TERMS AND CONDITIONS OF PURCHASE OF CONSUMABLES

 

This document (together with the documents referred to in it) sets out the Terms and Conditions (Terms) in effect from 6 January 2011, (and a copy of which is available for download at www.lamexfoods.eu), on which L&M Food Group Limited (company number 875838) (VAT no. GB367711926) whose registered office address is situated at Turnford Place, Great Cambridge Road, Turnford, Hertfordshire EN10 6NH, (together with any Holding Company, Subsidiary or associated company of the Supplier, where the Supplier is duly authorised to act on their behalf) (Supplier) supplies Goods, to its customer whose details are set out in the Acceptance of Order Email (Customer). 

These Terms govern the Customer’s purchase of Goods from the Supplier and so the Customer is requested to read these Terms carefully before ordering any Goods from the Supplier.  By placing an Order for any Goods, the Customer confirms that it accepts and agrees to be bound by these Terms. THE CUSTOMER MAY NOT PURCHASE GOODS UNLESS THE CUSTOMER AGREES TO BE BOUND BY THESE TERMS.

1. DEFINITIONS

1.1 In these Terms:

Acceptance of Order Email means the email to Customer confirming acceptance by the Supplier of the offer from Customer to purchase Goods from the Supplier;

Collection means availability of Goods for collection by the Customer on the Collection Date, in accordance with clause 6 herein;

Collection Date means the date for Collection to be advised to the Customer in accordance with clause 6.1;

Confidential Information means information marked as confidential or which is otherwise of a confidential nature (including, but not limited to, trade secrets and information of commercial value, technical information, price lists, data, business plans, customer information, party's operations, processes, plans, product information, know-how, designs, software and market opportunities) known to the Customer and concerning the Supplier or the Goods and communicated to the Customer by the Supplier, except to the extent that such information:

(a)is already in the public domain at the date of the disclosure; or

(b)enters the public domain other than by a breach of an obligation of confidentiality;

Consignment means a batch of part of the Goods;

Deliver(y) means delivery of Goods to the Customer on the Delivery Date, in accordance with clause 6 herein;

Delivery Date means the date for Delivery, to be advised to the Customer in accordance with clause 6.1;

Goods means the goods which Supplier is to supply to Customer in accordance with these Terms and as described in the Acceptance of Order Email (and which may refer to a number of Consignments);

Holding Company means any holding company of any subsidiaries (Subsidiaries), all within the definition of sections 1159 and 1160 and Schedule 6 of the Companies Act 2006

Intellectual Property Rights means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world and ‘Intellectual Property Right’ means any one of the Intellectual Property Rights;

Licence means licences required for the importation of Goods in accordance with EU regulations in force from time to time;

Order means an offer from Customer to purchase Goods;

Order Ref means the unique reference number for the Order;

Packing means the type of packing of the Goods;

Payment Terms means the terms of payment for the Goods described in clause 5;

Price means the price of the Goods;

Price Terms means the terms of the Price of the Goods described in clause 4;

Quantity means the amount of Goods ordered;

Supplier’s Seller means a third party supplier to the Supplier;

Shipment Details shall be the date and any other details relating to Shipment set out in any Acceptance of Order Email;

Vessel/Courier means the type of container used to transport the Goods to the Customer.

1.2Clause and paragraph headings shall not affect the interpretation of these Terms.

1.3 References to clauses are to the clauses of these Terms.

1.4 Words in the singular shall include the plural and vice versa.  A reference to one gender shall include a reference to the other genders.

1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6 An obligation in these Terms on a person not to do something includes an obligation not to agree or allow that thing to be done.

1.7 A reference to a statute, statutory provision or any subordinate legislation made under a statute is to such statute, provision or subordinate legislation as amended or re-enacted from time to time whether before or after the date of these Terms and, in the case of a statute, includes any subordinate legislation made under the statute whether before or after the date of these Terms.

1.8 Except under clause 15.13(c), a reference to writing or written includes faxes and email.

1.9 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.

2. OPERATIVE

2.1 These Terms (and any document referred to in it) and those stated in any Acceptance of Order Email are the only terms on which Supplier is willing to supply Goods to Customer. 

2.2 In the event of any inconsistency between these Terms and any Acceptance of Order Email then these Terms shall prevail. Acceptance by Supplier of any Order from Customer shall be upon these Terms and shall prevail over other terms and conditions purported to otherwise apply unless agreed in writing by Supplier.

2.3 Each Order placed by Customer shall be deemed to be an offer by Customer to purchase the Goods described in the Acceptance of Order Email in accordance with these Terms. Such Order is deemed to be accepted by Supplier when an Acceptance of Order is emailed to Customer. The Order and Acceptance of Order Email, incorporating these Terms, shall together constitute a contract hereunder (Contract).

2.4 The Contract shall commence from the date set out in the first Acknowledgement of Order Email (or, if before then, by any act by the Supplier consistent with fulfilling the Order) and subject to these Terms (including but not limited to clauses 10 and 13), shall terminate upon completion of the performance by the Parties of the terms of a Contract (for the avoidance of doubt, including but not limited to Payment under clause 5 and Delivery/Collection under clause 6).

2.5 Upon receipt of an Acceptance of Order Email, the Customer shall immediately notify the Supplier of any matter contained in that email that may, in the Customer’s reasonable opinion, be inconsistent with the Order placed by the Customer.  The Supplier shall use its reasonable endeavours to accommodate any amendments required by the Customer to the Contract. However, the Supplier shall not be obliged to accept any such amended Order.

2.6 Upon receipt by the Customer of a correct Acceptance of Order Email, the Customer shall confirm the Order Ref by email to the Supplier (however failure to do so does not invalidate the Contract).

2.7

2.7.1     Where applicable, the Contract is subject to receipt of sufficient Licence by the Supplier. The Supplier will apply for License to cover the Contract in good faith, but accepts no liability or responsibility in any way if insufficient License is awarded to the Supplier due to no fault of the Supplier. The Supplier shall have no liability for any failure to supply Goods under the Contract, wholly or in part, as a result of the Supplier being granted insufficient Licence.

 2.7.2     If a Licence is granted and the Customer does not take Delivery or Collection of the Goods under the Contract due to no fault of the Supplier, the Customer shall be responsible for and shall reimburse the Supplier for the cost of the unused element of the Licence within 7 days of receipt of a notice to do so, should the Supplier be unable to find alternative imports to use against the Licence (the Supplier having used its reasonable endeavours to do so).

 

3. THE GOODS

3.1 All descriptions and illustrations contained in any Supplier catalogue, price list, advertisement, representation or otherwise communicated to Customer are intended to present a general idea of the Goods described only and shall not form part of the Contract in any way.

3.2  If a sample of Goods supplied was exhibited to and inspected by Customer, it is hereby agreed that such samples were so exhibited and inspected solely to enable Customer to judge for himself the quality of the Goods and not so as to constitute a sale by sample.

3.3 Supplier reserves the right to deliver 10% more or less than the quantity stipulated on the Acceptance of Order Email and the Customer agrees to accept such quantity delivered in satisfaction of the Contract.  The Price of the Order will be amended pro-rata to the Quantity delivered and will be incorporated into the Contract.

 

4. PRICE

4.1 Prices quoted by Supplier (whether verbally or in writing) shall not be deemed to be offers capable of acceptance and may be withdrawn by Supplier at any time prior to a Contract being entered into.

4.2 Subject to these Terms, the Price of the Goods shall be set out in the Acceptance of Order Email together with the Price Terms and Payment Terms and is set out net of Value Added Tax which shall be added at the appropriate rate.

4.3 Where Packing, carriage, insurance, storage or other charges are shown separately from the Price, they are nevertheless payable by Customer at the same time as if they form part of the Price and the Contract and shall be treated as such for the purposes of these Terms.

4.4 Where Customer requests Supplier to produce or procure Customer specific Packing for use in relation to the Goods then, in the event of the termination of the Contract (howsoever arising) Customer agrees to indemnify Supplier for the full costs to Supplier of all Packing which have been produced or procured by Supplier on behalf of Customer but which remain unused as at the date of termination of the Contract.

4.5 Prices are subject to alteration by Supplier in the event of an increase in the cost to Supplier arising as a result of a Force Majeure Event (as defined in clause 10).

 

5. PAYMENT

5.1 Subject to the provisions of clause 5 payment is due on the payment date specified on an invoice (‘Payment Date’) from Supplier addressed to Customer (‘Invoice’) and in accordance with Price Terms and Payment Terms.

5.2 Where Orders are to be delivered by Consignments, each Consignment will be Invoiced and shall be paid for separately.

5.3 In the case of non-payment of any Invoice on or before 14 days from the Payment Date, then Supplier may charge interest to Customer on the amount overdue under any Invoice, calculated on a daily basis at the rate of 1% per month and without prejudice to any other rights of Supplier.

5.4 Time shall be of the essence for Payment under these Terms and Payment under a Contract is a condition precedent for any future Deliveries of the Goods to Customer under the Contract or under any other Contract.

5.5 All payments due from Customer under these Terms shall be made without any set-off, deduction or deferment of any nature.

5.6 Notwithstanding the provisions of clause 5.1, upon the commencement of any event under clause 13.1, or termination of a Contract for any reason whatsoever, howsoever arising or non-payment of any Invoice (except where such Invoice is disputed), any period of credit permitted to Customer under any Contract shall cease to apply and payment for all Goods under the Contract (including for the avoidance of doubt, all Consignments) shall then become due or be deemed to have become due from the date of such commencement of any such event.

5.7 Supplier may amend the Payment Terms applicable to Customer on reasonable notice to Customer in the event that the Supplier has concerns over Customer’s creditworthiness.

5.8 Without prejudice to the provisions of this clause 5, the fulfillment of any Contract by Supplier shall be conditional upon satisfactory results of credit checks on Customer. In addition each Collection or Delivery of Goods is conditional on the creditworthiness of Customer remaining satisfactory. Supplier may suspend or terminate any Contract without liability in the event that, in it’s sole reasonable opinion, Customer’s creditworthiness is adversely affected or deteriorates in the opinion of Supplier (whose decision on this matter shall be final), or Customer fails to supply to Supplier or to its agents satisfactory credit information. In the event of such failure to supply information or deterioration of the Customer’s credit rating then any period of credit extended to Customer by Supplier may at the discretion of Supplier at any time be withdrawn or reduced.

6. DELIVERY/COLLECTION

6.1 Supplier shall notify Customer of the Collection Date or Delivery Date as soon as reasonably practicable and in any event upon at least 24 hours prior written notice.

6.2 Shipment Details specified for Delivery or Collection on the Acceptance of Order Email are given in good faith as an estimate only. Time for performance by the Supplier of Collection or Delivery shall not be of the essence under these Terms. Delays by the Supplier in Delivery or Collection shall not entitle the Customer to (i) refuse to take Delivery/Collection; or (ii) claim damages; or (iii) terminate this agreement (subject to clause 13).

6.3 Supplier shall not be liable for any direct or indirect loss, damage or expense howsoever arising from:

(i) any delay arising due to a Force Majeure Event or an event caused by either the Customer or by the Supplier; or

(ii) any non Delivery or non Collection arising due to a Force Majeure Event or an event caused by the Customer.

6.4 Supplier shall reserve the right where Collection or Delivery shall be by Consignments, to treat each Delivery or Collection as a separate Contract.

6.5 The Customer shall accept Deliveries or Collection of Goods at the address stated on the Acceptance of Order Email when Delivered and shall be liable for any additional costs suffered by Supplier in the event of wrongful refusal or delay in accepting Delivery or Collection, or in failing to provide adequate premises, services or information for Supplier to effect proper and safe Delivery or Collection.

6.6 If, 10 business days (Monday to Friday inclusive) (Business Days) after the Customer has not accepted Delivery or Collection of the Goods or any Consignment, the Supplier may resell or otherwise dispose in part or all of the Goods or any Consignment, and may account to the Customer for any excess price of the Goods or any Consignment or charge the Customer for any shortfall below the Price of the Goods or any Consignment arising under this clause.

6.7 In these Terms “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 content otherwise requires, any terms or expressions which are defined in or given a particular meaning by the provision of Incoterms shall have the same meaning in these Terms, but if there is any conflict between  the provisions of Incoterms and these Terms, the latter shall prevail.

6.8 Where the Goods are supplied for import into the United Kingdom the provisions of this Condition shall (subject to any special terms agreed in writing between the Customer and Supplier) apply notwithstanding any other provisions of these Terms:

6.8.1 Unless otherwise agreed in writing between the Customer and the Supplier, the Customer shall be responsible for complying with any legislation or regulations for both the export of the Goods from his country and the import of the Goods into the country of destination and for the payment of any duties thereon.

6.8.2 Unless otherwise agreed in writing between the Customer and the Supplier, subject to clause 6.11 the Goods shall be delivered CIF to the Customer’s Delivery or Collection address.

6.9 If an Incoterm applies, Collection or Delivery will take place in accordance with such term.  The Acceptance of Order Email shall set out the type of Vessel/Carrier to be used in connection with the Collection or Delivery of the Goods.   

6.10 It shall be Customer’s responsibility to ensure that, at the point from when Delivery or Collection of the Goods takes effect, the Delivery or Collection vehicle is clean, sound, fit for purpose and is set to carry the Goods at the appropriate temperature. At the point of Delivery by Supplier or Collection by the Customer, it shall be the Customer’s responsibility to supervise the unloading process and provide adequate staff, equipment, instructions and assistance to enable the Goods to be received by the Customer.

6.11 Unless otherwise specified, where Goods are to be delivered outside of the country of origin of the Goods, then Customer shall be responsible for all taxes, airport duties, Delivery or Collection costs and other charges arising.

6.12 Where Goods are delivered to a territory outside the country of origin of the Goods, then Customer agrees that Supplier shall not be liable for any failure or inability of Supplier’s Seller to obtain relevant papers for export of the Goods and Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon in such territory.

6.13 Where Goods are sold on a c.i.f. basis (Cost Insurance Freight) Supplier shall provide the Customer with the following documents:

(i) 3 copies of Invoice;

(ii) Certificate of Insurance (for Supplier’s Indemnity in lieu thereof); and

(iii)          Bill(s) of Lading or Ship’s delivery order or c.i.f. Delivery Order on Public Wharf/Warehouse (countersigned by “Wharfingers/Warehousemen if required).

7. RETENTION OF TITLE

7.1 Property in the Goods shall not pass to Customer until Customer has paid to Supplier any and all outstanding sums owed under any Invoice from the Supplier. Whilst the Goods remain the property of Supplier, the Customer shall be in possession of the Goods as bailee for the Supplier and the Customer shall keep them separate and identifiable and not deal with them otherwise than in the ordinary course of business. 

7.2 The Goods shall be at risk of Customer upon Collection or Delivery and Customer will keep the Goods properly insured against ‘all risks’ with an insurer of good repute for not less than their full Contract Price from Collection or Delivery.

7.3 Without prejudice to any other rights Supplier may have, Suppler may recover any Goods which have not yet been paid for notwithstanding that property in any of the Goods has not passed from the Supplier. The Customer agrees that Supplier, its agents or employees may enter on to the Customer’s premises without notice to Customer and remove the Goods at any time using reasonable force in the event that any events under clause 13.1(a) to (e) occurs.

7.4 In the event that the Customer sells or transfer the Goods to a third party before legal and beneficial title has passed to it under these Terms, the proceeds of the sub-sale or transfer (or such proportion as is due to the Supplier) shall be held by the Customer on behalf of the Supplier and shall be held separately from and not be mixed with any other funds, and all monies held as the Suppliers behalf shall be identified as such.

7.5 The Customer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Supplier. Without prejudice to the other rights of the Supplier, if the Customer does so all sums whatever owing by the Customer to the Supplier shall forthwith become immediately due and payable.

7.6 If payment of any amount under any Invoice is overdue by more than 14 days from the Payment Date then Supplier shall have the right to commence proceedings against the for the amount outstanding, notwithstanding that property in the Goods has not yet passed to Customer.

8. WARRANTIES (SALE OF GOODS)

8.1 Supplier hereby warrants that the Goods, which are perishable Goods, at the date of Collection or Delivery will comply in all material respects with the specification for the Goods agreed in writing by the parties or, in the absence of an agreed specification, the specification for the Goods provided to the Customer by the Company (which may be in the form of a Goods data sheet) will be subject to tolerances set out in such specification and be of satisfactory quality.

8.2 Supplier’s liability under clause 8.1 is conditional upon:

(a) the Goods being inspected forthwith upon Collection or Delivery and of any defect being advised to Supplier within 3 days after discovery of the same;

(b) the Goods having been properly stored and used by Customer from Collection or Delivery;

(c) the Goods having been immediately returned at Supplier’s request but at Customer’s expense for inspection by Supplier; and

(d) that Supplier has received payment in full of the Price for the Goods by the Payment Date under all outstanding Invoices.

8.3 The warranty contained in 8.1 above is given in lieu of and shall be deemed to exclude all other warranties and conditions whether express or implied whether arising by common law, statute or otherwise, to the fullest extent permitted by law, other than the relating to the title to the Goods.

8.4 All Goods are sold on the basis that Customer is neither a consumer nor deals as a consumer within the meaning of the Unfair Contract Terms Act 1977 and that Customer has satisfied itself as to the suitability of the Goods for use or resale in accordance with its specialized knowledge and skill.

8.5 Including but not limited to the case of sales outside of the United Kingdom and the European Union, all other conditions warranties and other terms whether express or implied, statutory or otherwise are hereby excluded, to the fullest extent permissible by law, unless contained in the Contract or otherwise expressly agreed by Supplier in writing.

8.6 In respect of international supply contracts (as defined in section 26 of the Unfair Contract Terms Act) Supplier shall have no liability to the Customer in the event of Goods infringing or being alleged to infringe the rights of any third party howsoever arising.

8.7 For the avoidance of doubt, Supplier does not warrant in any way that the Goods are compliant with any laws or regulations outside of the UK.

9. LIMITATION OF LIABILITY, INDEMNITY AND CUSTOMER’S OBLIGATIONS

9.1 This clause sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its respective employees, agents and subcontractors) to the Customer in respect of:

(a) any breach of this agreement

(b) any use made or resale of the Goods by the Customer, or of any product incorporating any of the Goods; and

(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.

9.2 Nothing in this agreement shall limit or exclude the liability of either party for:

(a) death or personal injury resulting from negligence; or

(b) fraud or fraudulent misrepresentation; or

(c) for any other liability which may not by applicable law be excluded or limited. 

9.3 Without prejudice to clauses 6.3, 6.12 or 9.2, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any:

(i) loss of profit;

(ii) loss of goodwill;

(iii) loss of business;

(iv) loss of business opportunity;

(v) loss of anticipated saving;

(vii) loss of contract;

(viii) loss of use; or

(vi) special, indirect or consequential damage or pure economic loss, costs, damages, charges or expenses;

suffered by the Customer that arises under or in connection with this agreement.

9.4 During this agreement the Supplier shall maintain in force the following insurance policies with reputable insurance companies:

(a) public liability insurance with a limit of at least £5,000,000 per claim; and

(b) product liability insurance with a limit of at least £5,000,000 for claims arising from a single event or series of related events in a single calendar year.

9.5 Without prejudice to clauses 6.3, 6.12, 9.2 or 9.3, the Supplier's total liability arising under or in connection with this agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall not exceed the Contract Price of the Consignment (or in the absence of Consignments, the Goods) from which such liability has arisen.

9.6 Supplier will at the request and expense of Customer use its reasonable endeavours to transfer to Customer the benefit of any warranty, guarantee or undertaking given to Supplier by any manufacturer, producer or processor of the Goods, in relation to any Goods.

9.7 A claim in respect of any defect of the Goods or any Consignment of the Goods, failure to comply with any agreed written specification, non-Delivery or non-Collection of the Goods or any Consignment of the Goods shall not entitle Customer to cancel or refuse Delivery or Collection of or Payment for the Goods or any Consignment of the Goods or of any other Contract.

9.8 The Customer hereby indemnifies and agrees to keep the Supplier fully indemnified and to hold the Supplier harmless on demand from all reasonable losses, costs, proceedings, damages, expenses (including reasonable legal costs and expenses) or liabilities howsoever incurred by the Supplier sustained by any third party or as a result of any claim by a third party resulting from the resale by the Customer of Goods sold to the Customer under the Contract (save in respect of such claims, loss, damage or expense having been caused by the Supplier or any of its employees or agents in breach of the Contract).

9.9 The Supplier shall notify the Customer of any claim that the Supplier receives arising under clause 9.8 and Customer hereby provides Supplier with full authority to defend, compromise or settle such claims and shall provide Supplier with all reasonable assistance necessary to defend such claims, at Customer’s sole expense. 

9.10 The Customer undertakes to maintain appropriate, up-to- date and accurate records to enable the immediate recall of any of the Goods or any part of them from the retail or wholesale markets.  These records shall include records of deliveries to customers (including details of batch numbers, Delivery Date or Collection Date, name and address of customer, and telephone number and fax number (and e-mail address if available)).

 9.11    The Customer shall, at the Supplier's cost, give such assistance as the Supplier shall reasonably require for the purpose of recalling as a matter of urgency any quantities of the Goods or any of them from the retail or wholesale market.

 

10. FORCE MAJEURE

10.1 The Supplier, provided that it has complied with the provisions of clause 10.2, shall

not be in breach of these Terms, nor liable for any failure or delay in performance of any obligations under these Terms (and, subject to clause 10.3, the time for performance of the obligations shall be extended accordingly) arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event), including but not limited to any of the following:

10.1(a) Acts of God; flood; earthquake; windstorm or other natural disaster; epidemic or pandemic; war, threat of or preparation for war; armed conflict; imposition of sanctions; breaking off of diplomatic relations or similar actions; terrorist attack; civil war; civil commotion or riots; nuclear, chemical or biological contamination or sonic boom; adverse weather conditions; and/or

10.1(b) compliance with any law or governmental order, rule, regulation or direction, or any action taken by a government or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or failing to grant a necessary or sufficient licence or consent or amount of licence or consent;

10.1 (c ) fire, flood, crop failure, drought, disease of whatever nature affecting Supplier’s ability to acquire the Goods or inability to procure Goods except at increased prices (which shall for the avoidance of doubt include the price at which Supplier can obtain the Goods); and/or

10.1(d) reductions in availability of raw materials, energy, services or other supplies required by Supplier, loss at sea; interruption or failure of utility service, including but not limited to electric power, gas or water; any labour dispute, including but not limited to strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as such party); collapse of building structures; and/or

10.1 (e) non-performance by suppliers or subcontractors; failure of plant machinery, machinery, computers or vehicles; explosion (other than in each case one caused by a breach of contract by, or assistance of, the party seeking to rely on this clause or companies in the same group as such party) or accidental damage.

10.2 The Supplier shall not be in breach of these Terms provided that:

(a) it promptly notifies the Customer in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance; and

(b) it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and

(c) it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event, to carry out its obligations under these Terms  in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.

10.3 If the Force Majeure Event prevails for a continuous period of more than 3 months, either party may terminate these Terms by giving 14 days’ written notice to the other party. On the expiry of this notice period, these Terms will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of these Terms occurring prior to such termination.

 



11. CONFIDENTIALITY

11.1 Each party undertakes that it shall not at any time during these Terms or after termination disclose to any person Confidential Information disclosed to it by the other party concerning the business or affairs of the other party or of any member of its Group, except as permitted by clause 11.2.

11.2 Each party may disclose the other party’s Confidential Information:

(a) to its employees, officers, agents, consultants or sub-contractors (Representatives) who need to know such information for the purposes of carrying out the party's obligations under these Terms, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 11.2 as though they were a party to these Terms. The disclosing party shall be responsible for its Representatives' compliance with the confidentiality obligations set out in this clause; and

(b) as may be required by law, court order or any governmental or regulatory authority.

11.3 Each party reserves all rights in its Confidential Information.  No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in these Terms are granted to the other party or to be implied from these Terms.  In particular, no licence is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other Intellectual Property Right held, made, obtained or licensable by either party now or in the future.

 

12. INTELLECTUAL PROPERTY

12.1 The Customer acknowledges that any Intellectual Property Rights in and to the Goods and other Intellectual Property Right used in relation to the Supplier’s business and the goodwill connected with that are and shall remain the Supplier’s or third parties’ property and shall enure for the benefit of the Supplier or those third parties.

12.2 The Goods are sold and/or supplied subject to the rights of any person whether in respect of any intellectual property right, including but not limited to, patent, trade mark, registered design, copyright, confidential disclosure or otherwise howsoever to prevent or restrict the sale or use of the Goods in any part of the World; the Customer will in this respect accept such title to the Goods as Supplier may have.

 12.3 Customer undertakes to Supplier that it shall not in any way use the names or makes known as L&M Food or LAMEX or any name which is a variation of those names or which incorporates those names except with the prior written consent of Supplier.

 

13. DEFAULT BY CUSTOMER/TERMINATION

13.1 Without prejudice to any other rights it may have and without prejudice to the provisions of clause 5 and 15.12 herein, Supplier may, by written notice to Customer, terminate any Contract between Customer and Supplier forthwith and/or immediately recover from Customer all sums due from Customer under any Contract with Supplier (notwithstanding any period of credit which may have been allowed) together with any accrued interest and other legitimate charges and any loss caused to Supplier as a result of any termination if:

(a) any payment due by Customer to Supplier is overdue by more than 14 days in whole or in part; or

(b) Customer commits any breach of any of these Terms with Supplier provided that if the breach was remediable Supplier gave to Customer notice of such breach which was not  remedied within seven days of the date of such notice; or

(c) in respect of the Customer an interim order is applied for or made, or a voluntary arrangement approved, or a petition for a bankruptcy order is presented or a bankruptcy order is made, or a receiver or trustee in bankruptcy is appointed over the Customer's estate or a voluntary agreement or arrangement is approved or entered into, or an administration order is made, or a receiver or administrative receiver is appointed over any of the Customer's assets or an undertaking or a resolution or petition to wind up the Customer is passed or presented (other than for the purposes of solvent amalgamation or reconstruction) or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order and such petition or application is not dismissed within thirty (30) days of being applied for or presented; or

(d) Customer ceases or threatens to cease to carry on trading; or

(e) there is in the reasonable opinion of the Supplier, any material change in the financial status of the Customer, including but not limited to, credit status.

13.2 Where Customer is situated outside of the United Kingdom then Supplier shall be entitled to terminate any Contract and/or recover all amounts due pursuant to clause 13.1 if any event occurs in the jurisdiction where the Customer is situated which is analogous to the events described in 13.1(a) to13.1(e) inclusive.

13.3 Upon expiry of this Agreement, Supplier shall cease supplying the Goods to Customer unless a new Contract has been entered into.  

13.4 Notwithstanding the termination of this Agreement for any reason, any sums for any reason due to Supplier hereunder at the date of termination shall remain due and payable to Supplier by Customer.

 

14. DISPUTE RESOLUTION

14.1 Each party shall at all times act in good faith towards the other and shall use all reasonable endeavours to ensure that the terms of Contract are observed. In circumstances where a dispute arises in connection with the Contract then directors or other senior representatives with authority to settle the dispute will within 7 days of a written request from one party to the other meet in good faith to resolve the dispute and will exchange written statements with the other party setting out the reason for their disagreement and within a further 7 days thereafter meet in a good faith effort to resolve the dispute.

14.2 If the dispute is not resolved at that meeting then the parties will endeavour to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be appointed by CEDR. To initiate the mediation, a party must give notice in writing (ADR Notice) to the other party to the dispute requesting the meditation. A copy of the dispute should be sent to CEDR.  The mediation will start not later than 28 days after the date of the ADR Notice.

14.3 Neither party may instigate litigation or proceedings against the other party until the mediation process has concluded. The decision of the mediator shall be final and binding on both parties. Each party shall bear its own costs of such mediation.

 

15. GENERAL

15.1 No waiver by Supplier of any breach of Contract by Customer shall be considered as a waiver of any subsequent breach of the same or any other provision of any Contract.

15.2 Variations or representations will only be binding on Supplier confirmed in writing by an authorised officer of Supplier.

15.3 If any provision of these Terms (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. 

15.4 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

15.5 Customer shall not assign or transfer any Contract to which these Terms apply nor the benefit thereof to any person whatsoever without the prior written agreement of the Supplier.

15.6 These Terms and any documents referred to in it constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of these Terms.

15.7 Except where otherwise expressly provided in writing, a person who is not a party to these Terms shall not have any rights under or in connection with it.

15.8 Each party shall (at its own expense) promptly execute and deliver all such documents, and do all such things or procure the execution and delivery of all documents and doing of all such things as are required to give full effect to a Contract and the transactions contemplated by it.

15.9 Nothing in these Terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

15.10 At its own expense each party shall and shall use all reasonable endeavours to procure that any necessary third party shall promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to these Terms and to any Contract.

15.11 No party shall make, or permit any person to make, any public announcement concerning these Terms without the prior written consent of the other, except as required by law.

15.12 Clauses 5.6; 7; 9; 11; 12; 13.3; 13.4; 14; and 15; shall survive termination of these Terms for any reason.

15.13   (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, recorded delivery, commercial courier, fax or e-mail.

(b) A notice or other communication shall be deemed to have been received: if delivered personally, at the date when left at the address referred to in 15.13a; 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 fax or e-mail, one Business Day after transmission.

(c) The provisions of this clause 15.13 shall not apply to the service of any proceedings or other documents in any legal action.

15.14 The construction, validity and performance of the Contract shall be governed in all respects by the laws of England and Wales. 

15.15 The English courts shall have the exclusive jurisdiction to settle any disputes which may arise out of or in connection with the Contract. The parties agree to submit to the jurisdiction of the English Courts.