TERMS & CONDITIONS
GENERAL TERMS & CONDITIONS OF PURCHASE (“Conditions”) OF JORDANS, DORSET, RYVITA (A DIVISION OF ABF GRAIN PRODUCTS LIMITED) (“Buyer”)
(“the Buyer”)
1. DEFINITIONS
In these terms and conditions
Buyer means The Jordans & Ryvita Company (a division of ABF Grain Products Limited), registered in England and Wales, whose registered office is at Weston Centre, 10, Grosvenor Street. London W1K 4QY.
Contract means the individual contract entered into by the Buyer and the Seller for the Sale and Purchase of the Supplies on these terms and conditions, the Special Conditions (if any), any other standard trade terms the parties agree apply and the Purchase Order. In the event of conflict between these terms and conditions, the Special Conditions (or the trade terms), the Payment Terms and the Purchase Order, the order of priority will be (i) the Special Conditions, (ii) Payment Terms (iii) these terms and conditions, (iv) the Purchase Order and (v) any other standard trade terms which the parties agree apply.
Delivery Point means the address stated in the Purchase Order or such other address as is notified to the Seller by the Buyer.
Intellectual Property Rights means patents, rights to inventions, trademarks, rights in confidential information (including know how and trade secrets) copyright, design rights (and all similar or related rights existing anywhere in the world, whether registered or not and including any applications for the same) in materials, equipment, tools, dies, moulds, drawings, specifications, data and software.
Loss(es) means all direct, indirect or consequential liability, all losses, damages, expenses, costs, claims, proceedings, or demands including legal and other professional expenses.
Payment Terms means the frequency and dates of payment of the fees under the Contract payable by the Buyer to the Seller which, if agreed separately from the other parts of the Contract, is agreed in writing or by email exchange between the Parties.
Purchase Order means the individual official numbered purchase order placed by the Buyer on these terms and conditions and any Special Conditions, or multiple purchase orders placed by the Buyer in relation to a specific agreement.
Seller means the company, partnership or person selling the Supplies.
Supplies means all articles, materials, goods, work or services specified in the Purchase Order or as may be amended from time to time.
Special Conditions means the terms and conditions (if any) attached or referred to in these terms and conditions.
2. GENERAL
2.1 Unless otherwise agreed in writing by the Parties, these terms and conditions are the only terms and conditions upon which the Buyer is prepared to deal with the Seller and they shall govern the Contract to the entire exclusion of all other terms or conditions, including the terms and conditions of the Seller, whether express or implied (other than those imposed by law and/or any prior representations made by the Buyer to the Seller which are incorporated herein by reference).
2.2 Each Purchase Order for Supplies by the Buyer from the Seller shall be deemed to be an offer by the Buyer to purchase Supplies subject to these terms and conditions. All orders placed on a Purchase Order by the Buyer shall, where Purchase Orders for the same or similar Supplies have been placed by the Buyer with the Seller in the past, be deemed to have been accepted by the Seller unless (where the Seller has not already agreed to provide future Supplies) the Seller sends written notification to the Buyer within five days of the date of the Purchase Order. No Purchase Order shall bind the Buyer unless and until it bears a Purchase Order number.
2.3 No terms or conditions endorsed upon, delivered with or contained in the Seller’s quotation, acknowledgement or acceptance of order, specification or similar document will form part of the Contract and the Seller waives any right which it otherwise might have to rely on such terms and conditions.
2.4 The Buyer may provide forecasts of its likely requirements of Supplies (“Forecasts”) for one or more months following the month in which the Forecast is placed. While the Buyer shall endeavour to provide accurate Forecasts, it shall not be bound by any Forecasts and any Purchase Order may vary from the Forecast to which it relates. The Seller agrees to accept future Purchase Orders pursuant to Forecasts placed (whether or not changed by the Buyer).
2.5 The Buyer shall be under no responsibility to accept delivery of Supplies for which a Purchase Order has not been properly provided by the Buyer. Deliveries of Supplies other than in accordance with a Purchase Order may (at the Buyer’s option) be returned to the Seller at the Seller’s expense and risk.
3. VARIATION
These terms and conditions apply to all of the Buyer’s purchases and any variation to these terms and conditions shall have no effect unless expressly agreed in writing and signed by a duly authorised signatory of the Buyer. No action on the part of the Buyer, whether by accepting the Supplies or otherwise, shall be construed as an acceptance of any other terms and conditions.
4. SPECIFICATION, DESCRIPTION, SAMPLE AND INTELLECTUAL PROPERTY RIGHTS
4.1 The Supplies will be in conformity with the specifications, drawings, samples or other descriptions of the Supplies contained or referred to in this Purchase Order or otherwise supplied to the Seller by the Buyer in writing. Any Intellectual Property Rights in any work commissioned by the Buyer or developed by the Seller to complete an order or used by the Seller specifically in the manufacture of the Supplies (together, “Buyer Property”) shall be the exclusive property of the Buyer. The Seller shall not use or disclose any such specification, description or sample or any such Intellectual Property Rights except to the extent necessary to fulfil its obligations under the Contract.
4.2 The Seller shall keep all Buyer Property in safe custody at its own risk insured for its full replacement value against all risks and maintained and kept in good condition by the Seller until returned to the Buyer and shall not dispose of any of it other than in accordance with the Buyer’s written instructions, nor shall such items be used otherwise than as authorised by the Buyer in writing.
4.3 The Seller shall do all such acts and execute all such documents as the Buyer may require to assign to it all Intellectual Property Rights described in Condition 4.1 above.
5. QUALITY
5.1 The Supplies shall be of the best available design quality, material and workmanship, without fault and conform in all respects with the Purchase Order and specification and/or patterns or samples supplied or advised by the Buyer to the Seller.
5.2 The Buyer’s rights under these terms and conditions are in addition to the statutory conditions implied in favour of the Buyer by the Sale of Goods Act 1979.
5.3 At any time prior to or promptly following delivery of the Supplies to the Buyer, the Buyer shall have the right to inspect and test the Supplies. If the Buyer believes that the Supplies do not conform or are unlikely to conform with the Purchase Order or to any specifications and/or patterns or samples supplied or advised by the Buyer to the Seller, the Buyer shall inform the Seller and the Seller shall immediately take such action as is necessary to ensure conformity and in addition the Buyer shall have the right to require and witness further testing and inspection.
5.4 Notwithstanding any such inspection or testing, the Seller shall remain fully responsible for the Supplies and any such inspection or testing shall not diminish or otherwise affect the Seller’s obligations under the Contract.
5.5 If any of the Supplies fail to comply with the provisions set out in Condition 5.1 the Buyer shall be entitled to avail itself of any one or more remedies listed in Condition 14 and all such rights and remedies shall be available on a cumulative basis.
6. WARRANTY
The Seller warrants to the Buyer that (i) any Supplies performed by the Seller will be provided or performed by or using appropriately qualified and trained personnel, provided or performed with due care and diligence and to such high standard of quality as is reasonable for the Buyer to expect in all the circumstances; (ii) the Supplies shall be fit for any purpose held out by the Seller or made known to the Seller or for which the are commonly used; (iii) the Supplies shall be of the best available design and durability, of the best quality, material and workmanship, be without fault (whether in design, material and/or workmanship) and conform in all respects with the Purchase Order and specification and/or patterns or samples supplied or advised by the Buyer to the Seller; and (iv) the Seller shall comply with all statutory requirements and regulations relating to the sale of the Supplies and the services performed.
7. TERMINATION
7.1 The Buyer may cancel a Purchase Order in respect of all or part only of the Supplies by giving notice to the Seller at any time prior to delivery or performance, in which event the Buyer’s sole liability shall be to pay the Seller the value for the work in progress relating to the supply of such Supplies, up to a maximum amount of the price for the Supplies in respect of which the Buyer has exercised the right of cancellation, less any amount obtained by the Seller for selling on such Supplies or work in progress (it being deemed for these purposes that any sales of Supplies made by the Seller to a third party shall be treated as first sold from Supplies, or work in progress, cancelled by the Buyer).
7.2 The Buyer may terminate the Contract immediately by notice to the Seller and without liability to the Seller if at any time:-
(i) the Seller commits a material breach of any of any of the terms and conditions of the Contract; or
(ii) the Seller makes a voluntary arrangement with its creditors or becomes the subject of an administration arrangement order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
(iii) the Seller has a receiver or manager, administrator or administrative receiver appointed of any of its property or assets; or
(iv) a resolution is passed or a petition presented to any court for the winding-up of the Seller or for the granting of an administration order in respect of the Seller, or any proceedings are commenced relating to the insolvency or possible insolvency of the Seller; or
(v) the Seller ceases or threatens to cease to carry on business; or
(vi) the financial position of the Seller deteriorates to such an extent that in the opinion of the Buyer the capability of the Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy; or
(vii) the Buyer reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly; or
(viii) there is a change in control of the Buyer or the Seller. For the purpose of this condition, “control” means the ability to direct the affairs of another whether by voting or contractual rights or otherwise and whether directly or indirectly; or
(ix) the Seller sells or otherwise disposes of goods which bear trademarks or other intellectual property belonging to or licensed to the Buyer; or
(x) the Seller is in breach of its obligations herein and where such breach is capable of remedy, has not been remedied within 15 days of the Buyer notifying the Seller of such breach.
7.3 The termination of the Contract, however arising, shall be without prejudice to the rights and duties of the Buyer accrued prior to termination. The conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
8. INDEMNITY AND INSURANCE
8.1 The Seller shall indemnify and keep indemnified the Buyer, its agents, employees, officers, subsidiaries, associated companies and assigns in full against all Losses in respect of (i) defective workmanship, quality or material breach; (ii) any infringements of Intellectual Property Rights arising out of the purchase, sale or use of any Supplies except to the extent that any such claim arises from strict compliance by the Seller with a specification or design supplied by the Buyer (iii) any claim made against the Buyer in respect of any Loss sustained by the Buyer’s employees or agents or by any customer or third party to the extent that such Loss was caused by, relates to or arises from the Supplies; (iv) any liability under the Consumer Protection Act 1987 in respect of the Supplies; and (v) any act or omission of the Seller, its employees, agents or subcontractors in supplying, delivering and installing the Supplies and the performance of any services which form part of the Supplies or any other services, save in so far as such Losses arise directly from the Buyer’s negligence.
8.2 The Seller shall effect and maintain insurance with a substantial and reputable insurance company to cover its liabilities under this contract or under statute for at least £5 million in respect of any one occurrence, the number of occurrences being unlimited. The Seller will, on request, produce evidence of any relevant policies to meet these obligations.
8.3 Neither party excludes or limits its liability for personal injury, death or for fraud or fraudulent misrepresentation.
9. PRICE
9.1 The price of the Supplies shall be as stated in the Purchase Order (or Special Conditions as the case may be) and shall be exclusive of any applicable value added tax (which shall only be payable by the Buyer on receipt of a valid VAT Invoice); and inclusive of all charges for packaging, carriage, insurance and delivery of the Supplies to the Delivery Address and any duties, taxes or levies other than Value Added Tax.
9.2 The Buyer shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Seller, whether or not shown on its own terms and conditions of sale.
9.3 If the Seller operates or has its seat, or if the Contract is performed (in whole or in part), in a Eurozone country (as constituted at the date of this Contract) (“Affected Country”), or the Contract specifies payment to be made in EUR, then the Buyer may satisfy its obligations as to payment by means of payment in GBP or USD (at the Buyer’s discretion) into a UK bank account in the name of the Seller, only if (i) the Affected Country exits the Eurozone and foreign exchange controls are implemented which prohibit the Buyer from satisfying its obligations in EUR; or (ii) the EUR as a currency ceases to exist.
9.4 If the provisions of Condition 9.3 are triggered and the Buyer makes payment to the Seller in GBP/USD to a UK bank account, the applicable conversion rate shall be the average EUR to GBP/USD (as relevant) exchange rate reported in the Financial Times over the six (6) months ending on the date on which the events set out in Condition 9.3(i) and 9.3(ii) occurred.
10. PAYMENT
10.1 The Seller shall invoice the Buyer at the address set out on the front of the Purchase Order after delivery of the Supplies and each invoice and packing list shall quote the Purchase Order number, item number(s) and line item number(s).
10.2 The Buyer shall, except in the event of a dispute and subject to receipt of the necessary invoice, quoting correct Purchase Order number, pay for the Supplies within 60 days of receipt of a validly issued invoice or by such other time as may be agreed between the parties.
10.3 Without prejudice to any other right or remedy, the Buyer reserves the right to set off any amount owing at any time from the Seller to the Buyer or any other subsidiary (as defined in section 1159 of the Companies Act 2006) of Associated British Foods plc against any amount payable by the Buyer to the Seller under the Contract.
11. DELIVERY / ACCEPTANCE/ PERFORMANCE
11.1 Delivery shall be made by the Seller, carriage paid, on the date set out in the Purchase Order to the Delivery Point. The Buyer accepts no responsibility for Supplies delivered outside specified times and unless otherwise stipulated by the Buyer in the Purchase Order, deliveries shall only be accepted by the Buyer in normal business hours.
11.2 An advice/delivery note quoting the Seller’s name and the Purchase Order number: (and Seller’s stock number) and any additional information in the Special Conditions must accompany each delivery or consignment of Supplies and must be displayed prominently on each delivery or consignment. Where the Special Conditions requires a Certificate of Analysis, manufacturer’s batch number or other manufacturing records, for traceability, these should not be attached to the advice/delivery note but should be sent to the Seller Assurance team.
11.3 Unless agreed in writing the Buyer shall not be obliged to return any packaging or packaging materials. If the Supplies are to be delivered in instalments the Contract must, unless otherwise agreed by the Buyer in writing, be treated as a single Contract and not severable.
11.4 Without prejudice to any liability the Seller may have, the Seller must report immediately to the Buyer the occurrence of any event either within or beyond its control which is likely to affect delivery of the Supplies.
11.5 Time is of the essence as to the delivery of the Supplies.
12. TITLE
On proper delivery of the Supplies to the Delivery Point, all risk, property and title in the Supplies shall pass to the Buyer without prejudice to any right of rejection. Where payment has been made before delivery, property in the Supplies shall, on payment by the Buyer, vest immediately in the Buyer. Risk shall pass to the Buyer when the Supplies are properly delivered to the Delivery Address/properly performed.
13. FORCE MAJEURE
The Buyer reserves the right to defer the date of delivery or payment or to cancel the Contract or reduce the volume of the Supplies ordered if it is prevented from or delayed or hindered in the carrying on of its business due to circumstances beyond the reasonable control of the Buyer including, without limitation, acts of God, governmental actions, terrorism or the threat of terrorism war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), unexpected cost increases or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials or the amendment or coming into force of any legal provision adversely affecting the Buyer in relation to the supply of Supplies, including any Economic Sanctions Law.
14. REMEDIES
Any remedy available to the Buyer is cumulative and is not in lieu of any other remedy. Without prejudice to any other right or remedy which the Buyer may have, if any Supplies are not supplied in accordance with, or the Seller fails to comply with, any of the terms of this Contract or if any Purchase Order is not or is only partially fulfilled by the agreed delivery date, the Buyer shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Supplies have been accepted by the Buyer:
14.1 to accept the Supplies;
14.2 to rescind the Contract or to cancel that Purchase Order in respect of those Supplies that have not been delivered on time;
14.3 to reject the Supplies (in whole or in part) and return them to the Seller at the risk and cost of the Seller on the basis that the price for the Supplies shall be apportioned accordingly, and a full refund for the Supplies so returned shall be paid forthwith by the Seller;
14.4 at the Buyer’s option to give the Seller the opportunity at the Seller’s expense either to remedy any defect in the Supplies or to supply replacement Supplies and carry out any other necessary work to ensure that the terms of the Contract are fulfilled within a time limit specified by the Buyer;
14.5 to refuse to accept any further deliveries of the Supplies but without any liability being owed to the Seller;
14.6 to carry out at the Seller’s expense any work necessary to make the Supplies comply with the Contract; and
14.7 to claim such damages as may have been sustained in consequence of the Seller’s breaches of the Contract.
14.8 to attend the Seller’s premises to inspect and/ or uplift goods and materials.
15. data protection
15.1 In providing the Supplies, the Seller may process (albeit incidentally) personal data in respect of which the Buyer is the data controller on behalf of the Buyer. In processing any such personal data, the Seller shall comply with all applicable data protection and privacy laws and regulations including without limitation, the provisions of the Data Protection Act 1998 (the “DPA”) and not by any act or omission cause the Buyer to breach any such laws or regulations. Where, in connection with this Contract, the Seller processes personal data on the Buyer’s behalf it shall: (a) implement appropriate technical and organisational measurers to protect the personal data against accidental or unlawful processing; (b) provide the Buyer with full co-operation and assistance in allowing data subjects to have access to that data and/or to ensure that the data is deleted or correct if they are incorrect; and (c) not process the data other than as instructed by the Buyer. For the purposes of this Condition “processing”, “personal data”, “data controller” and “data subject” are as defined in the DPA.
16. ASSIGNMENT AND SUBCONTRACTING
The Buyer may assign the Contract or sub-contract the whole or any part thereof to any person, firm or company. The Seller shall not assign or transfer the whole or any part of the Contract or subcontract the production or supply of any Supplies to be delivered under this Contract without the prior written consent of the Buyer, but where the Seller does sub-contract its obligations under the Contract, with or without consent of the Buyer, the Seller shall retain liability for such production or supply as if the Seller had produced or supplied the Supplies. The Buyer shall be entitled to assign, transfer or sub-contract any of its rights or obligations under these terms and conditions.
17. MISCELLANEOUS
17.1 Any waiver by the Buyer of any breach of, or any default under, any provision of the Contract by the Seller shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
17.2 The Contract may only be varied by the written agreement of both parties (and in the case of the Buyer) must be signed by a director or other duly authorised personnel on the Buyer’s behalf.
17.3 If any provision of the Contract is held to be unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
17.4 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
17.5 Any notice required or permitted to be given by either party to the other under this Contract shall be in writing addressed to the other at its registered office or principal place of business or such other address as may at the relevant time be notified under this provision to the party giving the notice.
17.6 Any notice hereunder shall be deemed to have been duly given if delivered personally or sent by prepaid first class post (airmail if to an address outside the United Kingdom) fax to the party concerned at the address referred to in Condition 17.5. In the absence of evidence of earlier receipt, any such notice shall be deemed to have been given:
(a) if left personally, when left at the address referred to in Condition 17.5;
(b) if sent by pre-paid first-class post two days after posting;
(c) if sent by air mail, six days after posting;
(d) if sent by fax, when clearly and legibly received in full.
17.7 Each party acknowledges that it may have access to, and become acquainted with confidential information relating to the business or affairs of the other party and, in respect of the Seller, Intellectual Property Rights in Buyer Property (together, “Confidential Information”). Subject to the usual common law exclusions, each party specifically agrees that it will keep confidential, and will not use for any purpose other than the performance of this Agreement, and will not without the prior written consent of the other disclose, directly or indirectly, to any third party, any Confidential Information.
17.8 Where the Seller supplies the Buyer with Confidential Information the Seller agrees that the Buyer may disclose such information to a third party under conditions of confidentiality.
17.9 Nothing in these Conditions shall create or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties and no employee of one party shall be deemed to be or become an employee of the other party.
17.10 The Seller shall not use the Buyer’s name for the purpose of advertisement or publicity without the Buyer’s consent.
17.11 In the event of any disputes arising out of or in relation to this Contract, without prejudice to any rights either party may have (including but not limited to the right to obtain injunctive relief and any right of the Buyer if it reasonably believes that the Seller has repudiated the Contract or is in material breach), either party may request that the parties attempt to settle it first by negotiation. If the parties have not settled such dispute within 21 days of the commencement of negotiations the parties will attempt to settle it by referring the matter to their respective general manager (or other relevant senior manager as may be agreed by the parties) who will attempt to resolve such dispute.
18. ETHICAL TRADING, ANTI-BRIBERY AND SANCTIONS COMPLIANCE
18.1 In accordance with the Buyer’s commitment to sustainable and ethical business practices the Seller warrants and represents that in connection with any matter arising under or pursuant to any Contract it shall (i) protect its workers’ rights, including by ensuring: safe and hygienic working conditions, freedom of association, living wages are paid, working hours are not excessive, no discrimination is practised, no harsh or inhumane treatment is allowed and no child labour is used; (ii) ensure environmental management programmes are in place (iii) (without prejudice to Condition 18.2) not offer, promise, give or receive any improper financial payment and/or other improper advantage to or from any person, customer or supplier; and (iv) not make or offer, directly or indirectly, any payment, gift or other advantage to a public official with the intention of influencing them and obtaining or retaining an advantage in the conduct of business. The Seller further warrants that it shall comply with the Buyer’s Code of Conduct available at http://www.abf.co.uk/documents/pdfs/policies/supplier-code-of-conduct.pdf, as may be updated by the Buyer from time to time.
18.2 In addition, the Seller:
(a) shall comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (all of the aforesaid being “Relevant Requirements”);
(b) shall have and shall maintain in place throughout the term of this agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate;
(c) shall on request by the Buyer certify to the Buyer in writing signed by an officer of the Seller, compliance with this Condition 18.2 by the Seller and all persons associated with it. The Seller shall provide such supporting evidence of compliance as the Buyer may reasonably request; and
(d) warrants that neither it nor, to its knowledge, its officers, employees, nor any person involved by or for it in the performance of any Contract is a Sanctioned Person; and
(e) shall comply with Economic Sanctions Law in all respects related to the performance of this Contract and shall not have any dealings or transactions with any Sanctioned Person if such dealings or transactions would cause the Buyer to be in violation, or to be subject to a risk of punitive measures being imposed pursuant to, any Economic Sanctions Law.
18.3 For the purposes of these terms and conditions:
“Sanctioned Person” means any person, organisation or vessel
(i) designated on the United Nations Consolidated Lists, the Consolidated List of Financial Sanctions Targets maintained by the UK HM Treasury, the Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, the US Government’s Denied Persons List, Entities List, Debarred Parties List and Terrorism Exclusion List or an any list of targeted persons issued under the Economic Sanctions Law of any other country (including the European Union);
(ii) that is, or is part of, a government of a Sanctioned Territory;
(iii) owned or controlled, directly or indirectly, by, or acting on behalf of, any of the foregoing;
(iv) incorporated within, located within or operating from a Sanctioned Territory and subject to any Economic Sanctions Law; or
(v) otherwise targeted under any Economic Sanctions Law.
“Economic Sanctions Law” means any laws, regulations, or other binding measures of the European Union, any EU member states, the United Nations, the United States of America or any other jurisdiction applicable to the Parties which relates to economic or trade sanctions, export controls, non-proliferation, anti-terrorism or similar restrictions.
“Sanctioned Territory” means any country or other territory subject to a general export, import, financial or investment embargo under Economic Sanctions Law from time to time, including without limitation Iran, Sudan, Syria, North Korea and Russia/Ukraine.
18.4 In order to ensure the Seller’s adherence to the provisions of this Clause 18, the Seller grants the Buyer (and any auditors, agents or other third parties appointed by the Buyer) a license to enter the Seller’s premises (and to the extent possible anyone supplying the Seller) to undertake such audits or investigations as the Buyer may require. The Seller shall co-operate fully and provide such information as the Buyer may reasonably require.
19. GOVERNING LAW
The Contract and any dispute or claim arising out of or in connection with it, or its subject matter or formation, whether of a contractual or non-contractual nature, shall in all respects be governed by and construed in accordance with English law and, subject to Condition 17.11, the parties irrevocably submit to the exclusive jurisdiction of the English courts, including (without limitation) in respect of any application for injunctive or ancillary relief.
GENERAL TERMS AND CONDITIONS OF SALE OF THE JORDANS & RYVITA COMPANY(A DIVISION OF ABF GRAIN PRODUCTS LIMITED)("THE SELLER")
In these terms and conditions:
Buyer – means the company, partnership or person placing an order for Goods. In these terms and conditions, a person includes a natural person, corporate or unincorporated body (whether or not a separate legal entity).
Contract – means an individual contract between the Seller and the Buyer for the sale and purchase of Goods on these terms and conditions.
Event of Force Majeure – means (i) any circumstances beyond the control of the Seller (including, but not limited to, acts of God, governmental actions, strikes or other labour disputes (whether or not relating to the Seller’s workforce), lock-outs, accidents, war or national emergency, acts of terrorism, protests, riot, civil commotion, explosion, flood, adverse weather conditions, epidemic, fire, reduction in or unavailability of power at manufacturing plant, breakdown, stoppage, slow working or reduced efficiency of plant or machinery, restraints or delays affecting carriers, shortage or unavailability of raw materials from normal sources of supply), unexpected cost increases (including in the cost of manufacture and processing or obtaining raw materials from alternative sources of supply) caused by unexpected events such as severe weather, or (ii) the amendment or coming into force of any legal provision adversely affecting the Seller in relation to the production, import, export or sale of any Goods or any ingredients or materials for production of any Goods, including any Economic Sanctions Law.
Goods – means the goods (or any instalment or part) the Seller agrees to sell and the Buyer agrees to purchase under the Contract.
Loss(es) – means any loss, claim, liability, expenses or damages suffered or payable whether arising directly or indirectly.
1 Application of these terms and conditions
1.1 Unless otherwise agreed in writing, these terms and conditions are the only terms and conditions upon which the Seller is prepared to deal with the Buyer and they shall govern and are incorporated into every contract for the sale of Goods made by or on behalf of the Seller. They apply to the entire exclusion of all and prevail over other terms or conditions (whether or not in conflict or inconsistent with these terms and conditions), including those of the Buyer or which are implied by trade custom, practice or course of dealing, unless specifically excluded or varied in writing by an authorised representative of the Seller and any purported provisions to the contrary are hereby excluded or extinguished.
1.2 Acceptance by the Buyer of delivery of the Goods is (without prejudice to any other manner in which acceptance of these terms and conditions may be evidenced) deemed to constitute unqualified acceptance of these terms and conditions.
1.3 If, subsequent to any Contract, a contract of sale is made between the Seller and the Buyer without reference to any conditions of sale or purchase, such contract however made is deemed to be subject to these terms and conditions.
1.4 The Seller reserves the right to replace or amend these terms and conditions and shall give the Buyer as much notice of any such replacement or amended terms as soon as reasonably practicable. For these purposes it shall be sufficient for the Seller to notify the Buyer that it has revised its terms and conditions and that such revised terms and conditions are accessible on the Seller’s website or via any other medium accessible to the Buyer.
2 Orders
2.1 Each order or acceptance of a quotation for Goods by the Buyer from the Seller shall be deemed to be an offer by the Buyer to buy those Goods subject to these terms and conditions and is subject to acceptance by the Seller. Each acceptance of an order by the Seller shall give rise to a separate Contract. The Buyer is responsible to the Seller for ensuring the accuracy and completeness of the terms of any order and any applicable specification submitted by the Buyer.
2.2 Any quotation by the Seller does not constitute an offer and the Seller reserves the right to withdraw or revise a quotation at any time prior to the Seller’s acceptance of the Buyer’s offer.
2.3 No order shall be binding on the Seller unless and until it has been accepted in writing, or performed by, the Seller. The Seller shall use its reasonable endeavours to meet the Buyer’s requested delivery timings but reserves the right to vary delivery deadlines where operationally necessary. Subject to Conditions 3.3 and 14, once the Seller has accepted an order, the Buyer may not cancel the order except with the prior written agreement of the Seller and on terms that the Buyer must indemnify the Seller in full against all Losses to the extent such Losses cannot reasonably be mitigated by the Seller (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses reasonably and properly incurred by the Seller as a result of the cancellation.
3 Prices
3.1 Unless otherwise agreed by the Seller in writing, and subject to these terms and conditions:
(a) the price payable for Goods shall be the price quoted by the Seller, or if no price is quoted, as set out in the Seller’s list price in Pounds Sterling at the date of the Contract;
(b) in the case of an order for delivery by instalments the price payable for each instalment shall be the Seller’s price current at the date of despatch of such instalment;
(c) the price for Goods shall be inclusive of all costs and charges in relation to packaging, loading, unloading, carriage, insurance, transport and the Buyer shall pay any additional costs or duties in addition when it is due to pay for the Goods. The cost (less credits) of pallets and returnable containers and bags will be charged to the Buyer in addition to the Goods;
(d) if the Buyer operates or has its seat, or if the Contract is performed (in whole or part), in a Eurozone country (as constituted at the date of this Contract) (“Affected Country”), or the Contract specifies payment be made in EUR, then the Seller may direct the Buyer to satisfy its obligations as to payment by means of payment in GBP or USD (at the Seller’s discretion) into a UK bank account in the name of the Seller, only if (i) the Affected Country exits the Eurozone; or (ii) the EUR as a currency ceases to exist; and
(e) if the provisions of clause 3.1 (d) are triggered and the Buyer makes payment to the Seller in GBP/USD to a UK bank account, the applicable conversion rate shall be the average EUR to GBP/USD (as relevant) exchange rate reported in the Financial Times over the six (6) months ending on the date on which the events set out in clauses 3.1 (d) (i) and 3.1 (d) (ii) occurred.
3.2 All prices are exclusive of any applicable value added tax (or any similar or equivalent sales taxes or duties), which the Buyer is additionally liable to pay to the Seller.
3.3 Notwithstanding Condition 3.1 and without prejudice to Condition 14.2, the Seller reserves the right at its sole election, at any time before delivery, to increase the price of the Goods (including any Goods to be supplied under an agreement to which these terms and conditions apply for the sale, purchase and supply of a quantity of Goods over a period of time (such as a supply or umbrella agreement), and notwithstanding anything contained in such agreement) to pass on to the Buyer any increase in the costs to the Seller of producing and/or supplying Goods including any such increases which are due to any factor beyond the control of the Seller(such as, without limitation, a significant increase in the costs of, or shortages or the unavailability of, labour or materials, the increase or imposition of any tax, duty or other levy, any variation in exchange rates, any change of delivery dates, any change in quantities or specifications of the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information and instructions). The Seller shall notify the Buyer of any such price increases and the Buyer shall have the right to refuse to pay such additional costs by notice in writing to the Seller, within two (2) business days of receipt of notice from the Seller of the relevant price increase under this Condition 3.3, in which case the Buyer shall be deemed to have cancelled its order for such Goods, without liability to either party. The rights of the Seller under this Condition 3.3 are in addition to any other rights the Seller may have.
4 Additional costs
The Buyer shall indemnify the Seller on demand in respect of any Losses incurred by the Seller caused as a result of the Buyer’s specifications or instructions or lack thereof, or through any failure or delay by the Buyer in taking delivery or any use or mis-use by the Buyer of any bags, pallets or containers in which the Goods may be supplied or through any other act, neglect or default on the part of the Buyer, its servants, agents or employees.
5 Intellectual property if Goods are made to Specific or Special Instructions
The Buyer shall indemnify the Seller on demand against all Losses incurred by the Seller or for which the Seller may be liable due to or arising out of any infringement or alleged infringement of any intellectual property rights occasioned by the importation, manufacture or sale of the Goods and their packaging if made to the specific instructions of the Buyer.
6 Terms of payment
6.1 The Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after despatch of the Goods whether or not the Buyer takes delivery of the Goods. If an order is delivered in instalments the Seller shall be entitled to invoice each instalment as and when the Buyer is notified of a date for despatch of that instalment has been made.
6.2 Unless otherwise agreed in advance in writing, signed by a director or duly authorised representative of the Seller, the Buyer shall pay for the Goods not later than 30 days from the date of invoice and prior to despatch of the Goods, notwithstanding that property in the Goods has not passed to the Buyer. Time for payment shall be of the essence. Payment shall become due immediately upon the occurrence of any of the events referred to in Condition 11.
6.3 If pursuant to the terms of the Contract the price is payable in instalments or if the Buyer has agreed to take specified quantities of Goods at specified times, any default by the Buyer in the payment of any due instalment or the failure to give delivery instructions in respect of any quantity of Goods outstanding shall cause the whole of the balance of the price to become due immediately.
6.4 The Buyer shall make all payments due under the Contract in full to the Seller to the bank account in the UK of the Seller as notified to the Buyer and unless otherwise agreed without any deduction whether by way of set-off, counterclaim, discount, or abatement.
6.5 If any of the events described in Condition 8.3 occurs (or if the Seller reasonably believes that any such event is about to occur and notifies the Buyer accordingly), or if the Buyer fails to make any payment on the due date, then without prejudice to any other right or remedy available, the Seller shall be entitled to suspend any further deliveries to the Buyer (without prejudice to the Seller’s right subsequently to terminate the Contract for the same cause should it so decide) until any default by the Buyer be remedied and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. The Seller may and without prejudice to any other right or claim by notice in writing terminate wholly or in part any and every order or Contract between the parties; and (both before and after any judgment), in respect of any unpaid amounts, charge interest at a rate equal to the higher of the interest rate payable on court judgments or 4% above the base rate from time to time of Barclay’s Bank plc accruing on a daily basis from the due date until payment is made.
7 Delivery
7.1 All times, dates or periods given for delivery of the Goods are estimates given in good faith but without any responsibility on the Seller’s part. The Buyer shall take delivery of the Goods within 7 days of the Seller giving it notice that the Goods are ready for delivery. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
7.2 Unless otherwise agreed by the Seller in writing the Goods will be delivered Ex Works (as such term is defined by Incoterms 2010) at the point of loading of the Goods onto the Buyer’s transport at the Seller’s premises (whether within the United Kingdom or elsewhere in the world, as notified to the Buyer). If the Buyer requests delivery in any other manner, and the Seller has agreed to such changes in writing, any difference in price shall be charged to the Buyer’s account.
7.3 The Buyer shall provide at the delivery point and at its own expense, adequate equipment and labour for taking delivery of the Goods.
7.4 The Seller shall not be liable (whether in contract or for negligence or otherwise howsoever arising) for: (i) loss of or damage to the Goods occurring prior to delivery; (ii) any claim that any Goods are defective or is otherwise not in accordance with the Contract; or (iii) non-delivery, unless claims to that effect are notified in writing by the Buyer to the Seller(and in the case of claims for loss, damage or non-delivery with a copy to the carrier if the Seller’s own vehicles have not been used to deliver the Goods):
(a) within three days of delivery for loss, damage, defect or non-compliance with the Contract where such loss, damage, defect or non-compliance is or should have been apparent at the time of delivery; or
(b) within five days of the date of the invoice for non-delivery; or
(c) as soon as reasonably practicable after the Buyer has become aware (or should have become aware) of defects not apparent at time of delivery.
7.5 In the event of a valid claim for defect, loss, damage, or non-compliance with the Contract or non-delivery the Seller undertakes at its option to either reprocess or replace the items concerned at its expense or issue a credit note or refund but shall not be under any further or other liability in connection with such non-delivery, loss, damage or noncompliance.
7.6 The Seller shall not be liable for any claim in relation to the Goods under Condition 7.5 if:
(a) the Buyer makes any further use of such Goods after giving notice of the relevant claim; or
(b) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, installation, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the Buyer alters the Goods; or
(d) (in the event of there being a shortage or surplus of up to 10% in the quantity of Goods delivered) that shortage or surplus is properly reflected in the invoice for those Goods.
7.7 If the Buyer shall fail to give notice in accordance with Condition 7.5 above the items delivered shall be deemed to be in all respects in accordance with the Contract and without prejudice to earlier acceptance by the Buyer it shall be bound to accept and pay for the same accordingly and all claims in respect of non-delivery, loss, damage, defect or noncompliance shall thereafter be wholly barred.
7.8 If for any reason: (i) the Buyer fails to accept delivery of any of the Goods when they are ready for delivery; or (ii) the Seller is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations, the Seller may at its sole discretion without prejudice to its other rights:
(a) store the Goods at the Buyer’s risk (including for loss or damage caused by the Seller’s negligence) for such period as the Seller may determine and take reasonable steps to safeguard and insure them at the Buyer’s cost, provided that the Buyer shall be immediately informed thereof; and
(b) sell the Goods at the best price readily obtainable and (after deducting all related costs and expenses of storage, insurance and sale) charge the Buyer for any shortfall beyond the price under the Contract or account to the Buyer for any excess. 7.10 The Buyer is responsible at its own cost for complying with all export and import legislation, regulation and controls, including obtaining export and import licences, and paying all applicable duties, and for obtaining all other consents required to deliver the Goods. 7.11 The quantity of any consignment of Goods as recorded by the Seller or its nominee upon loading at the Seller’s place of business shall be deemed to be the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence to the contrary.
8 Passing of title and risk
8.1 Risk of any loss or damage to the Goods or other packaging or materials shall pass to the Buyer: (a) in the case of Goods to be collected at the Seller’s premises, at the time of the Seller’s notice to the Buyer that the Goods are available for collection; or (b) in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these terms and conditions, ownership of the Goods shall only pass when the Seller has received in cash or cleared funds payment in full of the price of the Goods.
8.2 Until title to the Goods has passed to the Buyer, the Buyer shall: (a) hold the Goods on a fiduciary basis as the Seller’s bailee; (b) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property; (c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (e) notify the Seller immediately if it becomes subject to any of the events listed in Condition 8.3; and (f) give the Seller such information relating to the Goods as the Seller may require from time to time. Notwithstanding the foregoing, the Buyer may resell or use the Goods in the ordinary course of its business, provided that the proceeds of any such resale are received and held by the Buyer in a separate bank account as identifiable funds on trust for the Seller.
8.3 The Buyer’s right to possession of any Goods for which payment has not been made in full and cleared funds in the specified currency to the Seller shall terminate immediately if: (i) the Buyer has a bankruptcy order made against it or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory), or has a receiver and/or manager, administrator or administrative receiver appointed of the Buyer’s undertaking or any part thereof, or the Buyer’s credit-worthiness materially deteriorates; or documents are filed with the court for the appointment of an administrator of the Buyer’s undertaking or notice of intention to appoint an administrator is given by the Buyer or the Buyer’s directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer’s undertaking or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the Buyer’s insolvency or possible insolvency; or (ii) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on the Buyer’s property or to be obtained by the Buyer, or the Buyer fails to observe or perform any of the Buyer’s obligations under the Contract or any other contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or (iii) the Buyer encumbers or in any way charges any of the Goods; or (iv) analogous proceedings or events to those specified in this Condition 8.3 are instituted or occur in relation to the Buyer elsewhere than in England and Wales ; or (v) or if the state in which the Buyer has its seat or in which the provisions of a Contract are to be effected or from which the Buyer has previously made or intends to make payment to the Supplier or in which the Supplier has previously received or intends to receive payment from the Buyer, being a state which as at the date on which the relevant order was placed had the EURO as its national currency, ceases to have the EURO as its national currency.
8.4 The Buyer grants to the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer is in default with respect to its payment obligations to the Seller under the Contract or the Buyer’s right to possession has terminated, to recover them.
8.5 Where the Seller is unable to determine where any Goods are the goods in respect of which the Buyer’s right to possession has been terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer.
8.6 Notwithstanding the provisions of this Condition 8, the Seller shall be entitled to bring an action against the Buyer for the price of the Goods in the event of non-payment by the Buyer by the due date even though property in the goods has not passed to the Buyer and/or has the right by notice to the Buyer at any time after delivery to pass property in the Goods to the Buyer as from the date of such notice.
9 Conditions, Warranties and Representations
9.1 The Buyer and the Seller agree that Goods will meet (in all material respects) its specifications at the time of despatch only and will comply with all applicable existing UK statutory requirements.
9.2 Except as set out in these terms and conditions, any conditions or warranties (whether express or implied by statute or common law or arising from conduct or a previous course of dealing or trade custom or usage or otherwise) or other terms as to the quality of the Goods or their fitness for any particular purpose (even if that purpose is made known expressly or by implication to the Seller) or as to the correspondence of the Goods with any description or sample are hereby expressly excluded to the fullest extent permitted by law and no warranty is given by the Seller for the condition of the Goods after the expiration of the shelf life (if any) of the Goods. For the avoidance of doubt, the conditions implied by section 12 of the Sale of Goods Act 1979 are not excluded from the Contract.
9.3 The Buyer acknowledges and agrees that it has not entered into any Contract or placed any order in reliance on any statement or representation of any person (whether a party to this agreement or not) other than as expressly set out in these terms and conditions or the relevant Contract.
9.4 Without limiting the generality of the foregoing, the Buyer irrevocably and unconditionally waives any right or remedy it may have to claim damages and/or to rescind any Contract or cancel any order by reason of any misrepresentation (other than a fraudulent misrepresentation) having been made to it by any person (whether party to this agreement or not) and upon which it has relied in entering into any Contract or placing any order.
10 Product Recall Procedure
10.1 The Buyer shall supply to the Seller in writing the contact name and telephone details of a person or persons who will be available 24 hours a day, every day of the year.
10.2 Either party shall notify the other party immediately upon becoming aware of:
(a) any defect in the Goods delivered;
(b) any material error or omission in the instructions for the use of the Goods;
(c) a risk of any incident that may damage the reputation of the Seller or any of its brands; or
(d) any order from a competent court of regulatory authority that the Goods are to be withdrawn from sale.
10.3 Unless otherwise agreed in writing the Seller may require the Buyer at the Buyer’s own cost to:
(a) recall any Goods or any finished products into which the Goods have been incorporated already sold by the Buyer to its customers (whether for a refund, credit or replacement which shall in each case be undertaken by the Buyer at the Seller’s option); and/or
(b) issue any notification to the Buyer’s customers about the manner of use, operation or safety of any Goods or finished products already sold by the Buyer.
10.4 The Buyer shall not carry out a product recall of any Goods without the Seller’s prior written consent.
10.5 The Buyer shall not publicise in any way this Agreement, any product recall or any other related matter without the Seller’s prior written consent except where required by law.
10.6 If there is a product recall the Buyer will use its best endeavours to cooperate with the Seller to ensure a prompt and effective product recall.
10.7 The Buyer will enforce local procedures covering product recall subject to any directions received from the Seller.
10.8 The Buyer must retain all batch records and product information pertaining to the recalled Goods and make them available to the Seller within 4 hours of the Seller’s notification of the need to recall Goods and the Buyer shall advise the Seller of the location of all recalled Goods so that a reconciliation may be carried out.
10.9 The Buyer shall, on request from the Seller
(a) cease delivering or otherwise selling or distributing the recalled Goods; and
(b) withdraw, recall or destroy any quantity of the Goods as a result of the failure of the Goods to comply with the provisions of these terms and conditions, or for any other reason bearing on quality and/or safety of the Goods, and the Buyer shall comply with the Seller’s products withdrawal procedures as they may be revised from time to time.
10.10 If the Buyer fails to immediately withdraw, recall or destroy the Goods in accordance with the Seller’s request, then the Seller is authorised to take such action as it deems necessary to withdraw recall or destroy the Goods (at the Buyer’s cost). Such action by the Seller shall not relieve the Buyer of any of its obligations hereunder.
10.11 Save to the extent that any withdrawal, recall or destruction of Goods is directly caused by the Seller’s wilful act or omission or negligence, the Buyer shall indemnify the Seller against all Losses arising out of any withdrawal, recall or destruction of the Goods pursuant to this Condition 10.
11 Default of Buyer
If the Buyer shall be in breach of any of its obligations under the Contract then the Seller may by notice in writing suspend delivery or any further deliveries (as the case may be) of Goods until any default by the Buyer is remedied and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
12 Termination
12.1 The Seller shall have the right, in any circumstances in which it is entitled to delay or suspend a delivery or any further deliveries, or to cancel any order or Contract, or suspend performance of its obligations under any Contract, to terminate by notice in writing (and without liability) to the Buyer any other order or any other contract between the Seller and the Buyer.
12.2 Save to the extent set out in Conditions 2.3 and 3.3, or as provided by the mandatory operation of law, the Buyer shall not be entitled to cancel any order or Contract, whether by reason of any act, omission or default on the part of the Seller or otherwise. Without prejudice to the foregoing, where the Buyer is entitled to cancel any order or Contract, the exercise of such right of cancellation by the Buyer shall not affect any other order or contract between the Seller and the Buyer.
12.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Conditions which expressly or by implication survive the termination of the Contract shall continue in full force and effect.
13 Limitation of liability
13.1 The following provisions set out the entire financial liability of the Seller(including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of: (a) any breach of a Contract; including wilful breach; (b) any claim in connection with the Goods, their supply by the Seller, or their use or resale by the Buyer; or (c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
13.2 Nothing in these terms and conditions excludes or limits the liability of the Seller: (a) for death or personal injury caused by the Seller’s negligence; or (b) for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or (c) for fraud or fraudulent misrepresentation.
13.3 Subject to Condition 13.2, the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid or payable under the Contract for the Goods which are the subject matter of any valid claim by the Buyer.
13.4 Subject to Condition 13.2, the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of anticipated savings or cost reductions, loss of business, depletion of goodwill (in each case whether direct or indirect) or for any indirect or consequential loss whatsoever and howsoever caused which arise out of or in connection with the Contract.
14 Force Majeure
14.1 If by reason of an Event of Force Majeure the Seller is prevented from or hindered in or delayed in manufacturing, obtaining or delivering (by normal route or means of delivery) the Goods, or if by reason of such an event the Seller can only manufacture, obtain or deliver (by normal routes or means of delivery) the Goods at an increased cost which is unacceptable to the Seller, the Seller shall (subject to Condition 14.2): (a) not be liable to the Buyer or deemed to be in breach of the Contract by reason of any resulting delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods; and (b) be entitled (without liability to the Buyer) to cancel any order or to delay delivery or to reduce the amount of Goods delivered. Where any such Event of Force Majeure continues for a period of more than 14 days, the Seller shall be entitled to terminate the Contract on notice in writing to the Buyer.
14.2 For the purposes of this Condition 14, the Buyer acknowledges and agrees that certain of the Goods that are made from specific sourced raw materials are not substitutable. Where such categories of Goods are affected by an Event of Force Majeure, the Seller shall: (a) investigate alternative sources of supply of such Goods, but (without prejudice to Condition 3.3) shall be entitled to pass on to the Buyer any additional costs incurred by the Seller in obtaining the specific Goods from such alternative sources; and (b) not be entitled to avail itself of the remedy at Condition 14.1(b) except to the extent that it is unable to locate an appropriate alternative source of supply. Where the Seller identifies an alternative source of supply of such specific Goods, the Seller shall notify the Buyer of the additional costs associated with the supply of such Goods before committing to acquiring them. The Buyer shall have the right to refuse to pay such additional costs by notice in writing to the Seller, within five (5) business days of receipt of notice from the Seller of additional costs under this Condition 14.2, in which case the Buyer shall be deemed to have cancelled its order for such specific Goods, without liability to either party. In the absence of the Seller notifying the Buyer (directly, on the Seller’s price list from time to time, or on its website) as to which of its products constitute such “specific Goods” under this clause 14.2, then this clause shall not be deemed to apply to the Seller’s sale of Goods to the Buyer.
15 Consumer Complaints
The Buyer shall provide the Seller with details of any consumer complaints in relation to the Goods.
16 Ethical Trading, Anti-Bribery and Sanctions Compliance
16.1. In accordance with the Seller’s commitment to sustainable and ethical business practices the Buyer warrants and represents that in connection with any matter arising under or pursuant to any Contract it shall (i) protect its workers’ rights, including by ensuring: safe and hygienic working conditions, freedom of association, living wages are paid, working hours are not excessive, no discrimination is practised, no harsh or inhumane treatment is allowed and no child labour is used; (ii) ensure environmental management programmes are in place (iii) (without prejudice to Condition 16.2) not offer, promise, give or receive any improper financial payment and/or other improper advantage to or from any person, customer or supplier; and (iv) not make or offer, directly or indirectly, any payment, gift or other advantage to a public official with the intention of influencing them and obtaining or retaining an advantage in the conduct of business
16.2 In addition, the Buyer:
(a) shall comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (all of the aforesaid being “Relevant Requirements”);
(b) shall have and shall maintain in place throughout the term of this agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate; and
(c) shall on request by the Seller certify to the Seller in writing signed by an officer of the Buyer, compliance with this Condition 16.2 by the Buyer and all persons associated with it. The Buyer shall provide such supporting evidence of compliance as the Seller may reasonably request;
(d) warrants that neither it nor, to its knowledge, its officers, employees nor any person involved by or for it in the performance of any Contract, is a Sanctioned Person; and
(e) shall comply with Economic Sanctions Law in all respects related to the performance of this Contract and shall not have any dealings or transactions with any Sanctioned Person (including in respect of any further sale of the Goods) if such dealings or transactions would cause the Seller to be in violation, or to be subject to a risk of punitive measures being imposed pursuant to, any Economic Sanctions Law.
16.3 For the purposes of these terms and conditions
“Sanctioned Person” means any person, organisation or vessel
(i) designated on the United Nations Consolidated Lists, the Consolidated List of Financial Sanctions Targets maintained by the UK HM treasury, the Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, the US Government’s Denied Persons List, Entities List, Debarred Parties List and Terrorism Exclusion List or an any list of targeted persons issued under the Economic Sanctions Law of any other country (including the European Union);
(ii) that is, or is part of, a government of a Sanctioned Territory;
(iii) owned or controlled, directly or indirectly, by, or acting on behalf of, any of the foregoing;
(iv) incorporated within, located within or operating from a Sanctioned Territory and subject to Economic Sanctions Law; or
(v) otherwise targeted under any Economic Sanctions Law.
“Economic Sanctions Law” means any laws, regulations, or other binding measures of the European Union, any EU member state, the United Nations, the United States of America or any other jurisdiction applicable to the Parties which relates to economic or trade sanctions, export controls, non-proliferation, anti-terrorism or similar restrictions
“Sanctioned Territory” means any country or other territory subject to a general export, import, financial or investment embargo under Economic Sanctions Law, from time to time, including without limitation Iran, Myanmar, Sudan, Syria, North Korea and Russia/Ukraine.
17 General
17.1 A waiver of any right or remedy under the Contract is only effective if given in writing. Any waiver by the Seller of any breach, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall not affect the other terms of the Contract.
17.2 Subject to Condition 1.4, the Contract may only be varied by the written agreement of both parties (and in the case of the Seller) must be signed by a director or duly authorised representative, on the Seller’s behalf.
17.3 If, in any particular case, any provision of these terms and conditions (or any part of any provision) shall be held to be invalid, illegal or unenforceable by any court or competent authority, or shall not apply to the Contract, that provision or part-provision shall, to the extent required, be deemed to be deleted and the other terms and conditions shall continue in full force and effect and will not in any way be impaired. If any provision of these terms and conditions is held to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question will apply with the minimum modifications necessary to make it valid and enforceable.
17.4 The Seller may assign the Contract or sub-contract the whole or any part thereof. The Buyer shall not attempt to assign, transfer, charge or otherwise deal with its rights or obligations under the Contract without the prior written consent of the Seller.
17.5 The rights and remedies of the Seller under these terms and conditions shall be cumulative and no right or remedy of the Seller set out in these terms and conditions shall be deemed to be in lieu of any other right or remedy.
17.6 Any notice required or permitted to be given by either party to the other under these terms and conditions shall be in writing addressed to the other party at its registered office.
17.7 Nothing in these terms and conditions shall create or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties and no employee of one party shall be deemed to be or become an employee of the other party.
17.8 The parties to the Contract do not intend that any term of the Contract shall be enforceable by a third party under the Contracts (Rights of Third Parties) Act 1999.
17.9 In the event of any disputes arising out of or in relation to this Contract, without prejudice to any rights either party may have (including but not limited to the right to obtain injunctive relief and any right of the Seller if it reasonably believes that the Buyer has repudiated the Contract or is in material breach), either party may request that the parties attempt to settle it first by negotiation. If the parties have not settled such dispute within 30 days of the commencement of negotiations the provisions of Condition 17.10 apply.
17.10 The Contract and any dispute or claim arising out of or in connection with it, or its subject matter or formation, whether of a contractual or non-contractual nature, shall in all respects be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts, including (without limitation) in respect of any application for injunctive or ancillary relief.