Brakes Terms & Conditions
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
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
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
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
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.
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
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
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.
6.1 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
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
8. CANCELLATION OF AN ORDER
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
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;
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.
10.1 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.
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
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
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
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.
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.
CUSTOMER NOMINATED PRODUCTS
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
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
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
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
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
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.
16.1 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
16.3 The Customer shall not use the Company’s
confidential information for any purpose other than to perform its obligations
under the Contract.
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
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
Brakes Group 2015
Bros Ltd. Registered office: Enterprise House, Eureka Business Park, Ashford,
Kent, TN25 4AG. Registered in England No. 02035315