(THE PURCHASER’S ATTENTION IS DRAWN TO THE PROVISIONS OF CONDITION 10.3 BELOW).
1.1 In these Conditions the following words have the following meanings:
“Applicable Laws” all laws, regulations, directive, statutes, subordinate legislation, common law and civil codes of any jurisdiction together will all codes of practice having force of law, statutory guidance, regulatory policy or guidance and industry codes of practice;
“TTK CONFECTIONERY LTD” TTK Confectionery Ltd incorporated in England and Wales (company number 10674071) whose registered office is at Unit 5 Robin Hood Industrial Estate Nottingham NG3 1GE;
“TTK CONFECTIONERY LTD Materials” any documents or other materials, and any data or other information provided by TTK Confectionery Ltd relating to the Goods, including but not limited to, any packaging designs or recipes;
“Conditions” the standard terms and conditions of sale as set out in this document and as amended from time to time in accordance with Condition 2.4;
“Contract” the Order and TTK Confectionery Ltd’s acceptance of the Order;
“Goods” any goods agreed in the Contract to be supplied to the Purchaser by TTK Confectionery Ltd (including any part or parts of them);
“Goods List” the list of Goods available to the Purchaser from time to time via the Website;
“GSCOP” the Groceries Supply Code of Practice 2009, as amended from time to time;
“Indebtedness” any obligation to pay or repay money (whether present or future, actual or contingent, joint or sole);
“Intellectual Property Rights” any and all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“Losses” losses (including any direct, indirect or consequential losses, loss of profit and loss of reputation), claims, damages, liabilities, fines, interest, penalties, costs, charges, expenses, demands and legal and other professional costs (calculated on a full indemnity basis);
“Order” the Purchaser’s order for the Goods, as set out in the Purchase Order form,
“Price” has the meaning given to it in Condition 9.1;
“Price List” the price list for the Goods appended to these Conditions, or as otherwise agreed from time to time;
“Purchase Order” a purchase order form submitted via the Website and which contains the requirements listed in Condition 3.3.3;
“Purchaser” the person(s), firm or company from whom the Order is received by TTK Confectionery Ltd;
“Shelf Life” the period before expiry of the best before date of the Goods as stated in the relevant Order or on the Goods or, if no date is specified, a reasonable date according to the nature of the Goods;
“Specification” any specification for the Goods, packaging and palletisation that is supplied by TTK Confectionery Ltd to the Purchaser via the Website;
“Website” the website located at www.ttkconfectionerywholesale.co.uk or such other address notified to the Purchaser by TTK Confectionery Ltd from time to time in writing;
“Working Day” a day (other than a Saturday, a Sunday or a public holiday in England) on which banks in London are open for business.
1.2 In these Conditions (except where the context otherwise requires):
1.2.1 words in the singular include the plural and vice versa and reference to any gender includes the others;
1.2.2 reference to “a person” includes a natural person, company or unincorporated body (whether or not having separate legal personality);
1.2.3 a reference to “company” includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.4 references to legislation are to that legislation as amended, extended or re-enacted from time to time;
1.2.5 a reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision;
1.2.6 any words following the terms “including”, “include”, “in particular” or any similar terms shall be construed as illustrative only and shall not limit the sense of the words preceding those terms; and
1.2.7 a reference to “writing” or “written” includes email.
1.3 Headings are for convenience only and shall not affect the interpretation of these Conditions.
1.4 The Contract shall be binding upon, and enure to the benefit of, the parties and their respective personal representatives, successors and permitted assignees, and references to any party shall include that party’s personal representatives, successors and permitted assignees.
2 APPLICATION OF THESE CONDITIONS
2.1 These Conditions are the only conditions upon which TTK Confectionery Ltd is prepared to deal with the Purchaser and they shall govern the Contract to the entire exclusion of all other terms and conditions.
2.2 No terms or conditions (other than these Conditions) endorsed upon, delivered with or contained in the Order, confirmation of order or other document (whether or not any such document is referred to in the Contract) or any other terms that the Purchaser seeks to impose or incorporate will form part of the Contract, unless specifically agreed by TTK Confectionery Ltd in writing.
2.3 All conditions (other than these Conditions), warranties and other statements whatsoever that would otherwise be implied or imposed by statute, common law, trade custom or practice, a course of dealing or otherwise howsoever are (save for the conditions implied by section 12 of the Sale of Goods Act 1979) excluded from the Contract to the fullest extent permitted by law.
2.4 These Conditions apply to all TTK Confectionery’s sales of Goods. TTK Confectionery Ltd may modify these Conditions at any time by posting the modified Conditions on the Website. Any other variation to these Conditions or any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a duly authorised representative of TTK Confectionery Ltd.
2.5 The Contract constitutes the entire agreement and understanding between the parties.
2.6 The Purchaser acknowledges that it has not relied on, and shall have no remedy in respect of, any statement, representation, assurance, warranty or understanding made or given by or on behalf of TTK Confectionery Ltd (whether innocently or negligently) which is not expressly set out in the Contract. The Purchaser shall not have any claim for innocent or negligent misrepresentation based upon any statement, representation, assurance or warranty in the Contract.
2.7 The Purchaser agrees to comply with the expectations set out in GSCOP, in order to fairly manage its relationship with TTK Confectionery Ltd.
3 ORDERING PROCESS
3.1 Prior to placing its first Order, the Purchaser shall apply for a trade account with TTK Confectionery Ltd and provide any information reasonably requested for this purpose by TTK Confectionery Ltd. TTK Confectionery Ltd may accept or reject the Purchaser’s application for a trade account in its sole discretion.
3.2 The Purchaser shall not be eligible to apply for a trade account unless it is acting in the course of trade and is not a consumer.
3.3 The Purchaser shall ensure that each Order:
3.3.1 is given in writing;
3.3.2 is submitted using the Website;
3.3.3 specifies the:
a) name of the Good;
b) unit price;
c) product code;
d) quantity required; and
e) the place of delivery
3.4 No Order shall be deemed to be accepted by TTK Confectionery Ltd until TTK Confectionery Ltd gives written notice of acceptance of the Order or (if earlier) TTK Confectionery Ltd delivers the Goods to the Purchaser.
3.5 Each Order shall be deemed to be an offer by the Purchaser to purchase Goods subject to these Conditions.
3.6 TTK Confectionery Ltd shall not be obliged to accept any Order.
3.7 The Purchaser must ensure that the terms of its Order and any applicable Specification are complete and accurate.
3.8 In respect of any supply of Goods not covered by the Price List, TTK Confectionery Ltd may give a separate quotation. Any quotation by TTK Confectionery Ltd shall not constitute an offer and is given on the basis that no contract will come into existence until the Purchaser places an Order and TTK Confectionery Ltd accepts that Order in accordance with Condition 3.4. Any quotation is valid for a period of thirty (30) days only from its date, during which period the Purchaser may place an Order based on that quotation, provided that TTK Confectionery Ltd has not previously withdrawn it.
4.1 TTK Confectionery Ltd shall:
4.1.1 supply the Goods:
a) so as to meet the description of the Goods as set out in TTK Confectionery Ltd’s quotation and/or the Goods List as modified by any Specification; and
b) in accordance with Applicable Laws, including but not limited to the Food Safety Act 1990, Food Information Regulations 2014, Materials and Articles in Contact with Food (England) Regulations 2012 and The Food Safety and Hygiene (England) Regulations 2013, in each case, as may be amended or replaced from time to time;
4.1.2 ensure that the primary wrapping material in direct contact with the Goods is wrapping suitable for use with food in accordance with Applicable Laws in force from time to time; and
4.1.3 obtain and maintain in full force all necessary consents, approvals, authorisations, licences and permissions which are required for it to perform its obligations under these Conditions.
4.2 TTK Confectionery Ltd may amend any Specification if required by any applicable statute or regulation, following which the applicable Specification shall be that as so amended.
4.3 All drawings, descriptive matter, specifications and advertising produced by TTK Confectionery Ltd and any descriptions or illustrations contained in TTK Confectionery Ltd 's catalogues or brochures are produced solely to describe the Goods approximately and do not form part of the Contract.
4.4 TTK Confectionery Ltd may amend the Goods List, packaging or palletisation from time to time.
5.1 TTK Confectionery Ltd represents, warrants and undertakes that upon delivery, and for the Shelf Life, the Goods, will:
5.1.1 be free from all defects including, but not limited to, foreign odours, foreign bodies, organoleptic defects and physical defects; and
5.1.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
5.2 TTK Confectionery Ltd shall not be liable for a breach of warranty under Condition 5.1 unless the Purchaser notifies by email TTK Confectionery Ltd on delivery using the address email@example.com, providing full details of the non-compliance, and (if the defect is as a result of damage in transit), to the carrier:
5.2.1 in the case of a defect that is apparent on normal visual inspection, within eight (8) Working Days of delivery;
5.2.2 in the case of a latent defect, within five (5) Working Days after the latent defect becomes apparent; and
5.2.3 TTK Confectionery Ltd is given a reasonable opportunity after receiving the notice under Conditions 5.2.1 or 5.2.2 to examine such Goods and the Purchaser (if asked to do so by TTK Confectionery Ltd) returns such Goods to TTK Confectionery Ltd 's place of business at the Purchaser's expense for the examination to take place there.
5.3 TTK Confectionery Ltd shall not be liable for a breach of warranty under Condition 5.1:
5.3.1 if the Purchaser makes any further use of the same batch of Goods after giving notice under Condition 5.2;
5.3.2 if the defect arises because the Purchaser failed to follow any instructions from TTK Confectionery Ltd (written or otherwise) including but not limited to the storage, presentation or sale of such Goods or (if none were given) failed to comply with good trade practice;
5.3.3 if the defect arises from TTK Confectionery Ltd following any specification or other technical instruction provided by the Purchaser; or
5.3.4 if the defect arises through wilful damage or the Purchaser’s negligence.
5.4 Subject to Conditions 5.2 and 5.3, if any of the Goods do not conform with any of the warranties in Condition 5.1, or if the Goods do not conform with the Order:
5.4.1 if TTK Confectionery Ltd so requests, the Purchaser shall make the Goods available to TTK Confectionery Ltd or any loss adjustor and/or return the Goods or such of the Goods as are defective and/or do not conform with the Order, to TTK Confectionery Ltd. The Purchaser shall ensure that the returned Good clearly states:
a) the unique returns reference number;
b) the date of the original supply of the Goods; and
c) the relevant order/invoice number relating to the Goods.
5.4.2 TTK Confectionery Ltd may:
a) refuse to accept any Goods returned by the Purchaser, which are not in the same condition in which they were dispatched; and
b) return Goods to the Purchaser where, on reasonable inspection by TTK Confectionery Ltd, the condition of the Goods do not support the Purchaser’s allegations, in which case, an additional administration and transport charge shall become payable by the Purchaser to TTK Confectionery Ltd.
5.4.3 TTK Confectionery Ltd shall at its option replace such Goods or issue a credit note against any invoice raised for any such Goods (or a pro-rated amount of the Price if not all the Goods are defective).
5.5 If the Goods are returned by the Purchaser without being requested to do so by TTK Confectionery Ltd, TTK Confectionery Ltd shall not be responsible for any damage caused to the Goods, deterioration of the Goods or loss suffered whilst the Goods are in TTK Confectionery Ltd’s possession.
5.6 If TTK Confectionery Ltd complies with Condition 5.4.3 it shall have no further liability for a breach of any of the warranties in Condition 5.1.
5.7 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are excluded from the Contract to the fullest extent permitted by law.
5.8 The Purchaser shall keep accurate and up to date records of Goods received from TTK Confectionery Ltd, in order to assist TTK Confectionery Ltd with any recall of any Goods, and shall give any assistance that TTK Confectionery Ltd shall reasonably require in order to recall such Goods.
6.1 The Goods shall be delivered, to such location as specified in the Order or such other location as the parties may agree, at any time after TTK Confectionery Ltd gives the Purchaser notice that the Goods are ready for delivery.
6.2 The Purchaser will provide at its expense at the location for delivery determined under Condition 6.1 adequate and appropriate equipment and manual labour for unloading the Goods and shall provide all requisite instructions, documents, licences and authorisations required for or relevant to the delivery of the Goods to enable delivery to take place.
6.3 Delivery of the Goods shall be complete when the Goods have arrived (before unloading) at the location for delivery determined under Condition 6.1.
6.4 Any dates specified by TTK Confectionery Ltd for delivery of the Goods are intended to be an estimate only and time for delivery is not of the essence. If no dates are so specified, delivery will be within a reasonable time.
6.5 TTK Confectionery Ltd shall not be liable for any delay in delivery of the Goods caused by the Purchaser failing to comply with Condition 6.2 or any other Condition.
6.6 If the Purchaser cancels the delivery of some or all of the Goods ordered, prior to the scheduled delivery date, the Purchaser shall be liable to TTK Confectionery Ltd for any cancellation costs, including, but not limited to, carriage charges, labour costs and loss of profit.
6.7 If for any reason the Purchaser fails to accept delivery of any of the Goods within the period of seven (7) days after TTK Confectionery Ltd has given the Purchaser notice that they are ready for delivery (or if TTK Confectionery Ltd is unable to deliver the Goods within that period because the Purchaser has not complied with Condition 6.2 or any other Condition):
6.7.1 completion of delivery of the Goods will be deemed to have taken place at 9.00am on the next Working Day following the expiry of that period;
6.7.2 the Goods shall be at the risk of the Purchaser from the time specified in Condition 6.7.1;
6.7.3 without prejudice to any other rights or remedies it may have, including its rights under Condition 6.7.4, TTK Confectionery Ltd may store the Goods until actual delivery and the Purchaser will be liable for all related costs and expenses (including for storage and insurance); and
6.7.4 without prejudice to any other rights or remedies it may have, TTK Confectionery Ltd may resell or otherwise dispose of part or all of those Goods.
6.8 [TTK Confectionery Ltd may deliver the Goods by instalments and each instalment shall be treated as a separate Contract so that failure to deliver, or any defect in, one or more instalment shall not entitle the Purchaser to reject the other instalments.]
6.9 TTK Confectionery Ltd may deliver quantities of Goods which are 5% above or below the quantity specified in an Order and the Purchaser agrees to pay for the actual quantity of Goods delivered, calculated in accordance with the unit price for each Good, as specified in the applicable Order.
6.10 The Purchaser shall not resell the Goods in any packaging other than the packaging in which the Goods were delivered to the Purchaser, shall not alter or damage that packaging in any way whatsoever and shall not obscure the ingredients listed on the packaging and the Purchaser shall indemnify and keep indemnified TTK Confectionery Ltd in full and hold it harmless on demand from and against any and all Losses suffered or incurred by TTK Confectionery Ltd or for which TTK Confectionery Ltd may become liable arising out of or in connection with any claim made against TTK Confectionery Ltd as a result of the Purchaser failing to comply with this Condition 6.10.
7.1 The quantity of any consignment of Goods as recorded by TTK Confectionery Ltd upon despatch from TTK Confectionery Ltd shall be conclusive evidence of the quantity received by the Purchaser on delivery unless the Purchaser can provide conclusive evidence proving the contrary.
7.2 TTK Confectionery Ltd shall not be liable for any non-delivery of the Goods caused by the Purchaser failing to comply with Condition 6.2 or any other Condition.
7.3 The Purchaser shall notify TTK Confectionery Ltd of any non-delivery, in writing, within three (3) Working Days from the date of despatch (such despatch date to be confirmed by TTK Confectionery Ltd to the Purchaser).
7.4 If the Purchaser fails to notify TTK Confectionery Ltd of non-delivery, in accordance with Condition 7.3, the Purchaser shall be liable to pay the Price in accordance with the terms of the Order.
7.5 Any liability of TTK Confectionery Ltd for non-delivery of the Goods shall be limited to replacing within a reasonable time, or issuing a credit note against any invoice raised for, any such Goods that were not delivered.
8 RISK AND OWNERSHIP
8.1 The Goods shall be at the risk of the Purchaser from completion of delivery.
8.2 Ownership of the Goods shall not pass to the Purchaser until TTK Confectionery Ltd has received in full (in cash or cleared funds) all sums due to it in respect of:
8.2.1 the Goods; and
8.2.2 all other sums which are, or which become, due to TTK Confectionery Ltd from the Purchaser on any account.
8.3 From completion of delivery until ownership of the Goods has passed to the Purchaser, the Purchaser must:
8.3.1 hold the Goods as TTK Confectionery Ltd’s bailee on a fiduciary basis;
8.3.2 store the Goods (at no cost to TTK Confectionery Ltd) separately from all other goods of or in the possession of the Purchaser in such a way that they remain readily identifiable as the property of TTK Confectionery Ltd;
8.3.3 not destroy, deface, remove or obscure any identifying mark or packaging on or relating to the Goods;
8.3.4 maintain the Goods in satisfactory condition;
8.3.5 keep the Goods insured on TTK Confectionery Ltd’s behalf for the full Price against all risks to the reasonable satisfaction of TTK Confectionery Ltd and on request produce to TTK Confectionery Ltd the policy of insurance;
8.3.6 hold the proceeds of the insurance referred to in Condition 8.3.5 on trust for TTK Confectionery Ltd and not mix them with any other money, nor pay the proceeds into an overdrawn bank account;
8.3.7 inform TTK Confectionery Ltd immediately if there occurs, or if the Purchaser knows there is about to occur, any of the events referred to in Condition 13.2; and
8.3.8 give TTK Confectionery Ltd such information relating to the Goods as TTK Confectionery Ltd may from time to time require.
8.4 The Purchaser may resell the Goods before ownership has passed to it solely on the following conditions:
8.4.1 any sale shall be a bona fide transaction on arm’s length terms; and
8.4.2 any such sale shall be a sale of TTK Confectionery Ltd’s property on the Purchaser’s own behalf and the Purchaser shall deal as principal when making such a sale.
8.5 If, before ownership of the Goods has passed to the Purchaser in accordance with Condition 8.2:
8.5.1 there occurs any of the events referred to in Condition 13.2; or
8.5.2 TTK Confectionery Ltd reasonably believes that any of the events referred to in Condition 13.2 is about to occur; or
8.5.3 the Purchaser fails to observe or perform any of its obligations under the Contract or any other contract between the Purchaser and TTK Confectionery Ltd; or
8.5.4 the Purchaser encumbers or in any way charges any of the Goods,
TTK Confectionery Ltd may, subject to Condition 8.6 and without limiting any other rights or remedies it may have, give notice to the Purchaser requiring it promptly to deliver up the Goods, failing which TTK Confectionery Ltd may enter any premises of the Purchaser or of any third party where the Goods are held for the purpose of recovering the Goods.
8.6 TTK Confectionery Ltd shall not be entitled to give notice under Condition
8.7 TTK Confectionery Ltd shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from TTK Confectionery Ltd.
8.8 The Purchaser grants TTK Confectionery Ltd, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Purchaser’s right to possession has terminated, to recover them.
9.1 Unless otherwise agreed by TTK Confectionery Ltd in writing, and subject to Condition 9.3, the price for the Goods (“Price”) shall be the price set out in the Order or, if no price is set out in the Order, the price set out in TTK Confectionery Ltd’s Price List, applicable on the date of completion (or deemed completion) of delivery.
9.2 TTK Confectionery Ltd may amend the Price List from time to time
9.3 TTK Confectionery Ltd may, by notice to the Purchaser given no later than two (2) Working Days before completion of delivery, increase the Price to reflect any increase in the cost of the Goods due to:
9.3.1 any request by the Purchaser to change the delivery date, quantity, Specification or type of Goods ordered; or
9.3.2 any delay arising from the inaccuracy or inadequacy of, or failure to provide, requisite instructions or information reasonably required from the Purchaser by TTK Confectionery Ltd to perform its obligations under the Contract.
9.4 Subject to Conditions 9.5 and 9.6 the Price is stated inclusive of packaging and carriage.
9.5 A delivery charge of £10.00 (+VAT) shall be payable by the Purchaser to TTK Confectionery Ltd if their total order is less than £175.00 (exclusive of VAT)
9.6 A delivery charge shall be payable by the Purchaser to TTK Confectionery Ltd where the Goods are delivered to a location outside mainland England, Wales and Scotland. Such an amount shall be paid by the Purchaser, in addition to the Price, when it is due to pay for the Goods.
9.7 The Price is stated exclusive of duties and tax, including, but not limited to, value added tax (“VAT”), which shall be added at the prevailing rate as applicable and paid by the Purchaser following delivery of a valid VAT invoice or at the checkout of the online store.
10.1 TTK Confectionery Ltd may invoice the Purchaser for the Goods on or at any time following completion (or deemed completion) of delivery.
10.2 Provided that TTK Confectionery Ltd has received credit approval for the Purchaser, from its credit insurance company, the Purchaser shall pay the invoice in full within 30 (thirty) days of the date of invoice. [In the event that credit approval is not granted, the Purchaser shall be sent a pro forma invoice which will be payable prior to the goods being dispatched.
10.3 Time for payment shall be of the essence.
10.4 No payment shall be deemed to have been received until TTK Confectionery Ltd has received cash or cleared funds.
10.5 All amounts payable to TTK Confectionery Ltd under the Contract shall become due immediately upon termination of the Contract despite any other provision.
10.6 In accordance with the terms of GSCOP, the Purchaser shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless required by law.
10.7 Without prejudice to any other right or remedy, TTK Confectionery Ltd reserves the right to set off any amount owing at any time from the Purchaser to TTK Confectionery Ltd against any amount payable by TTK Confectionery Ltd to the Purchaser.
10.8 TTK Confectionery Ltd shall be entitled to claim interest on the late payment of any amount properly due to TTK Confectionery Ltd under the Contract accruing on a daily basis from the due date for payment until payment is made in full, both before and after any judgment, at a rate equal to the rate of statutory interest prescribed for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time.
10.9 To the extent that it does not exercise its right to claim interest under Condition 10.8, TTK Confectionery Ltd reserves the right to claim interest and fixed sum compensation under the Late Payment of Commercial Debts (Interest) Act 1998.
10.10 Without prejudice to any other right or remedy under these Conditions, TTK Confectionery Ltd may withhold deliveries under this Contract, until payment in full of outstanding sums under this or any other Contract, is paid by the Purchaser to TTK Confectionery Ltd.
11 LIMITATION OF LIABILITY
11.1 Subject to Condition 5, the following provisions of this Condition 11 sets out the entire financial liability of TTK Confectionery Ltd (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Purchaser under or in respect of the Contract for any claim or claims, whether arising in contract, tort (including negligence), breach of statutory duty or restitution, or for misrepresentation or otherwise howsoever.
11.2 Nothing in these Conditions shall limit or exclude the liability or remedy of either party:
11.2.1 for death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors;
11.2.2 for fraud or fraudulent misrepresentation;
11.2.3 for breach of any obligation as to title implied by section 12 of the Sale of Goods Act 1979;
11.2.4 arising in respect of a defective product by virtue of the Consumer Protection Act 1987; or
11.2.5 for any act, omission or matter, liability for which may not be legally excluded or limited.
(The Purchaser’s attention is drawn to the provisions of Condition 11.3 below)
11.3.1 TTK Confectionery Ltd’s total liability to the Purchaser under or in respect of the Contract for any claim or claims, whether arising in contract, tort (including negligence), breach of statutory duty or restitution, or for misrepresentation, or otherwise howsoever shall in no circumstances exceed 120% of the Price received by TTK Confectionery Ltd in respect of the relevant Order; and
11.3.2 TTK Confectionery Ltd shall not have any liability to the Purchaser, whether arising in contract, tort (including negligence), breach of statutory duty or restitution, or for misrepresentation, or otherwise howsoever, for any loss of profit, loss of business, depletion of goodwill or any indirect or consequential loss whatsoever arising out of or in connection with the Contract.
12 INTELLECTUAL PROPERTY RIGHTS
12.1 All rights, including any copyright or other Intellectual Property Rights, in any TTK Confectionery Ltd Materials shall, unless otherwise agreed in writing between the Purchaser and TTK Confectionery Ltd, belong to TTK Confectionery Ltd, subject only to a licence in favour of the Purchaser to use TTK Confectionery Ltd Materials for the purposes of receiving the Goods.
12.2 If the Goods are to be manufactured to a Specification provided by the Purchaser, the Purchaser shall indemnify and keep indemnified TTK Confectionery Ltd in full and hold it harmless on demand from and against any and all Losses suffered or incurred by TTK Confectionery Ltd or for which TTK Confectionery Ltd may become liable arising out of or in connection with any claim made against TTK Confectionery Ltd for alleged or actual infringement of a third party’s Intellectual Property Rights in connection with TTK Confectionery Ltd’s use of such Specification and this Condition 12.2 shall survive termination of the Contract.
12.3 Any advertising material supplied by TTK Confectionery Ltd to the Purchaser shall belong to TTK Confectionery Ltd and shall be returned by the Purchaser on request.
12.4 The Purchaser shall ensure that any advertising material provided by TTK Confectionery Ltd is kept in good condition and is used only in accordance with any instructions given by TTK Confectionery Ltd.
13 PURCHASER CAPACITY AND SOLVENCY
13.1 If there occurs any of the events referred to in Condition 13.2, or TTK Confectionery Ltd reasonably believes that any of the events referred to in Condition 13.2 is about to occur, TTK Confectionery Ltd may give notice to the Purchaser, following which, without limiting any other rights or remedies it may have:
13.1.1 it may, without incurring any liability to the Purchaser, cancel or suspend any further deliveries under the Contract or under any other contract with the Purchaser;
13.1.2 all outstanding amounts in respect of Goods the delivery of which is complete (or deemed to be complete) shall become immediately due; and
13.1.3 it may, without incurring any liability to the Purchaser, by notice to the Purchaser, terminate the Contract.
13.2 For the purposes of Conditions 8.3.7, 8.5.1, 8.5.2 and 13.1, the relevant events are:
13.2.1 the Purchaser is in the reasonable belief of TTK Confectionery Ltd, or is deemed to be, insolvent or unable (or admits its inability) to pay its debts as they fall due or stops or suspends payment of any of its debts;
13.2.2 any of the Purchaser’s Indebtedness is not paid in full when due or becomes due (or could be declared due) before its stated maturity because of default;
13.2.3 any expropriation, attachment, sequestration, distress, execution, enforcement of security or other legal process is levied, enforced or sued out on or against, or affects, any of the Purchaser’s assets and is not discharged or stayed within twenty one (21) days;
13.2.4 the Purchaser begins negotiations, or enters into, or gives notice of any intention to enter into, any composition or arrangement, with one or more of its creditors in order to reschedule any of its indebtedness because of actual or anticipated financial difficulties including, but not limited to, giving notice of a meeting of creditors for the purpose of considering a proposal for a company voluntary arrangement or (being an individual) an individual voluntary arrangement;
13.2.5 a moratorium is declared, or in any event comes into existence, over any of the Purchaser’s Indebtedness;
13.2.6 any petition is presented, application made, resolution proposed, notice of meeting given or other action, proceedings, procedure or step taken whether by the Purchaser or any third party for, or which may lead to:
a) the suspension of payments, winding up, dissolution, administration, receiverships (whether administrative or otherwise) or reorganisation (using a voluntary arrangement, scheme of arrangement or otherwise) of the Purchaser; or
b) the appointment of a liquidator (both provisional and following a winding up), receiver (including a fixed charge receiver), administrative receiver, administrator, nominee supervisor, compulsory manager or other similar officer in respect of the Purchaser or any of its assets.
13.2.7 any event similar to any of those set out in Conditions 13.2.1 to 13.2.6 occurs in relation to the Purchaser (including in any jurisdiction to which it is subject);
13.2.8 the Purchaser suspends or ceases to carry on (or threatens to suspend or cease to carry on) all or a material part of its business; or
13.2.9 the financial position of the Purchaser deteriorates to such an extent that in the reasonable opinion of TTK Confectionery Ltd the capability of the Purchaser adequately to fulfil its obligations under the Contract has been placed in jeopardy.
13.3 On termination of the Contract or any part of it for any reason, the Purchaser shall immediately return to TTK Confectionery Ltd all TTK Confectionery Ltd Materials. If the Purchaser fails to do so TTK Confectionery Ltd may (without limiting any other rights and remedies it may have) enter the Purchaser’s premises and take possession of them. Until they have been returned or repossessed, the Purchaser shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
13.4 The termination of the Contract for any reason shall not affect the accrued rights, remedies, obligations or liabilities of TTK Confectionery Ltd and the Purchaser existing at termination.
13.5 Such of these Conditions which expressly or by implication are intended to come into or remain in force on or after the termination of the Contract shall remain in full force and effect.
14.1 TTK Confectionery Ltd may assign, or deal in any other manner with, the Contract or any part of it, including sub-contracting any of its obligations under the Contract to any third party or agent.
14.2 The Purchaser shall not be entitled to assign, or deal in any other manner with, the Contract or any part of it, including sub-contracting any of its obligations under the Contract, without the prior written consent of TTK Confectionery Ltd.
15 FORCE MAJEURE
15.1 If either party is delayed or prevented in the performance of any of its obligations under the Contract by an event, circumstance or cause beyond its reasonable control which, by its nature, could not have been foreseen or, if foreseeable, was unavoidable, (including war or other armed conflict, terrorism, riot, civil commotion, interference by civil or military authorities, national or international emergency or calamity, strikes, lock-outs or other industrial disputes, (whether involving its own workforce or any third party’s), failure of energy supply, disruption to transport, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of buildings or other structures, fires, floods, storms, earthquakes, natural disasters, extreme adverse weather conditions, other acts of God, loss at sea, epidemics, pandemics, serious public health crisis or similar events and default of suppliers or sub-contractors caused by any such event), that party shall not be liable for such delay or non-performance and the time for performance of the affected obligation shall be extended by such period as is reasonable to enable that party, using all reasonable endeavours, to perform that obligation.
15.2 If the performance of any of TTK Confectionery Ltd’s obligations under the Contract are delayed or prevented as described in Condition 15.1 for a continuous period of one (1) month, TTK Confectionery Ltd may terminate the Contract, without liability to the Purchaser, by giving notice to the Purchaser.
16.1 Any communication between the parties about the Contract shall be in writing, in English, and delivered personally, sent by pre-paid registered post or recorded delivery (or pre-paid registered air mail if overseas) or by email:
16.1.1 (in the case of communications to TTK Confectionery Ltd) to its registered office or such changed address as shall be notified to the Purchaser by TTK Confectionery Ltd; or
16.1.2 (in the case of communications to the Purchaser) to its registered office (if it is a company) or (in any other case) to any address of the Purchaser set out in any document which forms part of the Contract or to its main fax number or such other address or fax number as shall be notified to TTK Confectionery Ltd by the Purchaser.
16.1.3 If sent by email they should be sent to firstname.lastname@example.org
16.2 Communications shall be deemed to have been received:
16.2.1 if delivered personally, at the time of delivery to the address determined in accordance with Condition 15.1;
16.2.2 if sent by pre-paid registered post or recorded delivery, 48 hours after posting;
16.2.3 if sent by pre-paid registered airmail, at 9.00am on the fifth Working Day after posting;
16.2.4 if sent by email, at 9.00am on the next Working Day after being sent provided the sending party can prove the time and date the email was sent.
16.3 Communications addressed to TTK Confectionery Ltd shall be marked for the attention of the Martin Barnett.
16.4 This Condition 16 does not apply to the service of any proceedings or other documents in any legal action or any arbitration or other method of dispute resolution.
17.1 The Contract does not constitute, establish or imply any partnership, joint venture, agency, employment or fiduciary relationship between the parties. The Purchaser shall not have, nor represent that it has, any authority to make or enter into any commitments on TTK Confectionery Ltd’s behalf or otherwise bind TTK Confectionery Ltd in any way.
17.2 The Purchaser undertakes that it shall not disclose to any person any confidential information concerning all technical or commercial know-how, specifications, inventions, recipes, processes or initiatives which are disclosed to the Purchaser by TTK Confectionery Ltd, and any other business, affairs, customers, clients or suppliers of TTK Confectionery Ltd except as permitted by Condition 17.3.
17.3 The Purchaser may disclose TTK Confectionery Ltd’s confidential information:
17.3.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. The Purchaser shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with Condition 17.2 and 17.3; and
17.3.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
17.4 The Purchaser shall not use TTK Confectionery Ltd’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
17.5 The rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law. Any right or remedy expressly included in any provision of these Conditions (or the exercise thereof) shall not be considered as limiting TTK Confectionery Ltd’s rights or remedies under any other provision of these Conditions (or the exercise thereof).
17.6 If any provision, or part of a provision, of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable (a “void provision”) such invalidity, illegality or unenforceability shall not affect the other provisions of the Contract, which shall remain in full force and effect. If a void provision would be valid, legal and enforceable if some part of it were deleted, that void provision shall apply with such modification as may be necessary to make it valid, legal and enforceable and if it cannot be made valid, legal and enforceable it shall be deemed to be deleted.
17.7 No provision of the Contract shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to the Contract.
17.8 A failure to exercise, or delay in exercising a right, power or remedy provided to TTK Confectionery Ltd by these Conditions or by law does not constitute a waiver of that, or any other, right, power or remedy and shall not (and nor shall any single or partial exercise of any such right, power or remedy) preclude the further exercise of that, or any other, right, power or remedy.
17.9 Any waiver by TTK Confectionery Ltd of any breach of, or any default under, any provision of the Contract by the Purchaser will only be effective if in writing and will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
17.10 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 and claims) shall be governed by and construed in accordance with the law of England and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any such matter.