1. Definitions and interpretation:

• 1.1. ‘Business Hours’ means the period from 9am to 5pm on any Business Day.
• 1.2. ‘Buyer’ means the person who buys or agrees to buy Goods from the Seller.
• 1.3. ‘Condition/Terms’ means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller.
• 1.4. ‘Contract’ means the contract between the Seller and the Buyer for the sale and purchase of Goods in accordance with these Conditions.
• 1.5. ‘Delivery’ means completion of the off-loading of Goods from the delivery vehicle at the Delivery Location specified in the Invoice or Delivery Note (as applicable) in accordance with Condition 6.2.
• 1.6. ‘Delivery Date” means the date specified by the Seller when the goods are to be delivered.
• 1.7. ‘Delivery Note’ means the delivery note from the Seller or the Seller’s carrier accompanying the Goods showing the Order number, date of Order, the type and quantity of Goods.
• 1.8. ‘Delivery Location’ is the address noted on the Delivery Note or the Invoice (as applicable).
• 1.9. ‘Force Majeure Event’ means an event, circumstance or cause beyond a party’s reasonable control.
• 1.10. ‘Invoice’ means the invoice submitted by the Seller to the Buyer for payment of the Goods specified in an Order.
• 1.11. ‘Goods’ means the articles which the Buyer agrees to buy from the Seller.
• 1.12. ‘Order’ means the Buyer’s order for Goods.
• 1.13. ‘Price’ means the price for the goods exclusive of carriage and packing.
• 1.14. ‘Seller’ means Magna Foodservice Limited.
• 1.15. A reference to a party includes its personal representatives, successors and permitted assigns.
• 1.16. A reference to legislation or a legislative provision is a reference to it as amended or re-enacted and it includes all subordinate legislation made under that legislation or legislative provision.
• 1.17. Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
• 1.18. A reference to writing or written excludes fax but includes email and WhatsApp messages.

2. Conditions applicable

• 2.1. These Conditions shall apply to all Contracts to the exclusion of any other terms and conditions which the Buyer may purport to incorporate, or which apply under any purchase order, confirmation of order or similar document or course of dealing.
• 2.2. These Conditions constitute the entire agreement between the Buyer and the Seller with respect to the subject matter covered by the Contract and supersede all previous agreements and understandings between the parties.
• 2.3. All Orders shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
• 2.4. Placing an Order shall be conclusive evidence of the Buyer’s acceptance of these Conditions.
• 2.5. Any samples or advertising materials produced by the Seller 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. A quotation for the supply of Goods given by the Seller shall not constitute an offer.
• 2.7. Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.

3. Price and payment

• 3.1. The Price of the Goods and the charge for delivery and packing shall be confirmed to the Customer at the time when the Order is placed, and shall be binding upon the Seller.
• 3.2. The Seller 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 which is due to:
  • 3.2.1. any factor beyond the Seller’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour and other production costs);
  • 3.2.2. any request by the Buyer to change the Delivery Date(s), quantities or types of Goods ordered; or
  • 3.2.3. any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
• 3.3. The Price of the Goods is exclusive of:
  • 3.3.1. value added tax (VAT), which shall be due at the rate ruling on the date of the Invoice;
  • 3.3.2. packing and delivery costs, which shall be invoiced to the Customer on delivery of the Goods.
• 3.4. The Seller may invoice the Buyer for the Goods on or at any time after Delivery.
• 3.5. Payment of the Price and VAT shall be due on the date and terms stated on the Invoice. Time for payment shall be of the essence.
• 3.6. If the Buyer fails to make payment due to the Seller under the Contract by the due date, the Buyer shall pay interest on the overdue sum. Interest shall accrue daily from the date when payment becomes due until the date of payment at a rate of 8% above the Bank of England’s base rate from time to time in force and shall accrue at such a rate after as well as before any judgment.
• 3.7. If Buyer fails to make any payment on the due date then without prejudice to any of the Seller’s other rights the Seller may:
  • 3.7.1. suspend or cancel deliveries of any articles due to the Buyer; and/or
  • 3.7.2. appropriate any payment made by the Buyer in respect of the Goods (or Goods supplied under any other contract with the Buyer) as the Seller may in its sole discretion think fit.

4. The Goods

• 4.1. The quantity and description of the Goods shall be as set out in the Invoice.
• 4.2. Any changes required to the Order after placing of the Order may be subject to an additional charge.

5. Warranties and liability

• 5.1. The Seller warrants that the Goods supplied will at the time of delivery correspond in all material respects to the description given by the Seller.
• 5.2. The Seller shall not be liable for the Goods failure to comply with the warranty set out in Condition 5.1 if:
  • 5.2.1. the Buyer makes further use of the Goods after giving notice in accordance with Condition 7.1
  • 5.2.2. the defect arises as a result of willful damage or negligence by the Buyer or its employees contractors or agents, or abnormal storage or working conditions on the part of the Buyer; or
  • 5.2.3. the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
• 5.3. The Sellers liability for any failure of the Goods to comply with the warranty in Condition 5.1 shall be limited to either (i) replacing the Goods with goods that comply with the warranty or (ii) providing the Buyer with a refund for the Goods that do not comply with the warranty, at the Sellers option. Except as provided in this Condition 5, the Seller shall have no liability to the Buyer in respect of the Goods failure to comply the warranty at Condition 5.1.
• 5.4. Nothing in these terms limits any liability which cannot legally be limited, including:
  • 5.4.1. death or personal injury caused by negligence;
  • 5.4.2. fraud or fraudulent misrepresentation;
  • 5.4.3. breach of the terms implied by section 12 to 15 of the Sale of Goods Act 1979;
  • 5.4.4. breach of the terms implied by sections 9 to 12 of the Consumer Rights Act 2015; or
  • 5.4.5. defective products under the Consumer Protection Act 1987.

6. Delivery of the Goods

• 6.1. The Goods shall be delivered to the Buyer at the Delivery Location .
• 6.2. Delivery is completed on the completion of the unloading of the Goods at the Delivery Location.
• 6.3. Any dates quoted for delivery are approximate only. Time shall not be of the essence in relation to the delivery of any Goods.
• 6.4. The Seller shall not be liable for any delay in the delivery of any Goods that is caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions.
• 6.5. If the Seller fails to deliver the Goods, the Seller’s 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.
• 6.6. The Buyer shall make all arrangements to take the delivery of the Goods at the Delivery Location or at such other location where they are tendered for delivery.

7. Acceptance of the Goods

• • 7.1. The Buyer shall inspect the Goods on delivery and shall – while the driver is present or while on Seller’s premises (as applicable) – immediately notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with description or sample. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery and before any use is made of them. Please note, the Seller will not accept a rejection of Goods by the Buyer once the Seller’s driver has left the Delivery Location. If the Buyer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the Contract and free from any defect or damage which would be apparent on a reasonable examination of the Goods and the Buyer shall be deemed to have accepted the Goods.
  • 7.2. The Buyer shall notify the Seller of any non-delivery of a whole consignment of complete cartons within 48 hours of the intended date of dispatch(as stated on the confirmation of Order). Notwithstanding the receipt by the Seller of any such notice a clear signature on a Delivery Note shall be deemed to signify receipt of the quantity of cartons indicated on the Delivery Note.
  • 7.3. If the Goods are not in accordance with the Contract for any reason the Buyer’s sole remedy shall be limited to the Seller making good any shortage or, if the Seller shall elect, by refunding a proportionate part of the Price.
  • 7.4. The Buyer shall be irrevocably deemed to have accepted the Goods upon departure by the Seller’s driver from the Delivery Location, unless the Buyer shall have rejected any Goods or notified any shortages in accordance with this Condition 7. The Buyer shall pay for all Goods that have not been properly rejected in accordance with this Condition. With regard to the rejection of Goods in accordance with this Condition 7, time shall, be of the essence.
  • 7.5. After acceptance the Buyer shall not be entitled to reject Goods even if they are not in accordance with the Contract.

Subject to Condition 12, no Goods delivered to the Buyer which are in accordance with the Contract will be accepted for return without the prior written approval of the Seller (in accordance with the Seller’s Returns Authorization procedure) and on terms to be determined at the absolute discretion of the Seller.

• 7.6. Goods returned without prior written approval of the Seller may at the Seller’s absolute discretion be returned to the Buyer or stored by the Seller at the Buyer’s cost for not more than 48 hours following which they may be disposed of by the Seller without any liability or further obligation to the Buyer in respect thereof. The Seller’s rights under this Condition are without prejudice to any other rights or remedies the Seller may have.

8. Title and Risk

• 8.1. Risk shall pass to the Buyer on Delivery.
• 8.2. Tile to the Goods shall not pass to the Buyer until payment of all debts owed by the Buyer (in respect of the Goods and any other goods previously or subsequently supplied by the Seller to the Buyer) have been paid in full to the Seller.
• 8.3. Until the Seller receives full payment, and subject to the following provisions the Buyer holds the Goods as bailee of the Seller and owes to the Seller the normal fiduciary obligations of a bailee by way of custody in respect of the Goods.
• 8.4. Subject to Condition 8.5, the Buyer may offer for sale and sell the Goods before the Seller receives payment for the Goods. The Buyer shall do so only at the best obtainable price in the ordinary course of its business as principal and not as agent for the Seller. If the Buyer resells the Goods, title to the Goods shall pass from the Seller to the Buyer immediately before the time at which the resale occurs. The Seller shall, by the reason of the said relationship of bailment between the Buyer (as bailee) and itself (as bailor), be and remain legally and beneficially entitled to the proceeds of the sale into a separate account or, otherwise, shall ensure that all the proceeds of sale are kept by or on behalf of the Buyer in a separate and identifiable form. The proceeds shall not be paid into an overdrawn bank account. Upon receipt of the proceeds of sale, the Buyer shall discharge the debt due to the Seller and shall not use or deal with the proceeds of sale in any way whatsoever until such debt has been discharged.
• 8.5. At any time before title to the Goods passes to the Buyer, the Seller may by notice to the Buyer, terminate the Buyer’s right under 8.4 to resell the Goods and require the Buyer to deliver up all Goods in its possession which have not been resold. If the Buyer fails to do so promptly, the Seller may enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.

9. Exclusion of liability for delay in Delivery

• 9.1. The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
• 9.2. Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within one month of the Delivery Date.

10. Limitation of Liability

• 10.1. The restrictions on liability in this Condition 10 apply to every liability arising under or in connection with the Contract including liability in contract, tort, misrepresentation, restitution or otherwise.
• 10.2. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
  • 10.2.1. death or personal injury caused by negligence; and
  • 10.2.2. fraud or fraudulent misrepresentation.
• 10.3. Subject to Condition 10.2, the following types of losses are wholly excluded:
  • 10.3.1. loss of profits;
  • 10.3.2. loss of sales or business;
  • 10.3.3. loss of agreements or contracts;
  • 10.3.4. loss of anticipated savings;
  • 10.3.5. loss of or damage to goodwill; and
  • 10.3.6. indirect or consequential loss.
• 10.4. In the event of any breach of a Contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.

11. Termination

Without limiting its other rights and remedies, the Seller may terminate a Contract with immediate effect by giving written notice to the Buyer if:

• 11.1.1. the Buyer takes any step or action in connection with its entering administration, liquidation or any composition arrangement with its creditors (other than in relation to solvent restructuring), obtaining a moratorium, being wound up, having a receiver appointed to any of its assets or ceasing to carry on business;
• 11.1.2. the Buyer suspends or ceases to carry on all or major part of its business; or
• 11.1.3. the Buyer’s financial position deteriorates so far as to justify the Seller’s opinion that the Buyer’s ability to give effect to the terms of the Contract is in jeopardy.
• 11.2. Without limiting its other rights or remedies, the Seller may suspend supply of any Goods under a Contract if the Buyer becomes subject to any of the events listed in Condition 11.1 or the Seller reasonably believes that the Customer is about t
• 11.3. On termination of the Contract for any reason the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid Invoices and interest and, in respect of Goods supplied but for which no Invoice has been submitted, the Seller shall submit an Invoice, which shall be payable by the Buyer immediately on receipt.

12. Sale or Return

If the Seller shall agree to sell Goods to the Buyer on a sale or return basis any Goods not returned to the Seller within 2 months of delivery shall be deemed to have been sold by the Buyer and the Buyer shall be liable for the Price.

13. Assignment and other dealings

• 13.1. The Seller may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under any Contract.
• 13.2. The Buyer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under a Contract without the prior written consent of the Seller.

14. Variation

No variation of these Conditions shall be effective unless it is in writing and signed by the parties.

15. Severance

If any provision or part-provision of a 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 the Contract.

16. Notice

• 16.1. Any notice given to a party under or in connection with these Conditions shall be in writing and shall be:
  • 16.1.1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
  • 16.1.2. in the case of the Seller, sent by email to the following addresses info@magnafoodservice.co.uk.
• 16.2. Any notice shall be deemed to have been received:
  • 16.2.1. if delivered by hand, at the time the notice is left at the proper address;
  • 16.2.2. if sent by pre-paid first-class post; or
  • 16.2.3. 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.
• 16.3. This Condition 16 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

17. Governing law

Each Contract and these Conditions, and any dispute or claim arising of or in connection with them is subject to the law of England.

18. Jurisdiction

Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with a Contract or its subject matter or formation and these Conditions.