2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Seller seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions.
2.3 The Order shall be deemed to be accepted on the earlier of:
a. the Seller issuing a written acceptance of the Order; and
b. the Seller doing any act consistent with fulfilling the Order, at which point the Contract shall come into existence.
2.4 The Seller waives any right it might otherwise have to rely on any term endorsed upon, delivered with, or contained in, any documents of the Seller that is inconsistent with these Conditions.
3.1 The Seller shall ensure that the Goods shall:
a. correspond with their description and any applicable Specification;
b. comply with the requirements of The Food Safety (Northern Ireland) Order 1991 and any amendments to it and any applicable regulations made thereunder or by the European Union;
c. be fit for any purpose held out by the Seller or made known to the Seller by the Buyer expressly or by implication, and in this respect the Buyer relies on the Seller's skill and judgement; and
d. comply with all applicable statutory and regulatory requirements relating to the production, labelling, packaging, storage, handling and delivery of the Goods.
3.2 The Seller shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.
3.3 The Buyer may inspect and test the Goods at any time. The Seller shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Seller's obligations under the Contract.
3.4 If following such inspection or testing the Buyer considers that the Goods do not conform or are unlikely to comply with the Seller's undertakings at clause 1, the Buyer shall inform the Seller and the Seller shall immediately take such remedial action as is necessary to ensure compliance and the Buyer may at its discretion reject the Goods. Any rejected Goods shall be returnable at the Seller’s risk and expense.
3.5 The Buyer may conduct further inspections and tests after the Seller has carried out its remedial actions.
4.1 The Seller shall ensure that:
a. the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
b. each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
c. if the Seller requires the Buyer to return any packaging material to the Seller, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Seller at the cost of the Seller.
4.2 The Seller shall deliver the Goods:
a. on the Delivery Date;
b. at the Delivery Location; and
c. during the Buyer's normal business hours, or as instructed by the Buyer.
4.3 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
4.4 If the Seller:
a. delivers less than 95% of the quantity of Goods ordered, the Buyer may reject the Goods; or
b. delivers more than 105% of the quantity of Goods ordered, the Buyer may at its discretion reject the Goods or the excess Goods and any rejected Goods shall be returnable at the Seller's risk and expense. If the Seller delivers more or less than the quantity of Goods ordered, and the Buyer accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.
c. delivers Goods that do not meet the pre-agreed shelf life, the Buyer may at its discretion reject the Goods. Any rejected Goods shall be returnable at the Seller’s risk and expense.
4.5 The Seller shall not deliver the Goods in instalments without the Buyer's prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Seller to deliver any one instalment on time or at all, or any defect in an instalment shall entitle the Buyer to the remedies set out in clause 5.
5. Buyer remedies
5.1 If the Goods are not delivered on the Delivery Date, or do not comply with the undertakings set out in clause 1, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, the Buyer may exercise any one or more of the following rights and remedies:
a. to terminate the Contract;
b. to reject the Goods (in whole or in part) and return them to the Seller at the Seller's own risk and expense;
c. to require the Seller to replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
d. to refuse to accept any subsequent delivery of the Goods which the Seller attempts to make;
e. to recover from the Seller any costs incurred by the Buyer in obtaining substitute goods from a third party; and
f. to claim damages for any other costs, loss or expenses incurred by the Buyer which are in any way attributable to the Seller’s failure to carry out its obligations under the Contract.
5.2 These Conditions shall apply to any replacement Goods supplied by the Seller.
5.3 The Buyer's rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
6. Title and risk
Title and risk in the Goods shall pass to the Buyer on completion of delivery.
7. Price and payment
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Seller's published price list in force as at the date the Contract came into existence.
7.2 The price of the Goods:
a. excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to the Seller at the prevailing rate, subject to the receipt of a valid VAT invoice; and
b. includes the costs of packaging, insurance and carriage of the Goods which for the avoidance of doubt, may be uplifted.
7.3 No extra charges shall be effective unless agreed in writing with the Buyer.
7.4 The Seller may invoice the Buyer for price of the Goods plus VAT at the prevailing rate (if applicable) on or at any time after the completion of delivery. The Seller shall ensure that the invoice includes the date of the Order, the invoice number, the Buyer's order number, the Seller's VAT registration number and any supporting documents that the Buyer may reasonably require.
7.5 The Buyer shall pay correctly rendered invoices within the mutually agreed timeframes. Payment shall be made to the bank account nominated in writing by the Seller.
7.6 If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party shall pay 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 the due date until payment.
7.7 The Buyer may at any time, without limiting any of its other rights or remedies, set off any liability of the Seller to the Buyer against any liability of the Buyer to the Seller.
7.8 The Buyer may at any time, without notice to the Seller, set off any liability of the Seller to the Buyer against any liability of the Buyer to the Seller, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this agreement. If the liabilities to be set off are expressed in different currencies, the Buyer may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Buyer of its rights under this clause shall not limit or affect any other rights or remedies available to it under this agreement or otherwise.
8.1 The Seller shall keep the Buyer indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Buyer as a result of or in connection with:
a. any claim made against the Buyer for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the production, supply or use of the Goods, to the extent that the claim is attributable to the acts or omissions of the Seller, its employees, agents or subcontractors;
b. any claim made against the Buyer by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Seller, its employees, agents or subcontractors; and
c. any claim made against the Buyer by a third party arising out of or in connection with the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Seller, its employees, agents or subcontractors.
8.2 This clause 9 shall survive termination of the Contract.
During the term of the Contract [and for a period of [NUMBER] years thereafter], the Seller shall maintain in force, with a reputable insurance company, 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 Buyer'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.
10.1 Each party undertakes that it shall not at any time during the Contract and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 2.
10.2 Each party may disclose the other party's confidential information:
a. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 11; and
b. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
11. Compliance with relevant laws and policies
11.1 In performing its obligations under the Contract, the Seller shall:
a. comply with all applicable laws, statutes, regulations and codes from time to time in force; [and
b. comply with the Mandatory Policies].
11.2 The Buyer may immediately terminate the Contract for any breach of clause
12.1 The Buyer may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving the Seller written notice, whereupon the Seller shall discontinue all work on the Contract. The Buyer shall pay the Seller fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
12.2 Without limiting its other rights or remedies, the Buyer may terminate the Contract with immediate effect by giving written notice to the Seller if:
a. the Seller commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within five days of that party being notified in writing to do so;
b. the Seller takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
c. the Seller takes any step or action in connection with the Seller being made bankrupt, entering any composition or arrangement with its creditors, having a receiver appointed to any of its assets, or ceasing to carry on business or if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
d. the Seller suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
e. the Seller's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
12.3 On termination or expiry of the Contract, the Seller shall immediately return all Buyer Materials. If the Seller fails to do so, then the Buyer may enter the Seller's premises and take possession of them. Until they have been returned or delivered, the Seller shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
12.4 Termination or expiry of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
12.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
13. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for [NUMBER] [weeks OR months], the party not affected may terminate the Contract by giving [NUMBER] [days'] written notice to the affected party.
14.1 Assignment and other dealings
a. The Buyer may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
b. The Seller may not assign, transfer, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Buyer.
The Seller may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of the Buyer. If the Buyer consents to any subcontracting by the Seller, the Seller shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.
14.3 Entire agreement
The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Buyer.
Except as set out in clause 2.4, no failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.6 Dispute Resolution
If any dispute arises in connection with the Contract, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, within 14 working days of notice of the dispute, the mediator will be nominated by CEDR. To initiate the mediation a party must give notice in writing (‘ADR notice’) to the other party to the dispute, referring the dispute to mediation. A copy of the referral should be sent to CEDR. Unless otherwise agreed, the mediation will start not later than 28 working days after the date of the ADR notice.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision of the Contract is deemed deleted under this clause 15.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
a. Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
i. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
ii. sent by email to the address specified in the Order.
b. Any notice shall be deemed to have been received:
i. if delivered by hand, on signature of a delivery; and
ii. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
iii. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 7(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
c. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
14.9 Third party rights
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
14.10 Governing law
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of Northern Ireland.
Each party irrevocably agrees that the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.