TomatoFree.co.uk – Terms and Conditions
Please pay particular attention to the limitations and exclusions of our liability to you set out at clauses 9 and 10 below
1. Basis of the Sale
In these terms reference to the “Order” is a reference to your order for the goods, whether made verbally or in writing by telephone, fax, post, email, online or other means. “Writing” includes email and online transmission and other comparable means of communication.
All Orders constitute an offer by you to enter into a binding contract, which we are free to accept or decline at our absolute discretion. No legal contract will exist between us in relation to the goods set out in your Order unless and until the Order is accepted by us and will then be subject to these terms.
Confirmation of our acceptance of your Order, and at which point a legally binding contract will come into existence between us, will occur by our dispatch of goods to you or by notifying you that the goods set out in the Order are ready for delivery to you. The payment by you and our acceptance of any deposit does not itself constitute an acceptance of your Order and the deposit will be refunded in full if we do not accept your Order.
2. Scope of the Order and Specifications
These terms, the Order, and our price list relating to the goods and services at the date of your Order are considered by us to set out the whole agreement between you and us for our sale of the goods to you. Any samples, images, descriptions or advertising we issue, and any descriptions or illustrations contained in any advertising media, are issued or published solely to provide you with an approximate idea of the goods and services they describe. They do not form part of the contract between you and us or any other contract between you and us for the sale of the goods or supply of services. This does not limit our liability for any fraudulent misrepresentation.
PLEASE NOTE IN PARTICULAR THAT COLOUR REPRESENTATIONS OF OUR PRODUCTS ARE INDICATIVE ONLY; THE ACTUAL SHADE AND TONE AND OTHER COLOUR FEATURES OF THE PRODUCT MAY APPEAR DIFFERENTLY IN PRINT, OR ON SEPARATE MONITORS AND OTHER DISPLAY DEVICES DEPENDING ON THE SPECIFICATION AND SETTINGS OF THAT EQUIPMENT AND MAY VARY FROM BATCH TO BATCH IN THE MANUFACTURING PROCESS. SAMPLES ARE, ON OCCASION, AVAILABLE FROM US FREE OF CHARGE, THOUGH ACTUAL COLOUR REPRESENTATION OF THE FINAL PRODUCT MAY STILL VARY FROM BATCH TO BATCH AND ANY SAMPLES PROVIDED MAY NOT BE FROM THE BATCH SUBSEQUENTLY SUPPLIED AS PART OF YOUR ORDER.
If there is any difference or ambiguity between our relevant price list and any prices stated in the Order, the prices stated in the Order will apply once we have accepted the Order. Please note that, unless previously withdrawn by us or otherwise stated in the quotation, any quotation given by us will only be valid for 30 days from the date it is given. We may amend our prices at any time, though this will not affect Orders already accepted by us, and we will notify you before accepting your Order if there has been a variation in our prices after the date your Order was submitted.
Please check these terms and the information set out in your Order carefully before submitting your Order to ensure that they are complete and accurate. If you think that there is a mistake or omission, please notify us immediately. If we have already accepted your Order, you will be bound by the terms stated in the Order unless we agree otherwise. You must therefore ensure that you have stated the correct items in your Order.
3. Amendments to the Order and Your Cancellation Rights
We may revise these terms from time to time but this will not affect any Orders placed before the date of the change unless it is a change required by law or government or regulatory authority (in which case, it will apply to Orders you have previously placed that we have not yet fulfilled).
If you do wish to amend or cancel an Order, other than through a mistake or breach of contract on our part or in accordance with your cancellation rights set out below, we may but are not obliged to agree to this. If we do agree to this, you will still be liable to us for the payment of all costs we reasonably incur in fulfilling the Order up to the point when we receive your amendment or cancellation and for any restocking costs and decrease in value of the goods after your Order is accepted.
Please note that nothing in these terms will apply to exclude or limit your rights under the Consumer Protection (Distance Selling) Regulations 2000 (referred to as “the Regulations”) or similar laws where those regulations apply.
If we are selling to you as a consumer by distance means (such as online, by telephone, or by mail order) we offer you the following cancellation rights, provided that you comply with your obligations set out below. In the case of custom orders, please take particular note of the provisions of paragraph (c) below. These cancellation rights are in addition to your rights to return faulty or defective goods.
(a) You may cancel your Order for any reason, such as you have changed your mind or realised that you have ordered the wrong items, provided that the cancellation is notified to us IN WRITNG no later than: (i) the end of the 7th “working day” (i.e. a day other than a weekend day or public holiday) after the day of your receipt of the goods; or if later
(ii) the end of the 7th working day after the date when all of the information required to be provided by us under the Regulations has been supplied to you.
(b) On cancellation you are obliged to return to us all of the goods we have supplied, which must be returned by you in their original condition and packaging, undamaged and at your cost. You must take reasonable care to ensure that the goods are not damaged whilst in transit using means arranged by you. We may at our option agree to make arrangements for the collection of the goods in which case we may charge you the cost of recovering the goods from you. Whilst the goods are in your possession you are under a duty to take reasonable care of them.
(c) You are not entitled to cancel the Order once you or anyone authorised by you has used any goods comprised in the Order or where any such goods have been opened, damaged or otherwise tampered with.
(d) Notice of cancellation must be given to us in writing (including by electronic mail) and is deemed to be served as soon as it is posted or sent to us. You are advised to take a copy of the cancellation notice before sending it to us.
(e) On cancellation of the Order we will refund the price paid, less the direct cost of recovering the goods (when applicable), within a period of 30 days from date of cancellation.
(f) These provisions do not apply to goods that were damaged or defective when supplied by us, in which case please notify us of the damage or defect and we will arrange collection / replacement of the goods at our expense. Please see below for further details on this.
These rights do not apply if you are dealing with us other than as a consumer, in which case you may not cancel your Order once accepted by us except with our prior written agreement. In such case, we may charge you for all costs and expenses (including loss of profits and restocking costs) that we suffer or incur as a result of any such cancellation.
4. The Goods
We warrant that on delivery and for a period of 3 months from the date of delivery, the goods will:
(a) conform in all material respects with the manufacturer’s specification subject to any qualification or representation contained in the brochures, advertisements, the Order or other documentation;
(b) be of satisfactory quality;
(c) be fit for any purpose we say the goods are fit for;
(d) be free from material defects in design, materials and workmanship; and
(e) comply with all applicable statutory and regulatory requirements for selling the goods in the United Kingdom.
This warranty will also apply in respect of any repaired or replacement goods or services that we supply to you in the unlikely event that the original goods or services are faulty or do not otherwise conform with these terms.
This warranty is in addition to your legal rights in relation to goods which are faulty or which otherwise do not conform with these terms. Advice about your legal rights is available from your local Citizen’s Advice Bureau or trading standards office. If you do have a problem with any of the goods supplied by us that is not covered by our own warranty, we will be happy to discuss this with you and may agree to assist you under certain circumstances at our discretion. However, please note that we will be entitled to charge you for any replacement goods provided by us not covered by our warranty, whether or not covered under any other manufacturer’s warranty. These warranties will not apply to any defect in goods arising from fair wear and tear, wilful damage, accident, negligence by you or any third party, if you use the goods in a way that we do not recommend, if you have ordered the wrong items, if you fail to follow our reasonable instructions, or any alteration or repair you carry out without our prior written approval.
We will take reasonable steps to meet the delivery date set out on the Order or as otherwise agreed between us in writing. Unless we have agreed special delivery arrangements with you, Orders are usually dispatched for standard delivery within 3 to 5 working days of confirmation of your Order. However, occasionally delivery may be affected by factors beyond our control and so cannot be guaranteed. We will let you know if we become aware of an unexpected delay and will arrange a new delivery date with you. Any delay in the time of delivery will not entitle you to cancel the contract, except as otherwise provided by law.
Delivery may be by a single delivery or by several instalments. You will not be charged extra delivery costs if we deliver by instalments unless agreed with you at the date of acceptance of the Order.
If the estimated delivery date cannot be met we will contact you and advise you of a proposed new date for delivery. If we are selling to you as a consumer and you do not accept the revised delivery date and we still fail to make delivery within the original agreed delivery period then you may cancel the Order without charge and obtain a full refund.
Full risk and responsibility for damage caused to or by the use handling or storage of the goods will pass to you on delivery of the goods to you (including from the moment of collection from our premises if we have agreed this as the delivery address). Delivery will, unless otherwise agreed by us, be to the premises stated in the Order.
If you refuse or fail to take delivery of goods in accordance with the Order, then we will be entitled to charge you (and to deduct and retain from any payment by you) an amount representing our reasonable assessment of our expenses (including restocking costs) and lost profits in fulfilling your Order. We may at our discretion store the goods on your behalf for up to 4 weeks from the delivery date. If we choose not to store the goods for you or if you fail to collect the goods within this period, we will account to you for the balance of the price paid by you for the goods after deduction of our expenses costs and losses. Our restocking costs are usually calculated as follows, representing a fair assessment of the cost to us:
For orders of less than £20, a £3 per Order restocking charge will apply;
For orders of £20 or more, a restocking charge of 15% of the value of the Order will apply.
6. Defective goods and returns
In the unlikely event that any of the goods do not conform with these terms or the Order when delivered or are identified during our warranty period as being faulty or defective, please let us know as soon as possible after delivery or performance or identification of the fault or defect. You are required to inspect all goods within a reasonable time from delivery, which in most cases we would expect to be within 3 days of your receipt of the goods. We will collect any perceived faulty or defective goods on a date agreed between us or ask you to return the goods to us at our cost.
Before returning any goods to us, please contact us to obtain a return merchandise authorisation (RMA) number. Please ensure that goods are returned to us within 10 days of our issuing you with an RMA number. We may be unable to process goods received after this period or without a valid RMA number and the items may be returned to you.
Once we have confirmed that the goods are faulty or defective, we will:
(a) offer you with a full or partial refund depending on the goods or services affected. If you prefer, we may agree to:
(b) replace the affected goods. These rights will apply to any replacement goods or services we supply to you and are in addition to your legal rights.
We will own any goods that are returned to us as faulty and will be entitled at our discretion to dispose of them.
In the event that on analysis it is identified that the goods were not faulty or defective and did comply with these terms when delivered and during our warranty period, then we are entitled to charge you for those goods in accordance with these terms and also to charge you for the costs of collecting them and the price at our normal rates for any replacement goods supplied that we were not obliged to provide. If we are able to reuse or resell any returned goods that did comply with these terms, then we will credit or account to you for the amount that we are able to recover but once goods have been opened from their original packaging, used by you, or analysed by us then we may be unable to reuse or resell them.
7. Price, Payment Terms and Ownership of Goods
The price of the goods and services will be as set out in the Order as accepted by us or, if no price is stated in the Order or the quoted price has expired, the price will be as set out in our price list in force at the time we confirm your Order.
It is always possible that, despite our best efforts, some of the goods we sell may be incorrectly priced. We will normally check prices as part of our dispatch procedures so that, where the goods’ correct price is less than our stated price, we will charge the lower amount when dispatching the goods to you. If the goods’ correct price is higher than the price stated then we will normally, at our discretion, either contact you for instructions before dispatching the goods or reject the Order and tell you. If the pricing error is obvious and unmistakeable and could have reasonably been recognised by you as a mispricing then we do not have to provide the goods to you at the incorrect (lower) price.
Unless otherwise agreed by us, payment for all goods must be made in advance in cleared funds or by credit or debit card. Credit terms of up to 30 days may be available from us which we will be happy to discuss separately.
If you do not make any payment due to us in cleared funds by the due date for payment, we may charge interest to you on the overdue amount at the rate of 5% a year above the base lending rate Barclays Bank plc from time to time. Where you are dealing with us other than as a consumer, we reserve the right to charge interest under the Late Payment of Commercial Debts (Interest) Act 1998 and related regulations. This interest will accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You must pay us interest together with the overdue amount.
Without limiting any other remedies or rights that we may have, if you do not pay us on time, we may cancel or suspend the Order and any other outstanding Order until you have paid the outstanding amounts.
In the case of special or custom Orders. if you cancel the order for any reason other than our fault then we will be entitled to retain a reasonable amount from any advance payment made by you, and you will be liable for any excess over this, in order to cover the costs to us of the custom items. This may be for the whole amount of the custom items in the event that we are unable reasonably to resell or otherwise utilise these items.
We will retain ownership of all goods delivered to you until they have been paid for in full in cleared funds.
After delivery of any goods to you, you will be responsible for their safe keeping and you should make sure that you are adequately insured against any damage or loss that may occur to these goods. Where we are dealing with you other than as a consumer, you may only use or dispose of goods that we retain ownership of if they are stock in trade dealt with by you in the ordinary course of your business and until installation you will keep the goods clearly labelled as our goods; in such case we and our agents have the right at any time to enter any premises owned or controlled by you in order to recover our property in the event that it is not paid for in accordance with these terms or in the event of your bankruptcy or insolvency or if you have an administrator or receiver appointed over any of your business or assets.
8. Termination of the contract
Either party may terminate the contract if the other becomes insolvent or bankrupt or is unable to pay debts as they fall due. This provision will not relieve us of an obligation to complete the delivery of any goods that have been ordered and fully paid for by a consumer prior to that consumer becoming insolvent or bankrupt.
Either party may also terminate the contract if the other commits a material or persistent breach of these terms and fails to remedy that breach within 30 days of written notice being given to it by the other party requiring a remedy.
9. Limitation of liability
Subject to the provisions below, if either of us fails to comply with these terms then neither of us shall be responsible for any losses that the other suffers as a result except for those losses which are a foreseeable consequence of the failure to comply with these Terms.
Neither of us will be responsible for any of the following types of loss that may result from a failure to comply with these terms:
(a) loss of income or revenue;
(b) loss of business or goodwill;
(c) loss of anticipated savings;
(d) loss of data;
(e) any waste of time; or
(f) any loss reasonably foreseeable and preventable by the party suffering it.
Where you are dealing with us OTHER THAN AS A CONSUMER, our entire liability to you under these terms will not in any event exceed: –
(a) in respect of goods comprised in the order, the value of the goods to which the claim relates, and
(b) in respect of services comprised in the order, 125% of our quoted labour costs for the services comprised in the Order and to which the claim relates.
We are happy to discuss with you on request higher limitations of our liability with you subject to availability and affordability of suitable insurance against such liability.
None of the above provisions are intended to or will have the effect of excluding or limiting in any way our liability for:
(a) death or personal injury caused by our negligence; or
(b) fraud or fraudulent misrepresentation; or
(c) any breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(d) losses for which it is prohibited by section 7 of the Consumer Protection Act 1987 to limit liability; or
(e) any other matter for which it would be illegal or unlawful for us to exclude or attempt to exclude our liability.
10. Events outside our control
We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms that is caused by events outside our reasonable control (referred to as a “Force Majeure Event”).
A Force Majeure Event includes any act, event, non-occurrence, omission or accident beyond our reasonable control and includes, in particular (without limitation), the following:
(a) strikes, lock-outs or other industrial action; or
(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; or
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; or
(d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; or
(e) impossibility of the use of public or private telecommunications networks.
Our obligations under these terms will be suspended for the period that the Force Majeure Event continues, and we will have an extension of time to perform our obligations for the duration of that period. We will take reasonable steps to bring the Force Majeure Event to a close or to find a solution by which our obligations under these terms can be performed despite the Force Majeure Event.
11. Notices and our company details
All notices sent by you to us must be sent to:
TomatoFree Foods, 26 Link Road, Rayleigh, Essex, SS6 8AF.
We may give notice to you at either the e-mail or postal address you provide to us in the Order.
Notice will be deemed received and properly served 24 hours after an e-mail is sent or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that the letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that the e-mail was sent to the specified e- mail address of the addressee.
12. Data Protection
You agree to the processing of you personal data in accordance with the above.
If any court or competent authority decides that any of the provisions of these terms are invalid, unlawful or unenforceable to any extent, the term will, to that extent only, be severed from the remaining terms, which will continue to be valid to the fullest extent permitted by law.
If we fail, at any time while these terms are in force, to insist that you perform any of your obligations under these terms, or if we do not exercise any of our rights or remedies under these terms, then that will not mean that we have waived such rights or remedies and will not mean that you do not have to comply with those obligations. If we do waive a breach by you, then this does not mean that we cannot take action against you in the future for any other breach of this contract. A person who is not party to these Terms shall not have any rights under or in connection with them under the Contracts (Rights of Third Parties) Act 1999.
These terms and the contract between us will be governed by English law and the English courts or by the law of and the courts governing where your property is if you are a consumer resident outside England and Wales.