Brakes Terms & Conditions

 

1.         DEFINITIONS

In these terms and conditions:

1.1        “The Company” means Brake Bros Limited.

1.2        “The Customer” means any person, firm, company or other legal entity which places an order, or buys any Products from the Company.

1.3        “Products” means any Food and/or Equipment and/or Non-Food agreed in the Contract to be supplied by the Company to the Customer.

1.4        “Listed Product” means a Product which is part of the Company’s standard range of products which is available for purchase by all Customers and which are publicised as being for sale on the Company’s website and/or in their printed publications.

1.5        “Customer Nominated Product” means a Product that is not sourced by the Company but which at the request of the Customer the Company has agreed to purchase from the supplier thereof and supply to the Customer.

1.6        “Nominated and Sourced Product Form” means the Nominated and Sourced Product Form of the Company from time to time.

1.7        “Sourced Product” means a Product that has been sourced by the Company to fulfil a specific requirement of the Customer and which is not one of the Company’s Listed Products (for example, vendor branded products which are not Customer Nominated Products).

1.8        “Equipment” means any machine or equipment.

1.9        “Food” means any food or beverage.

1.10      “Non-Food” means any goods which are not Food or Equipment.

1.11      “Contract” means the contract between the Company and the Customer for the sale and purchase of the Products in accordance with these Terms and Conditions.

1.12      “Statutory Interest” means statutory interest as defined in the Late Payment of Commercial Debts (Interest) Act 1998 as amended & supplemented by the Late Payment of Commercial Debts Regulations 2002.

1.13      “Terms and Conditions” means these terms and conditions of sale.

1.14      “Late Payment Compensation Fee” is detailed in Condition 5.4.

 

2.         APPLICABILITY OF TERMS AND CONDITIONS

These Terms and Conditions shall be incorporated into the Contract and shall apply in place of and prevail over any terms and conditions contained or referred to in any communication from the Customer or implied by trade, custom or practice or course of dealing. Other purported terms and conditions which the Customer seeks to impose or incorporate are expressly rejected by the Company.

 

3. ORDERS AND CONTRACTS

3.1        By placing an order with the Company either via the Company’s telesales department, the Company’s website or otherwise, the Customer is offering to purchase the Products in accordance with these Terms and Conditions. The Contract shall be formed when the Company acknowledges acceptance of the Customer’s order or commences delivery of the Products to the Customer, whichever occurs earlier.

3.2        The Customer is responsible for ensuring that the terms of any order are complete and accurate.

3.3        No pricing made available to the Customer in any way shall constitute an offer and the Company may amend its prices at any time.  Prices are quoted exclusive of VAT which shall be charged if applicable.

3.4        The Contract is subject to availability of stock and the Company reserves the right to vary or alter the specification of Products without notice unless otherwise agreed in writing with the Customer.

3.5        The Contract constitutes the entire agreement between the parties and the Customer acknowledges that it has not relied on any statement, promise or representation made or given by, or on behalf of, the Company which is not set out in the Contract. 

3.6        Any drawings, descriptions or serving suggestions contained in the Company’s catalogues, brochures or sales material (including ‘The List’) or on the Company’s website are produced for the sole purpose of giving an approximate idea of the Products.  They shall not form part of the Contract or have any contractual force.

 

4.         TITLE & RISK

4.1        Subject to clause 4.2, the risk of loss or damage to the Products shall pass to the Customer on completion of delivery, in accordance with Condition 6.3.

4.2        The Company shall not be responsible for any loss or damage to the Products which is caused due to the condition of the Delivery Location or any act, default or omission of the Customer or its representatives.

4.3        Title in the Products shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of the Products and all other sums which are or which become due to the Company from the Customer on any account.

4.4        Until title passes to the Customer, the Customer shall hold the Products on a fiduciary basis as the Company’s bailee; store the Products separately from all other products in such a way that they are clearly identifiable as the property of the Company; maintain the Products in a satisfactory condition; keep the Products insured on the Company’s behalf for their full price against all risks; and notify the Company immediately if it becomes subject to any of the events listed in Condition 9, but the Customer may resell or use the Products in the ordinary course of its business.

4.5        If before title in the Products passes to the Customer the Customer becomes subject to any of the events listed in Condition 9, or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Products have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Products and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored, in order to recover them.

 

5.         PAYMENT TERMS

5.1        Where credit is granted, unless otherwise agreed in writing, all sums payable in respect of the Products must be paid without deductions within 14 days from the end of the calendar month in which the invoice was raised.

5.2        Failure to pay by the due date shall entitle the Company to suspend delivery of all unexecuted or future orders. The time for payment of the price of the Products shall be of the essence.

5.3        The Company reserves the right at any time in its absolute discretion to demand immediate payment of any account whether due or not and to take legal action to recover the debt and costs.

5.4        If payment is not made in accordance with this Condition, the Company reserves the right to charge Statutory Interest on the overdue balances for the period from the date on which payment became due until the date on which payment is made including any period after the date of any judgement or decree against the Customer. In addition each overdue invoice will attract a late payment compensation fee of £40.

5.5        In the event of any cheques, standing orders or direct debits due from a Customer to the Company being dishonoured, a charge of £45 (or such other sum as the Company may from time to time advise the Customer) will be made on the Customer’s account to cover bank and administrative costs.

5.6        The Company reserves the right in its absolute discretion to refuse to grant credit.

5.7        The Company 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 Company to the Customer.

 

6.         DELIVERY

6.1        Deliveries of Products to the Customer shall be in accordance with the Company’s delivery schedule.  The Company shall not be liable for any loss or damage whatsoever arising as a result of a delay or failure to deliver Products by a particular date or arising as a result of any cause beyond the Company’s control, including any force majeure event or the Customer’s failure to provide adequate delivery instructions. Time for delivery shall not be of the essence.

6.2        Delivery of Products shall be made by the Company to a reasonably accessible location at the Customer’s premises, or as otherwise agreed between the parties (“the Delivery Location”). The Customer shall allow the Company access to such premises and shall use best endeavours to ensure that a responsible person shall be at the place of delivery to take delivery of the Products and to sign for them. If such a person is not present at the time of delivery the Customer hereby consents to the Company leaving the Products at what appear to be the premises nominated by the Customer as the place of delivery, and when the Products are so left, risk in the Products shall pass to the Customer and no liability shall remain with the Company in respect of the Products.

6.3        Delivery of the Products shall be completed once the Products are unloaded at the Delivery Location.

6.4        If the Customer fails to take delivery or fails to give the Company adequate delivery instructions at the time stated for delivery then without prejudice to any other right or remedy available to the Company, the Company may do one or more of the following:
6.4.1 charge the Customer the cost of carriage of the refused delivery both to and from the Delivery Location in addition to the Company’s administration charges involved;
6.4.2 charge the Customer the full cost price of the Products and a sum in respect of its loss of profit provided that the Company shall use its reasonable endeavours to mitigate such loss;
6.4.3 where the delivery includes Equipment, store the Equipment until actual delivery and charge the Customer for the reasonable cost of storage (including insurance);
6.4.4 sell the Equipment and charge the Customer for any shortfall below the price under the Contract.

6.5        The Company may deliver the Products by instalments, which shall be invoiced separately.  Any delay in delivery shall not entitle the Customer to cancel any order or any instalment.

 

7.         ACCEPTANCE AND CLAIMS PROCEDURE

7.1        The Customer must check that the quantity and specifications of Products delivered correspond with the Contract before signature of the delivery note.

7.2        Claims in respect of short deliveries or damage to Products reasonably visible on inspection must be made to the Company within 24 hours of the time of the delivery which gives rise to the claim. The Customer must retain damaged Products for inspection and collection. Credit will only be granted by the Company if the provisions of this Condition are complied with.

 

8.         CANCELLATION OF AN ORDER

An order may not be cancelled by the Customer without the written consent of the Company. The Company reserves the right upon consent being given to levy a cancellation charge of not less than 20% of the Products which are the subject of the order (or orders) to cover the Company’s losses arising from the cancellation. Customer Nominated Products and Sourced Products ordered on behalf of the Customer cannot be returned, unless the manufacturer agrees to accept them.  Where this is not the case the Customer shall purchase all such Customer Nominated Products and Sourced Products from the Company within 14 days.

 

9.         INSOLVENCY OF CUSTOMER

In the event that:

9.1        the Customer makes any voluntary arrangement with its creditors, proposes to enter into a company voluntary arrangement, enters into administration, is unable to pay its debts as they fall due, makes application to a Court to suspend enforcement action against it, goes into liquidation (in the event that the Customer is a company) or becomes insolvent, enters into a trust deed or voluntary arrangement for the benefit of its creditors (in the event that the Customer is an individual or firm), or if the equivalent occurs under any jurisdiction; or

9.2        an encumbrancer takes possession of, or a receiver or administrative receiver is appointed over, any of the property or assets of the Customer; or

9.3        the Customer suspends any payments hereunder or ceases, or threatens to cease, to carry on business; or

9.4        the Company reasonably considers that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly;

then without prejudice to any other rights or remedies available to the Company, the Company shall be entitled forthwith to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and if the Products have been delivered but not paid for, the price shall become immediately payable notwithstanding any previous agreement to the contrary.

 

10.        WARRANTIES

10.1      The Company warrants that all Food Products (with the exception of Customer Nominated Products in respect of which the Company’s complete responsibility is set out in Condition 13) shall comply with the Food Safety Act 1990 and all relevant UK legislation from time to time in force. The Company warrants that all Non-Food Products (with the exception of Customer Nominated Products in respect of which the Company’s complete responsibility is set out in Condition 13) shall comply with all relevant UK legislation from time to time in force.

10.2      The Company gives no warranties in respect of the Equipment. The Company will, to the extent that it is able, at the sole cost and expense of the Customer assign, or make available to the Customer the benefit of any warranties or guarantees relating to the Equipment obtained from the manufacturer thereof.

10.3 The Customer shall ensure that no Food it purchases from the Company is sold (or otherwise distributed) after any ‘best-before’ or ‘use-by’ dates included on the Products or their packaging.  To the extent any Food is sold (or otherwise distributed) by the Customer after any such date, it shall be at the Customer’s sole risk, and the Customer shall compensate and hold the Company harmless against any losses, claims, expenses or damages it incurs howsoever relating to the same.

 

11.        LIMITATION OF THE COMPANY’S LIABILITY

11.1      Nothing in these Terms and Conditions shall limit or exclude the Company’s liability for: (i) death or personal injury caused by the Company’s negligence; (ii) fraud or fraudulent misrepresentation; or (iii) for any other matter in respect of which it would be unlawful for the Company to exclude or limit liability.

11.2      Subject to Condition 11.1 and 11.3:

            11.2.1 the Company shall under no circumstances be liable to the Customer, whether in contract, tort (including negligence) or otherwise, for any loss of profit, loss of opportunity, loss of customers, loss of reputation or any indirect or consequential loss arising under or in connection with the Contract;

            11.2.2 in respect of damaged or otherwise defective Products, the Company’s liability shall be limited to replacing the whole or any part of the respective Product or, at the Company’s option, refunding or crediting the purchase price or a prorated portion of the purchase price;

            11.2.3 in all other circumstances, the Company’s total liability to the Customer in respect of all other losses arising under or in connection with a Contract shall in no circumstances exceed the value of the order to which the Contract relates.   

11.3      Subject to Condition 11.1, the Company shall not be liable for any losses, expenses, claims or damages suffered or incurred by the Customer (or any third party):

            11.3.1 to the extent they arise as a consequence of any damage or defect in a Product which was caused by its unsatisfactory storage, treatment or handling (other than by the Company or its representatives) or any act or omission on the part of the Customer or its employees, agents or representatives;
11.3.2 relating to damaged or defective products where the damage or defect ought reasonably to have been noticeable at the time of delivery, and the damage or defect is not reported to the Company in accordance with Condition 7;

            11.3.3 claims not notified to the Company within 3 months of the respective invoice (or, if later, when the Customer became aware, or ought reasonably to have become aware, of the claim).

 

12.        INTELLECTUAL PROPERTY

Copyright and all other intellectual property rights in the Products shall remain at all times the property of the Company. The Customer shall acquire no rights in the Products except as expressly provided for in these Terms and Conditions.

 

The Customer may not reproduce, copy, duplicate, transmit, publish, display, distribute or sell any material from the Company websites. The Customer may not use the Company websites or their content for any commercial purpose; including the collection and use of any listings, descriptions, prices, make any derivative or commercially exploitative use of this website or its content, download or copy account information, use any data mining, robots or similar data gathering and extraction tool without the explicit written consent of the company. Any unauthorised use terminates any permissions granted.

 

13. CUSTOMER NOMINATED PRODUCTS

In the event that any of the Products to be supplied under the Contract are Customer Nominated Products, the Customer shall be required to complete a Nominated and Sourced Product Form and the following additional provisions shall apply:

13.1      The Customer shall be responsible for agreeing directly with the suppliers of Customer Nominated Products all matters concerning Customer Nominated Products including the specification and delivery conditions. The Company shall have no responsibility for the selection of any supplier of Customer Nominated Products or for their performance. The Customer shall provide the Company with full details of all suppliers of Customer Nominated Products in order for the Company to fulfil its obligations under the Contract.

13.2      The Company shall purchase Customer Nominated Products from suppliers at the price agreed with the suppliers by the Customer and on the basis of the Company’s terms and conditions of purchase from time to time in force. The Customer shall provide the Company with a price file for each supplier of a Customer Nominated Product showing the relevant cost. Any variation to the cost price of customer Nominated Products will only be accepted by the Company on submission of an agreed price change form from the Customer and with a minimum of 14 days’ notice.

13.3      The Company shall agree an on-cost charge with the Customer in respect of the stocking and delivery of the Customer Nominated Products.

13.4      Unless otherwise agreed, the Company shall arrange for Customer Nominated Products to be delivered into its depots for onward delivery by the Company to the Customer. Upon delivery of Customer Nominated Products into its depots the Company shall check such Products for obvious external damage and shall reject any such Products which are clearly damaged and appropriate charges may be made to the supplier. The Company shall not be obliged to carry out any other checks or quality control inspections in relation to Customer Nominated Products and Customer Nominated Products are sold by the Company to the Customer on this basis.

13.5      The Customer acknowledges and agrees that the inability of the Company to perform any part of the Contract by reason of the performance deficiencies of any or all of the suppliers of Customer Nominated Products shall not be deemed to be a material breach of the Contract by the Company and to the extent that it is able according to law the Customer will pursue its remedies directly against the defaulting supplier of the Customer Nominated Product. The Customer’s remedies against the Company in such circumstances shall in any event be limited to the remedies which the Company reasonably has against the defaulting supplier of the Customer Nominated Product.

13.6      The Company shall not be responsible for any costs resulting from shelf life expiry, waste, discontinuance of stock or unordered stock of Customer Nominated Products.  In any of these events, the Company may charge the Customer the full selling price of such Customer Nominated Products in addition to any disposal or return costs.

 

14.        SOURCED PRODUCTS

In the event that any of the Products to be supplied under the Contract are Sourced Products, the Customer shall be required to complete a Nominated and Sourced Product Form and the following additional provisions will apply:

14.1      The Company shall agree with the suppliers of Sourced Products all matters concerning Sourced Products, including the specification, which shall be based on the requirements of the Customer.

14.2      The Company shall purchase Sourced Products from suppliers at the cost price agreed between it and the supplier of the Sourced Products.  The Company shall agree the selling price of the Sourced Products with the Customer and shall notify the Customer of any cost price increases imposed on it by the supplier of the Sourced Products, which shall result in an increase in the selling price to the Customer.

14.3      The Company shall not be responsible for any costs resulting from shelf life expiry, waste, discontinuance of stock or unordered stock of the Sourced Products.  In any of these events, the Company may charge the Customer the full selling price of such Sourced Products in addition to any disposal or return costs.

15. FORCE MAJEURE

The Company reserves the right to defer the date of delivery or reduce the volume of Products ordered by the Customer or to cancel the Contract without liability to the Customer if it is prevented from or delayed in the carrying out of its obligations under the Contract due to circumstances beyond its reasonable control including, without limitation, any failure or delay on the part of the manufacturer of any of the Products to supply the Products to the Company, any strike, lock-out or other industrial action, fire, explosion, flood, closure of motorways or other roads leaving no alternative route, unusually severe weather conditions or unusually severe traffic congestion which could not reasonably have been anticipated leaving no alternative route, loss of power or telecommunications systems or computer failure or breakdown.

 

16.        CONFIDENTIALITY

16.1      The Customer undertakes that it shall not at any time disclose any confidential information concerning the business, affairs, customers, suppliers, pricing or other financial information of the Company to any third party whatsoever.

16.2      The Customer may disclose the Company’s confidential information (i) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out its obligations to the Company under the Contract, provided that such employees, officers, representatives and advisors to whom the Customer discloses such information comply in full with this Condition; and (ii) as may be required by law, court order or any government or regulatory authority, provided that the Customer gives as much advance notice of such disclosure to the Company, as possible.

16.3      The Customer shall not use the Company’s confidential information for any purpose other than to perform its obligations under the Contract.

16.4 Where the Customer purchases from the Company via a buying group or consortia (“Buying Group”), the Customer consents to the Company supplying to the Buying Group information relating to the Customer’s purchases, its account and payment history, or any other information requested by the Buying Group in connection with the Customer’s trading relationship with the Company.

 

17.        ERECTION AND INSTALLATION

Where erection, installation and positioning of Equipment are part of the Contract the Customer shall ensure that the site is clear and ready for installation. Should the site not be ready as stipulated for such installation, the Company reserves the right to make a charge for any costs incurred as a result of it being so prevented and any delay or subsequent installation.

 

18.        ADDITIONAL TERMS

18.1      Failure or delay on the part of the Company in enforcing any provision of the Contract shall not be construed as a waiver of any of the Company’s rights under the Contract. Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed to be a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

18.2      If any provision of the Contract is found by any Court, tribunal or other administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

18.3      The Company, but not the Customer, may assign its rights and obligations under the Contract.

18.4      Any written communication given pursuant to the Contract must be sent by pre-paid first class post to the registered office of the addressee or such other address as may have been notified in writing and shall be deemed to have been received by the addressee two days after the date of posting.

18.5      The parties to the Contract do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.

18.6      The Contract shall be governed by the laws of England and the Company and the Customer agree to submit to the exclusive jurisdiction of the English Courts.

18.7      If the Customer is a partnership the liability of the individual partners to the Company shall be joint and several.

18.8       The signature on behalf of a Customer who is a limited company by any person purporting to sign with the Customer’s authority shall bind the Customer and the Customer shall be liable to comply with the terms of the Contract.

18.9      The Customer shall be liable to comply with the terms of the Contract and pay for any Products which are ordered using its Customer account number.

18.10    The Company reserves the right to amend these Terms and Conditions from time to time by posting updated versions on its website.

 

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© Brakes Group 2015

Brake Bros Ltd. Registered office: Enterprise House, Eureka Business Park, Ashford, Kent, TN25 4AG. Registered in England No. 02035315