Terms and Conditions

These Terms and Conditions modify and restrict certain obligations implied by law and limit the extent of liability for breach of contract and/or negligence. They should be carefully considered and any explanation necessary sought before proceeding to order. The Vendor limits its liability in this way so that Goods can be supplied at a reasonable cost. If liability were not so limited then the price charged would necessarily increase to cover the cost of undertaking and insuring against unlimited liability. The Purchaser in offering to buy under these Terms and Conditions acknowledges these facts and that accordingly the limitations on liability are fair and reasonable.

WHERE THE GOODS OR SERVICES ARE SOLD UNDER A CONSUMER SALE (AS DEFINED BY the Sale of Goods and Supply of Services Act, 1980) THE STATUTORY RIGHTS OF THE BUYER ARE NOT AFFECTED BY THESE CONDITIONS.

Nothing in these Terms and Conditions shall operate or be construed to operate so as to exclude or restrict the liability of the Vendor for death or personal injury caused by reason of the negligence of the Vendor or of its servants, employees or agents.

1. DEFINITIONS

“Ambient Goods” means Goods which are stored at room temperature.

“Contract” means any contract between the Vendor and the Purchaser for the sale and purchase of the Goods, incorporating these Terms and Conditions.

“Delivery” means delivery of the Goods in accordance with Condition 6.

“Frozen Goods” means any Goods which have undergone a freezing process to reach a core temperature of -18° C or lower following temperature stabilisation.

“Goods” means any goods or products sold or supplied pursuant to these Terms and Conditions.

“Hard Goods” means non-food Goods including but not limited to ovens, trays, stands and packaging.

“Purchaser” means any person firm or company to whom Goods are sold or supplied by the Vendor.

“Vendor” means ARYZTA FOOD SOLUTIONS IRELAND (registered in Ireland and Northern Ireland under company number 149525) also trading as Cuisine De France or any subsidiary or associated company thereof and on whose behalf the obligations of seller are assumed under any contract to which these Terms and Conditions apply.

“Working Day” means any day, other than a Sunday or public holiday in Ireland or Northern Ireland.

2. APPLICATION OF TERMS

(a) Unless the Vendor expressly accepts other terms and conditions by means of written amendments of these Terms and Conditions signed by an authorised signatory of the Vendor, the Vendor shall supply Goods solely on these Terms and Conditions to the exclusion of any other terms and conditions.

(b) Any purported variation of the Terms and Conditions whether by endorsement or reference to any purchase order or other document shall have no effect.

(c) Each telesales or internet order for Goods by the Purchaser from the Vendor shall be deemed to be an offer by the Purchaser to purchase Goods and shall be subject to these Terms and Conditions.

(d) No such order placed by the Purchaser shall be deemed to be accepted by the Vendor until the Vendor’s telesales agent acknowledges the order or (if earlier) the Vendor delivers the Goods to the Purchaser or, in the case of internet orders, the Vendor issues an dispatch confirmation.

(e) These Terms and Conditions shall apply to all the Vendor’s sales of the Goods and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by an authorised signatory of the Vendor.

3. DESCRIPTION

(a) The quantity and description of the Goods shall be confirmed to the Purchaser by the Vendor’s telesales agent or, in the case of internet orders, shall be confirmed in the dispatch confirmation issued in accordance with Condition 2 (d) above.

(b) All samples, drawings, descriptive matter, specifications and advertising issued by the Vendor and any descriptions or illustrations contained in the Vendor’s brochures or on the Vendor’s website are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.

4. PRICES

(a) Unless otherwise agreed by the Vendor in writing, the price for the Goods shall be at prices ruling on the date of dispatch which may be varied from time to time without notice at the Vendor’s sole and absolute discretion for any of the Goods

(b) All prices are subject to alteration without notice where the Vendor is obliged to increase prices through no fault of its own, including but not limited to, as a result of an Excise or other duty or tax or impost levied on relevant Goods; or an increase in the costs of complying with any relevant legislation or standards; or an increase in transportation or raw material costs.

(c) The prices of Goods shown in any price list are quoted exclusive of Value Added Tax

(d) In case of orders under €40 the Vendor shall be entitled to make a minimum order charge or to add a surcharge.

5. ORDERS

(a) The Vendor does not operate a Sale or Return policy and the orders shall be for the minimum quantities as published by the Vendor from time to time.

(b) All Goods are sold subject to availability.

(c) The Purchaser shall not, after 5pm on the day before an order is to be delivered by the Vendor, be entitled to cancel suspend or defer any delivery of Goods made by the Vendor.

6. DELIVERY

(a) Delivery shall be made by carrier or, at the Vendor’s option in the case of Hard Goods only, by post.

(b) Subject always to Condition 6 (e) delivery of Goods shall be deemed to have taken place:

(i) if the Goods are to be transported by the Vendor or a third party carrier, when the Goods have been offloaded from the transportation vehicle at the premises of the Purchaser or such other premises notified to the Vendor by the Purchaser or the Purchaser’s specified agent; or

(ii) if the Goods are not to be transported by the Vendor or a third party carrier, when notification has been given by the Vendor to the Purchaser that the Goods are ready for collection; or

(iii) if the Goods are to be transported by mail, four working days after posting.

(c) Any dates specified by the Vendor for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time. However, the Vendor will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges, or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Vendor’s negligence), nor will any delay entitle the Purchaser to terminate or rescind the Contract unless such delay exceeds 180 days.

(d) The Vendor shall be entitled where appropriate to deliver any order by one or more consignments and each consignment shall be treated as a separate contract.

(e) If the Purchaser fails to accept delivery of the Goods or the Vendor is unable to deliver the Goods on time because the Purchaser has not provided appropriate instructions, documents, licences or authorisations:

(i) risk in the Goods shall pass to the Purchaser;

(ii) the Goods shall be deemed to have been delivered; and

(iii) the Vendor shall at the Vendor’s option be entitled to store the Goods at the expense and risk of the Purchaser.

7. RISK

Risk in the Goods shall pass to the Purchaser forthwith upon Delivery to the Purchaser in accordance with Condition 6. The Goods shall be at the Purchaser’s risk from the time of Delivery notwithstanding that the property in the Goods remains with the Vendor as provided in Condition 11 below.

8. PAYMENT

(a) Payment for Goods supplied shall be received by the Vendor in full on Delivery. The Vendor may, at its sole discretion and after carrying out all appropriate credit checks in respect of the Purchaser afford credit terms to the Purchaser. In these instances payment must be made on or before the date as shall be specified on the Vendor’s invoice. Cash on delivery to any representative of the Vendor can only be proven and accepted on production of a receipted invoice being furnished by the Purchaser, no claim of cash payment can be entertained subsequently.

(b) If the Purchaser fails to make payment in accordance with clause 8 (a) the Vendor reserves the right to charge the Purchaser:

(i) interest at the rate of 2% per month from the due date specified on the Vendors invoice to the date of payment; and

(ii) all third party costs, including collection commission levied at the rate of 10% of the total debt balance.

(c) The Vendor reserves the right at its absolute discretion to refuse any proof of delivery request older than 3 months. Any request from the Purchaser to the Vendor requesting a copy proof of delivery or invoice will be chargeable at a rate of €15 per copy.

(d) Payment by due date is a condition precedent to future deliveries under any contract between the Vendor and the Purchaser.

(e) All payments to be made by the Purchaser hereunder shall be made in full without any deduction or with-holding (other than any deduction or withholding of tax as required by law), and the Purchaser shall not be entitled to claim set-off or to counterclaim against the Vendor in relation to the payment of the whole or part of any such amount. Purchasers who have established credit accounts should send payments made payable to ARYZTA Food Solutions Ireland Limited, Grange Castle Business Park, Clondalkin, Dublin 22. All payments must be clearly marked with the Purchasers account number and be delivered before the due date.

(f) No payment shall be deemed to have been received until the Vendor has received clear funds.

(g) All payments payable to the Vendor under the Contract shall become due immediately upon termination of the Contract despite any other provision.

(h) If any sums contained in the account are disputed, the Purchaser shall not withhold payment of the remainder of the account and if it shall be subsequently agreed or determined that any disputed sums are properly payable, then interest shall be payable in accordance with 8 (b) above.

(i) In case of alleged damage or quality issues, no deduction may be made by the Purchaser against invoice except on specific written authority from the Vendor.

(j) The Vendor may at any time without notice to the Purchaser, set off any liability of the Purchaser to the Vendor against any liability of the Vendor to the Purchaser, whether any such liability is present or future, liquidated or unliquidated, under this Contract or not and irrespective of the currency of its denomination. If the liabilities to be set off are expressed in different currencies, the Vendor may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Vendor of its rights under this clause shall be without prejudice to any other rights or remedies available to it under this agreement or otherwise.

(k) In the event that any sum payable by the Purchaser to the Vendor is overdue, the Vendor shall be entitled forthwith to claim all sums owed to the Vendor whether or not overdue.

9. INSOLVENCY

(a.) This Condition applies if:

(i) the Purchaser 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 purpose of amalgamation or reconstruction); or

(ii) an encumbrancer takes possession or a receiver, administrator receiver or administrator is appointed of any of the property or assets of the Purchaser; or

(iii) the Purchaser ceases or threatens to cease to carry on business; or

(iv) there is a material adverse change in the financial condition or creditworthiness of the Purchaser; or

(v) the Vendor reasonably apprehends that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly.

(b) If this Condition 9 applies then, without prejudice to any other right or remedy available to the Vendor, the Vendor shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Purchaser, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

10. PASSING OF PROPERTY

(a) Notwithstanding the passing of risk in the Goods in accordance with Condition 7, ownership of the Goods shall remain with the Vendor until such time as the Vendor has received payment of the purchase price of the Goods together with payment of all other sums due which are or which become due from the Purchaser under this or any other contract between the parties.

(b) Insofar as the Goods may be delivered to the Purchaser prior to the time when ownership of them passes to the Purchaser the Purchaser shall until such time hold the Goods as the fiduciary agent of the Vendor and shall accordingly remain liable to account to the Vendor for the Goods or, if they are sold by the Purchaser, for all the proceeds tangible and intangible (and including without limitation insurance proceeds) of such sale.

(c) The Purchaser shall store the Goods separate from any other Goods of the Purchaser and of third parties and shall identify the Goods as the property of the Vendor. The Purchaser shall not remove any identifying marks placed on the Goods by the Vendor.

(d) The Purchaser may exercise its right to sell the Goods as the fiduciary agent of the Vendor in the usual course of the Purchaser’s business but such right:

(i) may be revoked at any time by the Vendor giving notice to that effect if the Purchaser is in default for longer than seven days in the payment of any sum whatsoever due to the Vendor (whether in respect of the Goods or of any other Goods or services supplied at any time by the Vendor to the Purchaser or for any reason whatsoever) or if the Vendor has bona fide doubts as to the solvency of the Purchaser;

(ii) shall automatically cease if a Receiver, Manager or Administrator is appointed over the assets undertaking or property of the Purchaser, or a winding up or administration order against the Purchaser is made or petitioned or any petition or order in bankruptcy against the Purchaser is presented or made, or the Purchaser goes into voluntary liquidation (otherwise than for the purposes or reconstruction of amalgamation while solvent), or calls a meeting of or makes arrangements or compositions with creditors; and

(iii) shall not create any relationship between the Vendor and the Purchaser’s customer.

Upon determination of the Purchaser’s rights of sale under paragraph (i) or (ii) above the Purchaser shall place the Goods at the disposal of the Vendor (who shall be entitled to enter any premises of the Purchaser for the purpose of carrying out an inventory of the Goods), and/or as the case may be, pay to the Vendor the proceeds then held by the Purchaser as trustee for the Vendor in accordance with this Condition; and/or at the Vendor’s option (i) destroy or procure the destruction of the balance of the Goods or (ii) return or procure the return of the balance of the Goods to the Vendor. Pending the instructions of the Vendor, the Purchaser shall procure that the Goods are stored in accordance with any applicable storage instructions.

11. RESALE OF GOODS

(a) The Purchaser undertakes to acquaint himself with requirements of all Governmental and other competent bodies relating to sale and storage of the Goods. In particular the Purchaser shall offer Goods for sale strictly in accordance with any instructions of the Vendor (whether so marked on the Goods or not) regarding latest date for sale and in accordance with any regulations of competent bodies. No credit shall be given by the Vendor for Goods returned by the Purchaser after the latest date for sale.

(b) The Purchaser shall indemnify the Vendor in respect of any breach of the terms of this Condition and the Vendor shall have no responsibility for any losses or damage (whether direct, indirect or consequential) caused thereby.

12. WARRANTY AND LIABILITY

(a) Goods shall be inspected by the Purchaser promptly upon Delivery.

(b) The Purchaser shall notify the Company as soon as possible of any claims in respect of incomplete or incorrect supplies and in any event within one Working Day of Delivery.

(c) The Purchaser shall notify the Company quoting a valid order or invoices number as soon as possible of any claims in respect of defective Goods and in any event:

(i) in the case of Ambient Goods and Hard Goods, within one Working Day of Delivery; or

(ii) in the case of Frozen Goods where the defect is reasonably detectable on inspection, within one Working Day of Delivery; or

(iii) in the case of Frozen Goods where the defect is not reasonably detectable on inspection: i. within 7 days after Delivery, if the Frozen Goods are kept properly frozen; or ii. if earlier, within 24 hours after defrost of the Frozen Goods:

(d) Alleged defective Goods shall be held by the Purchaser without cost to the Vendor. The Purchaser shall await the Vendor’s instructions and shall allow the Vendor’s representative to examine the Goods in question and to take away samples for examination.

(e) Where notice of the defect complained of has been given as set out in Condition 12 (c) the Vendor shall at its option either refund the price of the defective Goods or replace them free of charge provided that:

(i) the defective Goods are promptly returned to or made available for inspection by the Vendor; and

(ii) examination by the Vendor of such Goods shall disclose that such defects exist and have not been caused by misuse, neglect, accident, failure to follow the instructions on any product label attached to the Goods, improper storage or handling.

(f) Subject to Condition 12 (e), the Vendor’s total liability in contract, tort (including negligence or breach of statutory duty) misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited in aggregate to all sums paid by the Purchaser to the Vendor under the relevant Contract; and the Vendor shall not be liable to the Purchaser for any indirect or consequential loss or damage or loss of profit, loss of business, depletion of goodwill, or otherwise or costs or expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

(g) Nothing in these Terms and Conditions excludes or limits the liability of the Vendor for death or personal injury caused by the Vendor’s negligence or fraudulent misrepresentation or any other liability to the extent such liability may not be excluded or limited as a matter of law.

13. CONSUMER PROTECTION ACT 2007

If the Vendor incurs any liability under the Consumer Protection Act 2007 (or any statutory modification or re-enactment thereof) to any person by virtue of a defect or defects in Goods the Purchaser shall indemnify and keep indemnified the Vendor in respect of such liability to the extent that the said liability shall have arisen due to any act, omission or default on the part of the Purchaser.

14. FORCE MAJEURE AND TERMINATION

(a) The Vendor shall not be liable for the consequences of any failure to fulfil any terms of any transaction if fulfilment has been delayed, hindered or prevented by fire, accident, strike, lockout or any circumstance which is not directly within its control, nor shall any such failure entitle the Purchaser to avoid the transaction. If by reason of any such circumstances the Vendor is able to fulfil only part of its total commitments, the Vendor shall be entitled to allocate available supplies at it sole discretion amongst its customers

(b) If by reason of any one or more of the circumstances set out in Condition 14 (a) the Vendor is of the opinion that supply and delivery of Goods is rendered impracticable the Vendor shall be at liberty to terminate the Contract by written notice to the Purchaser, whereupon the Purchaser shall pay any sums due to the Vendor for Goods already delivered.

15. TERMINATION

Either party shall be entitled to terminate any Contract made hereunder if the other commits a material breach and fails to remedy the same after written notice of 21 days or if the other enters into liquidation or receivership.

16. GOVERNING LAW / ARBITRATION

These Terms and Conditions shall be governed by and construed in accordance with Irish law and British Law and any disputes shall be subject to the exclusive jurisdiction of the Irish and Northern Irish Courts.

17. RIGHTS AND REMEDIES OF VENDOR

Each right or remedy of the Vendor under these Terms and Conditions is without prejudice to any other right or remedy of the Vendor whether under the Contract or not.

18. SEVERANCE

If any provision of the Contract is found by any court, tribunal or 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.

19. WAIVER

Failure or delay by the Vendor in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract. Any waiver by the Vendor of any breach of, or any default under, any provision of the Contract by the Purchaser will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.

20. RIGHTS OF THIRD PARTIES

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 (Northern Ireland) by any person that is not a party to it.

21. COMMUNICATIONS

(a) All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax:

(i) (in case of communications to the Vendor) to its registered office or such changed address as shall be notified to the Purchaser by the Vendor; or

(ii) (in the case of the communications to the Purchaser) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Purchaser set out in any document which forms part of the Contract.

(b) Communications shall be deemed to have been received:

(i) if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);

(ii) if delivered by hand, on the day of delivery;

(iii) if sent by fax on a working day prior to 4.00pm, at the time of transmission and otherwise on the next working day.

23. Further Information

For further information on any of the above, please contact us via email at website@[email protected] or by post;

ARYZTA Ireland,

Grange Castle Business Park,

Clondalkin,

Dublin 22.