These Standard Terms and Conditions of Purchase (“Terms”) apply together with the Order and any Specifications referred to (together the “Contract”). In the absence of any formal, negotiated, and written agreement between the parties, these Terms apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. By the Supplier commencing the manufacture and/or supply of Products and/or the provision of any Services, the Supplier shall be deemed to have accepted the Terms in full.
1. DEFINITIONS & INTERPRETATION
1.1 The following terms have the following meanings when used in these Terms:
“Applicable Law” all statutes, laws, statutory instruments, bye-laws enactments, orders, rules, regulation or other similar instruments having the force of law in the territory where the Products or Services are supplied together with the other requirements, standards, codes, specifications and conditions of any relevant competent authority;
“Business Day” a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
“Confidential Information” of the Customer shall mean all information, in whatever form, disclosed, made available by, or otherwise emanating from the Customer or any member of the QB Group in connection with the Contract or otherwise concerning the business, affairs, suppliers or customers of the Customer or the QB Group, including any manufacturing processes, trade secrets and marketing and sales information. Confidential Information shall not include information which:
(a) at the time of disclosure is in the public domain;
(b) after disclosure becomes part of the public domain otherwise than by breach by the Supplier of the provisions of the Contract;
(c) was already in the possession of the Supplier at the time of disclosure; or
(d) was received by the Supplier after disclosure from a third party who was not required to hold it in confidence.
“Contract” the contract for the supply of Products and/or Services from the Supplier to the Customer, comprising the Order and these Terms (and any other documents referred to in them)
“Control” the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly;
“Customer” shall be G&J Distillers Ltd, or other company in the QB Group mentioned in the purchase Order.
“Delivery Location” means the location where the Customer has requested delivery of the Products and/or Services by the Supplier.
“Intellectual Property Rights” patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Manufacture” the planning, purchasing of materials for manufacturing, manufacture, processing, compounding, assembly, storage, filling, packaging, labelling, testing, waste disposal, quality assurance and control, despatch, sample retention and Manufactured and Manufacturing shall be construed accordingly;
“Manufacturing Licence” all licences necessary for, or required in connection with, the Manufacture of the Products by the Supplier;
“Order” the authorised order(s), submitted by Customer to the Supplier for the purchase of Products and/or Services attached to, and/or referencing, these Terms;
“Personnel” all employees, staff, other workers, and agents of the Supplier and any of the Supplier’s subcontractors or agents who are engaged in the provision of the Products and/or Services from time to time;
“Price” means the amount stated on the Order for the Products or Services. “Products” mean the items detailed in the Order which the Customer is ordering from the Supplier.
“QB Group” means Quintessential Brands and any body corporate wherever incorporated which is at least 50% owned and/or controlled by Enzo Visone (the ‘Ultimate Controller’) and together with any other body corporate which is a subsidiary undertaking of any body corporate whose ultimate holding interest is held by the Ultimate Controller, in each case from time to time;
“Quintessential Brands” Quintessential Brands UK Holdings Limited incorporated and registered in England and Wales with company number 07604265 whose registered office is at Distribution Point Melbury Park Clayton Road, Birchwood, Warrington, Cheshire, WA3 6PH; and
“Services” as detailed in the Order which the Customer is ordering from the Supplier.
“Specifications” shall be the detailed description of the Product or Services reflecting the needs of the Customer including the design, measurements, and the materials to be used which may be attached to the Order provided to the Supplier.
“Supplier” shall be the party mentioned in the Order who is supplying the Product and/or Services to the Customer.
1.2 In these Terms: (a) the headings are included for convenience only; (b) the expressions “including”, “include”, and any similar expressions shall not limit the preceding words; (c) words in the singular shall include the plural and vice versa and references to legal persons shall include natural persons and vice versa; (d) references to any statute or statutory provision will, unless the context otherwise requires, be construed as including references to any amended and/or replacement statute or statutory provision; and (e) a reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.
2. APPLICATION OF THESE TERMS
2.1 Each Order constitutes an offer by Customer to purchase the Products and/or acquire the Services subject to these Terms. Save where the Supplier has rejected the Order or both parties have agreed to amend the terms of the Order, the Order shall be deemed to be unconditionally accepted by the Supplier subject to these Terms and a binding contract shall come into existence on the earlier of:
(a) the Supplier issuing written acceptance of the Order; or
(b) any act by the Supplier consistent with fulfilling the Order, such as commencing Manufacturing of the Products; or
(c) the expiry of 48 hours from the date of the Order, unless the Customer has been notified that the Order is rejected.
3. PRODUCTS: DELIVERY AND PACKAGING
3.1 All Products supplied under the Order must be properly packed and secured in accordance with the Customer’s instructions and any relevant packaging specification (where applicable) and in such manner as to reach their destination in good condition.
3.2 Products shall (unless otherwise directed by Customer) be delivered by the Supplier, carriage paid at the Supplier’s expense, to the Delivery Location in accordance with any delivery instructions provided by the Customer on the date and at the times specified in the Order.
3.3 The Supplier shall on or prior to delivery of the Products provide adequate information and instructions as to the transport, handling or use for which the Products were designed including all information about any potential hazard relating to the Products.
3.4 Delivery shall be effected when the Products have been unloaded and the delivery has been accepted by a duly authorised officer, employee or representative of Customer who signs the carrier’s consignment note to that effect.
3.5 In the event that Products are delivered before the date specified in the Order then Customer shall be entitled at its sole discretion to either:
(a) refuse to take delivery of the Products in which case
the Supplier shall store the Products free of charge
until such time as Customer shall notify the Supplier
that it is able to accept delivery; or
(b) charge the Supplier for insurance and storage of the
Products until the delivery date specified in the
Order.
3.6 The Supplier shall perform the Services on the date and at the times specified on the Order, and where no date is specified within a reasonable period of time from the date of the Order, unless otherwise agreed between the parties from time to time.
3.7 If the Order specifies that a certain carrier is to be used such carrier shall be deemed to be an agent of the Supplier and not of Customer.
3.8 Unless agreed otherwise between the parties, the Supplier will label all Products in accordance with Applicable Laws. The Supplier shall also comply with all specific instructions given by Customer in relation to labelling from time to time. A specification will be issued by Customer on request. In any event all packages, including postal, must be clearly marked with customer order number, details of quantity and description of Products and stock number (where applicable) and the Supplier’s name.
3.9 The Supplier shall not modify the design of the Products without the prior written consent of an authorised officer of Customer.
4. SUPPLY OF SERVICES
4.1 The Supplier shall from the date set out in the Order and for the duration of the Contract supply the Services to the Customer in accordance with the terms of the Contract.
4.2 The Supplier shall meet any performance dates for the Services specified in the Order or that the Customer notifies to the Supplier.
4.3 In providing the Services, the Supplier shall:
(a) co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;
(b) perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
(c) use Personnel who are suitably skilled and experienced to perform tasks assigned to them to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;
(d) ensure that the Services will conform with all descriptions, standards and as set out in the Specifications, and that the Services shall be fit for any purpose that the Customer expressly or impliedly makes known to the Supplier;
(e) provide all equipment, tools and vehicles and such other items as are required to provide the Services; and
(f) use the best quality goods, materials, standards and techniques, and ensure that the Services, and all goods and materials supplied and used in the Services or transferred to the Customer, will be free from defects in workmanship, installation and design.
5. PRODUCTS AND SERVICES: TIME
5.1 Where time of performance, namely the “Due Date” is specified in the Order, such provision shall be of the essence of the contract.
5.2 Failure by the Supplier to adhere to any provision as to time shall entitle Customer at its option to treat the Contract as repudiated in whole or in part and Customer reserves the right to purchase the Products or Services from other sources and to charge the Supplier, on an indemnity basis, for any extra cost Customer incurs in doing so.
5.3 The Supplier shall notify Customer immediately if it anticipates that there will be a delay in delivery and it will provide Customer with an estimated new delivery date and time.
6. PRODUCTS AND SERVICES: ACCEPTANCE
6.1 Customer shall not be deemed to have accepted any Products or Services unless expressly confirmed in writing by an authorised officer, employee or representative of Customer. For the avoidance of doubt, neither inspection nor testing by Customer or its representatives whether before or after physical delivery of the Products nor the signing of any delivery note or other document acknowledging physical receipt of any Products, nor the resale of any Products shall constitute evidence of acceptance or approval of the Products.
6.2 Without prejudice to clause 6.1, Customer shall use reasonable endeavours to notify the Supplier of any Products incorrectly delivered or damaged in transit or delayed during transit.
6.3 If the Products or Services have defects or do not comply with stated Specifications or requirements, Customer shall be entitled to return the Products to the Supplier at the Supplier’s expense within a reasonable period of time after the delivery, or in terms of Services, the Customer may request a refund or re-do for the Services, in part or in whole.
6.4 If the Supplier delivers Products or performs Services in excess of those detailed in the Order, Customer shall not be bound to pay for the excess and the Supplier shall be responsible for all risk in, and cost associated with any excess Services or Products including returning, such excess Products and any associated packing materials.
7. PRODUCTS AND SERVICES: PRICE & PAYMENT
7.1 Unless otherwise specified in the Order, all Prices are fixed, exclusive of Value Added Tax (“VAT”) and inclusive of all charges for packing, packaging, shipping, carriage, insurance and delivery and any other applicable duties and taxes. Customer shall, on a receipt of a valid VAT invoice from the Supplier, pay to the Supplier in accordance with clause 7.4 such additional amounts in respect of VAT as are chargeable on a supply of the Products.
7.2 The Supplier may not increase the Price (whether on account of increased materials, labour or transport costs, fluctuation in
rates of exchange or otherwise) without the prior written consent of an authorised officer of Customer.
7.3 Unless agreed otherwise between the parties, no payment will be made by Customer for containers, pallets, crates or packing materials of any description except by special arrangement in writing (including any returnable containers). The Supplier must notify Customer of its intention to collect any containers, pallets, crates or packing materials and collect such items within one month of the date of delivery, failing which Customer may dispose of the same without any liability. The items will be available for collection by prior arrangement following delivery provided they are clearly marked with the Supplier’s name.
7.4 The Supplier may only invoice Customer for any amounts due under the Contract on or after the delivery of the Products
and/or performance of the Services in accordance with these Terms. Customer shall pay each valid invoice in Pounds Sterling unless otherwise stated in the Order within the time period stated in the Order. Time for payment shall not be of the essence.
7.5 The following may result in a delay in payment but no prompt payment discount shall be forfeited by Customer due to the
failure of the Supplier:
(a) to send on the day of despatch for each consignment such advice and invoice(s) as may be indicated on the Order; or
(b) to send a monthly statement of account quoting the invoice numbers applicable to each item thereon; or
(c) to mark clearly Customer ORDER NUMBER and SKU (when provided) on the consignment package, packing notes, advice notes, invoices, monthly statements and all other correspondence relating thereto.
7.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Supplier may charge interest on the overdue sum from the due date until payment of the overdue sum, whether before or after
judgment. Interest under this clause will accrue each date at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when the base rate is below 0%. Where a payment is disputed in good faith, interest is only payable after the dispute is resolved, on sums found or agreed to be due, from 30 days after the dispute is resolved until payment.
8. PRODUCTS: RISK & TITLE
8.1 Unless otherwise specified in the Order, risk in the Products shall pass to Customer upon completion of delivery to Customer in accordance with clause 3.4. The Supplier shall be responsible for transport and unloading costs and insurance of Products to their full value against all risks of damage or loss prior to completion of delivery.
8.2 Ownership of the Products shall pass to Customer on the earlier of: (a) payment being made for the Products; or (b) delivery of the Products in accordance with clause 3.4.
8.3 All tools, equipment and materials of the Supplier required in the performance of the Supplier’s obligations under the Contract shall be and remain at the sole risk of the Supplier whether or not they are on Customer premises or elsewhere pursuant to the Order.
8.4 The Customer retains ownership of all equipment, moulds or tooling used by the Supplier if it has paid for them (whether directly or by amortising the tooling cost into unit prices), or if they have been commissioned by the Customer. This right is applicable regardless of whether the tools are located on the Supplier’s premises or elsewhere.
9. PRODUCTS AND SERVICES: DESIGNS
9.1 Any Specifications, designs, materials and data provided by Customer in connection with the Order and all Intellectual Property Rights arising in the same will at all times remain the property of Customer and the Supplier shall:
(a) deliver up such items to Customer on completion of the Order or otherwise on request in good condition;(b) use such items solely for the purpose of completing the Order;
(c) keep all such items confidential and shall not disclose them or details of them to any third party; and
(d) keep all such items safe, not make any modifications to nor part with possession of any of them and shall promptly replace any items which are lost or damaged.
10. PRODUCTS AND SERVICES: TITLE, QUALITY, MANUFACTURING & GUARANTEE
10.1 The Supplier warrants that the Products shall be of reasonable quality and fit for any purpose held out by the Supplier or made known to the Supplier at the time the Order is placed and shall be supplied strictly in accordance with the relevant specification and any sample (where provided) and quantities, drawings, Specifications, standards, and stipulations contained in or annexed to the Order.
10.2 The Supplier warrants that:
(a) in the production, supply and distribution of the Products and the provision of any Services, it will comply with the duties imposed on it by Applicable Law and the Products and Services shall conform to all Applicable Laws;
(b) the Products shall not contain any substances which are not set out in the Specifications which are known to cause or may cause harm to humans or which are specified by any relevant Applicable Laws as being required on the packaging of the Products. The Supplier shall immediately notify Customer if any of the foregoing should occur or it has reasonable grounds to suspect that the same has occurred;
(c) it shall immediately notify Customer in writing upon becoming aware of any incidents, events or discoveries which are in any way relevant to the safe operation or use of Products previously supplied to Customer.
10.3 The Supplier shall:
(a) ensure that the Manufacturing of the Products and the performance of any Services shall be performed with the standard of due care, skill, diligence, prudence and foresight which would reasonably and ordinarily be expected of a best-in-class company engaged in undertaking Manufacturing of products which are the same as, or similar to, the Products or the performance of services which are the same as, or similar to, the Services;
(b) meet or exceed any relevant or communicated quality standards or KPIs and ensure the Products and any Services conform to the relevant Specifications;
(c) use appropriately qualified, skilled and experienced Personnel;
(d) obtain and maintain in full force and effect for the duration of the Contract all Manufacturing Licences and all necessary permits, licences, approvals and authorisations required under Applicable Laws to enable the Supplier to manufacture and supply the Products and perform any Services in accordance with the Contract; and
(e) maintain sufficient manufacturing capacity and stocks of materials and packaging to ensure that it is able to perform its obligations under the Contract.
10.4 All work and Services performed by the Supplier shall be in accordance with best practice including any codes of practice, ethical trading initiatives or other industry requirements whether or not notified to the Supplier by Customer and shall pass such inspection(s) as may be required by Customer, its customers or their agents or any relevant authority.
10.5 Notwithstanding that:
(a) Customer has accepted the Products and/or Services (in whole or part); or
(b) title to the Products has passed in accordance with clause 8.2, any breach by the Supplier of any warranty or obligation to be
fulfilled by it may (subject to clause 10.8) be regarded as a ground for rejecting the Products and/or Services as defective
and treating the Contract as repudiated.
10.6 Customer shall be entitled to require the Supplier to perform the obligations contained in clause 10.8 or, at its option, reject
the Products and/or Services (or any consignment thereof) and treat the Contract as repudiated at any time prior to the expiration of the following periods:
(a) where the defect or shortage is apparent on a visual inspection, one (1) month after delivery of the Products to Customer or completion of the Services, or
(b) in any other case where the defect or shortage is not apparent on a visual inspection, one (1) month after Customer has discovered the defect in question.
10.7 Where Customer discovers a defective Product in any given batch of Products delivered at the same time, Customer has the option to reject the entire batch.
10.8 Without prejudice to Customer’s right to treat the Contract as repudiated or any other remedy available to Customer, where
Customer notifies the Supplier that any of the Products and/or Services are not supplied in accordance with the Contract, Customer may acting reasonably and provided the Customer takes all reasonable steps to mitigate its losses:
(a) reject the Products or Services (in whole or in part) in which case the Supplier shall promptly refund to Customer the full amount of the Price paid and, in respect of any non-conforming Products, Customer shall, if so requested by the Supplier within 7 days of Customer notifying the Supplier of its claim, return the Products to the Supplier at the Supplier’s risk and cost. If no request to return the Products is received, Customer may destroy or otherwise dispose of the Products;
(b) require the Supplier to supply replacement Products in accordance with the Contract within 7 days of notice of the claim;
(c) require the Supplier to re-perform the Services in accordance with the Contract within 7 days of notice of the claim;
(d) require the Supplier to promptly carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
(e) refuse to accept any subsequent delivery or instalment of Products and/or Services;
(f) carry out (at the Supplier’s cost) any work necessary to make the Products and/or Services comply with the Contract; and/or
(g) claim such damages as Customer may have sustained as a result of the Supplier’s breach(es) of the Contract.
11. PRODUCTS AND SERVICES: CANCELLATION
Without prejudice to any other specific provision of the Contract or any other right available to it, Customer shall have the right to cancel the Contract in whole or in part at any time by giving written notice to the Supplier whereupon all work under the Order (or the cancelled part) shall be discontinued and Customer shall pay to the Supplier such proportion of the Price as may be fair and reasonable having regard to the value of the work done, the Products previously delivered and the Services performed pursuant to the Order, provided the Supplier takes all reasonable steps to mitigate the costs of such cancellation.
12. HEALTH & SAFETY
12.1 The Supplier warrants that:
(a) in the design, manufacture and supply of the Products and the provision of information relating thereto and performance of any Services (including any work undertaken on Customer site(s)) it will comply with the duties imposed on it by the Health and Safety at Work Act 1974, and any other security requirements that apply at any of the Customer’s premises, and all other Applicable Laws and that it will perform the Contract such that no liability is incurred by Customer under such Applicable Laws; and
(b) all Products will comply with all Applicable Laws and where relevant the most recent editions of all applicable British or European Standards (including any amendments). Where relevant, the Supplier shall provide copies of any required test certificates from accredited testing organisations to the satisfaction of Customer. Products requiring test certificates shall be resubmitted for test at intervals of no more than two years and certified copies of test certificates and results certified by the testing organisation which issued them must be provided to Customer promptly upon receipt by the Supplier.
12.2 Any inspector or representative authorised by Customer shall be entitled to inspect the Supplier’s works or the works of any
sub-contractor, including all machinery and tooling operated in connection with the Order and to inspect the Products either complete or in the process of manufacture or, as the case may be any Services being performed under the Contract at any reasonable time either at the Supplier’s premises or the premises of any sub-contractor and to require all defects or deficiencies to be made good and alterations made in the event of any failure in the opinion of Customer to comply with the terms of the Order, provided nevertheless that such inspection or right to inspect shall not of itself constitute acceptance or approval of the Products and/or Services.
13. INDEMNITY
13.1 The Supplier shall indemnify and hold Customer harmless against all losses, liabilities, costs, damages, expenses, and claims (including legal expenses, losses, including when arising from any period of time during which Customer is unable to use any Products, and other direct losses and any and all consequential loss or damage) awarded against or incurred or paid by Customer as a direct or indirect result of or in connection with:
(a) the Supplier’s failure to fulfil its obligations under the Contract;
(b) any claim that the Products and/or Services or the importation, use, or resale of the Products or Services (as appropriate) infringe the Intellectual Property Rights, or misuse of the confidential information of any third party, save to the extent that the claim solely arises from the Supplier’s compliance with designs supplied by Customer;
(c) any claim that the Products or Services are defective or do not conform to Applicable Laws;
(d) any examination, withdrawal and/or recall of Products in accordance with clause 17.2 (including all loss of profits on sales, rehabilitation costs, administration charges, carriage and disposal associated with such examination, withdrawal and/or product recall); and
(e) any act or omission of the Supplier, its Personnel or its sub-contractors and any claims made against Customer arising out of the same.
14. MARKING OF PRODUCTS & PUBLICITY
14.1 Unless specified in the Order no maker’s name or mark shall appear on any Products supplied to Customer.
14.2 Neither the Contract nor the name of Customer shall be disclosed to any third party or used by the Supplier or any subcontractor for advertising or publicity purposes without Customer prior written consent.
15. TERM & TERMINATION
15.1 The Contract shall commence from the date the Order is accepted pursuant to clause 2.1 and shall continue (subject to earlier termination in accordance with these Terms) until the later of the expiry of the Term (if any) and the fulfilment of all obligations under the Contract.
15.2 This Contract may be terminated by the Customer at any time by providing the Supplier with thirty (30) calendar days written
notice. Upon effective date of termination, the Customer shall have no further liability to the Supplier except for payment for accepted, actual Products and/or Services incurred and/or provided and validly invoiced in terms of the Order.
15.3 Without prejudice to any other rights or remedies to which it may be entitled, Customer may immediately and without liability terminate the Contract (or any part of it) by written notice in the event that the Supplier:
(a) has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up other than for the purpose of a bona fide scheme of solvent reconstruction or amalgamation, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three Business Days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the Supplier is incorporated, resident or carries on business;
(b) commits any breach of its obligations under the Contract and fails to rectify such breach (if capable of remedy) within 14 days of receipt of written notice from Customer requiring remedy of the same; or
(c) undergoes any change of Control, to which the Customer reasonably objects.
15.4 Termination of the Contract shall not prejudice any of the parties’ rights and remedies which have accrued as at termination.
15.5 On termination of the Contract (however arising):
(a) any provision which expressly or by implication is intended to come into or continue in force shall remain in full force and effect, including clauses 6, 8, 10, 143, 14, 165, 17, 18, 20 and 21;
(b) the Supplier shall provide such assistance as the Customer may reasonably require to effect a full and orderly transfer of the Manufacturing responsibilities and/or Services to the Customer or to a third party nominated by the Customer. The Supplier shall furnish the Customer or such third party with any information or documents required to Manufacture the Products and/or perform the Services (or equivalent services). All such assistance shall be provided on a timely basis.
(c) the Supplier shall promptly refund such portion of the Price for Products and/or Services paid in advance which relates to any period after termination or expiry, on a pro rata basis.
16. INSURANCE
16.1 During the terms of the Contract, the Supplier shall obtain and maintain in force with reputable insurance companies authorized to do business in the United Kingdom, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Customer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
16.2 If the Supplier is in breach of its obligations under this clause 16, the Customer may take out all or some of such insurance to cover equivalent risks and the Customer may deduct from any sums due to the Supplier or otherwise recover from the Supplier the costs and expenses incurred.
16.3 The Supplier shall during the term of the Contract and for a reasonable period thereafter:
(a) refrain from any acts that may invalidate the insurance policies or prejudice the Customer’s entitlement or any other interests of the Customer concerning the insurance policies; and
(b) procure that the terms of such insurance policies are not altered in such a way as to diminish the benefit of the insurance policies for the Customer.
17. PRODUCT RECALL & CONSUMER COMPLAINTS
17.1 The Supplier shall notify Customer immediately of any adverse results arising out of analytical, microbiological or other quality or specification checks carried out in respect of the Products and discovered before or after their delivery.
17.2 In the event that at the requirement, instruction, instigation, recommendation or suggestion of any governmental or regulatory body (whether local or national) or a customer of Customer and/or if in the reasonable opinion of Customer examination of any of the Products is required to be undertaken to investigate the fitness for the purpose of such Products and/or in the reasonable opinion of Customer the Products should be withdrawn from sale and/or recalled after sale the Supplier shall immediately provide all assistance required by Customer in respect of such investigation or recall. Customer shall handle consumer complaints in the first instance but the Supplier shall nevertheless maintain in force a crisis management procedure to provide to Customer such
assistance as Customer may request in order to deal with any such complaints.
18. INTELLECTUAL PROPERTY RIGHTS
18.1 The Supplier shall not acquire any rights in respect of the Intellectual Property Rights of the Customer as a result of or in the provision of supply of Products and/or Services.
18.2 The Supplier hereby grants (and where required shall procure the grant of) a non-exclusive, sub-licensable, worldwide, fully paid, royalty free licence to the Customer and all members of the QB Group to use any Intellectual Property Rights owned by the Supplier or any member of the Supplier’s Group to the extent necessary to allow the Customer, the QB Group and their customers to receive and use the Products and Services and exercise their rights in accordance with and subject to the terms of the Contract.
19. ANTI-BRIBERY AND MODERN SLAVERY
19.1 The Supplier shall:
(a) not engage in any activity, practice or conduct which is (or might reasonably be supposed to be) an offence under sections 1, 2 or 6 of the Bribery Act 2010 (the “Bribery Act”) were it to occur in the United Kingdom or engage in any conduct that it is contrary to anti-bribery or anti-corruption laws or regulations in any part of the world in which the Products are delivered and/or the Services are performed. In particular, the Supplier shall not offer or agree to give any person working for or engaged by Customer any gift or other consideration, which could act, directly or indirectly, as an inducement or a reward or otherwise provide to it an advantage (financial or otherwise) for any act or failure to act connected to the Contract, or any other agreement
between the Supplier and Customer, including its award to the Supplier and any of the rights and obligations contained within it;
(b) comply at all times with such reasonable instructions or policies in relation to anti-corruption or anti-bribery provided by Customer from time to time;
(c) maintain and at all times comply with its own business ethics policies and procedures (which shall, as a minimum, satisfy the adequate procedures requirements of the Bribery Act and any relevant industry codes of practice);
(d) notify Customer immediately if it engages a foreign public official (as defined in the Bribery Act) in any capacity, or if such a person acquires any direct or indirect interest in the Supplier (and the Supplier warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of the Order); and(e) upon request certify its compliance with this clause to Customer in writing.
19.2 The Supplier shall not enter into the Contract if it has knowledge or reasonably suspects that, in connection with it, any money has been, or will be, paid or any other advantage will be directly or indirectly provided to any person working for or engaged by Customer by or for the Supplier, or that an agreement has been reached to that effect, unless details of any such arrangement have been disclosed in writing to Customer before execution of the Order.
19.3 If the Supplier (including any Supplier Personnel, subcontractor or agent, in all cases whether or not acting with the Supplier’s knowledge) in any way breaches clause 19 or the Bribery Act in relation to the Contract or any other agreement with Customer, Customer may terminate the Contract by written notice with immediate effect.
19.4 Any termination under clause 19.3 shall be without prejudice to any right or remedy that has already accrued, or subsequently accrues, to Customer.
19.5 Any dispute relating to: (a) the interpretation of clauses 19.1 to 19.4 inclusive; or (b) the amount or value of any gift, consideration or commission, shall be determined by Customer and the decision shall be final and conclusive.
19.6 The Supplier shall:
(a) comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force, including the Modern Slavery Act 2015;
(b) have and maintain throughout the term of the Contract its own policies and procedures to ensure compliance with requirements set out above; and(c) not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK.
20. PRODUCTS AND SERVICES: DATA PROTECTION
20.1 Both parties will comply with all applicable requirements of applicable data protection legislation.
21. CONFIDENTIALITY
21.1 The Supplier undertakes to Customer that it shall not at any time use or disclose to any person any Confidential Information, except as permitted by clause 21.2.
21.2 The Supplier may disclose Confidential Information:(a) to its Personnel or advisers who need to know such information for the purposes of carrying out the Supplier’s obligations under the Contract. The Supplier shall ensure that its Personnel or advisers to whom it discloses Confidential Information comply with this clause 21.2; and(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority
21.3 The Supplier shall not use Confidential Information for any purpose other than to perform its obligations under the Contract.
22. DISPUTE RESOLUTION
22.1 If any dispute or difference arises between the parties in connection with or arising out of the Contract, representatives
of each party shall, within five Business Days of a written request from any party, meet or speak to each other in order to attempt in good faith to resolve the dispute.
22.2 If the dispute or difference is not resolved by the representatives within seven days of the matter being referred to them pursuant to clause 22.1, senior management of each party shall within five Business Days of a written request from any party meet or speak to each other in good faith to try and resolve the dispute without recourse to legal proceedings.
22.3 Failing resolution of the dispute or difference by the senior management within 14 days of the matter being referred to them pursuant to clause 22.2, either of the parties may submit the dispute or difference to the English courts.
22.4 Nothing in the Contract shall prevent either party from immediately applying to the English Courts to obtain an injunction or other interlocutory injunction.
23. GENERAL
23.1 The Supplier shall not assign, transfer, charge, hold on trust for another or deal in any other manner with any of its rights or obligations under the Contract, nor purport to do so, nor sub-contract any or all of its obligations under the Contract.
23.2 Any notice to be given under the Contract shall be in writing (but excluding fax transmission) and electronic mail) and may
be served by leaving it at, or by sending it by pre-paid first class post or recorded delivery to the intended recipient’s address. The address of a party for service of notices is the address set out at the beginning of the Contract or such other address as a party may designate by notice given in accordance with this clause 23.2
23.2. A notice is deemed to be received when left at the recipient’s address or, if sent by pre-paid first class post or recorded delivery, 48 hours from the date of posting. If such deemed receipt is not within business hours (being between 9.00 am and 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt), the notice is deemed to be received when business hours next commence.
23.3 Without prejudice to its other rights and remedies, the Customer shall be entitled but not obliged at any time or times without notice to the Supplier to set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier (in either case however arising) whether any such liability is present or future, liquidated or unliquidated.
23.4 No provision of the Contract shall be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
23.5 The Contract constitutes the entire agreement and understanding of the parties and supersedes any previous agreements or understandings between the parties with respect to the arrangements contemplated by the Contract.
23.6 No variation of the Contract shall be effective unless and until it is made in writing and signed by each of the parties to it or on their behalf by duly authorised representatives. For the purposes of this clause, the expression “variation” includes any supplement, deletion or replacement however effected.
23.7 Any failure to exercise or delay by a party in exercising a right or remedy arising in connection with the Contract or by law shall not constitute a waiver of such right or remedy or of any other rights or remedies. No waiver shall be effective unless and until in writing and signed by the relevant party or on his behalf by a duly authorised representative. A waiver of a right or remedy on one occasion shall not constitute a waiver of the same right or remedy in the future.
23.8 If any term of the Contract shall be declared to be invalid or unenforceable in any respect, insofar as it is severable from the remaining terms, it shall be deemed omitted from the Contract and the validity and enforceability of the remaining terms of the Contract shall not as a result in any way be affected or impaired.
23.9 Save as expressly provided in the Contract, the rights and remedies provided by the Contract are cumulative and are not exclusive of any right or remedy provided by law. No exercise by a party of any one right or remedy shall (save unless expressly provided otherwise) operate so as to hinder or prevent the exercise by it of any other right or remedy
23.10 Nothing in the Contract shall constitute a partnership, joint venture, representative or agency relationship between the parties to it or be construed or have effect as constituting any relationship of employer and employee between the parties. Neither party shall have the authority to bind or pledge the credit of, or oblige, the other in any way without obtaining the other’s prior written consent.
24. GOVERNING LAW AND JURISDICTION
24.1 The formation, existence, construction, performance, validity and all aspects of the Contract and these Terms (including any non-contractual claims or disputes) shall be governed by English law and subject to clause 2222 the parties submit to the exclusive jurisdiction of the English Courts.
Date of last update: 28 September 2022 v2