1. These Conditions and Customers
1.1. These Conditions are the only conditions on which We sell goods. Please ensure you understand them before You place an order or buy Goods from Us. Unless otherwise mutually agreed in writing they will apply notwithstanding any other terms on which You wish to purchase Goods from Us. Our representatives, depot staff or vehicle drivers are not authorised to agree to any other conditions or to vary these Conditions.
1.2. These Conditions supersede any previous conditions between You and Us (whether oral or in writing) and also supersede any previous course of dealing, trade custom or understanding between You and Us.
1.3. In these Conditions “Goods” means all goods sold by Us to You, “We/Us/Our” means Bestway Wholesale Limited and “You/Your” means the person, company or other legal entity purchasing the Goods. “Contract” means the contract between Us and You for the sale and purchase of Goods in accordance with these Conditions. “Drop Shipments” are Goods delivered by third-party suppliers appointed by Us.
1.4. These Conditions cover sales of Goods to You ‘off the shelf’ at a depot or, by ‘Click and Collect’ or ‘Delivery to Store’ where an order is placed via Our website or mobile application. Certain terms and condition may be applicable according the method of sale.
1.6. We reserve the right to suspend sale or delivery in the event that circumstances arise which, in Our view, oblige Us to do so, or in the event that our accounts are not paid to terms, or Your insolvency. We reserve the right to reduce or cancel orders in the event of Your insolvency, or in the event that you cease or threaten to cease business or enter into voluntary arrangement or become bankrupt, Our inability through shortage of stocks or for any other reason to execute delivery wholly or in part. We reserve the right to make reasonable alterations to products and/or packaging as circumstances may demand. We will not be liable for costs, damages, losses or expenses of any nature resulting from part delivery, suspension of delivery, reduction or cancellation of orders.
1.7. In the event we suspend sale or delivery or refuse to accept orders placed by You due to one of the events in 1.6 above then without limiting any other rights available to Us, any Goods that have been delivered but not paid for shall become immediately due for payment notwithstanding any previous agreement or arrangement to the contrary.
1.8. Where You are a sole trader You will be personally liable to make payment for Goods and You hereby guarantee and acknowledge personal liability for payment of the Goods and interest chargeable in accordance with these Conditions and no waiver that might be extended in respect of these Conditions shall affect Your liability hereunder. In the event you become a partnership or limited company then you will still remain personally jointly and/or severally liable for payments.
1.9. Where You are a partnership or a limited company, an individual or individual(s) with authority to bind You will be personally liable to make payment for Goods and interest chargeable in accordance with these Conditions and no waiver that might be extended in respect of these Conditions shall affect Your liability hereunder. Where You are a partnership, these Conditions are binding on all of the partners with joint and several liability and no waiver shall affect their individual liability. You shall be obliged to notify Us in any change in the partners of Your business.
1.10. Any membership card given to You remains Our property and is not transferable. You or your staff/ agents will not be permitted entry to any of Our depots without first presenting Your membership card.
1.11. If You do not make any purchases during a 12 month period then We may require new bank references and may carry out bank and/or credit checks where applicable before You are permitted to purchase Goods from Us. We may (at Our discretion) require you to complete a new customer application form.
2.1. Prices displayed in depot and online are invitation to treat only. All prices are applicable on date of acceptance of Your order and as set out in your invoice.
2.2. If You have been charged an incorrect price We reserve the right to rectify Our invoice provided only that any claim in respect of incorrect prices is brought to Our attention in writing no later than one working day from the date of the invoice.
2.3. We reserve the right to alter Prices without notice to reflect increase in costs to Us.
2.4. Prices are exclusive of VAT and VAT will be charged on the supply of Goods at the rate prevailing at the tax point date.
3. Orders, Delivery and Acceptance
3.1. We reserve the right to refuse orders for any reason, including (but not limited to) those considered economically non-viable, or hazardous to our vehicles or drivers, or where We have reason to believe that You are involved in illegal activity. There is no Contract between Us until We accept your order. Each order is a separate contract and You are responsible for ensuring the accuracy of the order submitted and for giving us all the information we need to process the order.
3.2. Minimum order value for catering customers is £150 excluding tobacco and VAT per delivery. Minimum order value for retailers is £500 excluding tobacco and VAT. Orders ‘Delivered to Store’ below the value of £500 will incur a delivery charge. Orders for Drop Shipment Goods are to be placed directly with the Drop Shipment supplier (which may have their own minimum order values) unless We confirm otherwise.
3.3. Orders must be placed online for the ‘Click and Collect’ service where We will pick the order for You and you will have a window of time to collect the order from depot (subject to depot opening hours) or for the ‘Delivered to Store’ service where We will pick the order for You and deliver it to Your store at an agreed delivery time slot (available Monday to Friday). Where You use the ’Delivered to Store’ service We will arrange a regular delivery slot with You.
3.4. You must not cancel any order you have placed with us except by giving us reasonable notice in writing. If you fail to do this, your order will not be cancelled and you will be obliged to pay for it.
3.5. All delivery dates quoted or agreed by Us are estimates and are not of the essence of the contract between Us. Delivery of the Goods shall be completed on the Goods arrival at Your store or when You take possession of the Goods at depot on a ‘Click and Collect’ order or when you have paid for the Goods ‘off the shelf’ in depot.
3.6. All Goods should be examined upon delivery at case level prior to being signed for and (subject to sub-clause 3.7 below) must be signed for upon delivery/collection. You are expected to retain one copy of the receipt note which You sign.
3.7. In the event that upon delivery You discover damaged Goods, Goods that appear to have been tampered with, shortages or an incorrect delivery, You may return such Goods to Us on the vehicle in which they were delivered or at the depot if collected. The annotations or alterations should be noted in the driver’s credit request book (and agreed with Our driver), a copy of which should be retained by You. Upon receipt and checking of returns a credit note will be issued. Damaged Goods must be returned in their original, unmarked packaging. All cages and tanks must be checked at time of delivery. Damaged Goods and/or short dated Goods or excesses equivalent to complete case or more must be returned with Our driver. No return may be made in respect of excess of Goods equivalent to less than one complete case and you must pay Us for any such excess. No credit or refunds will be given in respect of excess Goods.
3.8. Where You purchase Goods ‘off the shelf’ in depot, You will not have any claim in respect of the Goods once you have left the customer exit/security area.
3.9. Goods delivered which are past their “sell by”, “best before”, “use by” or similar date must also be dealt with in accordance with sub-clause 3.7 or 3.11 as the case may be.
3.10. In the event of non-arrival of the Goods or if You learn that they have been lost or destroyed in transit, notice from You of this must be received by Us as set out in sub-clause 3.5 or 3.11, such notice to be given at the latest the working day after delivery was due.
3.11. In the event that subsequent to the above You discover any further damaged Goods, Goods that appear to have been tampered with, shortages or an incorrect delivery, You must notify Us by phone within one working day of the delivery, setting out full details of damage, apparent tampering, short or incorrect delivery, by way of product description and code. Credit will only be considered by Us where these terms are complied with in full. If notification is not received within 1 working day of the delivery then the Goods shall be deemed to have been properly delivered and accepted. Time and manner of the notification are of the essence.
3.12. In respect of Goods delivered as Drop Shipments, You must carry out your obligations in 3.6, 3.7, 3.9, 3.10 and 3.11 and shall notify the supplier directly of those Goods in respect of any issues or errors. The terms of contract between You and the supplier of Drop Shipment Goods shall be as prescribed by that supplier and in placing any order for Drop Shipment Goods, You agree to observe such terms. The supplier acts as principal in respect of any contract for Drop Shipment Goods.
3.13. We will be liable for all congestion charges incurred as a result of ‘Deliveries to Store’ made within congestion charge zones.
3.14. Bulk Purchases – We reserve the right to refuse delivery of bulk purchases. Bulk purchases may incur additional delivery charges. Contact your local branch manager for details.
3.15. If You fail to take delivery of the Goods on the ‘delivery to store’ date and time or within 2 hours of the ‘Click and Collect’ time then except where such failure or delay is caused by a Force Majeure Event as set out in term 12 or Our failure to comply with Our obligations under the Contract, We may;
3.15.1. store the Goods until actual delivery and charge You for the reasonable costs (including insurance) of storage; and/or
3.15.2. sell or otherwise dispose of part or all of the Goods and charge You for any shortfall below the price of the Goods plus the amount of all reasonable storage and selling costs.
3.16. When you ‘Click and Collect’ or purchase ‘off the shelf’ at any depot then you agree to comply with the Depot Rules that apply from time to time in relation to each of Our depots and the depot car park.
4. Property and Risk
4.1. Risk in the Goods shall pass to You at the time of delivery of the Goods to You or Your agent or when you have paid in full for the Goods, whichever is the earlier and You hereby undertake to insure the Goods to their full value for all risks and liability including fire and theft.
4.2. Title in the Goods will only pass to You when We have received cleared payment in full for the Goods plus VAT and/or any other payment howsoever due to Us from You.
4.3. Until all payments due for the Goods have been received:
4.3.1. full legal and equitable title shall remain with Us and
4.3.2. You shall hold the Goods as bailee and shall be required to store the Goods in such a manner as to preserve their value, in such a way that they may be clearly identified as Our property and separate from Your own property or the property of any other person or entity and
4.3.3. athough the Goods remain Our property until paid for, they are at Your risk from the time of delivery and You shall hold the proceeds of any insurance against loss or damage as trustee for Us and
4.3.4. We may trace any proceeds of sale of our Goods into any account which you maintain and
4.3.5. You must not assign any rights arising from the sale of such Goods without Our consent.
4.4. If You breach clause 4.3 then We are entitled to compensatory damages but You may resell or Use the Goods on the condition that as long as You have not paid in full for the price of those Goods, You shall be able to account to Us with the proceeds of the sale of those Goods which, shall be kept in a separate account. If You sell the Goods before you have paid for them in full, you sell them as principal and not as Our agent and title to the Goods shall pass from Us to You immediately before the time at which You sell them.
4.5. If payment is overdue in whole or in part, or upon commencement of any proceedings for insolvency, We may (without prejudice to any of Our other rights) recover or recall the Goods or any of them and We (and Our agents) may enter upon Your premises or any premises where the Goods are stored for such purpose and You hereby grant Us (and Our agents) a licence to enter upon any premises occupied or controlled by You so as to recover or inspect such Goods, title to which has not passed to You (irrespective of whether such Goods can be specified, or attributed to corresponding purchase orders or delivery notes and without regard to sub-clause 5.3 below) to the value of the amount due and payable.
4.6. You may not for any indebtedness pledge or in any way charge by way of security (including without limitation fixed and floating charges) any of the Goods which remain Our property. Without prejudice to Our other rights, if You do so, all sums owing by You to Us shall forthwith become due and payable.
4.7. Your right to possession of the Goods shall cease if upon the presentation to a bank of any cheque tendered in respect of payment for Goods it is returned or dishonoured or You have not paid for the Goods in full by the expiry of a credit period allowed by Us under a Credit Sales Agreement or You are declared bankrupt or make any proposal to Your creditors for a composition or other voluntary arrangement or a receiver, liquidator or administrator is appointed in respect of Your business. If Your right to possession of the Goods ceases pursuant to this clause, You shall at Your own expense make the Goods available to Us and allow us to repossess them.
5. Credit and Payment
5.1. You may apply for but We are not obliged to give you You the ability to make payment for Goods by cheque or, credit for a specified time period and financial limit (the ‘Relevant Applicable Credit Limit’) and subject to such other terms as We agree. Where We agree a credit payment facility with you, this may at our discretion be via credit card, debit card, credit account or letter of credit.
5.3. We may at any time in Our discretion and without notice, vary Your Relevant Applicable Credit Limit or withdraw any credit or cheque payment facility.
5.4. We may invoice You for the Goods on delivery. Unless credit or cheque payment terms have been specifically agreed in writing cash payment is due on delivery or when presented for off the shelf purchase in depot. We may send an invoice to You by hand, fax, email, EDI, Electronic Goods Received Notice or post. Where our employee accepts any payment Our official receipt will be issued. No claims will be accepted for such payments unless supported by Our official receipt. Other payments are in accordance with the specific credit terms agreement and will be payable on the date specified on any invoice. Time of payment is of the essence.
5.5. The cash discount (if any) shown on the face of an invoice is only allowable if payment is made on collection or delivery to store and if no other invoices are overdue in part or in whole for payment.
5.6. If at any time any invoices are overdue or your indebtedness to Us exceeds the Relevant Applicable Credit Limit then all unpaid balances owing to Us from You shall become immediately due and payable.
5.7. All cheques must be made payable to the company that has raised the relevant invoice and crossed “not negotiable - account payee only”. We cannot accept responsibility for lost remittances.
5.8. If You fail to make any payment due to Us in accordance with these terms then you shall pay interest on the overdue amout at the rate of 4% per annum above the Bank of England’s base rate chargeable both before and after any proceedings on the amount unpaid accruing on a daily basis, until payment is made in full. You shall pay the interest together with the overdue amount.
5.9. We may also charge You interest at the rate prescribed by and compensation due in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and the Late Payment of Commercial Debts Regulations 2002.
5.10. You shall pay all and any costs and expenses incurred by us in connection with and/or in relation to the recovery of debt, sums and or damages from You including but not limited to the costs of issuing a formal letter before action and any legal costs incurred in relation to actual or prospective legal proceedings by Us against You.
5.11. You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). 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 the Us to You.
5.12. We reserve the right to withdraw any credit facilities and suspend deliveries if circumstances arise which in Our view oblige Us to do so.
5.13. RD cheques will be subject to a charge of £35, RDPR cheques will be subject to a charge of £25, letters of credit or any direct debit that is refused will be subject to a charge of £75.
5.14. We shall endeavour to comply with reasonable requests to supply copies of goods receipt notes. This service will be subject to a charge of £5 per copy.
6. Open Date Marketing
6.1. No Goods are offered on a sale or return basis. Our representatives are not authorised to accept orders on a sale or return basis. It is therefore Your responsibility to sell the Goods prior to the expiry of any “sell by”, “best before”, “use by” or similar date.
6.2. We reserve the right to amend the specification of any Goods if required by any applicable statutory or regulatory requirements.
7. Pallets, Containers & Roll Cages
7.1. You will pay Us on demand for all pallets, containers & roll cages on or in which You have received Goods from Us at cost to Us unless they are returned to Us or Our nominated agents within a reasonable time of delivery.
8. Consumer Complaints
8.1. Any consumer complaint concerning any of Our Goods must be referred directly to Us and We will manage it. We will not accept responsibility for any payment made by You to a consumer in settlement of any such claim.
9. Warranties and Liabilities
9.1. Nothing in these Conditions shall affect Our implied undertakings given to You under S12 Sale of Goods Act 1979 or Your statutory rights under the Agriculture Act 1970 (as amended).
9.2. Nothing in these Conditions shall exclude or limit Our liability for death or personal injury resulting from Our negligence, fraud or fraudulent misrepresentation or defective products under the Consumer Protection Act 1987.
9.3. All Goods (except for Drop Shipment Goods) are warranted by Us on delivery to comply with all relevant UK food law from time to time in force. No warranty is given that the Goods comply with food and other relevant legislation or do not infringe third party rights outside the UK. We warrant that the Goods are sold with good title and comply with Our description and specification of them.
9.4. Save as set out in clauses 9.1 to 9.3, all conditions, warranties, guarantees and representations (both innocent and negligent) whether express or implied by law custom or trade or otherwise are excluded.
9.5. Our liability to You under or in any way related to the sale and purchase of Goods or otherwise whether involving Our negligence or not shall only extend to giving an appropriate credit for or repayment of the price paid by You for defective Goods. Subject to clauses 9.1 to 9.3 We shall not be liable, whether in contract, tort (including negligence), breach of statutory duty or otherwise for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract, any loss of turnover or of goodwill, or any damage to your property.
9.6. Nothing in these conditions shall affect Your duty to mitigate Your losses. Save as set out above We shall not have any liability whatsoever to You under or if any way related to the sale and purchase of the Goods or otherwise (whether in contract, tort (including without limitation negligence) or by way of statutory duty) for any claims, loss or damage of any nature whatsoever including without limitation consequential losses of any nature whatsoever.
9.7. You shall indemnify Us in full for all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred by or paid by Us as a result of or in connection with any breach or non-compliance with any of the terms of these Conditions.
10. Proprietary Marks
10.1. You acknowledge that the goodwill and other rights in any patents, trade marks, trade names, copyright designs, know how or other intellectual property right used and adopted by Us including Bestway, Best-in, Best-one, Batleys, Xtra Local and any logo or symbol associated with Our name vest in Us and shall remain vested in Us.
10.2. You must not in any way use or display or make any statement or representation about any of Our proprietary marks unless We authorise You to do so, threaten or take any action to contest the validity of Our marks or sell, assign, transfer, charge or otherwise deal with Our marks.
10.3. No right or license is granted under these Terms under any patent, trade mark, trade name, copyright, designs, know how or other intellectual property right except the right to use or resell the Goods. We cannot guarantee that selling the Goods will affect the rights of any third party.
11.1.1. We will share the information we hold about you with any group company, any Drop Shipment supplier or any other contractor or third party required for the fulfilment of Our Contract with You,
11.1.2. We may contact you by post, email, telephone, sms or fax with information about goods and services that we feel may be of interest to You that are similar to those you have already purchased.
11.2. Where You use EPOS or place orders directly with Us using an electronic ordering system, We may automatically collect and use sales and purchase data to analyse and assess sales. We may anonymise this data and share it with selected suppliers for the same purpose.
12. Force Majeure
12.1. Notwithstanding any other condition We shall have no liability whatsoever under or in any way related to the sale and purchase of the Goods or otherwise (whether in contract, tort (including without limitation negligence) or by way of statutory duty) for any failure to fulfil any obligation hereunder if and to the extent that such fulfilment is prevented by circumstances beyond Our reasonable control.
13.1. These Conditions shall be governed by the laws of England and you agree to submit to the exclusive jurisdiction of the English courts.
13.2. The Contract constitutes the entire agreement between Us and You. You acknowledge that You have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Us which is not set out in a Contract.
13.3. We are a member of the group of companies whose holding company is Bestway (Holdings) Limited and we may perform any of our obligations or exercise any of our rights under these Conditions by Our self or through any other member of its group, provided that any act or omission of any group member shall be deemed to be Our act or omission.
13.4. No waiver by Us of any breach of these Conditions by You shall be considered a breach as a waiver of any subsequent breach.
13.5. If any provision of these Conditions is held by any court to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions or the remainder of the provision in question shall not be affected.
13.6. You must not pledge Our credit nor represent yourself as being Us nor Our agent, partner or employee and must not hold yourself out as having any such authority or power to incur any obligations on Our behalf.
13.7. Subject to clause 13.3, any person who is not a party to a Contract between Us shall not have any rights to enforce its terms.