- In these conditions:
“Buyer'” means the person, firm, body or company whose order for the Goods is accepted by the Seller.
“Goods” means the goods (including any Item of the goods which the Seller is to supply in accordance with these Conditions).
“Seller” means SWISS 1848 SA (registered in Switzerland under registration number CHE-342.753.064) or such other company within the SWISS 1848 SA group of companies as may be substituted in accordance with Clause 15.
“Conditions” means the standard terms and conditions of sale set out in this document. “Contract” means the contract for the purchase and sale of the Goods.
“Writing” includes facsimile transmission.
- Any references in these Conditions to any Clauses are a reference to the Clauses of these Conditions.
- Any reference in these Conditions to any provision of a statue shall be construed as a reference to that provision as amended, re-‐enacted or extended at the relevant time.
- The headings in these Conditions are for convenience only and shall not affect their interpretation.
- Subject to Clause 2.3 hereof any order accepted by the Seller is deemed only to incorporate these Conditions which shall govern the Contract to the exclusion of any other terms, provisions, conditions and warranties (other than any condition or warranty implied by English law the exclusion or restriction of which is prohibited, void or unenforceable there under) even if included in or referred to in any document of the Buyer.
- Any terms or conditions stipulated by a Buyer which are in rejection of, in addition to, or inconsistent with these Terms and Conditions and any other agreed to in Writing by the Seller shall be deemed to be a counter-‐offer to the Seller and shall not be binding upon the Seller unless agreed to in Writing by the Seller. If the Seller rejects or does not accept this counter-‐offer then that rejection or non-‐acceptance shall be deemed to be a renewed offer to proceed on these Condition and any others agreed by the Seller and accordingly performance by the Seller shall in that event be deemed to be governed by the terms of that renewed offer by the Seller.
- No variation to these Conditions shall be binding unless agreed to in Writing by the Seller.
- The Seller’s employees or agents are not authorised to make any variations to these Conditions or any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations that are not so confirmed.
- Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage or handling of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not confirmed.
- In placing an order for Goods the Buyer acknowledges that all information regarding weights, measures, ingredients, storage conditions and other data relating to the Goods contained in brochures, price lists, advertisements and other promotional material produced by the Seller are approximate only and they are intended to present to the Buyer a general guide, the accuracy of which the Buyer must test for himself. The Buyer acknowledges that to the best of the Seller’s knowledge and belief the information contained in the above material is true and accurate as at the of date of printing but that no representation of whatsoever nature has been made to the Buyer by the Seller or its agents and that the Buyer relied upon his own judgement as to the nature and quality of the Goods and their suitability for the Buyer’s purpose.
- Any typographical, clerical, or other error or omission in any sales literature, price list, acceptances of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
- The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
- The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC/EU requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality.
- No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs, (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4. Price of the Goods
- Unless otherwise agreed in Writing by the Seller, the Seller reserves the right to vary the price quoted for the Goods in the Seller’s published price list and the price of the Goods shall be the price current at the date of delivery of the order.
- Except as otherwise stated in any price list or proforma invoices issued by the Seller, all sales are based on Incoterms 2020, EXW.
- The price is exclusive of any value added tax, custom duty, freight (if any), which the Buyer shall be additionally liable to pay to the Seller.
5. Terms of Payment
- The Seller shall be entitled to invoice the Buyer for all sums due under the Contract on or at any time after delivery of the Goods unless the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has tendered delivery of the Goods.
- The Buyer shall pay all sums due under the Contract within the time period mentioned in the Contract or the invoice. The sums due are not deemed to have been paid until the Seller is in receipt of cleared funds. The time of payment of the sums due shall be of the essence of the Contract.
- The Buyer shall pay the price in full without any discount, deduction, set off or abatement on any grounds whatsoever unless otherwise agreed in Writing by the Seller.
- If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
- cancel the Contract or suspend any further deliveries to the Buyer.
- appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (not withstanding any purported appropriation by the Buyer), and
- charge the Buyer compound interest (both before and after any judgement) on the amount unpaid, at the rate of 4 per cent per annum above National Westminster Bank plc base rate from time to time accruing from day to day, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
- For deliveries other than EXW, Delivery of the Goods shall be made to such address as stipulated by the Buyer and accepted by the Seller. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery by the Seller and if the Buyer shall have failed to make such arrangements the Seller shall leave the Goods at or as near as possible to the address stipulated and delivery shall be deemed to have been properly made by so doing.
- Any dates given for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be the essence unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the estimated delivery date upon giving reasonable notice to the Buyer.
- The Buyer shall in the event of non-‐delivery of the Goods notify the Seller in Writing within 2 days from the date given by the Seller for delivery.
- In the event of short delivery the Seller’s liability shall be limited at the Seller’s option to making up the delivery or allowing credit in respect thereof.
7. Risk and Property
Title in and risk of damage to or loss of the Goods shall pass to the Buyer on delivery.
8. Intellectual Property
- The Goods, labels, trade marks, logos, confidential records and other information, are supplied by the Seller on the express understanding that all copyright and other intellectual property rights shall vest solely in and remain with the Seller.
- The Buyer agrees to assist the Seller and to do all such acts and things as the Seller’s legal advisors may advise as are necessary or desirable in order to give the Seller the full benefit of the provisions of Clause 8.1 above.
- The Goods sold in retail packaging may be resold by the Buyer only in the packaging supplied by the Seller and in no case may any labels, trade marks or logos other than those applied by the Seller be marked on or attached to the Goods or the packaging.
9. Warranties and Liability
- The Seller warrants that at the time of delivery the Goods will:
- In all respects comply with all legislations or regulations governing the manufacture, packaging and supply of foods; and
- Be of merchantable quality with correspond with the description given by the Seller.
- Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statue or common law are excluded to the fullest extent permitted by law.
- The Seller shall be under no liability in respect of any damage to or defect in the quality or condition of the Goods arising from willful damages, negligence, misuse or alteration of the Goods without the Sellers approval or failure to show any instructions issued by the Seller (whether oral or in Writing) including those instructions on storage and handling issued from time to time by the Seller a copy of which is available to the Buyer from the Seller on application.
- As conditions precedent to any claim by the Buyer in respect of any damages, defect or loss in respect of the Goods delivered by the Seller, the Buyer shall:
- inspect the Goods immediately on delivery or as soon as reasonably practicable thereafter and give details of the defect, damage or loss on any carrier’s delivery sheet;
- notify the Seller’s Customer Services Department within 24 hours by telephone of the defect, damage or loss;
- confirm any such claim in Writing to reach the Seller within 2 days of delivery of the Goods in question;
- keep the Goods in accordance with the instructions on storage handling referred to in Clause 9.3 and afford the Seller an opportunity to inspect the Goods in question within a reasonable time following delivery. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect, damage or loss and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract or this terms and conditions of sale; and
- not dispose of any such Goods without the express permission of the Seller and then only as directed by the Seller.
- Where any valid claim in respect of any of the Goods is based on any defect in the quality or condition of the Goods and is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the item in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), and the Seller shall have no further liability to the Buyer.
- Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any loss of anticipated profits, damage to the Buyer’s reputation or goodwill, loss of expected future business, damages, costs or expenses payable by the Buyer to any third party or to any other indirect or consequential loss (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in the Conditions.
- The Seller’s liability (if any) whether in contract, tort or otherwise in respect of any defect in the Goods, or for any breach of the Contract or of any duty owed to the Buyer in connection herewith or failure to deliver the Goods, shall be further limited to the value of the defective Goods in question.
- The Seller shall not be liable to the Buyer or be deemed to be in breach of Contract by reason of any delay in performing, or any failure to perform any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause or circumstance whatsoever beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control.
- Act of God, explosion, flood, lightning, tempest, fire or accident;
- war, hostiles (whether declared or not), sabotage, insurrection, civil disturbance or requisition;
- acts, restrictions, regulations, bye-‐laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority (including refusal or revocation of any license or consent);
- import or export regulations or embargoes;
- theft or malicious damage;
- strikes, lock-‐outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
- difficulties in obtaining raw materials, labour, fuel, parts or machinery or defaults of suppliers or sub-‐contractors for any reason whatsoever; or
- power failure or breakdown in machinery
- As conditions precedent to any claim by the Buyer in respect of any damages, defect or loss in respect of the Goods delivered by the Seller, the Buyer shall:
The Buyer agrees to indemnify the Seller against any damages, losses, costs, claims or expenses incurred by the Seller in respect of any claims brought against the Seller by any third party for:
- any loss, injury or damage wholly partly caused by the failure on the part of the Buyer to store, display or handle the Goods in accordance with the Seller’s instructions or requirements (whether oral or in Writing);
- any loss, injury or damage in any way connected with the performance or this Contract provided that this Clause will not require the Buyer to indemnify the Seller against any liability for the Seller’s own negligence.
11. Storage and Handling
- The Buyer shall fully comply with any instructions Oral or in Writing issued by the Seller in respect of the storage and handling of the Goods and in particular the instructions on storage and handling referred to in clause 9.3 above.
11.1 Where Goods are supplied by the Seller with a “best before” or “use by” date, the Buyer shall not sell display or store such Goods:
- where the “best before” or “use by” date supplied has expired;
- with other goods which have passed the “best before” or “use by” date supplied with those goods.
11.3 The Seller shall have no liability for any Goods sold by the Buyer in contravention of this Clause 11.
12. Bar Codes
The printing of bar codes on Goods supplied by the Seller is not required under any contract between the Seller and Buyer. The Seller will when possible endeavour to observe the rules of the Article Numbering Association but will not be liable to the Buyer (whether in negligence or otherwise) for any loss, damage or expense attributable to the absence of or error in such bar code printing.
13. Consumer Complaints
In addition to the steps required under clause 9.4 hereof the Buyer shall immediately notify the Customer Services Department in the event that the Buyer receives a complaint from a consumer and undertakes to the Seller that neither it or its employees or agents shall make any statement to a consumer (whether orally or in Writing) which may be construed as an admission of any liability on the part of the Seller. If it is accepted by the Seller that the cause of complaint is due to a defect or lack of quality in the Goods then all negotiations and agreements relating to a compensation payment (if any) to be paid to the consumer shall be made by the Seller and the Seller shall not be liable to pay to either the Buyer or the consumer any sum not negotiated or agreed by it.
14. Delivery Trays
All delivery trays marked with the Seller’s identification or supplied by the Seller are the property of and must be returned promptly to the Seller.
The Seller is a member of the group of companies whose holding company is SWISS 1848 SA, and accordingly the Seller may perform any of its obligations or exercise any of its rights hereunder by itself or through any member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Seller.
The Buyer shall not assign or transfer the Contract or any benefit there under without the written consent of the Seller.
Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Any such notice shall be deemed to be served:
20.1 if sent by pre-‐paid first class post to the party to whom it is given, on the third day after posting; or
20.1 if sent by facsimile transmission to the recipients facsimile number, on receipt.
Failure to neglect by the Seller to enforce at any time any of these Conditions shall not be constructed nor shall be deemed to be a waiver of the Seller’s rights hereunder nor in any way affect the validity of the whole or any part of these Conditions nor prejudice the Seller’s right to take subsequent action.
If any provision of these Conditions is held by any competent authority to be unlawful, invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby and shall continue to be valid and enforceable to the full extent permitted by law.
20. Choice of Law
These conditions and any contract made incorporating these Conditions shall be governed and construed in accordance with Swiss law and the Seller and Buyer agree to submit to the exclusive jurisdiction of the Swiss Courts in the event of any disputes.