Terms and Conditions

Terms and Conditions of Sale

A.F BLAKEMORE AND SON LIMITED

Terms and Conditions of Trading

Last Updated: 23/02/2022

The Buyer's attention is in particular drawn to the provisions of condition 10.3.

1. INTERPRETATION

1.1 The definitions and rules of interpretation in this condition apply in these conditions.

Buyer: the person, firm or company who purchases the Goods from the Company.

Company: A.F. Blakemore and Son Limited of Long Acre Industrial Estate, Rosehill, Willenhall, West Midlands WV13 2JP.

Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods.

Delivery Point: the place where delivery of the Goods is to take place under condition 4.

Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).

1.2 A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.3 Words in the singular include the plural and in the plural include the singular.

1.4 A reference to one gender includes a reference to the other gender.

1.5 Condition headings do not affect the interpretation of these conditions.

2. APPLICATION OF TERMS

2.1 Subject to any variation under condition 2.3 and 2.4 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).

2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.

2.3 These conditions apply to all the Company's sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by an authorised representative of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company's liability for fraudulent misrepresentation.

2.4 Where there is a written trading or other agreement between the Company and the Buyer, the terms of that agreement will take precedence in the event of any inconsistency between these conditions and that agreement.

2.5 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.

2.6 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.

2.7 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.

2.8 Unless otherwise stated in writing any quotation is valid until midnight on the day that it is given, provided that the Company has not previously withdrawn it and unless otherwise stated is an illustrative estimate only and the price charged will be the Company’s price current at the date of delivery.

3. DESCRIPTION

3.1 The quantity and description of the Goods shall be as set out in the Company's quotation or acknowledgement of order.

3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.

4. DELIVERY

4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Company's place of business unless otherwise agreed in writing by the Company.

4.2 The Buyer shall take delivery of the Goods within the stipulated time agreed.

4.3 Any dates and/or times specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates and/or times are so specified, delivery shall be within a reasonable time.

4.4 Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company's negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract.

4.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:

4.5.1 risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company's negligence);

4.5.2 the Goods shall be deemed to have been delivered; and

4.5.3 the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

4.6 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading and/or unloading the Goods and the Company may decline to deliver Goods to the Buyer if in the Company's opinion, it would be unsafe, unlawful, unreasonably difficult to do so or if the layout or condition of the Buyer's premises makes it unsuitable to do so.

4.7 If the Company delivers to the Buyer a quantity of Goods of less than the quantity accepted by the Company, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the shortfall and shall pay for such goods at the pro rata Contract rate.

4.8 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.

4.9 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.

4.10 At the time of delivery, the Buyer shall sign all appropriate documentation as requested by the Company thereby evidencing that the Goods have been duly delivered to the Buyer.

5. NON-DELIVERY/RETURNS

5.1 The quantity of any consignment of Goods as recorded by the Company on despatch from the Company's place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.

5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company's negligence) unless the Buyer gives notice to the Company of the non-delivery within 24 hours of the date when the Goods would in the ordinary course of events have been delivered.

5.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.

5.4 The Company does not operate a "sale or return" policy.

5.5 The Buyer may not return Goods without the issue of an appropriate uplift note which must be signed both by the Company's driver and the Buyer as evidence of the Goods collected on behalf of the Company. An uplift note is issued by the Company solely as a record of collection and does not constitute a guarantee of credit the issuance of which shall remain at the sole discretion of the Company.

5.6 All cages and returnable containers must be returned by the Buyer in good condition.

6. RISK/TITLE

6.1 The risk in the Goods shall pass to the Buyer on completion of delivery.

6.2 Title to the Goods shall not pass to the Buyer until the earlier of:

6.2.1 the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Buyer 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

6.2.2 the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 6.4.

6.3 Until title to the Goods has passed to the Buyer, the Buyer shall:

6.3.1 store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Supplier's property;

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

6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

6.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in condition11.1.2, 11.1.3 or 11.1.4; and

6.3.5 give the Supplier such information as the Supplier may reasonably require from time to time relating to:

6.3.5.1 the Goods; and

6.3.5.2 the ongoing financial position of the Buyer.

6.4 Subject to clause 6.5, the Buyer 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 Buyer resells the Goods before that time:

6.4.1 it does so as principal and not as the Supplier’s agent; and

6.4.2 title to the Goods shall pass from the Supplier to the Buyer immediately before the time at which resale by the Buyer occurs.

6.5 At any time before title to the Goods passes to the Buyer, the Supplier may:

6.5.1 by notice in writing, terminate the Buyer's right under clause 6.4 to resell the Goods or use them in the ordinary course of its business; and

6.5.2 require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.

7. PRICE

7.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price current at the time of invoicing. The Company reserves the right to adjust the price of Goods prior to delivery of all or any portion of the Goods.

7.2 The price for the Goods shall be exclusive of any value added tax.

8. PAYMENT

8.1 Subject to condition 8.4, payment of the price for the Goods is due without deduction by direct debit within 7 days of the Company’s statement unless otherwise agreed in writing by the Company. The Company’s invoice will accompany delivery.

8.2 Time for payment shall be of the essence.

8.3 No payment shall be deemed to have been received until the Company has received cleared funds.

8.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.

8.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.

8.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment under the Late Payment of Commercial Debts (Interest) Act 1998 ("the Act").

8.7 If the Buyer fails to pay to the Company any sum due pursuant to the Contract, if the Buyer becomes insolvent or subject to any of the events in condition 11.1.2, 11.1.3 or 11.1.4 or if the Buyer breaches any of these Conditions or any other provisions of the Contract, then without prejudice to the other provisions of these Conditions and to any other right or remedies available to the Company the Company shall be entitled to:

8.7.1 cancel the Contract or suspend any further deliveries to the Buyer under the Contract without any liability to the Buyer and if any Goods have been delivered to the Buyer and not paid for the price will become due and payable immediately notwithstanding any previous agreement or arrangement to the contrary;

8.7.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any contract between the Buyer and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Buyer);

8.7.3 cancel any discount offered to the Buyer;

8.8 If at any time, there shall be any sums outstanding from the Buyer to the Company, the Company will have a lien over any of the Buyer's property which is in the Company's possession.

8.9 In the event that the Buyer fails to pay to the Company on the due date any sum payable pursuant to the Contract or is in breach of any of its obligations under the Contract, all costs and expenses incurred by the Company including those incurred in the recovery of the outstanding sum shall be recoverable from the Buyer on a full indemnity basis (including all legal and debt recovery costs).

9. QUALITY

9.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.

9.2 The Company warrants that (subject to the other provisions of these conditions) on delivery the Goods shall:

9.2.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and

9.2.2 be reasonably fit for purpose and free from material defects.

9.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

9.4 The Company shall not be liable for a breach of the warranty in condition 9.2 unless:

9.4.1 the Buyer gives notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within 24 hours of the time when the Buyer discovers or ought to have discovered the defect; and

9.4.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Company's cost for the examination to take place there. If it is subsequently determined that such Goods were not defective or that any defect was not caused as a result of any action or omission of the Company then the Company reserves the right to charge the Buyer for the costs involved in the return and examination of such Goods.

9.5 The Company shall not be liable for a breach of the warranty in condition 9.2 if:

9.5.1 the Buyer makes any further use of such Goods after giving such notice; or

9.5.2 the defect arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or

9.5.3 the Buyer alters such Goods without the written consent of the Company.

9.6 Subject to condition 9.3 and condition 9.4, if any of the Goods do not conform with the warranty in condition 9.2 the Company shall at its option replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate.

9.7 If the Company complies with condition 9.5 it shall have no further liability for a breach of the warranty in condition 9.2 in respect of such Goods.

10. LIMITATION OF LIABILITY

10.1 Subject to conditions 9.5 and 10.2, the restrictions on liability in this clause 10 apply to every liability arising under or in connection with the Contract including liability in contract. tort (including negligence), misrepresentation, restitution or otherwise,

10.2 Nothing in these conditions excludes or limits the liability of the Company:

10.2.1 for death or personal injury caused by the Company's negligence; or

10.2.2 for breach of the terms implied by section 12 of the Sale of Goods Act 1979;; or

10.2.3 for fraud or fraudulent misrepresentation; or

10.2.4 for defective products under the Consumer Protection Act 1987.

10.3 Subject to condition 10.3:

10.3.1 the Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and

10.3.2 the Company shall not be liable to the Buyer for:

10.3.2.1 loss of profits;

10.3.3.2 loss of sales or business;

10.3.3.3 loss of agreements or contracts;

10.3.3.4 loss of anticipated savings;

10.3.3.5 loss of or damage to goodwill; or

10.3.3.6 indirect or consequential loss.

11. TERMINATION

11.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Buyer if:

11.1.1 the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;

11.1.2 the Buyer 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), obtaining a moratorium, 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;

11.1.3 the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

11.1.4 the Buyer's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

11.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Supplier if the Buyer becomes subject to any of the events listed in clause 11.1.1 to clause 11.1.4, or the Supplier reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.

11.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.

11.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Buyer immediately on receipt.

11.5 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination [or expiry], including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

11.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination [or expiry] of the Contract shall remain in full force and effect.

12. ASSIGNMENT

12.1 The Company may assign the Contract or any part of it to any person, firm or company.

12.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.

13. FORCE MAJEURE

The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 60 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.

14. GENERAL

14.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.

14.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

14.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

14.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

14.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

14.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.

14. NOTICES

14.1 All notices between the parties pursuant to the Contract shall be in writing and sent by e-mail to such addresses as are being used by the parties for general communications regarding the Contract.

 Schedule 1   Conditions

A.F BLAKEMORE AND SON LIMITED

SPAR TERMS AND CONDITIONS OF TRADING

1.       Interpretation 

“Buyer” means the company, person, or establishment to which the invoice is addressed.

“Goods” means the goods described in the A.F Blakemore and Son Limited price list.

“Seller” means A.F Blakemore and Son Limited, Long Acre Industrial Estate, Rosehill, Willenhall, WV13 2JP.

“Conditions” means these conditions and includes any special terms and condition set out in our Price List or Quotations.

“Contract means the contract for the purchase and sale of the goods.

“Writing” includes telex, cable, facsimile transmission and any other comparable means of communication.

2.       Basis Of Sale

The Seller reserves the right to adjust the price of products prior to delivery or collection of all or any portion of the goods. VAT will be charged where applicable at the current rate. The Buyer purchases the goods from the Seller in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these conditions, which shall govern the contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted or any such order is made or purported to be made by the Buyer. No variation to these conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and Seller.

The Sellers representatives or agents are not authorised to waive or vary any of these conditions, unless confirmed by the Seller in writing.

Items in this list are offered subject to availability. Items ordered and marked N/A are temporarily out of stock – please re-order. Reasonable substitutions will be made by the Seller for goods temporarily out of stock or unavailable from the Manufacturer unless instruction to the contrary is received from the Buyer.

3.       Due Diligence 

A.F Blakemore and Son Limited take all reasonable steps to ensure that the goods included in this price list are of a nature, substance and quality therein described and comply with the Food & Drugs Act and all other statutory requirements relating to the sale of food (so far as applicable to such goods).

4.       Cages

All cages and returnable containers should be returned in sound condition within a reasonable period not exceeding one month. Cages or containers not returned or damaged will be paid for by the Buyer at the current price.

5.       Risk & Property

Risk of damage to or loss of the goods shall pass to the Buyer at the time of delivery or if the Buyer wrongfully fails to take delivery of the goods at the time when the Seller has tendered delivery of the goods.

Not withstanding delivery and the passing of risk in the goods or any other provision of these Conditions to the property in the goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the goods and all other goods agreed to be sold by the Seller and Buyer for which payment is due.

The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Seller but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

Until payment in full has been made the Buyer shall hold the goods as bailee in a fiduciary capacity for the Seller until such time as the property in the goods passes to the Buyer (and provided the goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the goods to the Seller and if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or any third party where the goods are stored and repossess the goods.

6.       Terms of Payment

The Buyer shall pay the price of the goods without deduction within 7 days of the statement by Direct Debit unless otherwise in writing between the authorised representatives of the Buyer and Seller.

If the Buyer fails to make any payment on the due date then, without prejudice to:-

(a)   Cancel the contract or suspend any further deliveries to the Buyer.

(b)      Appropriate any payment made by the Buyer to such of the goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (not withstanding any purported appropriation by the Buyer).

(c)       Charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 2% per annum above the Bank of England Base rate from time to time until payment is made in full.

7.       Delivery

Provided orders are received by the times published for various types of goods deliveries will be made on the day agreed. However the Seller shall not be liable for any delay in delivery of the goods however caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Buyer shall sign the Sellers appropriate documentation indicating that the delivery has been received. Claims by the Buyer for shortages or damages to specific products on that delivery will be accepted by the Seller provided those claims are made by telephone within 24 hours from the date of delivery except for cigarettes/tobacco where any shortages must be agreed with the driver and reported immediately. The Seller does not operate a “Sale or Return” policy.

8.       Returns

Goods should not be returned without the issue of any appropriate uplift note, which should be signed both by the driver and customer as being checked for accuracy. An uplift note is issued as a record of collection only and does not constitute a guarantee of credit, which can be authorised only when all the appropriate reason and facts have been obtained.

9.       Force Majeure

The Seller shall not be liable for failure to provide any goods due to Act of God, fire, flood, storm, explosion, strikes, lockouts, other industrial disputes or action whether or not strike, lockout or industrial dispute or action involves the Sellers employees, war, civil disturbance, Government or E.C restrictions, prohibitions or restriction of import or export, shortage of labour, materials or supplies, machinery breakdown, mechanical breakdown, accident, interruption of business or any other circumstances whatsoever outside its control.

10.     Insolvency of Buyer

If this clause applies then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to the Buyer and if the goods have been delivered and not paid for the price shall become due immediately and payable not withstanding any previous agreement or arrangement to the contrary.