EN ROUTE GENERAL TERMS & CONDITIONS OF SALE
These En Route General Terms & Conditions of Sale shall apply to all Agreements for the sale of Goods by En Route to the Customer (B2B) unless otherwise agreed in writing between the Customer and a director of En Route.
1. DEFINITIONS AND INTERPRETATION
1.1. In these Conditions, the following words have the following meanings:
“Agreement” means the agreement for the purchase and sale of the Goods in accordance with these Conditions.
“Conditions” means En Route General Terms and Conditions of Sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and a director of En Route.
“Customer” means the company and/or organisation whose order for the Goods is accepted by En Route.
“En Route” or “ER” means the respective entity of the En Route Group, with which the Customer concludes the Agreement. Entities of the En Route Group are En Route International Limited, Assurant House, 6-12 Victoria Street, Windsor, SL4 1EN, United Kingdom, and its subsidiaries En Route International USA Inc, En Route International Australia Pty Ltd, En Route Belgium NV and En Route International General Trading L.L.C. Further details of the subsidiaries are shown under “Our Locations” on ER’s website www.en-route.com.
“Goods” means any goods ordered from ER by the Customer and/or to be supplied by ER to the Customer in accordance with these Conditions; and
“Parties” means the parties to these Conditions and the Agreement and “Party” means any one of them as the context requires.
1.2. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3. The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.4. Any reference to a masculine provision shall include reference to the feminine and neuter provisions and vice versa and reference to a singular provision shall include reference to the plural and vice versa.
2. BASIS OF THE SALE
2.1. ER shall sell and the Customer shall purchase the Goods in accordance with any written quotation of ER which is accepted by the Customer, or any written order of the Customer which is accepted by ER, subject in either case to these Conditions, which shall govern the Agreement to the exclusion of any other terms and conditions.
2.2. No terms and/or conditions endorsed upon, delivered with or contained in the Customer’s orders, specifications or similar documents shall form part of the Agreement between the Parties for the sale of Goods hereunder and the Customer hereby waives any rights which it otherwise might have to rely on such terms and/or conditions.
2.3. No variation to these Conditions shall be binding unless agreed in writing by a director of ER.
2.4. No oral warranties or representations shall bind ER. The Customer acknowledges that it does not rely on any representation and/or warranty which has not been made in accordance with these Conditions.
2.5. Any advice or recommendation given by ER, its employees and/or agents to the Customer as to the storage, application or use of the Goods which is not confirmed in writing by ER is followed or acted upon entirely at the Customer’s own risk, and accordingly ER shall not be liable for any such advice or recommendation which is not so confirmed.
3. ORDERS AND SPECIFICATIONS
3.1. Each order or acceptance of a quotation from ER for Goods by the Customer shall be deemed to be an offer by the Customer to buy the Goods subject to these Conditions. No order submitted by the Customer shall be deemed to be accepted by ER unless and until confirmed in writing by ER’s authorised representative or (if earlier) the Goods are delivered to the Customer.
3.2. The quantity, quality and description of and any specification for the Goods shall be those set out in ER’s quotation (if accepted by the Customer) or the Customer’s order (if accepted by ER).
3.3. The Customer shall be solely responsible to ER for ensuring the accuracy and adequacy of the terms of any order (including any applicable specification) submitted by the Customer, and for giving ER any necessary information relating to the Goods within a sufficient time to enable ER to perform the Agreement in accordance with its terms. ER shall have no liability for any errors in any specification or details supplied by the Customer.
3.4. ER reserves the right to make any changes in the specification of the Goods as required from time to time to conform with any applicable legislation and/or regulations relating to the manufacture, sale and/or health and safety of food products or which do not materially affect the quality or performance of the Goods.
3.5. Where the Customer specifies bespoke labelling including the content of any such labelling on a Good, the Customer shall be solely liable for any non-compliance of the labelling with applicable legislation and/or regulations and for any claim that the labelling infringes third party intellectual rights or other rights. The Customer grants to ER a licence to use any content and/or branding that it provides to ER for incorporation in the labelling.
3.6. No order which has been accepted by ER may be cancelled by the Customer except with the agreement in writing of ER and on terms that the Customer shall indemnify ER in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by ER as a result of cancellation.
4. PRICE OF GOODS
4.1. The price of the Goods shall be ER’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), ER’s published price list current at the date of acceptance of an order. All prices quoted are valid for such periods specified by ER or until earlier acceptance by the Customer, after which time they may be altered by ER. ER will provide the Customer with reasonable notice of any changes to the prices quoted.
4.2. ER reserves the right, by giving notice to the Customer at any time before delivery of the Goods, to increase the price of such Goods to reflect any increase in costs, expenses and/or materials suffered by ER.
4.3. All prices are exclusive of any applicable value-added tax or other sales tax, for which the Customer shall be additionally liable to pay to ER.
5. TERMS OF PAYMENT
5.1. ER shall be entitled to invoice the Customer for the price of the Goods on or at any time after delivery of the Goods.
5.2. ER’s terms of payment are net cash within 30 days of the date of the invoice, except as otherwise agreed between the Parties in writing. Any banking charges are to be borne by the Customer. Time for payment shall be of the essence.
5.3. If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to ER, ER shall be entitled to:
5.3.1. cancel the Agreement and/or suspend any further deliveries of Goods to the Customer; and
5.3.2. charge the Customer interest (both before and after any judgment) on the amount unpaid, at the statutory rate. The assertion of a claim for further damage caused by such default of payment shall remain unaffected.
5.4. The Customer shall pay all sums due to ER under the Agreement without any set-off, deduction, counterclaim and/or any other withholding of monies.
5.5. Payment shall not be deemed to be made until ER has received either cash or cleared funds in respect of the full amount outstanding.
6.1. Dates for delivery are estimates only and are not guaranteed. Time is not of the essence in relation to such dates. They are also subject to any matter beyond ER’s reasonable control. ER will, however, use its reasonable endeavours to ensure delivery on the dates specified.
6.2. Delivery of the Goods shall take place at the Customer’s place of business or as specified on the order confirmation form or as otherwise agreed between the Parties in writing.
6.3. ER shall deliver the Goods on pallets or in trays and dollies or in such other containers as agreed in writing between the Parties. The Customer shall be responsible for returning the trays and dollies to ER. If the Customer fails to return any trays and dollies to ER within a period of 10 days from the date of delivery, the Customer will be deemed to have purchased the trays and dollies and ER shall be entitled to invoice the Customer for the full market value of such trays and dollies.
6.4. The Customer shall sign a delivery note at the time of delivery of the Goods although failure to do so is not evidence that the Goods were not delivered to the Customer.
6.5. ER shall be entitled to deliver the Goods by instalments and where the Goods are so delivered, each delivery shall constitute a separate Agreement and failure by ER to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to repudiate and/or terminate the Agreement as a whole.
6.6. If the quantity of Goods delivered to the Customer is up to 10% more or less than the quantity ordered, the Customer is not entitled to object to or reject all or any of the Goods for this reason and shall, unless agreed otherwise by ER, pay for any surplus or shall be issued with a credit note for any shortage at the pro rata Agreement price.
6.7. ER shall not be required to fulfil orders for Goods in the sequence in which they are placed.
6.8. If the Customer fails to take delivery of the Goods or fails to give ER adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer's reasonable control or by reason of ER's fault) then without prejudice to any other right or remedy available to ER:
6.8.1. Risk in the Goods shall pass to the Customer;
6.8.2. ER may store the Goods until actual delivery and charge the Customer for the reasonable costs (including without limitation, storage and insurance);
6.8.3. ER may withhold delivery of any further Goods and treat the Agreement as repudiated; and/or
6.8.4. ER may sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Agreement or charge the Customer for any shortfall below the price under the Agreement.
6.9. The quantity of any delivery of Goods as recorded by ER on the delivery note issued on despatch from its warehouse shall be conclusive evidence of the quantity of Goods received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
It is the responsibility of the Customer to ensure that all the Goods delivered by ER are in accordance with the delivery note. Any shortage in the Goods delivered must be reported to ER within 48 hours of delivery. ER shall, at its sole discretion, be entitled to make up any shortages at the next scheduled delivery to the Customer or to issue a credit note for the Goods not delivered at the pro-rata Agreement price against any invoice raised for such Goods, but ER shall have no further liability to the Customer. If delivery is not refused and the Customer does not notify ER of shortages in accordance with this clause, the Customer shall not be entitled to reject the Goods.
If any shortage has not been reported to ER within 48 hours of delivery, the Goods including such shortage will be deemed to have been delivered to the Customer in accordance with the delivery note.
Where any shortage was reported less than 48 hours after delivery and the Customer asks for express delivery of such shortages, ER shall, notwithstanding the foregoing and at its sole discretion, be entitled to make up such shortages by using express delivery options which charges shall be invoiced to and payable by the Customer.
6.10. The Customer shall be responsible for complying with any legislation and/or regulations governing the importation of Goods into the country of destination and for the payment of any duties on them.
7. RISK AND PROPERTY
7.1. Risk of damage to or loss of the Goods shall pass to the Customer at the time of delivery. Delivery shall be deemed to occur at the time when the Goods arrive at the agreed place of delivery or, where the Customer is to collect the Goods, delivery shall be deemed to have taken place upon the date the Goods are available for collection as notified to the Customer.
7.2. ER shall retain title and ownership of the Goods until it has received payment in full in cash or cleared funds of all sums due and/or owing for all Goods supplied to the Customer by ER under the Agreement.
7.3. Until such time as the property in the Goods passes to the Customer, the Customer shall:
7.3.1. hold the Goods as ER’s fiduciary agent and bailee; and
7.3.2. keep the Goods separate from those of the Customer and third parties, in a satisfactory condition and properly stored, protected and insured against all risks to the reasonable satisfaction of ER and clearly identified as ER’s property.
7.4 Until that time as mentioned in clause 7.3. the Customer shall be entitled to re-sell or use the Goods in the ordinary course of its business provided that the sale is effected in the ordinary course of the Customer’s business at full market value.
7.5. Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold), ER shall be entitled at any time to require the Customer to deliver up the Goods to ER and, if the Customer fails to do so, to enter upon any premises of the Customer (or any third party with their consent) where the Goods are stored and repossess the Goods.
7.6. The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of ER, but if the Customer does so all monies owing by the Customer to ER shall (without prejudice to any other right or remedy of ER) immediately become due and payable.
7.7. ER shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from ER.
8. DATA PROTECTION
8.1. In performing its obligations under the Agreement, each Party shall be responsible for complying with its respective obligations under applicable privacy and data protection laws governing the collecting, processing, storing and sharing of Personal Information as defined in the relevant legislation.
8.2. The Parties will establish any agreements required to ensure the lawful processing of such data prior to the processing.
9.1. The Customer shall keep in strict confidence all information in connection with the business relationship with ER, including prices and all information provided by ER, and not disclose it or make it available to third parties without ER’s written consent, except where such information is public knowledge or is required to be disclosed by law, provided that the Customer gives to ER such advance notice of disclosure as is possible. The Customer shall restrict disclosure of such confidential information to such of its employees, agents or sub-contractors on a need-to-know basis, if and insofar this is necessary for the performance of their tasks in connection with the business relationship with ER, and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Customer. The Customer must not use, disclose or reproduce ER’s confidential information for any purpose other than the purpose of the Agreement.
9.2. The obligation of confidentiality shall remain in force even after the termination of the business relationship with ER.
10. ER’S PROPERTY
10.1. The Customer acknowledges that all materials, equipment, tools, dies, moulds, drawings, copyrights, design rights or any other forms of Intellectual Property Rights and data supplied by ER to the Customer or not so supplied but used by ER specifically in the manufacture of the Goods are and shall remain the exclusive property of ER. They shall not be used otherwise than as authorised by ER in writing.
11. WARRANTIES AND LIABILITIES
11.1. Subject to the conditions set out below ER warrants that the Goods will correspond with their specification for the Goods’ shelf life.
11.2. In the event that any Goods do not meet the specification during their shelf life, the Customer shall give ER notice of the defective Goods and shall provide a sample of those defective Goods. The Customer shall be under no obligation to return all defective Goods to ER but shall provide to ER written confirmation and photographic evidence of the quantity of defective Goods.
ER reserves the right, upon reasonable notice, to carry out inspections at the Customer’s premises (or the premises where those Goods are stored) that it deems necessary to verify defects and quantities of those Goods before admitting a claim. The Customer herewith expressly grants ER such right.
11.3. Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
11.4. Any claim by the Customer which is based on any defect in the quality or condition of the Goods or their failure to correspond with the specification shall (whether or not delivery or performance is refused by the Customer) be notified to ER within 48 hours of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused and the Customer does not notify ER accordingly the Customer shall not be entitled to reject the Goods and ER shall have no liability for such defect or failure and the Customer shall be bound to pay the price as if the Goods had been delivered and/or performed in accordance with the Agreement.
11.5. Where any valid claim based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to ER in accordance with these Conditions, ER shall be entitled to replace the Goods free of charge or at ER's sole discretion refund to the Customer the price of the Goods (or a proportionate part of the price) but ER shall have no further liability to the Customer.
11.6. ER shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Agreement, for any:
11.6.1. loss of profits and/or damage to goodwill;
11.6.2. economic and/or other similar losses;
11.6.3. special damages;
11.6.4. aggravated, punitive and exemplary damages;
11.6.5. consequential losses and/or indirect losses; and/or
11.6.6. business interruption, loss of business, loss of contracts, loss of opportunity and/or production;
(whether caused by the negligence of ER, its employees, directors, officers, agents or subcontractors or otherwise and whether such losses are direct, indirect, consequential or otherwise) which arise out of or in connection with the supply of Goods or their use or resale by the Customer.
11.7. ER’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, to the Customer shall not exceed 110% of the total price of the Goods giving rise to the liability.
11.8. Nothing in these Conditions shall exclude or limit ER’s liability for death or personal injury due to its negligence or any liability which is due to ER’s fraud or any other liability which it is not permitted to exclude or limit as a matter of law.
12.1. If the Customer:
12.1.1. fails to make any payment to ER when due; or
12.1.2. breaches the terms of the Agreement (and, if the breach is capable of remedy, has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied); or
12.1.3. persistently breaches any one or more terms of the Agreement; or
12.1.4. makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), an encumbrancer takes possession, or a receiver or administrative receiver is appointed, over any of the property or assets of the Customer or any similar action in another jurisdiction occurs; or
12.1.5. the Customer ceases, or threatens to cease, to carry on business; or
12.1.6. ER reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and ER notifies the Customer accordingly;
then ER shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 12.2 below.
12.2. If any of the events set out in clause 12.1 above occurs in relation to the Customer, then:
12.2.1. ER may enter, without prior notice, any premises of the Customer (or premises of third parties with their consent) where Goods owned by ER may be and repossess and dispose of or sell any Goods found which are owned by ER so as to discharge any sums due to ER under the Agreement or any other agreement with the Customer;
12.2.2. the Customer automatically is no longer entitled to re-sell, use or part with the possession of any Goods owned by ER until the Customer has paid in full all sums due to ER under the Agreement or any other agreement with the Customer unless ER gives it express written agreement to such use and/or disposal of the Goods;
12.2.3. ER may withhold delivery of any undelivered Goods and stop any Goods in transit;
12.2.4. ER may cancel, terminate and/or suspend without liability to the Customer any Agreement with the Customer; and/or
12.2.5. all monies owed by the Customer to ER shall immediately become due and payable.
13. FORCE MAJEURE
13.1. ER shall have no liability to the Customer for any delay in performance of the Agreement to the extent that such delay is due to any events outside ER’s reasonable control including without limitation to, acts of God, acts of public enemies, acts of government, whether legal or illegal, fire, flood, lightning, explosion, war, revolution, acts of terrorism, riot or civil commotion, epidemics, pandemics, quarantine restrictions, freight embargos, severe weather, labour disputes, strikes, lock-outs, subcontractor delays and any other similar events. If ER is affected by any such event then time for performance shall be extended for a period equal to the period that such event delayed performance.
14.1. Any notice required or permitted to be given by either Party to the other under these Conditions shall be in writing addressed to that other Party at its registered office or principal place of business or such other address as may at the relevant time have been notified according to this provision to the Party giving the notice.
14.2. No delay or failure by ER in exercising any right conferred on it under this Agreement shall be deemed a waiver thereof. No waiver of any such right shall be effective unless made in writing. No waiver by ER of any breach of the Agreement by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
14.3. If any provision or part-provision of these Conditions is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall be deemed modified to the minimum extent necessary to make it valid, legal, enforceable and reasonable. If such modification is not possible, the relevant provision or part-provision shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of these Conditions and the remainder of such provision shall continue in full force and effect.
14.4. The Customer shall not assign its rights and/or obligations in the Agreement (or any part) without the prior written consent of ER. ER is permitted to assign its rights and/or obligations to any successor and/or to any other company in its group.
14.5. All third party rights are excluded and no third party shall have any right to rely upon or enforce any term of the Agreement.
14.6. The Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
14.7. Each Party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in the Agreement. No Party shall have any claim for innocent or negligent misrepresentation based upon any statement in the Agreement.
14.8. The terms of any Agreement (including these Conditions) shall be governed by and construed in accordance with the laws of the country (and state or province, if applicable) in which the contracting ER entity has its principal place of business. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) are expressly excluded. The Parties agree that any dispute arising out of or in connection with an Agreement and these Conditions (including any question regarding its existence, validity or termination) shall be submitted to a court where the contracting ER entity has its principal place of business and that such court shall have exclusive jurisdiction, except that ER shall be entitled to enforce its rights in a court in any competent jurisdiction.
EN ROUTE GENERAL TERMS AND CONDITIONS OF SALE
Vs 4 - 01 October 2023 (see also on www.en-route.com/conditions-of-sale.php)