Conditions of Use

In these conditions the following terms shall have the following meaning:-
a. Seller shall mean dough heat.
b. Buyer shall mean the person, firm or corporation who places an order with the Seller for the manufacture and/or supply of any of the Seller’s goods and shall include the owner of goods furnished to the Seller for treatment or processing.
c. Persons shall include the corporations.
d. Goods shall mean all articles in which the Seller deals, and articles furnished and accepted by the Seller for treatment or processing, and manufactured by the seller.
e. The word Order shall mean a request for goods and services by a Buyer to the Seller for manufacturing and/or supply of goods and services.
f. The singular number shall include the plural number where the context so admits or requires.


1. A Buyer shall be deemed to have accepted these conditions. Orders are only accepted by the Seller upon the condition that the person requesting an order is either himself the Buyer or is the authorised agent of the Buyer to place the order on the terms of these conditions, or if he is himself the Buyer, that he accepts for himself the terms of these conditions, or if not, he accepts the same on behalf of the Buyer., such other Buyer shall be conclusively deemed to have represented to the Seller that such a person placing the order has the authority of the Buyer to contract with the Seller on the terms of these conditions with regard to all or any portion of the contract to be performed by the Seller.


2. GENERAL
All products are sold by dough heat subject to these terms and conditions, and insofar as they may be excluded, all other conditions, guarantees, warranties, terms, undertakings and representations expressed or implied, statutory or otherwise of whether it is stated that the Buyers conditions shall over-ride the Seller’s conditions and hereby expressly excluded and unless previously agreed in writing by a Director of the Seller no servant or agent of the Seller other than a Director has the authority to alter or dispense with these conditions.
i. No verbal, written or other addition hereto or variation hereof shall be effective, and
ii. In the event of any conflict or inconsistency between these conditions and the terms or conditions of any order or acceptance, these conditions shall prevail.
The giving of any delivery instructions, the acceptance of, or payment for any products or any conduct in confirmation of the transaction hereby contemplated shall constitute unqualified acceptance by the Buyer of these conditions.
ii. dough heat is a division of Vogue (Uk) Ltd Registration Number: 2455446 Vat No: 559 3256 15


3. PASSING OF PROPERTY AND RISK
i. The Goods shall be at the Buyer’s risk as from delivery.
ii. In spite of delivery having been made property in the Goods shall not pass from the Seller until:

3(ii)(i) the Buyer shall have paid the Price plus VAT in full; and
3(ii)(ii) no other sums whatever shall be due from the Buyer to the Seller.
iii. Until property in the Goods passes to the Buyer in accordance with [3(ii)] the Buyer shall hold the Goods and each of them on a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Seller’s property.
iv. Notwithstanding that the Goods (or any of them) remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer’s business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller’s money.
v. Nothing in this paragraph shall confer any right upon the Buyer to return any products or to refuse or delay payment therefore unless otherwise agreed.
vi. The Seller shall be entitled to recover the Price (plus VAT) notwithstanding that property in any of the Goods has not passed from the Seller.
vii. Until such time as property in the Goods passes from the Seller the Buyer shall upon request deliver up such of the Goods as have not ceased to be in existence or resold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned occupied or controlled by the Buyer with or without notice where the Goods are situated and repossess the Goods. On the making of such request the rights of the Buyer under clause [3(iv)] shall cease. The costs and expenses of exercising such lien shall be payable by the Buyer and may be deducted from any monies subsequently due to be paid by the Seller to the Buyer.
viii.The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
ix. The Buyer shall insure and keep insured the Goods to the full Price against ‘all risks’ to the reasonable satisfaction of the Seller until the date that property in the Goods passes from the Seller, and shall whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
x. The Buyer shall promptly deliver the prescribed particulars of this contract to the Registrar in accordance with the Companies Act 1985 Part XII as amended. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.


4. CREDIT ACCOUNTS AND SETTLEMENTS TERMS
a. Credit accounts are accorded to the Buyers who have furnished the Seller with two approved trade references and a satisfactory Banker’s reference. At the discretion of the Seller the first transaction will be conducted on a Cash on Delivery basis. Settlement of account is strictly nett and payable within 30, days of end of month of despatch of the goods unless otherwise agreed in writing. Any payments or part there-of remaining unpaid after such a period of 30 days shall, in the absolute discretion of the Seller carry compound interest thereon at the rate of 15% per annum during the period such unpaid balance remains unpaid and shall be added to the said balance due from the Buyers to the Seller and calculated on a daily basis. All costs incurred in the collection of overdue accounts as defined herein are in all cases for the account of the Buyer.
b. The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set off or counterclaim which the Buyer may have or allege to have or for any reason whatever.
c. The Seller may cancel this contract at any time before the Goods are delivered by giving written notice. On giving such notice the Seller shall promptly repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.


5. PRICES
The price payable by the Buyer shall be as follows:-
a. Where the words “Fixed Price” appear in the contract the price shall be the price appearing therein.
b. In any other cases the price shall be deemed to be the Seller’s price prevailing at the date of despatch of the goods to the Buyer.
c. In all cases, unless otherwise agreed in writing the price shall be deemed to be exclusive of Value Added Tax which shall be payable in addition by the Buyer at the rate prevailing on the date of invoice. Payment of the invoice is due 30 days from the date of invoice and time for payment shall be of the essence.
d. The cost of re-stocking will be due from the Buyer in addition to the price save where otherwise expressly agreed in writing by the Seller. The re-stocking charge will be at the discretion of the Seller.
e. In the event of samples and displays being provided to the Buyer by the Seller the Buyer shall be deemed to have had reasonable opportunity of testing the samples and/or using the displays after [28] days from delivery. Upon the Buyer having been deemed to have had a reasonable opportunity of testing and using the Buyer will also be deemed to have accepted all the Goods so delivered and be liable to pay the Seller for the same. Samples and displays may at the discretion of the Seller be issued on a free of charge basis but at all times remain the property of the Seller.
f. If the Buyer fails to make payment of the price to the Seller within 30 days from end of month in which invoice is raised, then without prejudice to any of the Seller’s other rights the Seller may:-
i. suspend or cancel deliveries if any articles due to the Buyer; and/or
ii. appropriate any payment made by the Buyer to such of the Goods (or Goods supplied under any other contract with the Buyer) as the Seller may in its sole discretion think fit; and/or
iii. claim interest upon any payments due after 30 days from date of invoice at such rate as is equivalent to section 1 of the Late Payment of Commercial Debts (Interest) Act 1998.


6. CANCELLATION OF ORDERS AND RETURNS
Cancellation of an order will be accepted by the Seller only.
a. Orders for products that are considered by the Seller to be generally held in stock under normal circumstances may be cancelled prior to despatch without charge.
b. At the discretion of the Seller, orders for items that are not generally held in stock, although appearing in the price list, may not be cancelled following the submission of a sales order acknowledgement, which details the anticipated delivery date.
c. Products that are deemed by the Seller to be standard stock items may be returned providing that they are in a fully resaleable condition. The Seller reserves the right to apply a handling and restocking charge of 25%.
d. Goods that have been supplied to special order, although appearing in the price list, unless specifically agreed by the Seller, may not be returned.


7. CARRIAGE
Where normal conditions apply carriage and packing form part of the selling price, no additional charges are made. If circumstances prevail in such the Buyer imposes restrictions or specific requests with regard to packing or carriage the seller reserves the right to make a charge at cost plus 20%.


8. LOSS OR DAMAGE IN TRANSIT
a. The Seller will accept no responsibility in respect of goods claimed to have been lost in transit unless a written complaint is received by both the Carrier and the Seller within 7 days of the date of despatch indicated on advice notes and invoices.
b. The Seller will accept no responsibility in respect of goods damaged in transit unless the goods have been signed for as “damaged” and a written complaint is received by both the Carrier and the Seller within 7 days of the date of receipt of the goods by the Buyer. Additionally claims can only be considered subject to both the Seller and the Carrier being given an opportunity to inspect such goods.
c. It is the complete responsibility of the Buyer to fully examine the quantity and condition of each consignment upon delivery. Qualifications in signature relating to the lack of examination (“Unexamined” etc.,) cannot be accepted by the Seller in the event of subsequent claims being made.
d. In the case of goods being sent by post the Seller will accept no responsibility in respect of goods claimed to have been fully lost, partially lost or damaged unless a written complaint is received by both the Post Office and the Seller within 7 days of the date of despatch as indicated on advice notes and invoices.


9. GUARANTEE
a. The seller will at its own cost and expense repair and/or replace at its discretion the whole or any part of the goods forming the subject of the contract which are defective in quality or fail to comply with the specification laid down in the contract subject however to the following conditions:-
i. In the event of any matter giving rise to complaint which would be apparent to the Buyer on reasonable inspection the Buyer must give notice thereof to the Seller within 3 days from the date of delivery of the goods to the destination agreed in the contract.
ii. In the event of a complaint in respect of a matter not apparent on reasonable inspection the Buyer must give notice thereof to the Seller within 3 days of the defect complained of coming to the attention of the Buyer and/or its servants or agents but in any event notice of complaint must be given to the Seller by the Buyer within 12 months of the manufacture of the goods.
iii. The product has not been subjected to abnormal use, or to use under abnormal conditions, or beyond its capacity as rated and recommended by the Seller.
iv. The Seller shall not be held responsible where specifications or particulars supplied by the Buyer are inaccurate.
v. In all cases the Seller must be given a reasonable opportunity following notice of complaint of examining the relevant goods.
vi. The above guarantee shall not in any case extend to any products not of the Sellers manufacture but the Seller will use his best endeavours to pass on to the Buyer the benefit (with the corresponding liabilities) of any guarantee received by the Seller from the supplier of any such goods, but not so as to impose upon the seller a greater liability.
vii. The Seller does not warrant that the goods supplied are suitable for the purpose for which they are proposed to be used by the Buyer.
b. Save as mentioned in sub paragraph (a) above the Seller shall be under no liability whatsoever whether contractual torious or statutory for any defect of quality, shortfall in quality, breach of specification or any other matter in relation to goods supplied or for any consequential damage injury, loss of expenses (including but not limited to loss of profit) however caused thereby incurred by the Buyer or any other person, firm or corporation and whether arising directly or indirectly from any matter complained of in relation to the goods.
c. Any condition, warranty or statement as to the quality of the goods, or of their fitness for any purpose whether express or implied by statue, trade, customer or otherwise is deemed excluded unless expressly accepted in writing by the seller.
d. The Seller’s liability will under no circumstances extend beyond the repair of replacement of the product supplied by the Seller, Claims for either labour in replacement or damage to property are not admissible.
e. The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of this contract.


10. TERMINATION OF GUARANTEE
Immediately upon the Seller’s products being dismantled or modified for whatever reason the Buyer will forfeit his right to make the claim against the guarantee detailed in (9).


11. DETERMINATION AND DAMAGES
a. Without prejudice to its right the Seller may determine the contract, suspend any future deliveries to the Buyer, and claim immediate access to the Buyers premises for the purpose of re-possession as defined in Clause 3 (ii) of the Seller’s products, in the event of:-
i. Any distress, execution or other legal process being levied upon any of the Buyer’s assets.
ii. The Buyer entering into any arrangement of composition with his creditors committing any act of bankruptcy or (being a Corporation) entering into liquidation or having a winding up petition presented against it calling a meeting of its creditors or suffering the appointment of a receiver in respect of the whole or any part of its undertaking or assets.
iii. Non payment by the Buyer of any monies due from it to the Seller.
b. In the event of a determination by the Seller of the contract in accordance with sub-paragraphs (i), (ii) and (iii) above or any cancellation and/or repudiation of the contract by the Buyer the Seller shall be entitled to recover as damages from the Buyer the following:-
i. The value including any work completed or goods manufactured at the date of determination.
ii. The value of any work begun or goods begun to be manufactured but not completed at the date of determination including the cost of materials, labour, overheads and profit connection therewith.
iii. A sum representing any further profit which the Seller should have made on the contract but its determination such profit to be determined by the Sellers Auditors whose decision shall be conclusive and binding on the Buyer.


12. DELIVERY
Whilst every effort is made to deliver goods on the dates or within the periods mentioned in the Contract such dates or periods shall be deemed to be an estimate only and shall not form any part of the terms and conditions of the Contract unless specifically agreed in writing to be “of the essence of the contract” and in the absence of such special agreement the Seller accepts no liability whatever for any loss or damage whatsoever nature and howsoever arising which may be suffered by the Buyer as a result of any failure on the part of the Seller to deliver goods on or within the dates or periods mentioned in the Contract.


13. ACCEPTANCES
The Seller shall have the right to consider quotations invalid unless the Buyer’s order is received within fourteen days from the date there-on.


14. DRAWINGS
All drawings issued by us remain our property and must be returned by request. They may not be loaned, reproduced, copied or in any way altered wholly or in part without our written authority, nor may information injurious to us be furnished from them.


15. CONTINUAL IMPROVEMENT CLAUSE
The Seller reserves the right to withdraw or alter or amend goods, products or product specifications without prior notice.


16. FORCE MAJEUR CLAUSE
In the event of unforeseen hindrances, shortage of materials, delays in transit, accidents, strikes or other industrial disputes, acts of God, war invasion, act of foreign enemy hostilities (whether war has been declared or not) civil war, rebellion, revolution, insurrection or military or usurped power, the Seller shall be relieved of liabilities incurred under this contract wherever and to the extent to which the fulfilment of such obligations is prevented frustrated or impeded as a consequence of any such event or by any status rules regulations orders or requisitions issued by any government department council or other duly constituted authority or from strikes, lockout, malicious damage, inability to obtain supplies, accident, breakdown of plant or any other causes (whether or not of a like nature) beyond the Sellers control.


17. The contract shall in all respects be governed by English Law and shall be deemed to have been made in England and the English Courts shall have jurisdiction in connection there with or in connection with any question arising hereunder in particular it is hereby declared and agreed that the Uniform Laws on International Sales Act 1967 and any statutory modification or re-enactment thereof shall not apply to the Contract of which the foregoing are conditions.