GENERAL SUPPLIER TERMS

(a)  A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b)  A reference to a party includes its personal representatives, successors or permitted assigns.

(c)  A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

(d)  Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

(e)  A reference to writing or written includes faxes and e-mails.

2. BASIS OF CONTRACT

2.1  These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2  The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable specification are complete and accurate and in accordance with such lead times as the parties agree from time to time.

2.3  The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order or, if earlier, when the Supplier delivers the Goods, at which point the Contract shall come into existence.

2.4  The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.

2.5  A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 (thirty) Business Days from its date of issue and may be withdrawn by the Supplier at any time by written or oral notice.

3. GOODS

3.1  The Customer shall send the Supplier non-binding indicative forecasts of its requirements for the Goods from time to time.

3.2  The quality and description of the Goods are described in the Supplier’s quotation or acknowledgement of Order. Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.

3.3  The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.

3.4  Prices are quoted by the Supplier on the basis of the exclusions and limitations of liability set out in these Conditions. If the Customer wishes the Supplier to consider accepting a higher limit of liability, the Customer shall submit a written request to the Supplier and the Supplier may then quote a revised price taking account of the increased risks accepted by the Supplier and any increased insurance premium to be borne by the Supplier. The Supplier shall not be under any obligation to agree to any higher limitation of liability requested by the Customer.

3.5  Where a Contract is for the supply of Groceries the Code shall apply and be incorporated into the Contract. In the event of any conflict between the terms of the Code and the Contract, the Code shall prevail to the extent of the conflict or inconsistency only.

3.6  Where the Supplier and Customer agree that the Customer shall purchase Goods from the Supplier as part of a Minimum Order Amount then: (i) the Order shall detail the minimum combined Goods Price in £ (pounds sterling) making up the Minimum Order Amount; and the period of time over which the Minimum Order Amount shall be purchased by the Customer (Reference Period); and (ii) the combined Goods Price, of the Goods purchased by the Customer in the Reference Period, shall be calculated by reference to the Goods Prices in force during that period.

3.7  If the combined Goods Price, of Goods purchased by the Customer during the Reference Period (Actual Purchase Amount), is less than the Minimum Order Amount, then, except to the extent the shortfall in purchases was caused by the Supplier’s default or by a Force Majeure Event, the Supplier may require the Customer to pay the Supplier the difference between the Minimum Order Amount and the Actual Purchase Amount at any time after the end of the Reference Period.

3.8  The termination of any one Contract shall not affect the Customer’s obligations in relation to any Minimum Order Amounts agreed with the Supplier (whether in that Contract or otherwise) and clauses 3.6 and 3.7 (and the terms detailed in the relevant Order) shall continue in full force and effect.

4. DELIVERY OF GOODS

4.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable) and special storage instructions (if any).

4.2  The Customer shall either: collect the Goods from the Supplier’s premises at Greymare Farm, Lostwithiel, Cornwall PL22 0LW (Premises); or the Supplier shall deliver the Goods at such other location as may be agreed by the parties and detailed in the Order (Offsite) (both the Premises and Offsite being a Delivery Location as appropriate). In the absence of the Order detailing any Delivery Location, the Delivery Location shall be deemed to be the Premises.

4.3  Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.

4.4  Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. If no dates are specified, delivery of the Goods shall be within a reasonable time. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5  If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.6  The Supplier will endeavour to comply with any reasonable requests by the Customer for postponement of delivery of the Goods but shall be under no obligation to do so. Where delivery of the Goods is postponed, otherwise than due to default by the Supplier, then without prejudice to all other rights and remedies available to the Supplier, the Customer shall pay all costs and expenses incurred by the Supplier as a result of any such delays.

4.7  If the Customer fails to take or accept (as the case may be) delivery of the Goods when the Goods are ready for delivery, or the Supplier is unable to deliver the Goods on time because the Customer has not provided any Security Deposit, appropriate instructions, documents, licences or authorisations then:

(a)  delivery of the Goods shall be deemed to have been completed at 9.00 am on the day on which the Supplier notified the Customer that the Goods were ready; and

(b)  risk in the Goods shall pass to the Customer at the time in (a) above;

(c)  the Supplier may store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including without limitation, storage and insurance); and

(d)  the Supplier may resell or otherwise dispose of part or all of the Goods at the best price reasonably obtainable.

4.8  The Customer shall provide at the delivery point and at its expense adequate and appropriate equipment and manual labour for unloading the Goods. The Customer shall bear the risk of all loss, damage or deterioration of Goods (and any Packaging Materials) during unloading.

4.9  The Customer shall be responsible for obtaining all export and import licences (including payment of any duties) for the Goods and shall be responsible for any delays due to such sums or licences not being available.

4.10  If the Supplier requires the Customer to return any Packaging Materials to the Supplier, that fact, together with details of the Security Deposit payable by the Customer (which shall be added to the Contract price) is clearly stated on the delivery note and/or Order. The Security Deposit shall be paid by the Customer to the Supplier prior to any delivery.

4.11  Packing Materials remain the property of the Supplier and must be returned undamaged or replaced if damaged and sent to the Supplier at the Customer’s expense at such time as detailed in the delivery note or as otherwise agreed in writing between the parties.

4.12  The Security Deposit, if paid prior to delivery of the Goods, shall be returned to the Supplier by the Customer within [5] (five) Business Days of receipt of the Packing Materials by the Supplier, provided that the Supplier shall be entitled to make a monetary deduction (in £) for any damaged or missing Packing Materials, from the Security Deposit (such amount (£) being the Deduction). If the Security Deposit, or any part of it, has not been paid by the Customer prior to delivery, or otherwise, the Supplier shall be entitled to add the amount of the Deduction (if any) to the invoice to be paid in accordance with the terms of the Contract.

4.13  If the Packing Materials (or any of them) are not returned to the Supplier at such time as detailed in the relevant delivery note, or as otherwise agreed in writing between the parties, the Supplier shall be entitled to retain the whole of the Security Deposit relating to the same.

4.14  If, in relation to the Packing Materials, the Supplier and the Customer are both members of either the CHEP UK Limited pallet exchange scheme and/or of the Dairy UK Roll Container Repatriation Scheme then, in relation to the relevant pallets or trolleys/tetratainers, the parties shall act in accordance with that scheme.

4.15  The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

4.16  The quantity of any consignment of Goods as recorded by the Supplier upon despatch from the Supplier’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.

4.17  The Supplier shall not be liable for any non-delivery of Goods or shortages in Goods (howsoever caused) unless written notice is given by the Customer to Supplier within 5 (five) Business Days of the date when the Goods would, in the ordinary course of events, have been received.

4.18  Any liability of the Supplier for shortages in delivery or non-delivery of the Goods shall be solely limited to replacing the shortage of Goods or the non-delivered Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such shortage of Goods or non-delivered Goods.

5. GOODS QUALITY

5.1  The Supplier warrants that (subject to the other provisions of these Conditions) upon delivery the Goods shall be fit for human consumption and of satisfactory quality within the meaning of the Sale of Goods Act 1979.

5.2  If the Customer suspects that the Goods do not conform with the warranty in clause 5.1, the Customer must retain for inspection by the Supplier all such Goods.

5.3  The Supplier shall not be liable for a breach of the warranty in clause 5.1 unless:

(a)  the Customer gives written notice to the Supplier of the defect in the Goods as soon as reasonably practicable, and, if the defect in the Goods is as a result of damage in transit by the carrier, within 48 hours of the time of delivery of the Goods and the rejection report is signed by the Customer setting out full and accurate details of any defects. No right of rejection shall arise in respect of Goods that are delivered in all material respects in accordance with the Supplier specification or any specification amended by the Supplier to comply with any applicable statutory requirements; and

(b)  the Supplier is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost (subject to such costs being reasonable) for the examination to take place there.

5.4  The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:

(a)  if the Customer makes any further use of such Goods after giving notice in accordance with clause 5.3;

(b)  the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

(c) the Customer alters such Goods without the written consent of the Supplier;

(d)  the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

(e)  the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

5.5  Except as provided in this clause 5, (and subject to clause 11 (Limitation of Liability) the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.

5.6  Subject to clause 5.3 and clause 5.4, if any of the Goods do not conform with the warranty in clause 5.1 the Supplier shall at its option:

(a)  repair or replace such Goods (or the defective part);

(b)  refund the price of such Goods at the pro rata Contract rate, provided that, if the Supplier so requests, the Customer shall, at the Supplier’s expense, retain or return the Goods or the part of such Goods which are defective to the Supplier; or

(c)  require the Customer to take such steps as the Supplier considers necessary to make the Goods conform with such warranty; or;

(d)  pay the Customer’s reasonable and proven administrative costs and expenses incurred in respect of Goods which do not conform with such warranty.

5.7  These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

6. PRODUCT RECALL AND COMPLAINTS

6.1  In the event of a Goods Recall, and if required by Supplier, the Customer will enforce the Supplier’s procedures (as notified to the Customer from time to time) covering the Goods Recall, and will cooperate with the Supplier to ensure that the Goods Recall is dealt with promptly and effectively.

6.2  The Customer will immediately report to the Supplier any defect or possible defect in the Goods which the Customer should reasonably be aware of, and which could require a Goods Recall, to ensure the safety of the Customer’s customers. If the Customer is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any Goods from the market (Recall Notice) it shall immediately notify the Supplier in writing enclosing a copy of the Recall Notice.

6.3  Where the Supplier initiates a Goods Recall, it will reimburse the Customer for its reasonable and proven administrative costs and expenses incurred in administering that Goods Recall campaign relating to the Goods.

6.4  Where the Customer initiates a Goods Recall, it will reimburse the Supplier for all costs, expenses and losses related to that Goods Recall.

6.5  Where Goods are to be recalled as a consequence of a Goods Recall the Customer shall return all recalled Goods in the Customer’s possession to the Supplier within 5 (five) Business Days, or where requested by the Supplier: i) retain the Goods for inspection by the Supplier; or ii) destroy the recalled Goods and provide a certificate of destruction.

6.6  Except to the extent required by law and without prejudice to clause 11 (Limit of Liability), the Supplier shall not be liable for any further costs or charges as a consequence of the Goods Recall.

6.7  The Customer shall not publish any notices or press releases associated with a Goods Recall, without the Supplier’s prior written consent.

6.8  The Customer shall maintain a proper and efficient procedure for reporting and dealing with consumer, or other customer, complaints but shall not settle any such complaints or otherwise compromise the position of the Supplier in respect thereto without the Supplier’s prior written consent. Full details of all such complaints must be referred to the Supplier forthwith upon notification together with the packaging and/ or batch code of the relevant Goods without which no complaint shall be considered.

7. TITLE AND RISK

7.1  The risk (including of loss, damage and/or deterioration) in the Goods shall pass to the Customer on completion of delivery.

7.2  The Goods shall remain the sole and absolute property of the Supplier as legal and equitable owner and title to the Goods shall not pass to the Customer until the earlier of:

(a)  the Supplier receiving payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums; and

(b)  the Customer reselling the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 7.4.

7.3  Until title to the Goods has passed to the Customer, the Customer shall procure or shall (as the case may be) at its own cost:

(a)  store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;

(b)  not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c)  maintain the Goods in satisfactory condition and insure the Goods with a reputable insurer from the point at which risk passes to the Customer, for their full value against its liabilities pursuant to these Conditions or any supply contract, to the satisfaction of the Supplier and shall produce evidence of such insurance upon request of the Supplier;

(d)  notify the Supplier immediately if it becomes subject to any of the events listed in clause 10.2; and

(e)  give the Supplier such information relating to the Goods as the Supplier may require from time to time.

7.4  Subject to clause 7.5, the Customer may resell or use the Goods in the ordinary course of its business (but shall not otherwise (and shall not purport to) sell, mortgage or encumber or part with possession of the Goods or allow any lien or encumbrance to arise over them) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:

(a)  it does so as principal and not as the Supplier’s agent; and

(b)  title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.

7.5  If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 10.2, then, without limiting any other right or remedy the Supplier may have:

(a)  the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and

(b)  the Supplier may at any time:

(i)  require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and

(ii)  if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7.6  The Supplier may at any time inspect the Goods and may recover the Goods in respect of which title has not passed to the Customer at any time and the Customer irrevocably licenses the Supplier, its officers, agents or authorised representatives to enter upon any premises where the Goods are stored or where they are reasonably thought to be stored and repossess the same with or without vehicles for the purpose of satisfying itself that clause 7.3 is being complied with or recovering Goods for which title has not passed to the Customer.

8. RESALE OF GOODS

8.1  The Customer shall ensure that the Goods:

(a)  are rotated so that the oldest stocks of Goods are sold first;

(b)  resold, remain in the containers in which they are supplied by the Supplier and all labels, names, reference marks and numbers are not removed, altered or covered at any time; and

(c)  are resold only from premises suitable for their storage, display and sale.

8.2  The Supplier shall not be liable for any loss of any kind arising from the Customer’s failure to fulfil obligations under clause 8.1.

8.3  The Supplier will not give the Customer credit for:

(a)  any Goods delivered before the “best before date” (or “use by date”, as appropriate) on the grounds that the “best before date” (“or use by date”, as appropriate) of those Goods has subsequently passed or is approaching; and/or

(b)  any Goods which have been tampered with, price marked or similarly disfigured.

8.4  The Customer shall not remove any plaque or other label affixed to the Goods referring any user thereof to the Supplier’s Goods information (statutorily required or otherwise).

8.5  If any item comprised in the Goods is resold by the Customer, the Customer shall bring to the attention of its purchaser all of the Supplier’s instructions and/or recommendations for use packed by the Supplier with the Goods or which the Supplier has otherwise notified to the Customer.

9. PRICE AND PAYMENT

9.1  The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.

9.2  The Supplier may, by giving notice to the Customer at any time up to 5 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:

(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b)  any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the specification; or

(c)  any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.

9.3  The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.

9.4  The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery. Where Goods are delivered by instalments, the Supplier may invoice each instalment or stage separately and the Customer shall pay in accordance with these Conditions.

9.5  The Customer shall pay the invoice in full and in cleared funds within 21 Business Days of the date of the invoice OR within such number of Days as agree separately in writing between the Supplier and Customer. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.

9.6  If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Supplier shall be entitled, without prejudice to any other right or remedy, to do all or any of the following:

(a)  treat such failure as a repudiation of the whole Contract by the Customer and to recover damages for such breach of Contract;

(b)  suspend any or all further deliveries and suspend any further production (including suspending any procurement activities related to the Goods) under the Contract and under any contract or contracts in existence between the Supplier and the Customer without notice;

(c)  serve notice on the Customer requiring immediate payment for all Goods supplied by the Supplier under this Contract and all other contracts with the Customer whether or not payment is due;

(d)  charge the Customer interest on the overdue amount at the rate of 4% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

9.7  The Customer 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). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

10. TERMINATION AND SUSPENSION

10.1  If the Customer becomes subject to any of the events listed in clause 10.2, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.

10.2  For the purposes of clause 10.1, the relevant events are:

(a)  the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified by the Supplier in writing to do so;

(b)  the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;;

(c)  the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; and/or

(d)  the Customer financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

10.3  Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 10.2(b)to clause 10.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

10.4  On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.

10.5  Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.

10.6  Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

11. LIMITATION OF LIABILITY

11.1 Subject to clause 4 (Delivery of Goods), clause 5 (Quality of Goods), clause 6 (Recall of Goods) and clause 8 (Resale of Goods) the following provisions in this clause 11 set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:

(a)  any breach of these Conditions;

(b)  any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods; and

(c)  any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

11.2  All warranties, clauses and other terms implied by statute or common law (save for the clauses implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

11.3  Nothing in these Conditions shall limit or exclude the Supplier’s liability for:

(a)  death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b)  fraud or fraudulent misrepresentation;

(c)  breach of the terms implied by section 12 of the Sale of Goods Act 1979;

(d)  defective products under the Consumer Protection Act 1987; or

(e)  any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

11.4  Subject to clause 4.17, clause 5.6, clause 6.3, and clauses 11.2 and 11.3:

(a)  the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any (i) pure economic loss; (ii) loss of profit; (iii) loss of business; (iv) loss of revenues; (v) loss of margin; (vi) loss of opportunity; (vii) depletion of goodwill or otherwise; or (viii) any indirect, special or consequential losses or damages whatsoever (howsoever caused) which arise out of or in connection with the Contract; and

(b)  subject to clause 6 (Goods Recall), the Supplier’s total liability in respect of any Goods Recall shall be limited to the provision of replacement Goods or where they are not available, credit on receipt of the recalled Goods or receipt of proof of their destruction;

(c)  the Supplier shall not be liable under any liability, whether in contract, tort, deceit or otherwise, in respect of any claim, action or proceedings brought by the Customer later than 1 (one) year following the date the cause of action arose;

(d)  the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.

12. FORCE MAJEURE

Neither party shall be liable for any failure or delay in performing its obligations under the Contract (other than any Customer payment obligations) to the extent that such failure or delay is caused by any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.

13. CUSTOMER INDEMNITY

13.1 The Customer shall indemnify the Supplier in respect of any and all damage, injury or loss occurring to any person or property and against all actions, suits, allegations, claims, demands, charges or expenses (including, but not limited to legal expenses) in connection therewith arising from the condition or use of the Goods in the event and to the extent that the damage injury or loss shall have been occasioned partly or wholly by the act, omission, negligence or carelessness of the Customer or its employees, agents, servants or sub-contractors or by any breach of the Customer of its obligations to the Supplier hereunder.

14. CANCELLATION

14.1  The Customer may not cancel the Contract without the prior written consent of the Supplier, which if given (at the Supplier’s sole discretion) shall be deemed to be on the express clause that the Customer shall indemnify the Supplier against any and all loss, damage, claims allegations, actions, charges or expenses (including, but not limited to legal expenses) arising out of such cancellation unless otherwise agreed in writing.

14.2  Goods returned to the Supplier without the Supplier’s prior written consent will not be accepted for credit.

15. ATTENDANCE ON SITE

15.1 The Customer shall only be entitled to attend the Supplier’s premises if the Customer gives to the Supplier reasonable written notice including all information reasonably requested by the Supplier regarding the purpose of the Customer’s attendance and the Supplier, at its sole discretion, confirms acceptance of such attendance to the Customer in writing. The Customer shall comply with all site rules and regulations and health and safety policies and procedures applicable to such premises whilst attending such premises. The Customer shall indemnify the Supplier and keep the Supplier fully and effectively indemnified in respect of any and all claims or allegations made or proceedings taken against the Supplier (and all associated costs and expenses, including, but not limited to, legal expenses incurred by the Supplier) by any person, firm or company including employees of the Supplier, or of the Customer or of any contractor of the Customer (or their personal representative), whether in respect of death, personal injury or damage to property arising directly or indirectly from the attendance at such premises.

16. GENERAL

16.1  Assignment and other dealings.

(a)  The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

(b)  The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.

16.2  Notices.

(a)  Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next Business Day delivery service, commercial courier, fax or e-mail.

(b)  A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16.2(a); if sent by pre-paid first class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.

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

16.3  Severance.

(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum 15 extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part- provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

16.4  Intellectual Property. Save as otherwise agreed in writing all intellectual property rights (whether registered or unregistered), or any similar or analogous rights, in the Goods and the manufacturing process shall remain the property of the Supplier or its licensors. The Customer shall not acquire any intellectual property rights, whether by licence or otherwise, relating to the Goods or manufacturing processes in any way and may not copy or imitate the Goods or do or omit to do, or permit any third party to do or omit to do, anything which may damage such intellectual property rights in any way.

16.5  Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16.6  Confidentiality. The Customer shall keep as confidential all information disclosed to it by or on behalf of the Supplier which could reasonably be considered as confidential. This shall include, but not be limited to, all information disclosed by the Supplier which relates to manufacturing processes and know-how, sourcing information (both raw materials and suppliers of services) and all information relating to the Supplier’s business which is not in the public domain. The Customer shall not use any information so provided other than to enable it to perform its obligations under the Contract. All such information (and all copies thereof) shall be immediately returned to the Supplier upon termination of the Contract.

16.7  Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.

16.8  Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and clauses, shall be effective unless it is in writing and signed by the Supplier.

16.9  No agency. The Customer shall not be entitled to hold itself as an agent or representative of the Supplier nor shall the Customer be entitled, in any way, to bind the Supplier without the prior written consent of the Supplier (any such consent to be signed by a director of the Supplier).