1.1“Seller” shall mean GM Marketing (Ireland) Limited (company registration number NI051184)
1.2 “Business Day” shall mean a day other than a Saturday, Sunday or public holiday in Northern Ireland, when banks in Belfast are open for business.
1.3 “Buyer” shall mean the person, firm, company or other organisation making an offer to the Seller to purchase the Goods on the basis of these Conditions.
1.4 “Conditions” means these conditions of sale.
1.5 “Contract” shall mean the agreement arising between the Seller and the Buyer following the Seller’s written or electronic acceptance of the Order or delivery of the Goods, whichever shall first occur. The Contract shall consist of the Order, these Conditions, the Account Application Form and any other documents or conditions specified or referred to therein but shall specifically exclude any conditions appearing on or referred to in the Order. Any samples, drawings, descriptive matter or advertising produced by the Seller and any descriptions or illustrations contained in the Seller's 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. . This is not a sale by sample.
1.6 “Discounts” means those amounts relating to discounts, discount terms or retrospective promotions that the Seller in its absolute discretion may apply to the price after the invoice is issued.
1.7 “Force Majeure Event” means an event, circumstance or cause beyond a party's reasonable control including, without limitation acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; or non-performance by suppliers or subcontractors.
1.8 “Goods” shall mean all items to be supplied by the Seller as set out in the Order.
1.9 “Order” shall mean the Buyer’s order issued either in writing, by email or telephone or orders placed by the Seller’s representatives or the EDI systems, incorporating these Conditions.
2.1 All Contracts entered into by the Seller are subject to and governed by these Conditions to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. These Conditions may only be varied by the Seller in writing and in any event the Seller’s written or electronic acceptance of the Order or the Buyer’s acceptance of the Goods on delivery shall constitute acceptance of these Conditions.
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 are complete and accurate.
2.3 The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.
3.1 Prices quoted, unless otherwise stated, include delivery (subject to the set minimum order value – please refer to your price list), but not VAT (or any tax in lieu of or in substitution of VAT), which shall be added to the price.
3.2 All prices are carriage paid and strictly net.
3.3 The prices payable for the Goods shall be those referred to in the Contract.
3.4 The Seller may apply Discounts to the price after the invoice is issued.
3.5 The Seller may, by giving notice to the Buyer at any time up to 21 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
a. any factor beyond the Seller's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
b. any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered; or
c. any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions.
3.6 The Seller does not supply Goods on a sale or return basis.
4 CREDIT LIMIT
4.1 The granting of credit terms is at the Seller’s absolute discretion and two satisfactory trade references must be received before the Buyer can be given such terms.
4.2 The Seller reserves the right to suspend deliveries or determine any Contract if the Seller judges that the amount outstanding on the General Statement of Account between the parties is in excess of the credit limit the Seller is willing to accord to the Buyer. Credit terms can be varied at any time at the discretion of the Seller but without prejudice to the terms upon which any Goods already supplied have been sold.
5 DELIVERY AND CARRIAGE
5.1 The Seller will use all reasonable endeavours to deliver Goods promptly.
5.2 If the Seller requires the Buyer to return any packaging materials to the Seller, that fact is clearly stated on the delivery note. The Buyer shall make any such packaging materials available for collection at such times as the Seller shall reasonably request. Returns of packaging materials shall be at the Seller's expense.
5.3 The Seller shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after the Seller notifies the Buyer that the Goods are ready.
5.4 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
5.5 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
5.6 If the Seller 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. The Seller 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 the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.7 The Seller accepts no liability whatsoever for any consequences (express or implied) arising from any delay in delivery from any cause or for any loss or damage arising out of any such delay.
5.8 The Seller will take every reasonable care to ensure the Goods leave its premises in satisfactory condition. However the Seller can only accept responsibility for any consequences (express or implied) arising from losses or damages in transit in the circumstances where loss or damage is covered by insurance and the provisions of condition 8 are strictly complied with but not otherwise.
5.9 The Seller will deliver Orders valued at the set minimum order value (please refer to your price list) free of charge to mainland United Kingdom, or Republic of Ireland destinations by a method of delivery at the Seller’s absolute discretion. Buyers requiring “Express” or “overnight” delivery will be charged an appropriate additional cost. The Seller reserves the right to impose a delivery surcharge for orders that do not meet these terms.
5.10 The Seller reserves the right to effect delivery by instalments. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
5.11 If [three] Business Days after the day on which the Seller notified the Buyer that the Goods were ready for delivery the Buyer has not accepted actual delivery of them or delivery is delayed for reasons attributable to the Buyer or its agents, the Seller may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Buyer for any shortfall below the price of the Goods. The Goods will be held at the Buyer’s risk from the date of commencement of such delay and the Seller reserves the right to invoice the Goods at the original delivery date.
6.1 Unless otherwise agreed in writing with a Director of the Seller, payment shall be made 14 days following the date of invoice with time being of the essence, (“Due Date”) notwithstanding the Buyer’s failure to accept delivery of the Goods.
6.2 If the Buyer fails to pay the full amount on the Due Date the Seller reserves the right to charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 4% per annum above the Bank of England Base Rate from the Due Date until payment is received together with all additional costs associated with and/or incurred in the recovery of overdue accounts.
6.3 Should the Seller suspend delivery or terminate a Contract, the Buyer shall pay the Seller the agreed price for all the Goods purchased prior to suspension or termination.
6.4 Any payment due shall be made in full without set-off deduction or counterclaim.
7 NOTIFICATION OF DAMAGE OR LOSS IN TRANSIT
7.1 The Seller shall invoice the Buyer on receipt of proof of delivery.
7.2 The Buyer must check all Goods immediately upon receipt and any shortages or damages must be marked on the Delivery Note at the time of delivery. If the Buyer receives all or any part of the Goods in a damaged condition, the Buyer shall notify the Seller of its claim in writing within 2 days of the delivery date.
7.3 Should the Buyer fail to notify the Seller of non-delivery of Goods or Goods damaged in transit within the relevant notice periods, the Buyer shall be liable to the Seller for any loss or damage the Seller may suffer in consequence of the Seller’s resultant omission to notify the carriers or insurers for the non-arrival or damage in transit of the Goods.
7.4 Failure to comply with the above time constraints shall indemnify the Seller from all or any liability to the Buyer for any defect, damage, shortage, non-delivery or other proper objection to the Goods or their packaging.
8.1 The Seller warrants that upon delivery the Goods shall:
a. Be of satisfactory quality
b. Correspond with the description on the invoice by which they are sold; and
c. Comply with the requirements of The Food Safety (Northern Ireland) Order 1991, any amendments to that Act and any applicable regulations made thereunder or by the European Union
8.2 The Seller shall not be liable for any breach of the above warranties (the “Warranties”)
a. Unless the Buyer gives written notice of the non-compliance or alleged imperfection within 7 days of the discovery of the non-compliance or imperfection or of the date when such a problem ought reasonably to have been discovered and in any event before the expiration of the normal shelf life of the relevant Goods;
b. Unless the Buyer gives the Seller an opportunity to inspect the Goods;
c. If the Buyer makes any further use of such Goods after giving notice in accordance with Clause 9.2 (a);
d. The defect arises because the Buyer failed to follow the Seller's oral or written instructions as to the storage or use of the Goods or (if there are none) good trade practice regarding the same;
e. If the Goods have been tampered with; and
f. If the Goods have been subjected to misuse, neglect, carelessness, vandalism, fire, flood, excessive heat or cold, or other commotion or disturbance of whatever nature whether affecting Goods directly or indirectly as the result of any such matter affecting the premises in the which the Goods are situated.
9 RISK AND RETENTION OF TITLE
9.1 The risk in the Goods shall pass to the Buyer on completion of delivery.
9.2 Title in the Goods shall pass to the Buyer on the earlier of payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer 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 howsoever and until the happening of the last such event the Buyer shall keep the Goods as the Seller’s fiduciary agent and bailee in such a way that they are identifiable as the property of the Seller and are separate from all other Goods of the Buyer and stored correctly upon the instructions of the Seller and shall, if required by the Seller insure the Goods in the joint names of the Seller and the Buyer to the satisfaction of the Seller.
9.3 If before such payment in full the Goods shall be sold or otherwise disposed of to a third party the Seller shall be entitled to all monies and rights which (but for these provisions) would otherwise be due to the Buyer arising from such sale or disposition and the Buyer shall (if required by the Seller) assign to the Seller or as the Seller may direct at the Buyer’s cost any claim against such third party. All such monies received by the Buyer shall be retained in a separate designated account for the benefit of the Seller absolutely. Until all such monies have been retained as aforesaid, such monies as have been paid and however received shall be received and thereafter held in trust and for the benefit of the Seller. Any sums wheresoever paid shall be traceable to the beneficial ownership of the Seller and including and notwithstanding that the same may have been placed in any account whether overdrawn (and thereby reducing or extinguishing the same) or whether in credit. Further, sums standing to the credit balance of the buyer from time to time shall be deemed to be held first and beneficially in trust for the Seller to the extent of the sum of such monies received for unpaid Goods whether or not the balance at any time falls below the net sums properly to be held to the benefit of the Seller.
9.4 At any time before title to the Goods passes to the Buyer, the Seller:
a. may by notice in writing, terminate the Buyer's right to resell the Goods or use them in the ordinary course of its business; and
b. require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and 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 and for that purpose the Buyer irrevocably authorises the Seller, its employees and agents to enter without notice into or upon any premises of the Buyer or upon any premises of which the Buyer has possession or control. The Buyer irrevocably instructs all and any of its officers, servants or agents to deliver up any such Goods in their possession.
9.5 The Buyer shall upon failure to pay the price in full and when due endorse on invoices, statements and similar documents addressed to its buyers of the Goods, a memorandum stating the Seller’s rights over to and in the Goods and the proceeds of sale, the wording of which shall be at the sole discretion of the Seller.
10.1 Without limiting its other rights or remedies, the Supplier may suspend or terminate this Contract with immediate effect by giving written notice to the Customer if:
a. 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 five Business Days of that party being notified in writing to do so;
b. The Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of a bona fide amalgamation or reconstruction);
c. An encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Buyer;
d. The buyer ceases or threatens to cease to carry on business;
e. The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 Upon notice of termination or suspension by the Seller to the Buyer the price shall become immediately due and payable with interest on any goods delivered notwithstanding any previous agreement or arrangement to the contrary.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11 LIMITATION OF SELLERS LIABILITY
11.1 The Seller shall be under no liability in respect of any imperfection in the Goods arising from expiry of Best Before End date or Use by Date, wilful damage, negligence by the Buyer or its employees or agents, abnormal storage and/or working conditions, failure to follow the Seller’s instructions, misuse or alteration or repair of the Goods.
11.2 The Seller has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £5million per claim. The limits and exclusions in this clause reflect the insurance cover the Seller has been able to arrange and the Buyer is responsible for making its own arrangements for the insurance of any excess loss.
11.3 The restrictions on liability in this clause apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise (except in so far as such liability relates to death, fraudulent misrepresentation or personal injury resulting from the Seller’s proven negligence).
11.4 The Seller shall not be liable in any circumstances for loss of profit, loss of sale or business, loss of agreements or contracts, loss of anticipated savings, loss of use or goodwill including (but not limited to) breach of any Warranty, delay in delivery or for any indirect or consequential loss or damage of any kind whether caused by negligence or otherwise howsoever and whether or not such loss has been suffered by the Buyer or by some third party to whom the Buyer may be liable; and
11.5 If the Seller is found liable for loss or damage arising from any breach of contract or error, whether negligent or not, in connection with the Contract, the Sellers liability shall in no event exceed the total purchase price of the Goods.
11.6 This clause shall survive termination of the Contract.
12 FORCE MAJEURE
12.1 If the Seller is unable to supply the Goods by reason of events beyond its control any specified delivery date(s) shall be extended for a period equal to the delay caused by such events.
12.2 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.
12.3 The affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay extends beyond 20 Business Days then either party may terminate the Contract on written notice as regards any Goods then undelivered provided that if the Buyer cancels the Contract the Seller may require the Buyer to take and pay for the proper proportion of the Contract price of the Goods purchased for the purpose of the Contract.
12.4 If Brexit causes the Supplier to suffer a material adverse impact then the Supplier may require the Customer to negotiate an amendment to the Contract to alleviate the adverse impact and if renegotiation fails, the Supplier can terminate the Contract with immediate effect by giving written notice.
The Seller reserves the right to make any changes in the specification of the Goods in the Order which are required to conform with any applicable statutory or regulatory requirements (including E.U. Regulations and Directives) relating to the sale of food and beverages at present in force in the United Kingdom, or Republic of Ireland and/or in the country of destination as stipulated in the Contract or where the Goods are to be supplied to the Seller’s specification which do not materially affect their quality.
This Buyer undertakes not to use any trademarks or tradenames applied by the Seller to the Goods nor to do anything whereby the goodwill and reputation of such trademarks or tradenames is prejudiced or damaged.
15.1 The Contract is personal to the Buyer and shall not be assigned, sub-contracted or otherwise transferred in whole or part to any third party by the Buyer without the prior written consent of the Seller.
15.2 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 the Contract.
16 VARIATION AND WAIVER
16.1 No Employee or other person acting or purporting to act on behalf of the Seller is authorised to agree or effect any alteration in these Conditions unless confirmed in writing by a Director.
16.2 The failure or delay by the Seller to enforce at any time or at any period any one (or part of one) or more of the Conditions, rights or remedies under the Contract or by law shall not constituted a waiver of them or of the right at any time subsequently to enforce all Conditions hereof, 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.
17 DISPUTE RESOLUTION
17.1 If any dispute arises in connection with the Contract, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, within 14 working days of notice of the dispute, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (‘ADR notice’) to the other party to the dispute, referring the dispute to mediation. A copy of the referral should be sent to CEDR.
17.2 Unless otherwise agreed, the mediation will start not later than 28 working days after the date of the ADR notice.
18.1 Each party undertakes that it shall not at any time during the Contract and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, Buyers, clients or Sellers of the other party.
18.2 Each party may disclose the other party's confidential information:
a. 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
b. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
18.3 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.
If at any time any one or more of these Terms and Conditions (or any part thereof) is unenforceable, illegal or invalid for any reason the same shall be deemed omitted here from and the enforceability of the remaining provisions of these Terms and Conditions shall not in any way be affected or impaired. If any provision of the Contract is deemed omitted 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.
20 ENTIRE AGREEMENT
20.1 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.
20.2 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.
21.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be 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 sent by email to the address specified in the Order.
21.2 Any notice shall be deemed to have been received:
a. if delivered by hand, on signature of a delivery receipt or by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
b. 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. In this Clause business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
c. This clause 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.
22 THIRD PARTY RIGHTS
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
23 GOVERNING LAW AND JURISDICTION
These Terms and Conditions and Contract of which they form part shall be construed in accordance with Northern Irish Law and the Buyer hereby submits to jurisdiction of the Northern Ireland Courts.