Interpretation

1. Definitions:

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

   “Conditions” means the terms and conditions set out in this document as amended from time to time in accordance with clause 11.4.

   “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 or firm who purchases the Goods from the Supplier.

   “Food Safety Legislation” means, subject always to the Organic Requirements, all legislation including the Food and Environmental Protection Act 1985, the Food Safety Act 1990, Pesticides (Maximum Residue Levels) (England and Wales) Regulations 2008, Control of Pesticides Regulations 1986 and all other applicable legislation regulations and statutory instruments and code of practice (whether mandatory or not) relating to the safety of food, the fitness of food for human consumption and the cultivation of or treatments to be applied to crops and foods as the same are amended, supplemented or re-enacted from time to time including any applicable EU regulations, directives and any codes of practice.

   “Force Majeure Event” means an event or circumstance beyond a party’s reasonable control.

   “Goods” means the goods (or any part of them) set out in the Order.

   “Insolvency Event” means any of the events listed in clause 8.1.

   “Order” means the Customer’s order for the Goods, as set out in the Customer’s email, order form, phone call to the Supplier or such other form of order, as the case may be.

   “Organic Requirements” means all legislation, regulations, directives, accreditation requirements, codes of practice applicable in the United Kingdom or the EU and required to be complied with or satisfied in order for the term “organic” to be applied to the Goods.

   “Specification” means the specification of the Goods set out in the Order or as otherwise agreed between the parties in writing from time to time.

   “Supplier” means Emmett UK Limited (registered in England and Wales with company number 2320731) or such other member of the Emmett UK group of companies as satisfies the Order (as the case may be).

2. Interpretation:
   1. a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
   2. any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
   3. a reference to writing or written includes emails.

Basis of contract

1. 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 trade, custom, practice or course of dealing.
2. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
3. The Order shall only be deemed to be accepted when the Supplier confirms acceptance of the Order, at which point the Contract shall come into existence.
4. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
5. Any samples or advertising produced by the Supplier and any descriptions or illustrations on the Supplier’s website 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.
6. A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 5 Business Days from its date of issue.

Goods

1. The Goods are described in the Order and the Specification.
2. The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.

Delivery

1. The Supplier shall deliver the Goods ex-works at the Supplier’s premises or such other location as the parties may agree in writing (Delivery Location).
2. Delivery is completed when the Goods are made available to the Customer at the Delivery Location.
3. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. In particular, the Supplier shall not be liable for any delay in delivery of, or failure to deliver, the Goods to the extent that such delay or failure is caused by a Force Majeure Event or 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.
4. 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.
5. If the Customer fails to accept delivery of the Goods within two Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
   1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the second Business Day after the day on which the Supplier notified the Customer that the Goods were ready;
   2. the Supplier shall store the Goods, and charge the Customer for all related costs and expenses (including insurance); and
   3. the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
6. If the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
7. The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery of an instalment shall not entitle the Customer to cancel any other instalment.

Quality and packing

1. The Goods supplied by the Supplier under this Contract shall:
   1. conform with the Specification and, in the case of organic Goods, the Organic Requirements;
   2. be of satisfactory quality; and
   3. comply with all applicable statutory and regulatory requirements including the Food Safety Legislation.
2. The Supplier shall ensure that the Goods are properly packed and secured in such manner as to enable them to reach the Delivery Location in good condition.
3. Subject to clause 5.4, if:
   1. the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with clause 5.1;
   2. the Supplier is given a reasonable opportunity of examining such Goods; and
   3. the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business 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.

4. The Supplier shall not be liable for the Goods’ failure to comply with clause 5.1 in any of the following events:
   1. the Customer makes any further use of such Goods after giving notice in accordance with clause 5.3;
   2. the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, use and care of the Goods or (if there are none) good trade practice regarding the same;
   3. the Customer alters the packaging of such Goods without the written consent of the Supplier;
   4. the defect arises as a result of wilful damage, negligence, or abnormal storage or working conditions; or
   5. the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5. Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with clause 5.1.
6. 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.
7. These Conditions shall apply to any replacement Goods supplied by the Supplier.

Title and risk

1. The risk in the Goods shall pass to the Customer on completion of delivery.
2. Title to the Goods shall not pass to the Customer until the earlier of:
   1. the Supplier receives payment in full (in cleared funds) for:
      1. the Goods; and
      2. any other goods that the Supplier has supplied to the Customer in respect of which payment has become due; and
   2. the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
3. Until title to the Goods has passed to the Customer, the Customer shall:
   1. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
   2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
   3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
   4. notify the Supplier immediately if it becomes subject to any Insolvency Event; and
   5. give the Supplier such information relating to the Goods as the Supplier may require from time to time.
4. Subject to clause 6.5, the Customer 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 Customer resells the Goods before that time:
   1. it does so as principal and not as the Supplier’s agent; and
   2. title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
5. If before title to the Goods passes to the Customer the Customer becomes subject to any Insolvency Event, then, without limiting any other right or remedy the Supplier may have:
   1. the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
   2. the Supplier may at any time:
      1. require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
      2. if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

Price and payment

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 the Supplier’s published price list in force as at the date of delivery.
2. The Supplier may, by giving notice to the Customer at any time up to 3 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
   1. any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
   2. any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
   3. any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
3. The price of the Goods:
   1. excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
   2. excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be paid by the Customer.
4. The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
5. The Customer shall pay the invoice in full and in cleared funds within 20 Business Days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence.
6. If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% 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 Customer shall pay the interest together with the overdue amount.
7. The Customer 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). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

Termination

1. Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
   1. the Customer 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 that party being notified in writing to do so;
   2. the Customer 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;
   3. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
   4. the Customer’s financial position deteriorates to such an extent that in the Supplier’s reasonable opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
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 Customer and the Supplier if the Customer becomes subject to any Insolvency Event, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
3. Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
4. 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.
5. 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 this Contract that existed at or before the date of termination.
6. 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.

Limitation of liability

1. Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
   1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
   2. fraud or fraudulent misrepresentation;
   3. breach of the terms implied by section 12 of the Sale of Goods Act 1979;
   4. defective products under the Consumer Protection Act 1987; or
   5. any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
2. Subject to clause 9.1:
   1. the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:
      1. loss of profit, business, or goodwill; or
      2. indirect or consequential loss

         arising under or in connection with the Contract; and

   2. the Supplier’s total liability to the Customer 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 sold.

Force majeure

Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 2 weeks, the party not affected may terminate this Contract by giving 5 days written notice to the affected party.

General

1. Assignment and other dealings.
   1. The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
   2. The Customer may not assign, transfer, mortgage, 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.
2. Confidentiality.
   1. Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, pricing structure, customers, clients or suppliers of the other party, except as permitted by clause 11.2.2.
   2. Each party may disclose the other party’s confidential information:
      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 or in connection with a 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 11.2; and
      2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
   3. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with a Contract.
3. Entire agreement.
   1. 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.
   2. 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. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
4. Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
5. Waiver. 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.
6. Third party rights. No one other than a party to the Contract and their permitted assignees shall have any right to enforce any of its terms.
7. Governing law. 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 England and Wales.
8. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.