Terms and Conditions
The customer’s attention is drawn in particular to the provisions of clause 10.
1. Interpretation
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 13.6.
Consumer Prices Index: the Consumer Prices Index (all items) (United Kingdom).
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Force Majeure Event: has the meaning given in clause 12.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form or the Customer’s written acceptance of the Supplier’s quotation, as the case may be.
Specification: any specification for the Goods, including any specific requirements and delivery times, as agreed in writing by the Customer and the Supplier.
Supplier: The Yum Yum Food Company London Limited (registered in England and Wales with company number 04997493).
1.2 Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) 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.
(d) 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.
(e) A reference to writing or written includes faxes and e-mails.
2. Basis of contract
2.1 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.
2.2 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 and any applicable Specification submitted by the Customer are complete and accurate.
2.3 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.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 Any samples, descriptions, or advertising produced by the Supplier and any illustrations contained in the Supplier’s marketing materials are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.
3. Goods
3.1 The Goods are described in the Specification.
3.2 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
4. Supplier’s property
4.1 The Customer shall keep and maintain any and all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation.
4.2 The Customer shall return Supplier Materials left overnight at the Customer’s premises the following day, or at such other reasonable time as communicated in writing by the Supplier, washed and free from defects or damage of any kind.
4.3 The Supplier shall be entitled to retain a deposit to be held by the Supplier pending loss or damage to the Supplier Materials at the Customer’s premises. The deposit will be added to the Customer’s first invoice and paid in full.
4.4 The deposit shall be returned to the Customer upon termination of the Contract and settlement in full of the Supplier’s final invoice provided that the Supplier Materials are returned without damage or fault and there are no other amounts outstanding.
4.5 In the event that Supplier Materials are broken, lost or damaged to any degree whilst on the Customer’s premises, the Customer shall be liable for the full replacement value of such Supplier Materials at whatever price is applicable at that time, which shall become due and payable immediately upon Supplier’s first request.
5. Delivery
5.1 The Supplier shall ensure that:
(a) each delivery of the Goods is accompanied by a menu sent by email which shows the date of the Order, all relevant Customer and Supplier references,
(b) the Customer shall return any packaging materials to the Supplier in accordance with clause 4.2 Returns of packaging materials shall be at the Supplier’s expense.
5.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at the time set out in the Order.
5.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
5.4 Any dates and times quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that 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.
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 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.
6. Supplier’s warranty
6.1 The Supplier warrants that on delivery, the Goods shall:
(a) conform in all material respects with the Specification;
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(c) be fit for the purpose held out by the Supplier.
6.2 The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 6.1 in any of the following events:
(a) the Customer makes use of such Goods;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage and use of the Goods or;
(c) the Customer alters such Goods without the written consent of the Supplier;
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence on the part of the Customer, or abnormal storage or working conditions; or
(e) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.3 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.
6.4 The Supplier makes no other warranty regarding the Goods except as set forth in this clause 6.
7. Title and risk
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier’s bailee; and
(b) notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.2.
but the Customer may resell or use the Goods in the ordinary course of its business.
8. Price and payment
8.1 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.
8.2 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
8.3 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
8.4 The Customer shall pay the invoice in full and in cleared funds within 10 Business Days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
8.5 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), 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 the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.6 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. 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.
8.7 The Supplier shall carry out an annual price review and, where appropriate, agree with the Customer changes to the price charged for the Goods (Product Price Review). Agreed changes shall take effect one month following the conclusion of the Product Price Review. In agreeing prices for the following year, the parties shall have regard to, but shall not be limited to, the following factors:
(a) changes to the Supplier’s costs of preparing and distributing the Goods; and
(b) the volumes of Goods ordered by, and supplied to, the Customer.
8.8 In addition to the price review mechanism set out in clause 8.7, if increases in the costs of raw materials, labour or in the Consumer Prices Index exceed 3% over any consecutive three month period, the Supplier shall have the right to adjust the prices to reflect such increase. The Supplier shall give the Customer not less than one month’s prior notice in writing of proposed changes.
9. Customer’s insolvency or incapacity
9.1 If the Customer becomes subject to any of the events listed in clause 9.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
9.2 For the purposes of clause 9.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(g) (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2(a)to clause 9.2(h) (inclusive);
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
(k) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
9.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. Termination
10.1 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 this Contract on the due date for payment.
10.2 Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party two months’ written notice.
11. Limitation of liability
11.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
11.2 Subject to clause 11.1:
(a) 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 loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) 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 amount paid by the Customer to the Supplier on the most recent monthly invoice.
12. Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including road closures, strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
13. General
13.1 Assignment and subcontracting.
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
13.2 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.2(a); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
13.3 Severance.
(a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.4 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.6 Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall be binding either when agreed in writing between the Supplier and the Customer, or when the Customer has been given reasonable notice in writing of any such variation by the Supplier.
13.7 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.