In any contract to which these conditions of business apply (“the Conditions”):
1.1 “Business Day” means any day (other than a Saturday or Sunday) on which banks are generally open for business in the City of London.
1.2 “the Company” means Dunbia (UK), a company registered in England with number 3382084 and whose registered office is Michael House, Castle Street, Exeter, Devon, EX4 3LQ, United Kingdom and any of its subsidiary companies, successors or assigns where the context requires.
1.3 “Conditions” means these Conditions of Purchase.
1.4 “Contract” means any contract between the Company and the Supplier for the sale and purchase of Deliverables upon the terms of the Order and incorporating these Conditions.
1.5 “the Deliverables” means the Good or Services or both, as applicable.
1.6 “the Goods” means any goods which the Company agrees to purchase from the Supplier to which these Conditions apply.
1.7 “Intellectual Property Rights” means means copyright, patents, know-how, trade secrets, trade-marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case: whether registered or not; including any applications to protect or register such rights; including all renewals and extensions of such rights or applications; whether vested, contingent or future; to which the relevant party is or may be entitled; and in whichever part of the world existing.
1.8 “the Location” means the address(es) for delivery of the Goods and performance of the Services as set out in the Order.
1.9 “Order” means any order of the Company which is accepted by the Supplier under Condition 2.4 below.
1.10 “the Services” means any services which the Company agrees to purchase from the Supplier to which these Conditions apply.
1.11 “the Supplier” means the person firm company or public authority who supplies Deliverables to the Company.
BASIS OF CONTRACT
2.1 The Company shall purchase and the Supplier shall sell the Deliverables in accordance with the Order subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions (including any terms or conditions which the Supplier purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 Only a senior manager with the designated authority may make representations on behalf of the Company in respect of matters to which the Contract relates, and such representations must be written (excluding fax and email) to bind the Company. No other person is authorised by the Company to make representations on its behalf and the Supplier agrees that the Company will not be bound by any such representations made. Any other representation made by or on behalf of the Company prior to the date of the Contract is withdrawn.
2.3 The quantity, quality and description of any specification for the Deliverables shall be those set out in the Order.
2.4 Each Order by the Company to the Supplier shall be an offer to purchase Deliverables subject to these Conditions. An Order may be withdrawn or amended by the Company at any time before acceptance by the Supplier. If the Supplier is unable to accept and/or fulfil an Order, it shall notify the Company promptly. An Order shall be deemed accepted by the Supplier, and the Contract shall come into effect, when it is expressly accepted (in writing or orally) by the Supplier or when it is impliedly accepted through such actions or conduct of the Supplier which the Company reasonably considers is consistent with acceptance of the Order.
2.5 If the Supplier is required to make any changes in the specification of the Deliverables which are required to conform with any applicable statutory or other legal or regulatory requirements then the Supplier shall notify the Company as soon as reasonably practical and use all reasonable efforts to ensure that such required changes do not materially affect the quality or performance of the Deliverables. If the changes do affect the quality or performance of the Deliverables, the Company shall be entitled to cancel the Order without incurring any charge for the Deliverables.
2.6 No variation of these Conditions or to an Order or to the Contract, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Company.
3.1 Unless otherwise confirmed in writing these Conditions incorporate the International Chamber of Commerce’s current official rules for the interpretation of trade terms (“Inco terms”), except where the Inco terms are varied by these Conditions. In the event of a conflict arising between the Inco terms and anything set out in these Conditions, these Conditions shall apply.
PRICE AND PAYMENT
4.1 The price of the Deliverables (the “Price”) shall be agreed between the Company and the Supplier and confirmed in the Order or otherwise confirmed in writing (including by e-mail) between the Supplier and the Company before the Contract comes into effect under Condition 2.4.
4.2 The Supplier shall confirm whether the Price is inclusive or exclusive of Value Added Tax and/or other duties or taxes to which the supply of Deliverables may be subject, which, if applicable, will be added at the appropriate rates. Unless confirmed otherwise, prices are deemed to be inclusive of VAT and any other applicable duties or taxes.
4.3 The Supplier shall be entitled to invoice the Company:
4.3.1 for Goods, no sooner than on completion of delivery of the Goods or, if later, the Company’s acceptance of the Goods; or
4.3.2 for Services, no sooner than on completion of performance of the Services or, if later, the Company’s acceptance of the Services.
4.4 The Company shall pay each validly submitted invoice of the Supplier in line with the terms in operation as agreed by the parties in writing. In the absence of such agreed terms the Company shall pay each invoice within 45 days of receipt.
4.5 Time for payment shall not be of the essence. If the Company fails to make full payment on or by the due date then, to compensate the Supplier for all loss from the Company’s breach, the Company shall from the due date until the date of actual payment (both dates inclusive) pay interest to the Supplier on any sum or sums due at the rate of two per cent (2%) per annum above the official bank rate from time to time of the Bank of England, and such interest shall accrue on a daily basis and will run both before and after judgement. The Supplier acknowledges that this is a substantial remedy for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998.
5.1 The Company shall have the right to cancel an Order for Goods (or for any part thereof) which have not yet been delivered to the Company. In relation to any Order cancelled or part-cancelled under this Condition 5.1, the Company shall pay for:
5.1.1 that part of the Price which relates to any part of the Goods which at the time of cancellation have been delivered to the Company at the request of the Company; and
5.1.2 subject to the provision of proof acceptable to the Company, the costs of materials which the Supplier has purchased to fulfil the Order for the Goods which cannot be used for other orders (for the Company or other customers) or be returned to the Supplier’s supplier of those materials for a refund.
5.2 The Company shall have the right to cancel an Order for Services (or for any part thereof) which have not yet been performed for the Company. In relation to any Order cancelled or part-cancelled under this Condition 5.2, the Company shall only pay for that part of the Price which relates to the bespoke services which at the time of cancellation had been performed for the Company.
DELIVERY AND PERFORMANCE
6.1 If the Deliverables are Goods, the Goods shall be delivered by the Supplier to the Location on the date(s) specified in the Order. The Goods shall be deemed delivered by the Supplier only on completion of unloading of the Goods at the Location.
6.2 If the Deliverables are Services, the Services shall be performed by the Supplier at the Location on the date(s) specified in the Order. The Services shall be deemed delivered by the Supplier only on completion of the performance of the Services at the Location.
6.3 The Supplier represents, warrants and undertakes that the Goods originate in their entirety from its own manufacturing or production. Production by third parties passing the order or parts thereof on to subcontractors or other vicarious agents shall not be permitted under this Contract.
6.4 The Supplier grants to the Company and any authorised representatives of the Company the right of reasonable access for the purpose of undertaking an audit of the Supplier’s processes and procedures to the extent that they impact on the trade of the Company, such audits taking place on reasonable notice during normal business hours.
6.5 If the Deliverables are to be delivered and/or performed in instalments this shall be stated in the Order or agreed by the Company in writing.
6.6 The method of delivery of the Deliverables, and in the case of Goods the route of despatch, shall be set out in the Order and subject to the approval of the Company. If the Supplier needs to change the method of delivery, the Company shall not be responsible for any increase in delivery charges unless otherwise agreed in writing prior to those charges being incurred.
6.7 Time of delivery or performance (as the case may be) is of the essence. If the Supplier fails to deliver any of the Goods or perform any of the Services by the date or within the timeframes specified in the Order, the Company shall (without prejudice to its other rights and remedies) be entitled at the Company’s sole discretion:
6.7.1 to terminate the Contract in whole or in part;
6.7.2 to purchase the same or similar Deliverables from a supplier other than the Supplier;
6.7.3 to recover from the Supplier all resulting costs and losses incurred by the Company, including the amount by which the price payable by the Company to acquire such Deliverables from another supplier exceeds the price payable under the Contract and any loss of profit; and
6.7.4 all or any of the foregoing.
ACCEPTANCE, REJECTION AND INSPECTION
7.1 The Company shall not have accepted, or be deemed to have accepted, the Deliverables until, in the case of Goods, they have been delivered to or at the Location or, in the case of Services, they have been performed at the Location and, in either case, the Company has notified the Supplier in writing that the Deliverables have been delivered or performed (as the case may be) in full compliance
with the terms and conditions of the Contract.
7.2 The Company may require acceptance tests to be performed or to be carried out, at the Company’s option, either by the Company or the Supplier, and if carried out by the Supplier the results of the tests shall be made available to the Company immediately. If such acceptance tests are to be performed the parameters thereof shall be set out in the Order or otherwise in writing by the Company.
7.3 The Company shall be entitled to reject any Deliverables which are not in full compliance with the terms and conditions of the Contract or which do not pass any acceptance tests carried out in accordance with Condition 7.2. Any acceptance of defective, late or incomplete Deliverables or any payment made in respect thereof, shall not constitute a waiver of any of the Company’s rights and remedies, including its right to reject.
7.4 Any rejected Goods may be returned to the Supplier by the Company at the Supplier’s sole cost and risk. Alternatively, the Supplier shall collect rejected Goods as soon as possible after they have been rejected by the Company. The Supplier shall pay to the Company a reasonable charge for the cost of storing and returning any of the Goods over-delivered or rejected.
7.5 The Company will be entitled to destroy Goods that are chilled or perishable which are not collected by the Supplier within a reasonable time or in the case of frozen Goods which are not collected within 30 days of notification by the Company. The Supplier shall pay to the Company the costs of storage and/or destruction of those Goods in accordance with this Condition 7.5.
In the absence of agreement in writing to the contrary, the agreed purchase price shall include delivery ‘free domicile’ (delivered duty paid in accordance with Inco terms) to the Company, including packaging.
7.6 The rights of the Company in this Condition 7 are without prejudice to the Company’s rights under Condition 12.
7.7 If the Company rejects good in accordance with this Condition 7 they shall be entitled to a full refund, replacement or such other remedy available in accordance with Condition 11.3.
8.1 Risk in the Goods shall only pass to the Company once the Company has accepted the Goods under Condition 7.
9.1 Notwithstanding Condition 8, title to the Goods shall pass to the Company on the earlier of:
9.1.1 payment by the Company for the Goods; and
9.1.2 delivery of the Goods to the Company.
9.2 The passing of title shall not prejudice any of the Company’s other rights and remedies, including its right to reject the Goods or any part thereof.
9.3 Neither the Supplier, or any other person, shall have a lien on, right of stoppage in transit or other rights in or title to any Goods which have vested in the Company or any specifications or materials of the Company, and the Supplier shall ensure that all relevant third parties accept the exclusion of such lien and rights.
10.1 The Company may terminate the Contract or any other Contract or Order it has with the Supplier relating to Deliverables at any time by giving notice in writing to the Supplier if:
10.1.1 the Supplier commits a material breach of the Contract which, if capable of remedy, is not remedied within 14 days of receiving written notice of such breach;
10.1.2 any consent, license or authorisation held by the Supplier is revoked or modified such that the Supplier is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled;
10.1.3 the Supplier, being a company has a petition presented for its winding up or administration or passes a resolution for voluntary winding up (other than for the purposes of a bona fide amalgamation or reconstruction) or compounds with its creditors or has a receiver appointed over all or any of its assets; or
10.1.4 the Supplier, being an individual, becomes bankrupt or insolvent; or
10.1.5 the Supplier ceases to pay its debts in the ordinary course of business, enters into any arrangement with its creditors or commits a serious breach of the Contract (and in the case of such breach being remediable fails to remedy it within 3 (three) days of receiving notice to do so).
10.2 If the Supplier becomes aware that any event has occurred, or circumstances exist, which may entitle the Company to terminate the Contract under this Condition 10, it shall immediately notify the Company in writing.
10.3 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Company accrued or incurred at any time up to the date of termination.
11.1 The Supplier warrants and represents that, for a period of 36 hours after acceptance in the case of fresh meat and 72 hours after acceptance in the case of other Deliverables (the “Warranty Period”), the Deliverables shall:
11.1.1 conform in all material respects to any sample, description and applicable specification;
11.1.2 be free from material defects in design, material and workmanship;
11.1.3 comply with all applicable laws, standards and best industry practice;
11.1.4 if Goods, be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
11.1.5 if Services, be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II, s 13; and
11.1.6 be fit for purpose and any purpose held out by the Supplier or any purpose communicated by the Company.
11.2 The Supplier agrees that the approval by the Company of any design or specification provided by the Supplier shall not relieve
the Supplier of any of its obligations under this Condition 11.
11.3 The Company may reject any Deliverables that do not comply with Condition 11.1 and the Supplier shall, at the Company’s option, promptly remedy, repair, replace, correct, re-perform or refund the price of any such Deliverables provided that the Company serves a written notice on the Supplier within the Warranty Period that some or all of the Deliverables do not comply with Condition 11.1.
11.4 The provisions of these Conditions shall apply to any Deliverables that are remedied, repaired, replaced, corrected or reperformed with effect from the date of the delivery or performance of the remedied, repaired, replaced, corrected or re-performed Deliverables.
11.5 The Customer’s rights under these Conditions are in addition to, and do not exclude or modify, the rights and conditions contained in the Supply of Goods and Services Act 1982, s12 to 16 and the Sale of Goods Act 1979, s13 to 15.
11.6 The Company shall be entitled to exercise its rights under this Condition 11 regardless of whether the Deliverables have previously been accepted under Condition 7 and notwithstanding the outcome of any previous inspection of such Deliverables.
INDEMNITY AND INSURANCE
12.1 The Supplier shall indemnify, and keep indemnified, on a full indemnity basis the Company from and against any losses, damages, liability, costs (including legal and other professional fees) and expenses incurred by the Company as a result of or in connection with:
12.1.1 any breach by the Supplier of any of the warranties set out in Condition 11.1; and
12.1.2 any action, demand or claim that use or possession of any of the Deliverables infringes the Intellectual Property Rights, or any similar or related rights of any nature, of any third party,
12.1.3 any breach of these terms and conditions and any other agreement entered into between the company and the supplier.
12.2 In addition, the Supplier shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom insuring the Deliverables and any of the Company’s materials in the Supplier’s possession against the usual risks, including accident, fire and theft, for their full replacement value until the risk in them passes to the Company, and insuring against all other risks that a prudent supplier should consider reasonable. The Supplier shall also procure such additional insurance cover as specified in the Order (if any). On request, the Supplier shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable. The Supplier shall on request assign to the Company the benefit of such insurance.
INTELLECTUAL PROPERTY RIGHTS
13.1 All specifications provided by the Company and all Intellectual Property Rights in the Deliverables made or performed in accordance with such specifications shall vest in and remain at all times the property of the Company and such specifications may only be used by the Supplier as necessary to perform the Contract. The Supplier assigns (or shall procure the assignment) to the Company absolutely, with full title guarantee, all right, title and interest in any such Intellectual Property Rights, and the Supplier shall do all such things and sign all documents necessary in the Company’s opinion to so vest all such Intellectual Property Rights in the Company, and to enable the Company to defend and enforce such Intellectual Property Rights, and (if applicable) the Supplier shall at the Company’s request waive or procure a waiver of applicable moral rights.
LIMITATION OF LIABILITY
14.1 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or any other losses which cannot be excluded or limited by application of law.
14.2 Subject to Condition 14.1, the Company’s liability to the Supplier under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall not exceed the Price.
14.3 Subject to Condition 14.1, the Company shall not be liable to the Supplier for:
14.3.1 any loss of profit, loss of data, loss of use, loss of production, loss of contract, loss of opportunity, loss of savings, discount or rebate (whether actual or anticipated), harm to reputation or loss of goodwill; and
14.3.2 any consequential, indirect or special losses.
14.4 The limitations of liability set out in Conditions 14.2 and 14.3 shall not apply in respect of any indemnities given by either party under the Contract.
15.1 A party shall not be liable to the other if delayed in or prevented from performing its obligations under the Contract as a result of any event or sequence of events beyond that party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements to mitigate such risks) (“Force Majeure”), provided that it promptly notifies the other of the Force Majeure event and its expected duration and uses best endeavors to minimise the effects of that event.
15.2 If, due to Force Majeure, a party is delayed in or prevented from performing its obligations for a continuous period exceeding 14 days, or for a total period of more than 30 days in any consecutive period of 60 days, the other party may, within 30 days, terminate the Contract on immediate notice.
16.1 If at any time after Brexit a Brexit Trigger Event occurs which has or is likely to have an Adverse Impact on the Company, the Company may in their sole discretion:
16.1.1 require the Supplier to negotiate in good faith an amendment to this Contract to alleviate the Adverse Impact; or
16.1.2 terminate this Contract.
16.2 For the purpose of this Condition 16, the following definitions apply:
16.2.1 Brexit means the UK ceasing to be a member state of the European Union.
16.2.2 A Brexit Trigger Event means any of the following events caused by Brexit : a change in law, the introduction of a trade tariff, the requirement for a licence or consent, a currency fluctuation, or any other change which will have a material impact on the Company.
16.2.3 An Adverse Impact means any one of the following: an adverse impact on the Company’s ability to perform the Contract, a material increase in the Company’s costs in performing the Contract or the price of Deliverables in the Order being materially higher than the market value for similar products.
16.3 If requested by the Company, the Supplier shall provide the Company with a Brexit road map of their supply chain. If the Company determines that the Brexit road map is unsatisfactory for their purposes, they shall be entitled to terminate the Contract as if a Brexit Trigger Event which has an Adverse Impact on the Company has occurred.
17.1 Data Protection – The Company may use the Supplier’s personal information for the purpose of disseminating information in future about the Company’s products and services unless the Supplier makes known to the Company its wish that the personal information should not be used in this way. Both parties will comply with the Data Protection Act 2018 and the General Data
Protection Regulations 2016 (in each case as amended from time to time) in performing this Contract.
17.2.1 The Supplier may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Company’s prior written consent, such consent not to be unreasonably withheld or delayed.
17.2.2 If the Company gives consent in accordance with Condition 16.2.1 to the Supplier subcontracting or assigning any of its rights or obligations under the Contract to any third party it must give the Customer prior written notice of such subcontracting or assignment, including the identity of the relevant third party, and the Supplier acknowledges and agrees that any act or omission of such third party in relation to the Supplier’s rights or obligations under the Contract shall be deemed to be an act or omission of the Supplier itself.
17.3 Waiver – Any failure by the Company to enforce any of its rights under this Contract shall not be taken as a waiver of any of the Company’s rights hereunder.
17.4 Notices – Any notice to be served under these Conditions must be confirmed in writing as soon as possible and in any event within 24 hours to the intended recipient either:-
17.4.1 within the United Kingdom by prepaid first class post (when it will be deemed served at noon on the first Business Day after it was posted); or
17.4.2 by facsimile transmission or electronic mail between the hours of 9.00 a.m. and 3.00 p.m. on a Business Day, (when it will be deemed served twelve hours after it was transmitted by fax or upon receipt by the sender of a read receipt if sent by email); or
17.4.3 by personal delivery (when it will be deemed served when it is delivered). The address for service of notices shall be the party’s address as shown in these Conditions or as subsequently notified in writing.
17.5 Set off – the Company shall be entitled to set-off any liability which it has or any sums which it owes to the Supplier under the Contract or under any other contract which the Customer has with the Supplier against any amounts owed it by the Supplier whether under the Contract or otherwise.
17.6 Severance – Under this Contract all Conditions and sub-Conditions and all parts thereof shall be severable. In the event that any one or more of such Conditions or sub-Conditions or any parts thereof shall be invalid, illegal or unenforceable in any respect under any relevant law that part shall be deemed deleted and the validity, legality and enforceability of the remaining Conditions and sub-Conditions and parts thereof shall not in any way be affected or impaired.
17.7 Compliance with Law – The Supplier shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract. The Supplier warrants that it has all applicable import and export licenses and that the Deliverables comply with all application laws which apply to the Deliverables in the jurisdiction of the Location.
17.8 No other terms – No other terms shall apply to the sale, including any standard conditions of sale of the Customer, even if they