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Terms & Conditions

TERMS AND CONDITIONS FOR ONLINE PURCHASE (version 1 dated December 2015)

This page (together with our Privacy Policy, Cookie Policy, Terms of Website Use and Website Acceptable Use Policy) tells you information about us and the legal terms and conditions (Terms) on which we sell any of the products (Products) listed on our website and mobile app (our site) to you.

These Terms will apply to any contract between us for the sale of Products to you ordered through our site or through our online app for ordering via GoKart (Contract). Please read these Terms carefully and make sure that you understand them, before ordering any Products from our site.  Please note that before placing an order you will be asked to agree to these Terms. If you refuse to accept these Terms, you will not be able to order any Products from our site.

We amend these Terms from time to time as set out in clause 7. Every time you wish to order Products, please check these Terms to ensure you understand the terms which will apply at that time. To assist you in determining whether these Terms have changed since your most recent order we will display the date when these Terms were most recently updated.

These Terms, and any Contract between us, are only in the English language.

1                   Information about us

1.1              We operate the website www.kerryfresh.co.uk and we also provide an online app for ordering via GoKart (our App). We are Fresh to Store Limited, a company registered in England and Wales under company number 09380752 and with our registered office at The Pavilion Botleigh Grange Business Park, Hedge End, Southampton, Hampshire, England, SO30 2AF.  Our main trading and correspondence address is Customer Services, Kerryfresh,The Dorcan Complex, Faraday Road, Dorcan, Swindon, Wiltshire, SN3 5HQ. Our VAT number is 205579796.

1.2              You may contact us by telephoning our customer service team at 0800 121 4688 or by e-mailing us at customerservice@freshtostore.co.uk. If you wish to give us formal notice of any matter in accordance with these Terms, please see clause 17.

2                   Our Products

2.1              The images of the Products on our site are for illustrative purposes only. Although we have made every effort to display the colours accurately, we cannot guarantee that your computer's display of the colours accurately reflect the colour of the Products. Your Products may vary slightly from those images.

2.2              Although we take all reasonable care to ensure that information appearing on our site about the Products is correct at the time when the information was inputted onto the system, the information appearing on our site at any time may not reflect the exact position at the moment you place an order. 

2.3              The packaging of the Products may vary from that shown on images on our site.

2.4              Should you require specific information related to a branded Product line, please contact the manufacturer whose contact details appear on the packaging or label.

2.5              Prices shown on our site are our standard book prices but the price you will pay is as set out in clause 10.

2.6              We warrant that at the time of delivery the Products will be of merchantable quality and correspond with the description given by us.

3                   Use of our site

Your use of our site is governed by our Terms of website use and Website Acceptable Use Policy. Please take the time to read these, as they include important terms which apply to you.

4                   How we use your personal information

We only use your personal information in accordance with our Privacy Policy. Please take the time to read our Privacy Policy, as it includes important terms which apply to you.

5                   Authority and contract terms

5.1              You confirm that you:

5.1.1          are purchasing the Products in the course of business and you are not a consumer; and

5.1.2          have authority to bind any business on whose behalf you use our site to purchase Products.

5.2              Save for orders of Products placed by you which are not made via our site or App and are therefore subject to our terms and conditions of sale, these Terms and any document expressly referred to in them constitutes the entire agreement between you and us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.

5.3              You acknowledge that in entering into a Contract you do not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms or any document expressly referred to in them.

5.4              You and we agree that neither of us shall have any claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in a Contract.

6                   How a contract is formed between you and us

6.1              Our shopping pages will guide you through the steps you need to take to place an order with us. Our order process allows you to check and amend any errors before submitting your order to us. Please take the time to read and check your order at each page of the order process.

6.2              After you place an order, you will receive an e-mail from us acknowledging that we have received your order.  However, please note that this does not mean that your order has been accepted.  Our acceptance of your order and the formation of a Contract will be deemed to take place at the time the Products are delivered. Consequently notwithstanding the content of your order, the Contract shall only relate to the Products that we have available on our delivery vehicle at the time of delivery. If a particular Product is not available we will offer to you an alternative substitute which is similar to the Product ordered where this is available on our delivery vehicle. You will be bound to purchase any Products which we seek to deliver which accord with your order. We reserve the right to reduce any delivery in accordance with clause 11.4.

6.3              We will review all orders you place and we may contact you to discuss your order, particularly if we consider the volumes ordered to be particularly high or unusual in the context of your business/your previous orders or if you have been suffering from high wastage (i.e. product returns which are discussed in more detail in clause 11). If we are unable to speak to you to discuss your order we may, in our absolute discretion, cancel it.

7                   Our right to vary these Terms

7.1              We amend these Terms from time to time. Please look at the top of this page to see when these Terms were last updated and which Terms were changed.

7.2              Every time you order Products from us, the Terms in force at the time of your order will apply to the Contract between you and us save that we may revise these Terms as they apply to your order from time to time to reflect changes in relevant laws and regulatory requirements.

7.3              If we have to revise these Terms as they apply to your order before delivery, we will contact you to give you as much advanced notice of the changes as possible and let you know how to cancel your order if you are not happy with the changes.

8                   Delivery

8.1              Subject to clause 6.2, we will deliver Products on our next available delivery date (which will be at least 48 hours following the date you place your order).  Our scheduled delivery to you will typically be within the hours of 8.00am and 5.00pm. Occasionally our delivery to you may be affected by an Event Outside Our Control. See clause 16 for our responsibilities when this happens.

8.2              Someone aged 18 or over must be available to receive, sign for and (as applicable) pay for your order.  We will not be able to leave goods unattended under any circumstances.

8.3              Delivery of an order shall be completed when we deliver the Products to the address you gave us when you placed your order and the Products will be your responsibility from that time.

8.4              We do not levy a charge for delivery of Products.

8.5              The risk in the Products shall pass from us to you upon delivery of such Products to you.  However, notwithstanding delivery and the passing of risk in the Products, title and property in the Products including full legal and beneficial ownership, shall not pass to you until we have received in cash or cleared funds payment in full for all Products delivered to you under this and all other contracts between us for which payment of the full price of the Products thereunder has not been paid.  Payment of the full price of the Products shall include the amount of any interest or other sum payable under the terms of this and all other contracts between us under which the Products were delivered.

8.6              You may resell the Products only in the packaging supplied by us and in no case may any lables, trademarks, logos other than those applied by us be marked on or attached to the Products or the packaging.

8.7              The Products, labels, trademarks, logos, confidential records and other information, are supplied by us to you on the express understanding that all copyright and other intellectual property rights shall vest solely in and remain with us (or the relevant brand owner).

8.8              You shall fully comply with any instructions in writing issued by us in respect of the storage and handling of the Product.

8.9              Where Products are supplied by us with a best before or use by date, you shall not sell, display or store such Products:

8.9.1           where the best before or use by date supplied has expired;

8.9.2          with other goods which have passed the best before or use by date supplied with those goods.

8.10           We shall have no liability for any Products sold by you in contravention of this clause 8.8 and 8.9.

9                   No international delivery

9.1              Unfortunately, we do not deliver to addresses outside the UK.

9.2              You may place an order for Products from outside the UK, but this order must be for delivery to an address in the UK.

10                Price of Products

10.1           The prices of the Products will be as quoted on our site as at the date the Products are delivered. You therefore accept that prices may increase or decrease between the date of your order and the date of delivery. We will adjust quoted pricing in accordance with any particular pricing discounts/provisions that we may have agreed separately with you in writing.

10.2           Each order is subject to a minimum order value of £30.00. This minimum order amount may be amended by us from time to time.

10.3           The price of a Product excludes VAT (where applicable) at the applicable current rate chargeable in the UK for the time being.

10.4           Our site contains a large number of Products. It is always possible that, despite our reasonable efforts, some of the Products on our site may be incorrectly priced and any such errors will be corrected on invoicing.

11                Sale or Return (SOR) Policy  

11.1           Products to which our SOR Policy will apply are stated on our site.  In addition we may agree specific arrangements with customers to include or exclude SOR. Such arrangements will be agreed in writing between us.

11.2           To the extent SOR is applicable to an order placed by you, our delivery representative will, on a subsequent delivery, collect any Products which have been previously delivered to you and which are to be returned to us as "wastage" as they have not been sold.

11.3           Our delivery representative will issue an immediate credit note for any wastage (being the full cost paid by you for the returned Products) and apply that to the price of the then current delivery.

11.4           Returns to us of Products delivered to you should not exceed 10% of the total sales value in aggregate in any rolling 4 week period (Permitted SOR Amount).

11.5           To manage high SOR which is in excess of the Permitted SOR Amount or is otherwise considered by us, in our absolute discretion, to be regularly or consistently in excess of acceptable levels we reserve the right to:

11.5.1       remove/restrict/suspend SOR on certain Products or categories;

11.5.2       remove your entitlement to SOR entirely;

11.5.3       seek alternative methods of dealing with unsold Products, for example, cap SOR to a certain level, reduce to clear product and Product swap etc; and/or

11.5.4       stop selling Products to you entirely.

We also reserve the right in such circumstances to reduce on delivery the volume of any Product that you may have ordered.

11.6           Our Sales Representatives will actively work with you to maximise sales and minimise waste/returns as follows:

11.6.1       using your sales and return history to advise on rate of sale and optimum replenishment levels; and

11.6.2       advising you on bestselling Products.

12                Bar Codes

The printing of bar codes on Products supplied by us is not required under any contract between us.  We will when possible endevour to observe the rules of the Article Numbering Association, but will have no liability to you (whether in negligence or otherwise) for any loss, damage or expense attributed to the absence of or error in such bar code printing.

 

13                How to pay

13.1           You can pay for Products as follows:

13.1.1       in cash on delivery (and in this respect our delivery representative will issue an invoice on delivery); or

13.1.2       in accordance with any credit terms that we have agreed with you in writing (and in this respect we will send you an invoice in accordance with the terms that have been agreed).

13.2           Time of payment is of the essence.

13.3           If you fail to make any payment due to us under a Contract by the due date for payment, then you shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.

13.4           You shall pay all amounts due under a Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law or in respect of a credit note issued in accordance with clause 11.3). We may at any time, without limiting any other rights or remedies we may have, set off any amount owing to us by you against any amount payable by us to you.

14                Our liability

14.1           Nothing in these Terms limits or excludes our liability for:

14.1.1       death or personal injury caused by our negligence;

14.1.2       fraud or fraudulent misrepresentation;

14.1.3       breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or

14.1.4       defective products under the Consumer Protection Act 1987.

14.2           Subject to clause 14.1, we will under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with a Contract for:

14.2.1       any loss of profits, sales, business, or revenue;

14.2.2       loss or corruption of data, information or software;

14.2.3       loss of business opportunity;

14.2.4       loss of anticipated savings;

14.2.5       loss of goodwill; or

14.2.6       any indirect or consequential loss.

14.3           Subject to clause 14.1, our total liability to you in respect of all losses arising under or in connection with a Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Products under the relevant contract.

14.4           Except as expressly stated in these Terms, we do not give any representation, warranties or undertakings in relation to the Products or our site. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Products are suitable for your purposes.

14.5           Whilst we use reasonable endeavours to ensure our site is free from viruses or defects, we do not give any guarantee that your use of the site or any website accessible through it will not cause damage to your computer.  It is your responsibility to ensure that the right equipment is available to use the website and screen out anything that may damage it. 

14.6           We do not accept any liability in respect of your use of third party websites accessible through our site.

14.7           We do not accept any liability for inaccurate information on our site and we advise you to check the label or Product packaging prior to use.

15                Complaints and recalls

15.1           As conditions precedent to any claim by you in respect of any damages, defect or loss in respect of the Products delivered by us, you shall:

15.1.1       inspect the Products immediately on delivery with our delivery driver or as soon as reasonably practicable thereafter and give details of the defect, damage or loss to your local Sales Centre;

15.1.2       notify our Customer Services Team on 0800 121 4688 within 24 hours by telephone of the defect, damage or loss;

15.1.3       confirm any such claim in writing to reach us within 3 days of delivery of the Products in question;

15.1.4       keep the Products in accordance with any instructions on storage and handling provided to you and afford us an opportunity to inspect the Products in question within a reasonable time following delivery. If delivery is not refused, and you do not notify us accordingly, you shall not be entitled to reject the Products and we shall have no liability for such defect, damage or loss and you shall be bound to pay the price as if the Products had been delivered in accordance with these Terms; and

15.1.5       not dispose of any such Products without our express permission and then only as directed by us.

15.2           Where any valid claim in respect of Products is based on any defect in the quality or condition of the Products and is notified to us in accordance with these terms, we shall be entitled to replace the Products (or the item in question) free of charge or, at our sole discretion, refund to you the price of the Products (or a proportionate part of the price) and we shall have no further liability to you.

15.3           If you have received a complaint from a consumer you agree that neither you or your 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 our part.

15.4           If it is accepted by us that the cause of a complaint is due to a defect or lack of quality in the Products in respect of which we have responsibility, then all negotiations and agreements relating to a compensation payment (if any) to be paid to the consumer shall be made by us and we shall not be liable to pay to either you or the consumer any sum not negotiated or agreed by you.

15.5           Should there be any manufacturer Product recall we will arrange for collection of the Product in question from you and we will, at our option, either replace the Product or issue you with a credit note. You agree that you will use reasonable endeavours to comply with and assist with any such Product recalls.  

16                Events outside our control

16.1           We will not be liable or responsible for any failure to perform, or delay in performance of, any order that is caused by an Event Outside Our Control. An Event Outside Our Control is defined below in clause 16.2.

16.2           An Event Outside Our Control means any act or event beyond our reasonable control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks or impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.

16.3           If an Event Outside Our Control takes place that affects the performance of our obligation to deliver Products we will contact you as soon as reasonably possible to notify you.

16.4           You may cancel an order affected by an Event Outside Our Control. To cancel please contact us.

17                Communications between us

17.1           When we refer, in these Terms, to "in writing", this will include e-mail.

17.2           Any notice or other communication given by you to us, or by us to you, under or in connection with a Contract shall be in writing and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service or e-mail.

17.3           A notice or other communication shall be deemed to have been received: if delivered personally, when left at our registered office; 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 if sent by e-mail, one business day after transmission.

17.4           In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.

17.5           The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

17.6           We may contact you to discuss an order. If we need to do so we will contact you using the contact details supplied when you placed your order or any other contact details which you have previously supplied to us.

18                Other important terms

18.1           We may transfer our rights and obligations under a Contract to another organisation, but this will not affect your rights or our obligations under these Terms. We will always notify you in writing or by posting on this webpage if this happens.

18.2           You may only transfer your rights or your obligations under these Terms to another person if we agree in writing.

18.3           Any Contract is between you and us. No other person shall have any rights to enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

18.4           Each of the clauses of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining clause will remain in full force and effect.

18.5           If we fail to insist that you perform any of your obligations under these Terms, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.

18.6           A 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 England and Wales.

18.7           We both irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with a Contract or its subject matter or formation (including non-contractual disputes or claims).