1.1 Unless varied by agreement between the parties, the following definitions shall apply:
Business Day: a day other than a Saturday or Sunday, public holiday or bank holiday in England.
Buyer: the entity so described in the Contract, or in the absence of a Contract, in the Order.
Buyer Facilities: the Buyer’s premises, or any other location as agreed between the parties.
Conditions: the terms and conditions contained within this document.
Confidential Information: any and all information of a confidential nature relating to the performance of obligations under the Contract including without limitation intellectual property rights, know-how, business information including without limitation technical, customer or personal data.
Contract: the agreement entered into between the Buyer and Supplier for the supply of Services, for the avoidance of any doubt, the Buyer’s purchase order backed by or referencing these Conditions and Specification may constitute the Contract.
Control: the ability to direct the decisions or affairs, directly or indirectly, of another whether by ownership of voting securities or otherwise.
Data Protection Legislation: (a) the EC Data Protection Directive 95/46/EC or any implementing or related legislation in any member state of the European Economic Area; (b) the EC Directive on Privacy and Electronic Communications (Directive 2002/58/EC) or any implementing or related legislation in any member state in the European Economic Area; and (c) all other applicable laws and regulations in any jurisdiction relating to or impacting on the processing of personal data, all as may be amended and supplemented from time to time.
Deliverables: all documents, products or materials developed by the Supplier or its agents, contractors and Supplier Personnel as part of or in relation to the Services in any form or media, including without limitation, drawings, maps, plans, diagrams, designs, pictures, manuals, computer programs, data, specifications and reports and any drafts thereof.
Delivery: where applicable, the delivery of the Services or any Deliverable to the Buyer Facilities.
Delivery Date: the date on which the Services are to be completed or delivered to the Buyer Facilities, if the Services are delivered in instalments, this shall be the date on which the final instalment of the Services is delivered.
Force Majeure Event: any cause beyond the reasonable control of the party affected (after exercise of reasonable care to put in place disaster recovery arrangements) which prevents or delays the party from performing its obligations under the Contract, including without limitation act of God, flood, fire, earthquake or other natural disaster, explosion, war, terrorism; and strike, lock-out, industrial action except involving the Supplier’s or its suppliers’ workforce.
Insolvent: bankruptcy, suspension or threatened suspension of debts or inability to pay debts as they fall due, entering negotiations with any creditors to reschedule debts, passing of resolution for winding up or a court ordered winding up order is given, a step is taken to appoint a receiver or administrator, or anything analogous to the foregoing in any jurisdiction.
Intellectual Property: any patent, copyright, trade mark, brand name, trade name, know-how, rights in Confidential Information or otherwise, in each case whether registered or not and in whichever part of the world such rights exist.
Order: the document requesting the supply of the Services, where applicable, by way of purchase order with these Conditions attached or referenced.
Price: the agreed monies to be paid by the Buyer to the Supplier for the Services, as set out in the Order.
Services: the specific works and or services to be provided by the Supplier, including any Deliverables, technical support and ancillary work, as set out in the Order and Specification.
Specification: the agreed scope of the Services as agreed between the Buyer and the Supplier.
Supplier: the entity supplying the Services, where applicable.
Supplier Personnel: the employees, agents, contractors or other persons acting under the instruction of the Supplier in performance of the Services.
1.2 Unless the context otherwise requires; (a) each gender includes the other, (b) the singular includes the plural and vice versa, (c) general words are not limited by example, (d) references to clauses are to the clauses in these Conditions, and (e) references to any legislation will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2.1 The Buyer shall submit an Order to the Supplier, such order shall be construed as an offer or counteroffer where applicable to the Supplier to supply the Services, subject to these Conditions. The Supplier shall acknowledge receipt of the Order to the Buyer, acknowledgement of receipt shall constitute acceptance of the Order and agreement to be bound by the Contract, expressly including these Conditions.
2.2 For the avoidance of any doubt, should the Buyer send any documentation to the Supplier containing or referring to the Supplier’s general conditions or similar terms, in whole or part, they shall have no effect of the Contract and / or the Conditions and are expressly excluded and shall not be binding on the Buyer.
2.3 An Order shall be accepted when the Supplier expressly accepts as at clause 2.1 or when the Buyer reasonably considers that the conduct of the Supplier is consistent with acceptance.
2.5 The Supplier shall be able to amend the Order with the prior written consent of the Buyer where such amendment does not materially affect the performance of the Services nor its conformity to the Specification.
3.1 Notwithstanding anything in the agreed Incoterm to the contrary, the Supplier shall be responsible for ensuring all documentation, approvals / permits and obligations are fulfilled to ensure that the Services shall be cleared for both export and import, where applicable. The Buyer shall assist where necessary to give effect to the above.
4.1 The parties shall agree the Specification in advance, and conformity with this Specification shall be a condition of the Contract, except in the circumstances where compliance with such Specification may be unlawful, in such circumstances only the part deemed unlawful shall be excepted from this obligation.
4.2 By agreeing the Specification for the Services, the Supplier represents that it is capable of supplying the Services to good industry standards expected of a supplier of the same or analogous types of services.
4.3 The Intellectual Property rights relating to the Services, including, without limitation, the designs, drawings, presentations, final products, software given to the Buyer by the Supplier shall remain the property of the Buyer, except where agreed between the parties.
4.4 Where relevant, the Supplier grants to the Buyer, a free, unlimited, non-exclusive licence to use the Services and any product derived therefrom.
5 Price & Payment
5.1 Price shall be as stated in the Order, or in default of such provision, the price shall be calculated in accordance with the scale of charges as advised by the Supplier prior to the Order being placed. No increase in price may be made after the Order is placed.
5.2 The Supplier shall not be entitled to increase the Price should their costs to carry out the Services increase.
5.3 The Price shall be exclusive of any applicable Value Added Tax, which shall be charged to the Buyer at the then applicable rate.
5.4 Notwithstanding anything from the Supplier to the contrary, the currency for the payment shall be Euros (€).
5.5 Payments terms shall be end of month plus 45 days made as follows: 30% upon Order invoice, 30% upon commencement of the Services, 30% upon Delivery Date; and 10% upon final acceptance and agreed conformity with the Specification.
5.6 Time shall not be of the essence with regard to payment of monies due to the Supplier. Where any payments are not paid in full according to clause 5.5, by way of compensation to the Supplier, the Buyer shall pay interest on the overdue sum on a daily basis until the payment is made in full at a rate of 2% per annum above the Bank of England base rate. The Supplier acknowledges that this is a substantial remedy for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998.
5.7 In the event that payment has not been made within the agreed timeframe, the Supplier shall not be entitled to delay performance of the Services under this or any other contract.
5.8 The Buyer may set off any liabilities which it has to the Supplier against any other liabilities under the Contract or any Order or which it has to the Supplier howsoever arising.
6.1 Taking delivery of any or all Deliverables shall not constitute acceptance, such Deliverables will not be deemed to be accepted until the Services are completed and the Buyer has expressly confirmed to the Supplier that the Services adhere to the Specification. The Buyer may reject any of the Deliverables which are not in compliance with the Specification. Any acceptance of defective, late or incomplete Deliverables or payment made in respect thereof shall not constitute a waiver of any of the Buyer’s rights and remedies including its right to reject. Any rejected Deliverables may be returned to the Supplier at the Supplier’s sole cost and risk.
7.1 Notwithstanding anything to the contrary, upon Delivery, title to the Deliverables and any Intellectual Property rights associated with the Services shall pass to the Buyer free from all third party rights. The passing of title shall not prejudice any of the Buyer’s rights and remedies, including the right to reject.
8.1 The Supplier shall supply all equipment, tools, or otherwise to enable the carrying out and completion of the Services.
8.2 The Buyer may stipulate a date by which the Services must be completed. The Supplier shall use all reasonable endeavours to ensure compliance with this date, if the Supplier is not able to complete the Services on the agreed delivery date, it shall promptly notify the Buyer.
8.3 Time shall be of the essence with regard to completion of the Services, if the Supplier notifies the Buyer in accordance with clause 8.2 the Buyer shall be entitled, in its sole discretion and without prejudice to any other rights and remedies, to (a) terminate the Contract (in whole or part), (b) refuse the subsequent performance of the Services, (c) recover from the Supplier all costs and losses resulting to the Buyer, including where applicable any difference in price should the Buyer have to source the Services from another supplier and (d) where any payment has been made in advance for the Services that have not been provided, to have such monies refunded.
8.4 The Supplier shall ensure that all Supplier Personnel are suitably trained and comply with all applicable legislation or regulations, the Buyer’s site safety rules, and all policies notified to the Supplier. Buyer shall not be liable to the Supplier for any failure of the Supplier or Supplier Personnel to observe the provisions of this Condition.
8.5 The Buyer shall provide reasonable access to the Buyer Facilities to the Supplier upon reasonable notice, for the provision of the Services.
9 Quality and Warranties
9.1 The Supplier warrants that the Services shall (1) be carried out by suitably trained persons, (2) be carried out in accordance with due care, attention and skill and in accordance with industry best practice, (3) comply with all applicable legislation or regulations, (4) meet the agreed Specification, (5) be free from defects and (6) be vested in the Supplier such that it has the right to transfer title to the any or all of the Services including the Deliverables or part thereof to the Buyer on the Delivery Date.
9.2 The Supplier warrants that for a period of not less than 24 months following the completion of the Services, any errors, failures or defects in completion of the Services shall be rectified by the Supplier at Supplier’s sole expense including without limitation replacement Deliverables, labour and travel.
9.3 If the Services fail to comply with the warranty give at 9.1 and 9.2, the Supplier shall: (a) redo any of the Services which fails to comply with the warranty or (b) refund the Buyer as agreed between the parties.
9.4 The Supplier agrees that the approval of the Specification or acceptance of the Services shall not relieve the Supplier of any of its obligations under this Condition.
9.5 The Supplier shall indemnify the Buyer for any injury or death to any person, or damage to property caused by any negligent act or omission or wilful misconduct of the Supplier or Supplier Personnel carrying out the Services.
9.6 The Supplier warrants that it owns the Intellectual Property rights to the Services, including, without limitation, the Deliverables, the designs, drawings, calculations, formulae, software; or is otherwise able to perform its obligations herein under a licence, or similar.
9.7 Should the Supplier fail to perform its obligations under clause 9.3, the Buyer may procure such repair, replacement, or similar from a third party, and the Buyer may recover any and all costs involved from the Supplier.
10 Liability and Indemnity
10.1 The Supplier shall indemnify and keep the Buyer indemnified against all claims, costs and expenses which the Buyer may suffer or incur directly or indirectly as a result of Supplier’s breach of any of the Supplier’s obligations under the Contract.
10.2 Notwithstanding anything contained in these Conditions to the contrary, the Supplier shall have in place or obtain insurance against all risks to the performance of the Services to the full value of the Services, and to cover all other obligations and / or liabilities under the Contract. At the reasonable request of the Buyer, the Supplier shall provide evidence of the insurance policy.
10.3 The Buyer’s total liability howsoever arising in respect of its performance under the Contract, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise shall be limited to the Order value.
10.4 The Buyer excludes all liability to the fullest extent permissible by law, however nothing in these Conditions shall seek to limit the liability for (a) death or personal injury caused to the Supplier’s Personnel, should this be solely attributable to the Buyer’s negligence or wilful misconduct, (b) fraudulent misrepresentation, or (c) in a manner or to an extent not permissible by law.
10.5 The rights and remedies provided for the Buyer within the Contract are cumulative and not exclusive of any rights and / or remedies provided by law.
10.6 Neither party shall be liable to the other for any indirect or consequential loss or damage, including without limitation, loss of profit, loss of business or depletion of goodwill.
10.7 The Supplier shall fully indemnify and hold the Buyer harmless against any and all claims, disputes, and actions or threatened claims, disputes or actions relating to the actual or potential infringement of any third party Intellectual Property rights relating to the Services.
11.1 The parties may disclose certain Confidential Information to the other, the parties shall only use the Confidential Information as required to perform the Contract and, subject to clause 11.3, shall not, without the prior written consent of the party disclosing such Confidential Information, disclose such information to any third party whatsoever except where (a) the information was already in the public domain or known by party at the time of disclosure, (b) the information is subsequently in the public domain other than by breach of these Conditions or (c) the party lawfully comes into the possession of the information from a third party.
11.2 The Supplier acknowledges that performance of the Services at the Buyer Facilities may involve access to certain information which may be confidential, whether this is in writing, oral or visual. The Seller acknowledges that all information received during a visit to the Buyer’s Facilities, whether written, oral or visual, is confidential to the Buyer and the Supplier is obligated to keep such information confidential.
11.3 A party may be obligated by law, regulation, court or government order or similar request by an authority of competent jurisdiction to disclose the other party’s Confidential Information, in such circumstances the party so obligated should inform the other party as soon as reasonably practical and use reasonable endeavours to obtain confidential protection for the information.
11.4 This clause shall remain in effect for a period of 10 years from the Order date.
11.5 Subject only to clause 11.3, the Supplier shall not make any public announcement or disclose any information relating to the Contract.
12 Force Majeure
12.1 A party shall not be in breach of these conditions or otherwise liable to the other party for any failure or delay in performing its obligations under these Conditions to the extent that such delay is due to a Force Majeure Event and steps are taken by the affected party to mitigate the impact of the Force Majeure Event. The party claiming such Force Majeure Event shall immediately notify the other party and shall use best endeavours to keep the other party informed and provide a date upon which the party reasonably believes it shall be able to continue to perform the obligations. Should the Force Majeure Event last more than 30 Business Days, the other party may at its sole discretion (a) terminate the agreement with immediate effect or (b) renegotiate the Contract to achieve, as far as practicable, the original commercial intent of the parties. Costs arising from a Force Majeure Event shall be borne by the party incurring such costs.
13.1 Without prejudice to any other provision of these Conditions, the Buyer shall be entitled to terminate the Contract with immediate effect on written notice and without any liability to the Supplier if the Supplier:
13.1.1 Commits a material breach of the Contract which is either incapable of remedy or capable of remedy and Supplier has failed to remedy within 20 Business Days
13.1.2 Repeatedly breaches any of the terms of the contract in such a manner that the Buyer may reasonable conclude that it is not the Supplier’s intention or ability to give effect to the contract
13.1.3 Becomes Insolvent
13.1.4 Declares a Force Majeure Event which is to last more than 30 Business Days
13.1.5 Suspends trading, ceases to carry on business, or threatens to do either or there is a material change in ownership or Control of the Supplier
13.2 The Supplier may terminate the Contract by giving not less than three months written notice to the Buyer.
13.3 Upon termination, any clause which expressly or by implication is to survive termination shall do so.
13.4 Termination shall be without prejudice to any rights or liabilities accrued at the date of termination, however following termination, subject to clause 11, neither party shall have any further obligations to the other.
13.5 Upon termination, the Supplier shall deliver all Deliverables to the Buyer, whether complete or not, and issue a refund to the Buyer for any payment made in advance for the Services that have not been provided.
14.1 Any notices required to be given by one party to another, shall be in writing and sent to the relevant address specified in the Contract or if no address is specified, the registered office of that party, or such address which may have been notified to the party from time to time in accordance with these Conditions.
14.2 Notices sent by pre-paid first class post or international courier shall be deemed to be served three Business Days after posting; notices sent by email shall be deemed to be served when confirmation is posted, those delivered by hand will be deemed served at the time of delivery.
15 Relationship of the Parties
15.1 Nothing in these Conditions shall have the effect of creating any relationship of employee / employer, agent, representative or other relationship or authority to carry out acts on behalf of the other. At all times, the Supplier shall be responsible for the acts and omissions of the Supplier Personnel.
15.2 Subject to clause 17.3 and 17.5, nothing within these Conditions shall entitle third parties to enforce any of the Conditions contained herein and the parties do not intend any of the provisions of the Contracts (Rights of Third parties) Act 1999 or similar to apply or be enforceable by any party who is not a party to the Contract.
16 Disputes and Jurisdiction
16.1 The Contract shall be governed by and construed in accordance with English law, and the parties agree to submit to the exclusive jurisdiction of the English Courts.
16.2 The parties agree to use their respective reasonable endeavours to promptly resolve any issues or disputes which may arise in connection with the Contract.
16.3 If any dispute is not resolved between the parties within 30 Business Days, either party may refer the matter to be finally resolved by arbitration under the UNCITRAL Rules in force at the date of this agreement. The tribunal shall consist of a sole arbitrator to be agreed between the parties, in default of the parties’ agreement, the appointing authority shall be LCIA. The seat of the arbitration shall be London, the law governing the agreement is English and the language of arbitration shall be English.
17.1 No variation to these Conditions may be made except in writing and signed by a duly authorised representative of each party.
17.2 Should any condition or part thereof be held to be void, illegal or unenforceable by a court of competent jurisdiction, that provision or part thereof shall not affect the validity of the remainder of the Conditions, and all remaining Conditions shall continue in full force and effect. At the discretion of the Buyer, the Condition or part thereof which is deemed to be invalid shall be replaced with a similar condition giving effect to the original intention of the parties.
17.3 The Supplier shall not be entitled to assign its obligations under these Conditions, in whole or part, without the prior written consent of the Buyer. Without prejudice to this, if the Supplier disposes of its business the Supplier will, at the Buyer’s request, procure that the successor to its business will perform the obligations herein and the successor directly undertakes to the Buyer to do so. The decision to grant such assignment shall be at the sole discretion of the Buyer. The Buyer shall be entitled to assign the Contract, in whole or part without the prior written consent of the Supplier. Any assignment is subject to the assignor being obligated to perform any and all obligations up to assignment, and the assignee being bound on the same terms as the assignor from the date of assignment.
17.4 Each right or remedy under these Conditions is without prejudice to any other right or remedy the Buyer has under the Contract or otherwise. No failure by the Buyer to enforce any of its rights under the Conditions shall constitute a waiver of those rights now or in the future for the same or any future event.
17.5 Buyer is a member of a group of companies whose holding company is R&R Ice Cream Plc, and accordingly, at Buyer’s absolute discretion, Buyer’s obligations or rights hereunder may be completed or exercised by any other member of the group, provided that the act or omission by the other member shall be deemed to be an act or omission by the Buyer.
17.6 Each party shall, at all times, comply with their respective obligations with regard to applicable Data Protection Legislation and except where unavoidable, neither party shall provide any personal data to the other in connection with this Contract.
17.7 These Conditions have been drafted in English and the English version shall prevail in the event of a differing translation thereof. Where any Contract documentation is provided in English and one or more other languages, the English version shall prevail in the event of a differing translation thereof.
17.8 The headings in the Conditions are for guidance only and will have no effect on the interpretation of these Conditions.
17.9 The parties agree that the Contract constitutes the entire agreement between them in respect of this subject matter. Each party acknowledges that it has not entered into this agreement in reliance on any representation or warranty that is not set out herein.
17.10 Should there be any conflict between the provisions of the relevant documents comprising the Contract, the order of precedence shall be (1) the Order, (2) the Specification, and (3) these Conditions.