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 (1) London, England and (2) the capital city of the country where the Buyer is located.
Buyer: the entity so described in the Contract.
Buyer Facilities: the Buyer’s premises 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 Seller including without limitation Intellectual Property rights (whether owned or under licence to the Seller), know-how, business information including without limitation technical, customer or personal data, specifications, or trade secrets of the Seller including without limitation, manufacturing processes.
Contract: the agreement entered into between the Seller and Buyer for the purchase of Products, which may be a sales agreement or distribution agreement or similar. Where the context implies, this also refers to the agreement, its schedules, Conditions and / or Seller’s invoice.
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.
Delivery: delivery of the Product to the Buyer Facilities FOB.
Force Majeure Event: any cause beyond the reasonable control of the party affected 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, in each case whether registered or not and in whichever part of the world such rights exist.
Price: the agreed monies to be paid by the Buyer to the Seller for the Product(s).
Product: any Products specified in the Contract or in the absence of a contract, the invoice, and any other item sold by the Seller pursuant to the Contract.
Seller: the entity so described in the Contract, selling the Product.
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.
1.3 Where there is no Contract, the Seller agrees to sell and the Buyer agrees to buy the quantities of Product(s) as set out in the invoice. Where there is a Contract, the Seller agrees to sell and the Buyer agrees to buy the quantities of Product(s) as set out in the Contract.
1.4 Unless expressly accepted earlier, an order from a Buyer shall only be accepted by Seller when the Products are dispatched from its facility.
1.5 The Seller shall be able to amend the order without the prior written consent of the Buyer.
1.6 For the avoidance of any doubt, should the Buyer send any documentation to the Seller containing or referring to the Buyer’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 Seller.
1.7 Products may be delivered on pallets. Pallets will remain the property of the Seller and must be made available for collection in good and clean condition at the Buyer’s facility. If the Seller is unable to reclaim the pallets from Buyer’s facilities, the Seller shall be entitled to reclaim form the Buyer any and all costs associated with replacing the pallets.
2.1 Notwithstanding anything in the agreed Incoterm to the contrary, the Buyer shall be responsible for ensuring all documentation, approvals / permits, licences, consents and obligations are fulfilled to ensure that the Product is cleared for both export and import, where applicable. Buyer shall not be entitled to withhold payment for the Products due to its failure to obtain any such documents.
2.2 Buyer acknowledges that it must comply with all applicable export control and trade embargo laws, rules and regulations, relating to the Products and any Services and agrees not, either directly or indirectly, to resell, export, re-export, distribute, transfer or otherwise dispose of the Products, without first obtaining all necessary written consents, permits and authorizations and completing such formalities as may be required by any such laws, rules and regulations. Buyer will not sell or deliver the Products to any countries, entities or individuals to which the United States Government, the EU or any other relevant governmental authority prohibits such sale or delivery.
3 Price & Payment
3.1 If there is no Contract, the Price shall be as set out in the Seller’s invoice.
3.2 If there is a Contract, the Price shall be as stated in the contract, the Seller may vary the Price on written notice to the Buyer and the varied Price shall apply not less than 5 business Days after such notice is given unless the Buyer gives notice to terminate pursuant to clause 9.2.
3.3 The Price shall be exclusive of any applicable Value Added Tax (charged to the Buyer at the then applicable rate) or equivalent local tax, import duty, and all costs or charges in relation to loading / unloading, freight, carriage, insurance, and demurrage. The Buyer agrees to pay for any and all applicable of the foregoing at the time of payment for the Products.
3.4 Notwithstanding anything from the Supplier to the contrary, the currency for the payment shall be Euros (€).
3.5 Unless agreed in writing, payments terms shall be 30 days from invoice. Payment shall not be deemed to be received until the Seller receives the monies due in cleared funds in the currency specified in the invoice for the Products. Notwithstanding any other terms to the contrary, upon termination of the agreement, all monies due to the Seller become immediately payable.
3.6 Where any payments are not paid in full according to clause 3.5, by way of compensation to the Seller, the Buyer shall pay interest on the overdue sum on a daily basis until the payment is made in full at a rate of 8% per annum above the Bank of England base rate.
3.7 Seller reserves the right to amend terms if there is a material change in the credit of the Buyer or in the economic conditional; and reserves the right to require payment in advance.
3.8 If the Buyer or any other entity within the same groups of companies is in default of any monies due to the Seller (or any other entity within Seller’s group of companies), the Seller may, at its absolute discretion, suspend any discounts or non-standard arrangements in place with the buyer until such payment has been received.
3.9 The Buyer shall make all payments to the Seller without any deduction or set off of any monies or liabilities which it has to the Seller against any other liabilities under the Contract or any Order or which it has to the Supplier howsoever arising.
4 Delivery, Title and Risk
4.1 Save as provided in clause 4.6, Incoterms 2010 shall apply to all Products supplied under the Contract, unless stated otherwise in the Contract, all Products shall be delivered FOB Buyer’s Facilities.
4.2 Deliveries shall be made as set out in the Contract, or the invoice where there is no Contract. Any time or date of delivery is an estimate only, and time shall not be of the essence. Should the Seller not make a delivery at the time and / or date specified, the Buyer shall not be entitled to terminate the Contract.
4.3 Seller reserves the right to deliver in instalments and provide a separate invoice for each instalment.
4.4 Risk in the Products shall pass from the Seller to the Buyer when the Products leave the Seller’s, its affiliates or its agent’s facility.
4.5 Title to the Products shall pass from the Seller to the Buyer upon payment for the Products in full. Until payment in full is made, the Buyer shall store the Products separately and mark the Products as belonging to the Seller. Before title passes, the Seller reserves the right to enter the Buyer’s premises and recover the Products. Where delivery under one invoice is in instalments, title shall not pass until all Products under that invoice are paid for in full.
4.7 Seller is entitled to rely on any oral or written instructions from or given on behalf of the Buyer without further enquiry or verification.
4.8 Buyer agrees to pay for the quantity of Products delivered and has no right to reject or refuse to accept the individual Products or delivery as a whole due to surplus or shortfall.
4.9 Where Products are delivered to the Buyer’s facility or those of its agents or subcontractors, Buyer shall ensure a safe place is available for unloading the Products and the required equipment (including Buyer personnel) is provided for prompt and safe unloading of Products. Should these not be provided, the Seller may withhold delivery.
5 Quality and Warranties
5.1 Seller warrants that the Products shall comply with all legislation or regulations of the country of manufacture of the Products and they are manufactured using processes and to standards regarded as acceptable within the industry.
5.2 The warranty given in clause 5.1 is the only warranty given by the Seller with respect to the quality, description and fitness for purpose of the Products. All other warranties, conditions or other terms whether express or implied by statute, common law, trade usage or otherwise are, to the fullest extent permitted by law, excluded from the Contract.
5.3 if the Products do not comply with the warranty given at clause 5.1, the Seller may:
5.3.1 if the products have not been sold to customers, replace the Products with products which do comply with the warranty, or refund the Buyer for the Price paid (and delivery costs where applicable);
5.3.2 if the Products have been sold to customers, make restitution for loss arising from such alleged defect up to the value of the invoice value of the Products in question provided that the Buyer can show they had acted reasonably in ensuring that the Products did not comply with the warranty prior to selling on or otherwise disposing of the Products. This clause 5.3 sets out the Seller’s entire liability in respect of a breach of warranty given at 5.1.
5.4 In order to claim the benefit of 5.3, Buyer must (1) inform Seller of the alleged defect within 30 business Days of receipt of the Products under clause 5.3.1 and 30 Business Days from date of discovery of the alleged defect under clause 5.3.2; and (2) where possible, retain samples of Products with alleged defects to enable Seller to carry our internal investigations where relevant.
6 Liability and Indemnity
6.1 Without prejudice to clause 5.3, and subject always to clauses 5.2, 5.4 and 6.2, Seller’s total liability under the Contract for the Products howsoever arising whether in contract, tort (including negligence and breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with either the performance or anticipated performance of the Contract shall be limited to twice the invoice value (net of taxes, duties, all delivery costs and insurance) of the deliveries of Products subject of the complaint or alleged defect, provided that the Seller’s total liability in any calendar year shall not exceed 10% of the of the total invoiced amount to the Buyer during that calendar year. Buyer accepts the limitations and exclusions set out in these Conditions are reasonable having regard to all the circumstances including without limitation the Price paid by the Buyer.
6.2 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, (b) fraudulent misrepresentation, or (c) in a manner or to an extent not permissible by law.
6.3 In no circumstance shall Seller be liable to Buyer for any indirect or consequential loss or damage, including without limitation, loss of profit, loss of business or depletion of goodwill or costs and expenses of claims for compensation whatsoever or howsoever arising.
6.4 Buyer shall indemnify Seller against all liability, damages, claims, costs and expenses in respect of damage to property, personal injury including death (not caused by Seller’s negligence) arising from unauthorised use or due to matter arising from incorrect storage of the Products by Buyer.
7.1 Buyer shall keep confidential all Confidential Information disclosed to enable the performance of the Contract and, subject to 7.2, shall not, without the prior written consent of the Seller disclose such information to any third party whatsoever except where (a) the information was already in the public domain or known by the Buyer at the time of disclosure, (b) the information is subsequently in the public domain other than by breach of these Conditions by the Buyer or (c) the Buyer lawfully comes into the possession of the information from a third party.
7.2 The Buyer may be obligated by law, regulation, court or government order or similar request by a authority of competent jurisdiction to disclose the Seller’s Confidential Information, in such circumstances the Buyer should inform the Seller promptly and use reasonable endeavours to obtain confidential protection for the information.
7.3 This clause shall remain in effect for a period of 10 years from the invoice date.
8 Force Majeure
8.1 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. 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 45 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.
8.2 Seller may, during a shortage of Products due to Force Majeure or other cause, prorate and allocate its supply of products between its group companies and customers in any manner the Seller deems appropriate and reasonable. In no circumstances shall Seller be obligated to take any additional steps such as purchase Products or increase manufacturing to satisfy its obligations herein. This 8 shall not apply to the Buyer’s obligation to pay for the Products.
9.1 The Contract commences and continues according to the terms therein. Should there be no Contract, termination shall be when the Products are delivered.
9.2 If there is a contract, subject to the provisions therein, either party may terminate upon 90 days written notice to the other party.
9.3 Without prejudice to any other provision of these Conditions, if the Buyer (1) fails to pay any monies due to the Seller on their due date, (2) commits a material breach of the Contract which is either incapable of remedy or capable of remedy and Buyer has failed to remedy within 20 Business Days, (3) becomes Insolvent, (4) suspends trading, ceases to carry on business, or threatens to do either or there is a material change in ownership or Control of the Buyer, (5) commits or is party to dishonest or fraudulent conduct in relation to the Contract; the Seller may, in its absolute discretion, and without prejudice to any other rights:
9.3.1 Stop products in transit and suspend all deliveries,
9.3.2 Enter such premises where the Products are stored, take possession of the same in lieu of payment, and / or,
9.3.3 terminate the Contract with immediate effect and sue for damages.
9.4 Upon termination, any clause which expressly or by implication is to survive termination shall do so.
9.5 Termination shall be without prejudice to any rights or liabilities accrued at the date of termination, however following termination, subject to the Buyer’s obligation to pay for the Products, neither party shall have any further obligations to the other.
10.1 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.
10.2 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.
11 Relationship of the Parties
11.1 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.
11.2 Subject to clause 13.3 and 13.5, 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.
12 Disputes and Jurisdiction
12.1 The formation, existence, performance, validity and all aspects of 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.
12.2 The parties agree to use their respective reasonable endeavours to promptly resolve any issues or disputes which may arise in connection with the Contract.
12.3 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. The cost of the arbitration shall be paid by the party whose pleadings are totally dismissed.
12.4 Notwithstanding clause 12.1 and 12.3, the parties acknowledge and agree that should a party deem it necessary in order to preserve that party’s position under the Contract or prevent irrevocable harm due to alleged violation or breach of Contract, such party may seek injunctive relief from any court of competent jurisdiction, and as soon as reasonably practicable thereafter, the parties shall follow the procedure for resolving disputes as set out in clause 12.3.
12.5 Nothing in clause 12.2 or 12.3 shall prevent the Seller from commencing proceedings for monies due and owing under the Contract.
13.1 Except as provided for above at clause 1.5, no variation to these Conditions may be made except in writing and signed by a duly authorised representative of each party.
13.2 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 in that jurisdiction; and the validity or enforceability of those provisions in any other jurisdiction shall not be affected or impaired. At the sole discretion of the Seller, 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.
13.3 The Buyer shall not be entitled to assign its obligations under these Conditions, in whole or part, without the prior written consent of the Seller. The Seller shall be entitled to assign the Contract, in whole or part without the prior written consent of the Buyer; for the avoidance of any doubt this shall include the Seller’s right to payment due to fulfilment of obligations under the Contract which may be transferred, sold, pledged or encumbered by Seller to third parties in connection with any good faith financing transaction. 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.
13.4 Each right or remedy under these Conditions is without prejudice to any other right or remedy the Seller has under the Contract or otherwise. No failure by the Seller 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.
13.5 Seller is a member of a group of companies whose holding company is R&R Ice Cream Plc, and accordingly, at Seller’s absolute discretion, Seller may complete any of its obligations or exercise any of its rights hereunder 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 Seller.
13.6 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.
13.7 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.
13.8 The headings in the Conditions are for guidance only and will have no effect on the interpretation of these Conditions.
13.9 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.
13.10 Should there be any conflict between the provisions of the relevant documents, the order of precedence shall be (1) the Contract, (2) these Conditions.
13.11 Buyer shall comply fully with any and all user instructions and handling guidelines issued by the Seller in relation to the Products (subject to clause 6.2). Seller shall not be liable howsoever arising from the Buyer failing to observe the provisions of this clause.
13.12 Buyer shall take or use all reasonable steps customary, practicable or applicable in connection with handling and selling the Product to ensure that, as far as possible, any risk to health or safety is eliminated or reduced to which delivery, loading, and unloading of the Product may give rise.
13.13 Upon reasonable notice, Seller may attend and inspect Buyer’s facility or those of its agents or subcontractors to inspect and carry out an audit including for the purposes of ensuring clause 13.12 is complied with.