Terms and Conditions of Sale: October 2018

1.        Interpretation

1.1     Definitions

Bakels – means British Bakels Ltd (registered in England and Wales under company number 430208) whose registered office is at Granville Way, Bicester, OX26 4JT.

Business Day – means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business,

Buyer – means the person or firm who purchases the Goods from Bakels.

Conditions – means the standard terms and conditions set out in this document (unless the context otherwise requires) including any special terms and conditions agreed in Writing between the Buyer and Bakels.

Contract – means the contract between the Buyer and Bakels for the purchase and sale of the Goods in accordance with these Conditions.

Force Majeure Event – means in relation to a party, any circumstances beyond the reasonable control of that party including, without limitation, any strike, lock-out or other form of industrial action termination, civil disturbance, war, risk, fire, explosion, storms, flood, earthquake, epidemic or other natural physical disaster; shortage of components or raw materials, lack of power supplies or lack of available facilities.

Goods – means goods (including any instalment of goods) which Bakels is to supply in accordance with these Conditions.

Order – means the Buyer’s Written or oral order for the Goods or the Buyer’s Written or oral acceptance of Bakels’ quotation as the case may be.

Specification – means any specification of the Goods that is agreed in Writing between the Buyer and Bakels, and in the absence of any agreed Written specification this shall be Bakels’ current specification for the Goods.

Writing and Written – includes any facsimile transmission or e-mail.

1.2     Any reference in these Conditions to any provision of a statute shall be construed as a     reference to the provision as amended, re-enacted or extended at the relevant time.

1.3     Words denoting the singular shall include the plural and vice versa.

1.4     Words denoting gender shall included all genders.

1.5     Words denoting persons shall include bodies corporate, partnerships and individuals.

1.6     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 or following them

2.        Basis of the Sale

2.1     These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2     The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate and for giving Bakels any necessary information relating to the Goods within sufficient time for Bakels to perform the Contract in accordance with its terms.

2.3     Any quotation issued by Bakels (whether Written or oral) shall be deemed to be accepted by the Buyer once an order confirming the quotation is placed

2.4     The Order shall only be deemed accepted when Bakels issues a Written acceptance of the Order or (if earlier) Bakels delivers the Goods, at which point the Contract shall come into existence.

2.5     Any samples, drawings, descriptive matter or advertising produced by Bakels and any descriptions or illustrations contained in Bakels’ catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

2.6     Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by Bakels shall be subject to correction without any liability on the part of Bakels

3.        Goods

3.1     The Goods are described in the Specification.

3.2     To the extent that the Goods are to be manufactured or any process is to be applied to the Goods by Bakels in accordance with a Specification submitted by the Buyer, the Buyer shall indemnify Bakels against all loss, damages, costs and expenses awarded against or incurred by Bakels in connection with or paid or agreed to be paid by Bakels in settlement of any claim that result from Bakels’ use of the Buyer’s specification. This clause shall survive termination of the Contract.

3.3     Bakels reserves the right to make any changes in the specification of the Goods which are required to confirm with any applicable safety or other statutory or regulatory or EC requirements or, where the goods are supplied to Bakels’ specification, which do not materially affect their quality or performance

3.4     No order which has been accepted by Bakels may be cancelled by the Buyer except with the agreement in Writing of Bakels and on the terms that the Buyer will indemnify Bakels in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Bakels as a result of cancellation

4.        Price of the Goods

4.1     The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Bakels’ published priced list at the date of delivery.

4.2     Bakels may, by giving notice to the Buyer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

4.2.1            any factor beyond Bakels’ control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
4.2.2            any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
4.2.3            any delay caused by any instructions of the Buyer or failure of the Buyer to give Bakels adequate or accurate information or instructions.
4.3     Except as otherwise stated under the terms of any quotation or in Bakels’ published price list or unless otherwise agreed between the Buyer and Bakels, prices are on a delivered basis.

4.4     The price is exclusive of any Value Added Tax which the Buyer shall be additionally liable to pay to Bakels.

4.5     Unless otherwise agreed in Writing between the Buyer and Bakels, the Buyer shall be additionally liable for Bakels’ actual and unrecoverable costs arising in respect of unique materials held in stock by Bakels on the Buyer’s behalf no longer being required by the Buyer. Bakels shall issue an invoice to the Buyer for such cost’s payable in accordance with and subject to the terms for payment in clause 5.

5.        Terms of Payment

5.1     The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Bakels’ published price list in force as at the date of delivery.

5.2     Bakels may, by giving notice to the Buyer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

5.2.1            any factor beyond Bakels’ control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
5.2.2            any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
5.2.3            any delay caused by any instructions of the Buyer or failure of the Buyer to give Bakels adequate or accurate information or instructions.
5.3     The price of the Goods excludes:

5.3.1            amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to Bakels at the prevailing rate, subject to the receipt of a valid VAT invoice; and
5.3.2            the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer.
5.4     Bakels may invoice the Buyer for the Goods on or at any time after the completion of delivery.
5.5     The Buyer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Bakels. Time of payment is of the essence.
5.6     If the Buyer fails to make any payment due to Bakels under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 8% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
5.7     The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Bakels may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by Bakels to the Buyer.

6.        Delivery

6.1     Delivery of the Goods shall be made by the Buyer collecting goods at Bakels’ premises at any time after Bakels has notified the Buyer that Goods are ready for collection or, if some other place for delivery is agreed by Bakels, by Bakels delivering to that place.

6.2     Delivery shall be completed on the completion of loading of the Goods at Bakels’ premises.

6.3     All dates quoted for delivery of Goods are approximate only and time for delivery shall not be of the essence. Bakels shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure event or the Buyer’s failure to provide Bakels with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

6.4     Bakels may deliver the Goods by instalments. Where Goods are to be delivered in instalments. each delivery shall constitute a separate contract and failure by Bakels to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more of the instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.

6.5     If Bakels fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Bakels shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Buyer’s failure to provide Bakels with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

6.6     If the Buyer fails to take delivery of Goods or fails to give Bakels adequate delivery instructions at the time stated for delivery (except where such failure or delay is caused by a Force Majeure Event or Bakels’ failure to comply with its obligations under the Contract) then without prejudice to any other right or remedy available to Bakels, Bakels may

6.6.1  Store Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage or

7.        Sell Goods at the best readily obtainable price 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.

8.        Risk and Title

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

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

8.2.1            Bakels receives payment in full (in cash or cleared funds) for the Goods and any other goods that Bakels 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
8.2.2            the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 7.4.
8.3     Until title to the Goods has passed to the Buyer, the Buyer shall:
8.3.1            store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as Bakels’ property;
8.3.2            not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
8.3.3            maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
8.3.4            notify Bakels immediately if it becomes subject to any of the events listed in clause 11.1.1 to clause 11.1.4; and
8.3.5            give Bakels such information relating to the Goods as Bakels may require from time to time.
8.4     Subject to clause 7.4.2, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Bakels receives payment for the Goods. However, if the Buyer resells the Goods before that time:
8.4.1            it does so as principal and not as Bakels’ agent; and
8.4.2            title to the Goods shall pass from Bakels to the Buyer immediately before the time at which resale by the Buyer occurs.
8.5     If before title to the Goods passes to the Buyer, the Buyer becomes subject to any of the events listed in clause11.1.1 to clause 11.1.4, then, without limiting any other right or remedy Bakels may have:
8.5.1            the Buyer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
8.5.2            Bakels may at any time:
(i)             require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(ii)           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.

9.        Quality

9.1     Subject to the conditions set out below, Bakels warrants that the Goods will correspond with their description and any applicable Specification at the time of delivery and will be free from defects in quality and condition until the earlier of (i) expiry of the shelf life of the Goods, which date will be advised on delivery unless marked on the Goods or its packaging or (ii) twelve months from delivery.

9.2     Subject to clause 8.3, if:
9.2.1            the Buyer gives notice in Writing to Bakels within 7 Business Days of receipt of the Goods, or (where the defect or failure was not apparent on reasonable inspection) within 7 Business Days of the discovery of the failure or defect but in any event before the expiry of the shelf life of the Goods that some or all of the Goods do not comply with the warranty set out in clause 8.1; and
9.2.2            Bakels is given a reasonable opportunity of examining such Goods,
Bakels shall refund the price of the defective Goods in full.

9.3     Bakels shall not be liable for the Goods’ failure to comply with the warranty set out in clause 8.1 in any of the following events:

9.3.1            the Buyer makes any further use of such Goods after giving notice in accordance with clause8.2.1;
9.3.2            the defect arises because the Buyer failed to follow Bakels’ oral or Written instructions as to the storage and use of the Goods or (if there are none) good trade practice regarding the same;
9.3.3            the defect arises as a result of Bakels following any drawing, design or Specification supplied by the Buyer;
9.3.4            the Buyer alters such Goods without Bakels’ Written consent;
9.3.5            the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
9.3.6            the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
9.4     Except as provided in this clause 8, Bakels shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 8.1.
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 Bakels.

10.     Limitation of liability

10.1  Nothing in these Conditions excludes or limits the liability of Bakels for:

10.1.1         fraud or fraudulent misrepresentation;

10.1.2         death or personal injury caused by Bakels’ negligence or the negligence of Bakels’ employee’s agents or subcontractors;

10.1.3         breach of the terms implied by Section 12 of the Sale of Goods Act 1979;

10.1.4         defective products under the Consumer Protection Act 1987; or

10.1.5         any matter for which it would be unlawful for Bakels to limit or exclude liability.

10.2  Subject to clause 9.1:

10.2.1         Bakels shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
10.2.2         Bakels’ total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods

11.     Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate the Contract by giving 1 week’s Written notice to the affected party.

12.     Termination

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

12.1.1         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 14 days of being notified in writing to do so;
12.1.2         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), 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
12.1.3         the Buyer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
12.1.4         the Buyer’s financial position deteriorates to such an extent that in Bakels’ opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
12.1.5         if the Buyer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
12.2    Without limiting its other rights or remedies, Bakels may suspend provision of the Goods under the Contract or any other contract between the Buyer and Bakels if the Buyer becomes subject to any of the events listed in clause 11.1.1 to  clause 11.1.4, or Bakels 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.
12.3    On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.
12.4    Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract that existed at or before the date of termination.
12.5    Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

13.     General

13.1    Bakels may assign the Contract(s) or any part thereof to any person firm or company. The Buyer shall not be entitled to assign the Contract(s) without the prior Written consent of Bakels

13.2    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 its subject matter. 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 this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
13.3    No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.4    Any notice required or permitted to be given by either party to the other under these Conditions shall be addressed in Writing to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to the provision to the party giving the notice.

13.5    No waiver by Bakels of any breach of Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.

13.6              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

13.7              The Contract(s) shall be governed by the Laws of England and the Buyer agrees to submit to the exclusive jurisdiction of the English Courts.

13.8              No third party shall have the right to enforce a provision under the Contracts (Rights of Third Parties) Act 1999

13.9              By entering into the Contract or requesting a quotation from Bakels the Buyer authorises:

13.9.1         Bakels to make a credit search against the Buyer and to keep a record of the search for 2 years after fulfilment of the Contract(s) with Bakels and will provide if specifically requested Written authorisation from the directors of the Buyers (if a company) or individual partners (if a partnership) or members (if a limited liability partnership) authorising a credit search of that individual.

13.9.2         Bakels to share such credit records and the Buyer’s payment record to Bakels with credit reference agencies any other organisations on an unrestricted basis.

13.9.3         The Buyer or individuals searched against because of their links to the Buyer may withdraw their consent given in clause 12.9 on 14 days’ Written notice but if they do so then Bakels has the option of

13.9.4         withdrawing all of the Buyers’ credit facility without further notice

13.9.5         terminating the Contract(s) without prejudice to the total debt the full amount of which shall immediately become due and payable.

13.9.6         suspend any further deliveries under the Contract(s) until the total debt is paid.