Create Flavours Ltd: Registered in England and Wales no 4540927/VAT no 800 8434 57
Terms and Conditions
Create Flavours Ltd Terms and Conditions of Sale
Herewith are the standard terms and conditions which Create Flavours Ltd of Unit 11,
Windmill Business Park, Windmill Road, Clevedon, N. Somerset, BS21 6SR (hereinafter called ‘the seller’) sells to its customers
(hereinafter called ‘the buyer).
(a) These terms and conditions shall apply to all sales and no variation
purported variation (including in particular any terms and conditions on the buyer’s contractor order form0, whether before or after the making of the contract , shall have effect unless expressly agreed in writing by the seller.
(b) There shall be no contract between the seller and the buyer until the buyer’s order is accepted by the seller
(c) The giving of any delivery instructions, the acceptance of or payments for any materials or any other act or conduct by the buyer after receipt of this document which is consistent with the buyer’s confirmation of the relevant transaction shall constitute unqualified acceptance by the buyer of the terms and conditions as specified herein. In the event of the buyer’s order containing special conditions, it is understood that such conditions are only binding so far as they are not at variance with the terms and conditions hereof.
2 Transfer of ownership
(a) The property in the goods supplied by the seller shall remain in the seller until the seller has received payment in full for the goods.
(b) If the buyer shall sell or otherwise dispose of the goods before payment in full has been made to the seller, the buyer shall in such case act on his own account and not as agent for the seller and shall hold all monies received by him for such sale or disposal in trust for the seller and shall furnish the seller on request with the names and addresses of the persons to whom such disposals have been made together with all necessary particulars to enable the seller to recover any outstanding sums due from such persons.
(c) So long as the property in the goods shall remain in the seller, the buyer shall hold the goods as fiduciary agent for the seller and store the goods as to show them the property of the seller and the seller shall have the right, without prejudice to the obligations of the buyer to purchase the goods, to retake possession of the goods (and for that purpose to go onto the premises occupied by the buyer).
(d) Nothing in this clause shall confer any right upon the buyer to return the goods. The seller may maintain an action for the price notwithstanding that property in the goods shall not have been vested in the buyer.
3 Risk of loss or damage
(a) Notwithstanding that the property in the goods may not have passed to the buyer, the buyer shall carry all the risk of loss and damage to the goods from the time when the goods are delivered to a carrier for transmission to the buyer or the prior delivery of the goods to the stipulated place of delivery, either of which events shall constitute delivery to the buyer.
(b) From when the risk of loss and damage to the goods commences to be carried by the buyer until the seller is paid in full for the goods, the buyer shall
1) indemnify and keep indemnified the seller against all loss and damage to the goods and against reduction to the resale value thereof below the price to be paid thereof by the buyer
2) insure and keep insured the goods in an amount at least equal to the price to be paid thereafter by the buyer
3) hold upon trust for the seller absolutely all proceeds of such insurance.
(a) Any times quoted for delivery are estimates only and the seller shall not be liable for failure to deliver within the time quoted.
(b) If the goods are not received by the buyer within six days from the date of the relevant invoice, the carrier and the seller must at once be informed
(c) The seller shall be entitled to make partial deliveries or deliveries by instalments and the terms and conditions herein contained shall apply to each partial delivery
(d) Deviations in quantity of the goods (representing not more than 10 per cent by value) from that stated in the contract shall not give the buyer any right to reject the goods or to claim damages and the buyer shall be obliged to accept and pay at the contract rate for the quantity of the goods delivered.
5 Remedies for any defects etc.
Except in those circumstances where the absolute prohibitions against exclusion or restriction of liability contained in section 2.1 and 6.2 of the Unfair Contract Terms Act 1977 apply, the seller shall not be under any liability whatsoever howsoever arising (including without prejudice to the generality of the foregoing liability whether founded in common law or statute arising from the seller’s negligence or that of any person for whom the seller is vicariously liable) in respect of or in connection with
(a) Any defects in the materials which could reasonably have been discovered by the buyer on inspection or test prior to acceptance
(b) If by reason of any defect in the goods there shall be a breach of any implied condition or warrant applicable thereto, the seller shall at its option either repair or replace the goods or issue to the buyer credit, provided that;
(1) the seller is notified in writing within seven days after delivery
(2) the relevant goods are returned to the seller at the cost of the buyer
(3) examination of such goods by the seller shall disclose to its satisfaction (that the defect or failure to conform to specification existed at the time of delivery or) that a breach of an implied condition or warranty shall have occurred as aforesaid, and in particular that the goods shall not have been affected by misuse, neglect, accident, improper storage, installation or handling or by repair or alteration not effected by the seller, and;
(4) the buyer shall pay the seller the cost (as stated by the seller) of any examination of the goods as a result of which the seller does not admit liability.
(c) The seller’s liability for any claim whatever in contract (including negligence) or otherwise, for any loss or damage arising out of or in connection with or resulting from the manufacture, sale, delivery, resale, replacement or use of any of the goods shall in no case exceed the price paid by the buyer to the seller for the goods which give rise to the claim, plus expenses of customs, taxes, freight and insurance. In no event shall the seller be liable for any loss of profits, or special or consequential damages suffered by the buyer, including interest charges. Nothing contained in this paragraph shall by implication create any liability or obligation on the part of the seller, or effect or diminish any disclaimer or liability elsewhere contained herein.
(d) Except as expressly stated above all other warranties, conditions and representations, express or implied, statutory or otherwise, in relation to the quality or fitness for any particular purpose of the goods are hereby excluded and the seller shall not be liable of any kind whatsoever, consequential or otherwise, arising out of or in connection with the goods sold or any defect in them or from any other cause, whether or not any such matter amounts to a fundamental breach of a fundamental term of the contract.
(e) The seller’s liability under this provision shall be limited to a period of one year from the date of receipt of the goods by the buyer.
(f) The buyer shall not reject any goods or cancel or purport to cancel the contract or any part of it because of an alleged default unless the seller shall have failed to correct such alleged default within thirty days of written notice specifying the default.
(g) Nothing in this condition affects or will affect the statutory rights of a consumer pursuant to a consumer transaction (as defined in the Consumer Transactions (Restrictions on Statements) Order 1976.
6 Default by buyer
(a) If the buyer
(1) fails to comply with any terms of the contract (including stipulations as to payment)
(2) commits an act of bankruptcy, makes an arrangement or composition with creditors or suffers any distress or execution, or
(3) resolves or is ordered to be wound up or has a receiver appointed then, in any such event, the seller shall have the right, (without prejudice to any other remedies), to cancel any uncompleted order and withhold or suspend delivery of further goods. and to demand payment forthwith of all sums due the buyer by the seller.
(c) In the event the seller exercises any rights it may have to stop the goods in transit because of the buyer’s financial condition, the seller may at its option resell such goods at public or private sale without notice to the buyer and without affecting the sellers rights to hold the buyer liable for any loss or damage caused by breach of contract by the buyer.
Net monthly account
8 Force majeure
The seller shall not be under any liability of whatever kind for non-performance in whole or in part of its obligation under the contract due to causes beyond the control of the seller or beyond control of the seller’s suppliers including but not limited to, war, (whether an actual declaration thereof is made or not), sabotage, riot or other act of civil disobedience, acts of the buyer or a third party, failure or delay in transportation, acts of any Government or any agency or sub-division thereof, Government regulations, judicial actions, labour disputes, strikes, embargoes, illness, accident, fire explosion, flood, tempest or other acts of god, delay in delivery to the seller or seller’s suppliers or shortage of labour, fuel, raw materials or machinery or technical failure. In any such event, the contract including, but not limited to, extending the time for performing the contract for a period of at least equal to the time lost by reason of such causes.
The buyer shall not assign or transfer or purport to assign or transfer to any other person the contract or the benefit thereof or the benefit of any condition, warranty or guarantee or other term or condition (express or implied) forming part thereof or relating to the goods.
The seller undertakes that the materials supplied will correspond within the limits normally accepted within the industry with the samples or specification originally approved by the buyer. The buyer shall be obliged to examine the materials upon receipt and prior to processing them to ascertain that the materials comply with the quality and specification originally approved by the buyer. Where the materials are supplied in accordance with the samples or specifications furnished by the buyer, the seller shall be under no liability if such materials are not fit for any purpose whether the same be made known to the seller or not. Where type samples have been submitted for general consideration by the buyer they shall not be regarded as definitive. Pre-purchase or pre-delivery samples will be supplied on request and it is these which will form the standard material under the contract.
11 Arbitration and Law
Any dispute arising out of or in connection with the contract is to be settled by arbitration in London by two arbitrators accustomed to the trade(one appointed by each party) or their umpire, in accordance with the provisions of the Arbitration Act 1950 or any statutory modification or re-enactment thereof. The contract is subject to the laws of England and materials shall not be required to comply with the provision of any other law.
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Warranty and Limitation on Liability
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