if the Buyer requires the Goods to comply with any laws relating to food safety, hygiene, packaging or labelling in a jurisdiction outside the United Kingdom, the Buyer has notified the Supplier in writing of such laws).

9.5 The Buyer shall maintain insurance at a level reasonably required by the Supplier from time to time to cover the Buyer’s potential liability to the Supplier under clause 9.4 and to persons acquiring the Goods directly or indirectly from it, and shall at any time on request by the Supplier provide evidence that such insurance is currently in force.

9.6 To the extent that any Goods are to be manufactured and/or packaged in accordance with any specification or instructions supplied by the Buyer, the Buyer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses  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 specification or instructions supplied by the Buyer.

9.7 Nothing in this clause 9 or these Terms as a whole shall operate to exclude any liability of the Supplier for:

9.7.1 death or personal injury caused by its negligence;

9.7.2 fraud or fraudulent misrepresentation; or

9.7.4 any other liability which it is not possible to limit or exclude at law.

10. Completion, Suspension and Cancellation of Orders

10.1 The Supplier may suspend or cancel any undelivered Order in whole or in part by giving notice to the Buyer where:

10.1.1 any sums owed to the Supplier by the Buyer under any Contract or otherwise have not been paid by the relevant due date set out in clause 3; or

10.1.2 the Buyer is otherwise materially in breach of its obligations under these Terms (which shall include, without limitation, any breach whatsoever of clause 9.5); or

10.1.3 the Buyer is unable to pay its debts as they fall due, makes any voluntary arrangement or composition with creditors, is adjudicated bankrupt or enters into administration or liquidation, or suffers/takes any similar or equivalent measure in this or any other jurisdiction; or

10.1.4 the Buyer refuses to provide a guarantee as referred to in clause 12.

10.2 Upon cancellation of any Order, the Buyer shall have no further liability to pay for such Order save in respect of Goods already delivered, but shall be liable for the Supplier’s reasonable costs incurred in relation to such Order prior to its cancellation. The Supplier shall refund any deposit or payment taken prior to delivery if cancellation occurs in the circumstances set out in clause 6.2.3 or clause 10.1.4, but not in the circumstances set out in clauses 10.1.1 to 10.1.3.

10.3 The conclusion of any Order, or the cancellation or suspension of any Order under this clause 10 or otherwise, shall not affect any accrued rights of the Supplier and liabilities of the Buyer or the continuation in force of any provision of these Terms to the extent that it is expressly or by implication intended to continue in force thereafter, including, without limitation, clauses 1, 3, 7, 8, 9, 11 and 13.

11. Intellectual Property and Packaging

11.1 The Buyer shall not acquire any rights in the Supplier’s brand or any other intellectual property owned or used by the Supplier from time to time, save for the right to sell the Goods to its own customers (subject always to clause 7) in the packaging provided by the Supplier. The Buyer shall take no action inconsistent with the Supplier’s ownership of all such intellectual property (including, without limitation, seeking to register any trade mark or trade name which is identical to, confusingly similar to or incorporates any trade mark or trade name which the Supplier owns or claims rights in anywhere in the world) and shall notify the Supplier in writing or by email upon becoming aware of:

11.1.1 any actual or likely, current or future infringement of the Supplier’s intellectual property by any person, including, without limitation, the Buyer’s customers; and

11.1.2 any claim by any third party that the sale or advertisement of the Goods infringes the rights of any person,

and the Buyer agrees to do all such things as may be reasonably required to assist the Supplier in taking or resisting any proceedings in relation to any such infringement or claim.

11.2 The Buyer shall not sell the Goods other than in the packaging provided by the Supplier.

12. Guarantee

If, in the opinion of the Supplier, there is a deterioration in the creditworthiness of the Buyer, the Supplier reserves the right to ask the Buyer to provide such guarantees as the Supplier may deem proper to ensure the full performance of all the Buyer’s obligations. Such request may be made before or after delivery of all or part of any Order. Should the Buyer fail to meet any demand for such guarantee, the Supplier shall have the right to cancel any undelivered Orders in accordance with clause 10.1.4.

13. General

13.1 Headings included in these Terms are for convenience only and shall not affect their interpretation.

13.2 References in these Terms to any statute or statutory provision shall be construed as a reference to such statute or statutory provision as amended, modified, consolidated, re-enacted or replaced from time to time.

13.2 Each Contract sets out the Supplier’s and the Buyer’s entire agreement relating to the relevant Order and supersedes all prior representations and arrangements between the parties (including, without limitation, any indications given by or on behalf of the Supplier concerning prices, terms of delivery or otherwise). The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by, or on behalf of, the Supplier which is not set out in the relevant Contract.

13.3 If any provision of these Terms is held to be invalid or unenforceable in any jurisdiction, that provision shall to that extent be deemed not to form part of these Terms, but this shall not affect the validity or enforceability of any other provision in that jurisdiction (or the validity or enforceability of that provision or any other in any other jurisdiction).

13.4 No variation to an individual Contract shall be valid unless it is in writing and signed by the authorised representatives of the Buyer and the Supplier.

13.5 The Buyer 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 a Contract without the prior written consent of the Supplier.

13.6 A waiver of any right or remedy under these Terms or law 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 these Terms 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.

13.7 A person who is not a party to a Contract shall not have any rights to enforce its terms.

13.8 Any notice or other communication given to a party under, or in connection with, these Terms 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) and shall be delivered personally, sent by pre-paid first class post (or, if applicable, pre-paid international airmail), other next day delivery service, commercial courier or e-mail. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the relevant address; if sent by pre-paid first class post or other next day delivery service, at the start of the second business day after posting; if sent by pre-paid international airmail, at the start of the fifth 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.

14. Governing Law and Jurisdiction

14.1 Each Contract shall be governed by, and construed in accordance with, English law. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply.

14.2 Subject to clause 14.3, each party submits to the exclusive jurisdiction of the English courts and agrees that, in respect of proceedings in England and Wales and in any other jurisdiction, process may be served on either of them in the manner specified for notices in clause 13.8.

14.3 Nothing in this clause 14 shall limit the right of the Supplier to take proceedings against the Buyer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the Supplier from taking proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.

14.4 It is the Buyer’s obligation to acquaint itself and to comply with all applicable requirements and restrictions imposed by law or by governmental and other authorities or corporations relating to the possession, use, export, import or resale of the Goods (including any labelling). It is also the Buyer’s obligation to ensure that no Goods are exported or imported in violation of the laws of any jurisdiction into or through which the Goods are transported. The Buyer shall be responsible for obtaining, at its own cost, such export and import licences and other consents in relation to the Goods as are required from time to time and, if required by the Supplier, the Buyer shall make those licences and consents available to the Supplier prior to delivery. The Buyer shall inform the Supplier at a reasonable time prior to delivery of any documents which the Supplier is required to provide or obtain in order to allow export of the Goods and the Supplier shall, at the Buyer’s expense, use all reasonable endeavours to provide or obtain such documents.

14.5 The rights set out in this clause 14 are in addition to any other manner of service permitted by law at the time when service is made.