Lomond Fine Foods Limited – Terms and Conditions of Supply
1. Interpretation
1.1 Definitions:
Business Day: a day, other than a Saturday, Sunday or public holiday in Scotland, when banks in Glasgow are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.
Contract: the contract between Lomond and the Customer for the supply of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from Lomond.
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Lomond: Lomond Fine Foods Limited, a company registered in Scotland with company number SC175710 and having its registered office at 75 Keppochhill Drive, Port Dundas, Glasgow, G21 1HX.
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form.
Specification: any specification for the Goods which may be as outlined in Lomond’s catalogue and on Lomond’s website or, in certain circumstances, as provided to Lomond by the Customer in writing.
1.2 Interpretation:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes email.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 An Order constitutes an offer by the Customer to purchase Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order (and any applicable Specification submitted by the Customer where relevant) are complete and accurate.
2.3 An Order shall only be deemed to be accepted on the earlier of: ii) Lomond issuing a written or oral acceptance of the relevant Order; and ii) Lomond notifying the Customer that the Order is ready to be delivered, at which point and on which date the Contract shall come into existence.
2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.5 Any samples, drawings, descriptive matter or advertising produced by Lomond and any descriptions or illustrations contained in Lomond’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 Where a quotation is provided by Lomond in relation to the supply of any Goods, such quotation shall not constitute an offer.
2.7 Lomond may at any time before delivery amend or cancel an Order by written notice to the Customer.
3. Goods
3.1 Goods are described in the Specification.
3.2 To the extent that Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Lomond against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Lomond in connection with any claim made against Lomond for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Lomond’s use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 Lomond reserves the right to amend the Specification if so required by any applicable law or regulatory requirement, and Lomond shall notify the Customer in any such event.
4. Delivery
4.1 Lomond shall ensure that each delivery of Goods is accompanied by a delivery note that shows the date of the relevant Order, the type and quantity of Goods (including the code number of Goods, where applicable), special storage instructions (if any) and, if Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 Unless otherwise agreed by Lomond and the Customer, Lomond shall deliver Goods to the location set out in the relevant Order or such other location as the parties may agree in writing (Delivery Location) at any time after Lomond notifies the Customer that the relevant Goods are ready.
4.3 Delivery is completed on the completion of unloading of Goods at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Lomond shall not be liable for any delay in delivery of Goods that is caused by a Force Majeure Event or the Customer’s failure to provide Lomond with adequate delivery instructions or any other instructions that are relevant to the supply of Goods.
4.5 If Lomond fails to deliver Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the relevant Goods. Lomond shall have no liability for any failure to deliver Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Lomond with adequate delivery instructions or any other instructions that are relevant to the supply of Goods.
4.6 If the Customer fails to accept delivery of Goods within three Business Days of Lomond notifying the Customer that the relevant Goods are ready for delivery, then, except where such failure or delay is caused by a Force Majeure Event or Lomond’s failure to comply with its obligations under the Contract in respect of the relevant Goods:
(a) delivery of such Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Lomond notified the Customer that the relevant Goods were ready; and
(b) Lomond shall store such Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If Lomond delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, Lomond shall make a pro rata adjustment to the invoice for the
4.8 relevant Goods.
4.9 Lomond may deliver Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.10 Delays in the delivery of an Order shall not entitle the Customer to:
(a) refuse to take delivery of an Order;
(b) claim damages; or
(c) terminate the relevant Contract.
5. Quality
5.1 Lomond warrants that on delivery Goods shall conform in all material respects with the Specification and shall comply with all applicable statutory and regulatory requirements.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to Lomond within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1; and
(b) Lomond is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by Lomond) returns such Goods to Lomond’s place of business at Lomond’s cost,
Lomond shall, at its option, replace the relevant defective Goods or refund the price of the relevant defective Goods.
5.3 Lomond shall not be liable for Goods’ failure to comply with the warranty set out in clause 5.1 if:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow Lomond’s oral or written instructions as to the storage, use or otherwise of the relevant Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of Lomond following any Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of Lomond;
(e) the defect arises as a result of fair wear and tear or wilful damage, negligence or abnormal storage or working conditions of the Customer or any person acting on its behalf; or
(f) Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, Lomond shall have no liability to the Customer in respect of Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by Lomond.
6. Title and risk
6.1 The risk in Goods shall pass to the Customer on completion of delivery to the Delivery Location.
6.2 Title to Goods shall not pass to the Customer until the earlier of:
(a) Lomond receives payment in full (in cash or cleared funds) for the relevant Goods in respect of which payment has become due, in which case title to such Goods shall pass at the time of payment of all such sums; and
(b) the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to Goods has passed to the Customer, the Customer shall:
(a) store such Goods separately from all other goods held by the Customer so that they remain readily identifiable as Lomond’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to such Goods;
(c) maintain such Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify Lomond immediately if it becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d); and
(e) give Lomond such information as Lomond may reasonably require from time to time relating to:
(i) Goods; and
(ii) the ongoing financial position of the Customer.
6.4 Subject to clause 6.5, the Customer may resell or use Goods in the ordinary course of its business (but not otherwise) before Lomond receives payment for such Goods. However, if the Customer resells such Goods before that time title to such Goods shall pass from Lomond to the Customer immediately before the time at which resale by the Customer occurs.
6.5 At any time before title to the Goods passes to the Customer, Lomond may:
(a) by notice in writing, terminate the Customer’s right under clause 6.4 to resell Goods or use them in the ordinary course of its business; and
(b) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where Goods are stored in order to recover them.
7. Price and payment
7.1 The prices of Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Lomond’s published price list in force as at the date of delivery.
7.2 Lomond may, by giving notice to the Customer at any time before delivery, increase the price of the relevant Goods or the price of delivery of the relevant Goods.
7.3 The prices of Goods:
(a) exclude amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Lomond at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) includes the costs and charges of packaging, insurance and transport of the Goods unless otherwise notified to the Customer by Lomond.
7.4 Lomond may invoice the Customer for Goods on or at any time after the completion of delivery.
7.5 Invoices shall be satisfied:
(a) by the Customer making payment of the invoice within thirty (30) days of the date of the invoice (or such other time as is agreed with the Customer in the Order) in full and in cleared funds to a bank account nominated in writing by Lomond; or
(b) by Lomond collecting the value of the invoice via direct debit within thirty (30) days of the invoice (or such other time as is agreed with the Customer in the Order), and
time for payment shall be of the essence of the Contract.
7.6 If the Customer fails to make a payment due to Lomond under the Contract by the due date, then, without limiting Lomond’s remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6 will accrue each day at 4% a year above the Bank of Scotland’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.7 All amounts due under the Contract shall be paid by the Customer in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. Limitation of liability
8.1 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in the Contract limits any liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any liability that legally cannot be limited.
8.3 Subject to clause 8.2, Lomond’s total liability to the Customer shall not exceed the amount paid by the Customer for the relevant Goods in the Order in relation to which any claim relates.
8.4 Subject to clause 8.2, the following types of loss are wholly excluded: a) loss of profits; b) loss of sales or business; c) loss of agreements or contracts; d) loss of anticipated savings; e) loss of use or corruption of software, data or information; f) loss of or damage to goodwill; and g) indirect or consequential loss.
8.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from this Contract.
8.6 This clause 8 shall survive termination of the Contract.
9. Termination
9.1 Without limiting its other rights or remedies, Lomond may terminate this Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within fourteen days of the Customer being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
9.2 Without limiting its other rights or remedies, Lomond may suspend provision of Goods under the Contract or any other contract between the Customer and Lomond if the Customer becomes subject to any of the events listed in clause 9.1(b) to clause 9.1(d), or Lomond reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, Lomond may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to Lomond all of Lomond’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Lomond shall submit an invoice, which shall be payable by the Customer immediately on receipt.
9.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the relevant Contract which existed at or before the date of termination.
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
10. Force majeure
Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from a Force Majeure Event. If the period of delay or non-performance continues for sixty (60) days, the party not affected may terminate the Contract by giving not less than fourteen days’ written notice to the affected party.
11. General
11.1 Assignation and other dealings. Lomond may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Lomond.
11.2 Third party rights. The Contract does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 to enforce any term of the Contract.
11.3 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise any right or remedy under the Contract shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
11.4 Entire agreement. The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into this Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
11.5 Confidentiality.
(a) Each party undertakes that it shall not at any time during the Contract and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.5(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 11.5; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party may use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
11.6 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
11.8 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the email addresses set out in the relevant Order.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
11.9 Governing law. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Scotland.
11.10 Jurisdiction. Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.