UK
USBusiness Terms & Conditions
CONDITIONS OF SALE
(Sales to customers in the United Kingdom)
These Conditions apply in respect all sales of Goods by the Supplier to the Customer. The Customer's attention is drawn in particular to clause 11 ‘LIMITATION OF LIABILITY’.
1. DEFINTIONS AND INTERPRETATION
1.1. The following definitions shall apply in these Conditions:
“Conditions” means the terms and conditions set out in this document.
“Contract” means the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
“Customer” means the person which purchases the Goods from the Supplier.
“EDI” means the Seller’s electronic data interchange.
“Estimated Delivery Date” has the meaning given in clause 4.9.
“Goods” means the goods (or any part of them) set out in the Order.
“Order” means the Customer's order for the Goods.
“Quotation” means a quotation provided by the Supplier to the Customer setting out the price of the Goods, delivery costs (if relevant) and any estimated delivery date for such Goods.
“Reserved Territories” means those the countries in respect of which the Supplier has appointed an exclusive distributor or which the Supplier has reserved to itself, as set out in the Schedule of these Conditions of Sale.
“Supplier” means Walker’s Shortbread Ltd (registered in Scotland with company number SC063233) having it registered office at Aberlour House, Aberlour-on-Spey, Scotland, AB38 9LD.
“Supplier Price List” means the latest price list of the Supplier in respect of the Goods as at the date of despatch of the Goods to the Customer.
1.2. The following rules of interpretation shall apply in these Conditions:
1.2.1 A person includes a natural person, corporate or unincorporated body, partnership or firm (whether or not having separate legal personality).
1.2.2 A reference to a party includes its successors and permitted assignees.
1.2.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.5 A reference to writing or written includes email and EDI but not fax.
1.2.6 Clause headings shall not affect the interpretation of these Conditions.
1.2.7 The Schedule forms part of these Conditions and shall have effect as if set out in full in the body of these Conditions. Any reference to these Conditions includes the Schedule.
2. NEW ACCOUNTS
Any person wishing to purchase Goods from the Supplier for the first time shall be required to provide the Supplier with two trade (or, if new to trade, private) references and a bank reference in each case satisfactory to the Supplier. Any acceptance of an Order placed by such person shall be conditional upon the Supplier receiving such references and notifying such person that such references are satisfactory to the Supplier.
3. APPLICATION OF TERMS
These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
4. PLACING AN ORDER
4.1. The Customer shall request a Quotation or Supplier Price List from the Supplier in respect of each proposed purchase of the Supplier’s products.
4.2. Any Quotation or Pricelist given by the Supplier shall not constitute an offer. A Quotation shall only be valid for the period set out in the Quotation.
4.3. The Customer shall ensure that each Order is placed no later than three weeks (or such longer period as set out in the relevant Quotation) prior to the Customer’s preferred date for delivery of the Goods.
4.4. Orders should be placed by the Customer (i) in writing by e-mail or EDI only or (ii) by phoning the Seller’s office.
4.5. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions.
4.6. The Customer is responsible for ensuring that the terms of the Order are complete and accurate. Orders must state clearly the relevant product line codes, descriptions and sizes (as per the Quotation or Supplier Price List), the quantities of Goods required and the location for delivery.
4.7. The Supplier reserves the right to apply minimum order limits from time to time. Any such limits will be detailed on any Quotation. The Supplier shall not accept Orders that fail to meet any applicable minimum in force at the time of the Order.
4.8. The acceptance of Orders is subject to availability and the Supplier will endeavour to inform the Customer as soon as reasonably possible after an Order has been placed if the Goods ordered, or part thereof, are not available.
4.9. The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
4.10. Upon acceptance of an Order the Supplier shall as soon as reasonably practicable give the Customer written notice of the estimated date of delivery of the Goods (“Estimated Delivery Date”).
5. DELIVERY
5.1. The Supplier shall ensure that the Goods are accompanied by a delivery note that shows the date of the Order and the type and quantity of Goods.
5.2. Unless otherwise stated in the Quotation the Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may within 7 days of the Supplier providing written acceptance of the Order agree in writing and confirm verbally (“Delivery Location”).
5.3. Delivery is completed on the completion of the unloading of the Goods at the Delivery Location.
5.4. The Supplier shall use reasonable endeavours to procure that the Goods are delivered to the Customer by the Estimated Delivery Date however time of delivery shall not be of the essence of the Contract and the Supplier shall not, to the fullest extent possible under the law, be liable to the Customer for any delay in delivery.
5.5. If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.6. If the Customer fails to accept delivery of the Goods within three working days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods:
5.6.1. delivery of the Goods shall be deemed to have been completed at 9.00am on the third working day after the day on which the Supplier notified the Customer that the Goods were ready; and
5.6.2. the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
5.7. If ten working days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5.8. The Supplier may effect delivery in instalments.
6. TRANSFER OF TITLE & RISK
6.1 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full for the Goods, and any other goods that the Supplier has supplied 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.
6.2 Until title to the Goods has passed to the Customer, the Customer shall:
6.2.1 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.2.2 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and
6.2.3 give the Supplier such information as the Supplier may reasonably require from time to time relating to the Goods (including their location).
6.3 At any time before title to the Goods passes to the Customer pursuant to clause 6.1, the Supplier may require the Customer to deliver up all the Goods in its possession and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the relevant Goods are stored in order to recover them.
6.4 The risk in the Goods shall pass to the Customer on completion of delivery.
7. PRICE AND PAYMENTS
7.1 Subject to clause 7.7, the Supplier may invoice the Customer for the Goods on or at any time after the date of despatch of the Goods. The invoice shall include any amounts that may be due in respect of value added tax or any similar sales tax, and, where appropriate, customs duties.
7.2 The price of the Goods shall be the price set out in the Quotation.
7.3 The Customer shall pay each invoice submitted by the Supplier in sterling or in such other currency as the Supplier and the Customer have agreed in writing:
7.3.1 within the period stated on the Quotation, or in accordance with any credit terms agreed in writing by the Supplier or where no period was stated in the Quotation and no credit terms have been agreed in writing by the Supplier by the date which is [28] days of the date of the Supplier’s invoice for the Goods; and
7.3.2 either in full and in cleared funds to the following bank account of the Supplier:
Bank: Clydesdale Bank,
161 Mid Street, Keith, United Kingdom, AB55 5BL
Sort Code: 82-60-16
Account No: 80084130
or to such other bank account of the Supplier as the Supplier both nominates in writing and confirms verbally to the Customer; or
by cheque made payable to Walker’s Shortbread Ltd.
7.4 Time for payment by the Customer shall be of the essence of the Contract.
7.5 If the Customer fails to make a payment due to the Supplier by the due date then the Supplier shall be entitled to charge interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest on overdue sums will accrue at a rate of 1.5% per month or part month from the due date until payment.
7.6 All amounts due by the Customer shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
7.7 Notwithstanding any of the other provisions in these Conditions, the Supplier reserves the right to make any acceptance of the Order subject to:
7.7.1 the Customer making advance payment in full or in part for any Order; or
7.7.2 specific acceptance of responsibility by an individual or individuals for payment for the Goods; or
7.7.3 the provision of guarantees or other security for payment in a form acceptable to the Supplier.
8. RESALE OF GOODS
8.1. The Customer hereby undertakes that it shall refrain from making active sales of the Goods to customers in the Reserved Territories.
8.2. For the purposes of this clause, active sales shall be understood to mean actively approaching or soliciting customers, including the following actions:
8.2.1. visits;
8.2.2. direct mail, including the sending of unsolicited emails;
8.2.3. advertising in media, on the internet or other promotions, where such advertising or promotion is specifically targeted at customers in Reserved Territories;
8.2.4. online advertisements addressed to customers in Reserved Territories and other efforts to be found specifically by users in Reserved Territories, including the use of territory-based banners on third party websites and paying a search engine or online advertisement provider to have advertisements or higher search rankings displayed specifically to users in Reserved Territories; and
8.2.5. advertising or promotion in any form that the Customer would not reasonably carry out but for the likelihood that it will reach customers in Reserved Territories.
8.3 The Customer acknowledges that the Goods will be packaged and labelled by the Supplier so as to comply with the packaging and labelling requirements for the sale of such Goods to end users in the United Kingdom. The Supplier gives no undertaking and makes no representation that the Goods or their packaging or labelling will comply with the requirements of any country other than the United Kingdom.
8.4 Where the Customer sells the Goods or any of them to customers outwith the United Kingdom the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with the fact that such Goods and/or the packaging of such Goods and/or the labelling of such Goods do not (or may not) comply with the legal requirements of the relevant country.
9. WARRANTIES
9.1 Subject to the conditions set out below, the Supplier warrants that as at the time of delivery:
9.1.1 all foods (as defined in the UK Food Safety Act 1990 and/or regulations made thereunder) comprised within the Goods comply in all respects the UK Food Safety Act 1990 and any regulations made thereunder;
9.1.2 all foods comprised within the Goods comply with all other United Kingdom legislation and regulations relating to the procurement, production, processing, packaging, marking, storage, handling, storage, handling, transportation, supply and sale of food products; and
9.1.3 the Goods (including any packaging and labelling) comply with any specification provided by the Customer which has been accepted by the Supplier; and
9.1.4 the Goods shall be of satisfactory quality (within the meaning of the Sale of Goods Act 1977).
9.2 Subject to clause 9.3, if:
9.2.1 the Customer gives notice in writing to the Supplier that some or all of the Goods do not comply with the warranties set out in clause 9.1;
9.2.1.1 within 24 hours of delivery in relation to the warranties set out in clauses 9.1.3 or 9.1.4; or
9.2.1.2 within 30 days of delivery in relation to the warranties set out in clauses 9.1.1 and 9.1.2;
9.2.2 the Supplier is given the opportunity to examine such Goods; and
9.2.3 the Customer (only where asked to do so by Supplier) returns such Goods to the Supplier at the Supplier’s cost,
the Supplier shall, at its option replace the defective Goods, or refund the price of the defective Goods in full (provided that such has already been paid in full by the Customer).
The Customer shall not return Goods to the Supplier without the prior written agreement of the Supplier and where it does return such Goods without such prior written agreement the carriage costs in respect of such return shall be payable by the Customer and accordingly will be charged by the Supplier.
9.3 The Supplier shall not be liable for the Goods' failure to comply with the warranties set out in clause 9.1 in any of the following events:
9.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 9.2; or
9.3.2 the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the transportation or storage of the Goods (if there are none) good trade practice regarding the same; or
9.3.3 the Customer fails to comply with the provisions of clause 9.7 where relevant to the Goods.
9.4 Except as provided in this clause 9, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranties set out in clause 9.1.
9.5 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.
9.6 These Conditions shall apply to any replacement Goods supplied by the Supplier.
9.7 The Customer undertakes that it shall:
9.7.1 comply with all legal requirements from time to time in force which relate to the transportation, storage and sale of the Goods so as to ensure that they will be kept in good condition;
9.7.2 store the Goods in dry, cool conditions away from heat and strong smelling materials and in particular, away from disinfectants;
9.7.3 keep shortbread products comprised within the Goods out of direct sunlight or other bright or strong lights (which can cause rapid onset of rancidity);
9.7.4 store chocolate coated products comprised within the Goods at temperatures of between 12⁰c and 18⁰c.
10. BREAKAGES & SHORTAGES
10.1. The Customer shall:
10.1.1. ensure that all Goods are checked upon receipt and that any breakages or shortages are noted in writing on the delivery note;
10.1.2. give written notice of such breakages or shortages to the Supplier in writing within 7 days of receipt of the Order (or that part of the Order which was delivered); [and
10.1.3. immediately notify the Customer’s carrier and the Customer’s insurer of such breakages or shortages.]
11. LIMITATION OF LIABILITY
11.1. The restrictions on liability in this clause 11 apply to every liability arising under or in connection with the Contract including liability under statute in contract, delict, tort (including negligence), misrepresentation, restitution or otherwise.
11.2. Nothing in the Contract limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence, or for fraud or fraudulent misrepresentation.
11.3. Subject to the foregoing provisions of this clause 11, the Supplier’s total liability in respect of each Order shall not exceed the purchase price of the Goods subject to the relevant Order, and the following types of loss are wholly excluded:
11.3.1. loss of profits;
11.3.2. loss of sales or business;
11.3.3. loss of agreements or contracts;
11.3.4. loss of anticipated savings;
11.3.5. loss of use or corruption of software, data or information;
11.3.6. loss of or damage to goodwill; and
11.3.7. indirect or consequential loss.
12. CONFIDENTIALITY
12.1. Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted below.
12.2. Each party may disclose the other party's confidential information:
12.2.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause; and
12.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3. Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
13. VARIATION
The Supplier reserves the right to vary the Contract from time to time by giving the Customer at least four weeks written notice of such variation.
14. MISCELLANEOUS
Packaging Stocks
14.1 Where the Supplier holds packaging stocks for the Customer as detailed by the Quotation, the Supplier will provide a packaging stock report at any time at the request of the Customer.
Assignation and other dealings
14.2 The Supplier may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
14.3 The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
Entire agreement
14.4 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to their subject matter.
14.5 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract and each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
Waiver
14.6 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Severance
14.7 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision of the Contract is deemed deleted the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
Notices
14.8 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
14.8.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
14.8.2 sent by email to the address specified by that party.
14.9 Any notice shall be deemed to have been received:
14.9.1 if delivered by hand, at the time the notice is left at the proper address;
14.9.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00am on the third working day after posting; or
14.9.3 if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume (business hours means 9.00am to 5.00pm on a working day).
14.10 Notwithstanding the foregoing provisions of this clause, the Customer may also from time to time contact the Supplier by telephone using the following numbers:
Customer Services Office (Placing Orders): 01340 872009
Credit Control Department (Account Queries): 01340 872042
Despatch Office (Delivery Queries): 01340 872383
Switchboard (General Enquiries): 01340 871555
14.11 This clause does not apply to the service of any proceedings or other documents in any legal action.
Third party rights
14.12 Unless expressly stated otherwise, the Contract does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 for any third party to enforce or otherwise invoke any term of the Contract.
15. GOVERNING LAW AND JURISDICTION
15.2 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of Scotland.
15.3 Each party irrevocably agrees that the courts of Scotland shall have non-exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
SCHEDULE
This is the Schedule referred to in the foregoing Conditions of Sale.
Albania, Algeria, Andorra, Angola, Anguilla, Antigua, Argentina, Aruba, Australia, Austria, Azebaijan, Bahamas, Bahrain, Balearic Islands, Bangladesh, Barbados, Belarus, Belgium, Belize, Benin, Bermuda, Bosnia & Herzegovina, Botswana, British Virgin Islands, Brunei, Bulgaria, Burkino Faso, Burundi, Cambodia, Cameroon, Canada, Canary Islands, Cape Verde, Cayman Islands, Central African Republic, Chad, Chile, Peoples Republic of China, Columbia, Congo, Democratic Republic of Congo, Costa Rica, Cote D’Ivoire, Croatia, Cuba, Cyprus (North), Cyprus (South), Czech Republic, Denmark, Djibouti, Dominica, Dominican Republic, East Timor, Egypt, El Salvador, Equatorial Guinea, Estonia, Ethiopia, Falkland Islands, France, Gabon, Gambia, Germany, Georgia, Ghana, Greece, Granada, Guam, Guatemala, Guinea Republic, Guyana, Haiti, Hong Kong, Iceland, India, Indonesia, Iraq, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kenya, North Korea, South Korea, Kuwait, Laos, Latvia, Liberia, Libya, Lithuania, Luxembourg, Former Republic of Macedonia, Madagascar, Madeira, Malawi, Malaysia, Maldives, Mali Republic, Malta, Martinique, Mauritania, Mauritius, Mexico, Moldova, Monaca, Mongolia, Montenegro, Morocco, Mozambique, Myanmar, Namibia, Nepal, Netherlands, Netherlands Antilles, New Zealand, Niger, Nigeria, Norway, Oman, Pacific Islands, Pakistan, Palestine, Panama, Papua New Guinea, Peru, Philippines, Poland, Portugal, Qatar, Reunion, Romania, Russia, Rwanda, St Helena, St Lucia, St Vincent & Grenadines, Saipan, Saudi Arabia, Sau Tome & Principle, Senegal, Serbia, Seychelles, Sierra Leone, Singapore, Slovak Republic, Slovenia, Somalia, South Africa, Spain, Sudan, Suriname, Sweden, Switzerland, Syria, Taiwan, Tanzania, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Uganda, Ukraine, United Arab Emirates, United States of America, Uruguay, Uzbekistan, Vietnam, West Bank & Gaza, Yemen, Zambia, Zimbabwe.
