TERMS OF SALE

1. Interpretation

In these conditions:

“Buyer” shall mean the person whose order for the Goods is accepted by the Seller.

“Goods” means the goods which the Seller is to supply in accordance with these conditions.

“Seller” means David Miller Frozen Foods Limited T/A Total Foodservice, whose registered office is at Unit S3 Narvik Way, Tyne Tunnel Trading Estate, North Shields, Tyne And Wear, NE29 7XJ.

“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and Seller.

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

1. Basis of Sale

(1) The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written order of the Buyer, which is accepted by the Seller, subject to these conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such order is made or purported to be made by the Buyer.

(2) No variation of these Conditions shall be binding unless agreed between the authorised representatives of the Buyer and the Seller.

(3) The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by a Director of the Seller in writing. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claims for breach of, any such representations which are not so confirmed.

1. Orders

(1) The Seller reserves the right not to deliver any order received with a monetary value less than the Seller’s minimum order value, which can be changed without due notice and is available upon request.

(2) The Seller reserves the right to add a delivery surcharge to any order falling between the minimum order value (1 above) and the Seller’s small order value. Details of this are available from the Seller’s representative or from the Seller’s current price list.

(3) The Seller reserves the right to impose a levy on any delivery undertaken at the Buyer’s request, which is not accepted by the Buyer or their representatives.

(4) The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within sufficient time to enable the Seller to perform the Contract in accordance with its terms.

1. Prices

The prices published in the list are correct at the time of printing but may alter without notice. The effective price is that ruling at the time of despatch.

1. Terms of Payment

(1) The Seller shall be entitled to invoice the Buyer for the price of Goods on or at any time after despatch of the Goods or (as the case may be) when the Seller or its agent has tendered delivery of the Goods.

(2) The Buyer shall pay at point of order for Goods invoiced and delivered except where credit facilities have been formally accepted in writing by the Seller to the Buyer. On acceptance of credit facilities, the Buyer shall pay the price for the Goods as agreed, notwithstanding that delivery of the Goods may not have taken place and that property in the Goods has not passed to the Buyer. The time of payment of the price shall be of essence to the Contract.

(3) If the Buyer fails to make any payment on the due date, then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled 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 to goods supplied under any other agreement between the Buyer and the Seller) as the Seller may think fit (notwithstanding 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 three percent per annum above the base rate for the time being of Handelsbanken until payment is made in full.

(4) At any time during the credit agreement, should the limited company either named upon the credit application form, a limited company that has a controlling interest upon the same, or indeed the limited company with whom we are found to be dealing, enter into any form of company insolvency such as liquidation, administration, a corporate voluntary arrangement, or any other allowable insolvency, then we, David Miller Frozen Foods Limited T/A Total Foodservice, reserve the right to pursue the directors of said limited company in a personal capacity for any unpaid account under the Insolvency Act 1986 and/or the Companies Act 2006. Please note that we may choose to either instruct our designated third-party agent to pursue the individual concerned and/or we may utilise the Court system to pursue the full outstanding value of any account, plus all the associated costs and interest from said individual without further reference to the same.

1. Delivery

(1) Delivery of Goods shall be made by the Seller or its agent delivering the Goods to such place as the Buyer shall have notified to the Seller for that purpose.

(2) Any dates quoted for delivery of the Goods are approximate only, and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence of the Contract. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

(3) If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is notwithstanding Condition 6(2) liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar Goods to replace those not delivered over the price of the Goods.

(4) If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery, then, without prejudice to any right or remedy available to the Seller, the Seller may: (a) Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or (b) Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.

1. Risk and Property

(1) 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 or its agent has tendered delivery of the Goods.

(2) Notwithstanding delivery and the passing of risk in the Goods or any other provision of these conditions, 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 price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.

(3) Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected, insured, and identified as the Seller’s property. Until that time, the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business but shall account to the Seller for the proceeds separate from any monies or property of the Buyer and, in the case of tangible proceeds, properly stored, protected, and insured.

(4) 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 shall fail 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.

1. Liability

(1) The Seller warrants that the Goods shall be of merchantable quality at the date of delivery.

(2) Should the Buyer collect Goods from the Seller’s premises, the Seller cannot be held responsible in any way for the quality of Goods being affected as a result of any temperature fluctuations of products transported in the Buyer’s own unrefrigerated transport.

(3) Subject as expressly provided in these Conditions and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions, or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

(4) Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions [Restrictions on Statements] Order 1976), the statutory rights of the Buyer are not affected by these Conditions.

(5) Without prejudice to the remaining Conditions, the Seller will not be liable to the Buyer for:

(a) Any damage to the Goods during carriage unless the Seller is notified of the Buyer’s claim in respect of such damage within 24 hours from the date of delivery;

(b) All goods supplied by the Seller must be checked by the Buyer, or their representatives, at the time of delivery. No credit for shortages can be allowed unless signed for at the time of delivery;

(c) Any discrepancy in quantity or type between the Goods delivered and the particulars of Goods given on the delivery note unless the Seller is notified of a claim by the Buyer in respect of such discrepancy within three days from the date of delivery.

(6) Any claim by the Buyer, which is based on any defect in the quantity or condition of the Goods, shall be notified to the Seller at the time of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect. If delivery of the Goods is not refused and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods, and the Seller shall have no liability for such defect. The Buyer shall be bound to pay the price for the Goods as if the Goods had been supplied in accordance with the Contract.

(7) Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods free of charge or, at the Seller’s sole discretion, to refund the Buyer the price for the Goods (or a proportionate part of such price), but the Seller shall have no further liability to the Buyer.

(8) Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, implied warranty, condition, or other term or any duty at common law or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise) which arises out of or in connection with the supply of the Goods or their resale by the Buyer.

(9) The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:

(a) Act of God, explosion, flood, tempest, fire, or accident;

(b) War or threat of war, sabotage, insurrection, civil disturbance, or requisition;

(c) Acts, restrictions, regulations, bye-laws, prohibitions, or measures of any kind on the part of any governmental, parliamentary or local authority; (d) Import or export regulations or embargoes; (e) Strikes, lock-outs, or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party); (f) Difficulties in obtaining supplies of raw materials, goods, fuel, or labour; or (g) Power failure or breakdown in machinery.

1. General

(1) No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or of any other provision of the Contract.

(2) If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

(3) The Seller shall be entitled at any time unilaterally to vary the terms of the Contract (including but not limited to the design, description, specification, or packaging of the Goods), provided that the Buyer shall not be prejudiced thereby.

(4) The Contract shall be governed by the laws of England, and the Buyer and the Seller hereby agree to submit to the exclusive jurisdiction of the English Courts.

1. Data Protection

David Miller Frozen Foods Limited T/A Total Foodservice confirm we will comply fully with all applicable Data Protection legislation and regulations in force.