Conditions of purchase
The terms and conditions below set out the only terms on which Frank Roberts & Sons Limited (“we” and “us” which shall include our successors and assigns) is prepared to purchase certain products and/or services as described in the order placed by us with the person, firm or company which has offered to supply them (“you” or “your“).
1. COMMENCEMENT AND TERM
1.1 The Contract shall come into force on the Commencement Date and shall continue in force and apply to all Orders until terminated by either party in accordance with the provisions of clause 16.1 or otherwise by operation of law.
1.2 This Contract governs the relationship between us and you. No other terms endorsed upon, delivered with or contained in any of your documentation including any quotation, acknowledgement or acceptance of order, specification, delivery note, invoice or similar document shall form part of the Contract and you waive any right which you otherwise might have to rely on such other terms and conditions.
2. FORECASTS AND ORDERS
2.1 To assist you in the management and planning of your manufacturing capacity and purchasing requirements, we may notify you in writing from time to time with a forecast of our estimated purchasing requirements for Products and/or Services and we may update such forecast as reasonably determined by us.
2.2 We shall prepare any forecasts referred to in clause 2.1 with all reasonable skill and care but they shall not constitute binding purchasing commitments and we shall have no liability to you should actual order quantities not be consistent with such forecasts.
2.3 Where promotional volumes and/or any of our new product launches are not included in forecasts submitted by us, these may be communicated separately from time to time.
2.4 You shall take account of the latest forecast provided to you (if any or if none as determined in accordance with good industry practice) as part of your monthly capacity planning process to enable you to provide to us the Products which we may require. You will highlight and seek to resolve with us any capacity planning issues that may arise from such forecast as soon as is reasonably practicable.
2.5 An Order issued by us constitutes an offer by us to purchase the Products and/or Services as set out in that Order in accordance with these terms and conditions. Where an Order is issued, you shall within 24 hours of the date of issue of such Order using the same or a similar means of communication, acknowledge receipt of the Order to us in a form which either:
(a) includes the total price of such Order exclusive of VAT calculated in accordance with clause 8 and accepts the Order unconditionally and does not impose any other terms and conditions; or
(b) rejects the Order.
2.6 An Order shall be deemed to be accepted unconditionally by you upon the earlier of:
(a) the receipt by us of the acknowledgement from you required by clause 2.5(a) above;
(b) you doing any act consistent with fulfilling the Order; or
(c) the date two Business Days following the date of issue of the Order by us,
at which point the Contract incorporating that Order and these terms and conditions shall come into existence. For the avoidance of doubt, each individual Order which is accepted in accordance with the provisions of this clause 2.6 will form part of an individual Contract in combination with these terms and conditions.
2.7 We may at any time prior to Delivery and/or performance of Services (as appropriate) amend or cancel an Order by written notice to you without liability. If we amend or cancel an Order outside of such time period, our liability to you shall be limited to payment to you of all costs reasonably incurred by you in fulfilling the Order up until the date of receipt of the notice of amendment or cancellation, except that 2
where the amendment or cancellation results from your failure to comply with your obligations under these terms and conditions we shall have no liability to you in respect of it.
3.1 You shall ensure that all Services comply in all respects with their description set out in the Order Form and they shall be supplied in accordance with these terms and conditions.
3.2 You shall:
(a) provide the Services with reasonable care, skill and diligence and in accordance with Good Industry Practice;
(b) act diligently and in good faith in all of your dealings with us;
(c) act in accordance with any of our policies as we may notify to you from time to time;
(d) provide co-operation, information, advice and assistance in connection with the Services and in carrying out your obligations under these terms and conditions as may be required by us;
(e) use reasonable skill and care in the performance of the Services;
(f) provide the Services in compliance with all Applicable Laws;
(g) observe, and ensure that all employees, consultants, agents and subcontractors which you engage in relation to the Services observe all health and safety rules and regulations and any other security requirements that apply at any of our premises;
(h) notify us as soon as you become aware of any health and safety hazards or issues which arise in relation to the Services;
(i) before the Commencement Date obtain, and at all times maintain, all necessary licences and consents required in relation to the provision of the Services; and
(j) reasonably co-operate with other service providers involved with the provision of services to us and identified as such by us, including successors or providers of new services.
3.3 You shall comply at your own cost with our reasonable instructions as notified to you from time to time which may include:
(a) use of named subcontractors as may be required by our customers; and
(b) compliance with particular policies as requested by our customers.
4. MANUFACTURE, QUALITY AND PACKING
4.1 You shall at all times maintain sufficient manufacturing capacity, stocks of raw materials and packaging, and stocks of Products to enable you to meet our Order requirements.
4.2 You shall manufacture, pack and supply the Products in accordance with all generally accepted industry standards and practices that are applicable.
4.3 You shall ensure that the Products supplied to us by you shall:
(a) conform to the Specification;
(b) subject to clauses 5.6 and 5.7, deliver the volumes specified in the Order Form;
(c) not be subject to any legal restrictions which would prevent their use in production of goods for human consumption;
(d) not cause any damage to our reputation or the reputation of our customers caused by their use in production of goods for human consumption;
(e) conform to all relevant British, European and international standards and comply with all Applicable Laws;
(f) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by you or made known to you by us; 3
(g) only be stored and transported prior to Delivery in adequate and appropriate conditions to enable us to use the Products in accordance with this Contract;
(h) be free from defects in design, material and workmanship and remain so for the Life of the Product after Delivery;
(i) enable us to store and use the Products in a manner which would be reasonably anticipated; and
(j) comply with all applicable statutory and regulatory requirements.
4.4 You shall ensure that the Products are properly packed and secured in such manner as to enable them to reach their destination in a condition which ensures that Products comply with clause 4.3.
5.1 You shall deliver each Order to the Delivery Location on the Delivery Dates at the Delivery Time. The parties agree that time for Delivery is of the essence.
5.2 Delivery of an Order shall be complete on the completion of unloading of the Order at the Delivery Location.
5.3 You shall not deliver Orders by instalments except with our prior written consent. Where Orders are to be delivered by instalments, they may be invoiced and paid for separately. References in these terms and conditions to Orders shall, where applicable, be read as references to instalments.
5.4 Without prejudice to any other rights or remedies we may have, if an Order is not delivered to the Delivery Location on the specified Delivery Dates at the Delivery Time, then, without limiting any other right or remedy, we may:
(a) refuse to take any subsequent attempted delivery of the Order;
(b) terminate such Order with immediate effect; and
(c) obtain substitute products from another supplier and recover from you any costs and expenses reasonably incurred by us in obtaining such substitute products,
provided that you shall have no liability for any failure or delay in delivering an Order to the extent that such failure or delay is caused by our failure to comply with our obligations under these terms and conditions.
5.5 You shall ensure that each Order is accompanied by a delivery note showing the Order Number, the date of the Order, the type and quantity of Products included in the Order, including the code numbers of the Products, and, in the case of an Order being delivered by instalments, the outstanding balance of Products remaining to be delivered.
5.6 Subject to clause 5.7 below, if you deliver more or less than the quantity of Products ordered, we shall, unless otherwise agreed in writing, be entitled to reject the Order.
5.7 In respect of the following types of Products the following tolerances shall apply:
(a) Packaging: you shall deliver not less than 100% and not more than 105% of the amount ordered; and
(b) Ingredients, you shall deliver not less than 100% and not more than 102% of the amount ordered,
(i) delivery of volumes between the tolerances will result in a pro rata variation to the charges;
(ii) we shall be entitled to reject any volumes in excess of the maximum tolerance; and 4
(iii) volumes below the minimum tolerance shall be topped up to the volume specified in the Order Form at your expense by the Delivery Date or such other date as we may agree with you in writing.
5.8 If you require us to return any packaging materials to you, that fact must be clearly stated on the delivery note accompanying the relevant Order, and any such returns shall be at your expense.
6. ACCEPTANCE AND DEFECTIVE PRODUCTS
6.1 We shall not be deemed to have accepted any Products until we have had a reasonable time to inspect them following Delivery, or, in the case of a latent defect in the Products, until a reasonable time after the latent defect has become apparent. For the avoidance of doubt, any signature procured from any of our staff or representatives on a delivery note shall be evidence of Delivery and not evidence of our acceptance.
6.2 If you are in breach of clause 4.3 or 5.4, or the Products are otherwise not in conformity with these terms and conditions, then, without limiting any other right or remedy that we may have (including under clause 12.1), we may reject the Products and:
(a) require you to repair or replace the rejected Products at your risk and expense promptly of being requested to do so; or
(b) require you to repay the price of the rejected Products in full (whether or not we have previously required you to repair or replace the rejected Products); and
(c) claim damages for any other costs, expenses or losses resulting from your delivery of Products that are not in conformity with these terms and conditions, including any costs, expenses or losses which we pay to our customer as a result of your breach or failure.
6.3 Our rights and remedies under clause 6 are in addition to the rights and remedies available to us in respect of the statutory conditions relating to description, quality, fitness for purpose and correspondence with sample implied into this Contract by the Sale of Goods Act 1979.
6.4 These terms and conditions shall apply to any repaired or replacement Products supplied by you.
6.5 If you fail to promptly repair or replace rejected Products in accordance with clause 6.2(a), we may, without affecting our rights under clause 6.2(c), obtain substitute products from a third party supplier, or have the rejected Products repaired by a third party, and you shall reimburse us for the costs incurred in doing so.
7. TITLE AND RISK
The risk in Products delivered to us shall pass to us on Delivery and title to Products delivered to us shall pass to us on the earlier of payment in respect of such Products or Delivery.
8. PRODUCT PRICES
8.1 Where Product Prices are agreed in writing between the parties for a Price Term then the Product Prices shall remain fixed for such Price Term unless otherwise varied by agreement in writing between us and you from time to time.
8.2 You shall use all reasonable endeavours during the Term to reduce your manufacturing, supply and other costs for the Products, including implementing cost savings initiatives and seeking more competitive supplies of raw materials and equipment.
8.3 The parties agree that any cost reductions achieved by you in accordance with clause 8.2 shall lead to a reduction in the Product Price by an amount to be agreed which shall be at least 50% of the actual Product Price reductions.
8.4 Your failure to implement the costs savings set out in clause 8.2 may result in reduced or no further Orders from us. 5
8.5 Where the parties do not agree prices in accordance with clause 8.1:
(a) Product Prices shall be as set out in an Order Form and subject to clause (b) shall be based on your prices as made available to us in writing in advance;
(b) where your prices change you shall provide us with written notice of such change and such variation in prices shall take effect no less than four (4) following such change. For the avoidance of doubt, any change in your prices shall not affect the Product Prices agreed in any existing Order Form or any Order Form which is submitted by us to you within four (4) weeks from the date of receipt of your price change.
General Pricing Provisions
8.6 The parties agree that the Product Prices are exclusive of amounts in respect of VAT. We shall, on receipt of a valid VAT invoice from you, pay you such additional amounts in respect of VAT as are chargeable on a supply of Products.
8.7 The parties agree that the Product Prices are inclusive of all costs including packaging, insurance and carriage of the Products and any duties, imposts or levies other than VAT.
8.8 You shall provide all such evidence as we may reasonably request in order to verify:
(a) invoices submitted by you; and
(b) cost reductions achieved by you (including the dates on which cost reductions were achieved).
In addition, you shall, on request, allow us to inspect and take copies of (or extracts from) all relevant records and materials of you relating to the supply of the Products as may be reasonably required in order to verify such matters.
9. TERMS OF PAYMENT
9.1 You shall be entitled to invoice us for each Order on or at any time after Delivery. Each invoice shall quote the relevant Order Numbers and shall contain your VAT registration number.
9.2 Unless stated otherwise on an Order, we shall pay invoices submitted in accordance with clause 9.1 within 60 days of receipt. Payment shall be made to the bank account nominated in writing by you.
9.3 If we dispute any invoice or other statement of monies due, we shall notify you in writing within a reasonable period. The parties shall negotiate in good faith to attempt to resolve the dispute promptly.
9.4 We may, without limiting any other rights or remedies we may have, set off any amounts owed to us by you against any amounts payable by us to you.
10. PRODUCT RECALLS AND WITHDRAWALS
10.1 You shall notify us immediately if you:
(a) become aware that there is or may be a defect in the Products; or
(b) receive any complaints relating to the Products from your customers or consumers of products deriving from or packed in the Products (as applicable).
10.2 If we receive a notice from you in accordance with clause 10.1, the parties will discuss what action should be taken in respect of the defective Products.
10.3 You shall provide us with such co-operation and assistance as we reasonably require pursuant to this clause 10 and as reasonably specified by us in any customer complaint procedure notified to you from time to time.
10.4 If we conduct a recall of products as a result of any defect(s) in the Product, either voluntarily or by order of any authority, you shall:
(a) work with us and any applicable authority in monitoring the recall operation and in preparing such reports as may be required; 6
(b) immediately notify and provide copies to us of any communications, (whether relating to recalls or otherwise relating to the Products), with any authority.
10.5 Where the recall is as a result of an act or omission of you, your employees, agents or subcontractors (including a breach by you (including your Employees, agents or subcontractors) of your obligations under this Contract or your negligence) you shall:
(a) at your own cost, rework or destroy all Products subject to such recall, and any affected stocks of Products held by us which were in breach of this Contract;
(b) reimburse us for all losses, claims, demands, actions, proceedings, damages and other payments, costs, expenses or other liabilities of any kind whatsoever, including any legal costs or other professional advisors’ fees or any losses or liability we may be liable for to third parties (including our customers) incurred or suffered by us as a result of or in connection with such recall.
10.6 Where there is a fault with the any products that we sell as a result of an act of omission of you (including your employees, agents and subcontractors), resulting in our customers claiming any remedy against us including refusing to take delivery of the products, whether in whole or in part, you shall reimburse us for all losses incurred, including but not limited to, price of the product, lost profits, storage and manufacture costs.
11.1 You shall maintain in force the following insurance policies with reputable insurance companies:
(a) public liability insurance for not less than £5 million per claim; and
(b) product liability insurance for not less than £5 million for claims arising from any single event and not less than £5 million in aggregate for all claims arising in any year, during the Term and for one year following expiry or termination of the Contract.
11.2 On our request you shall provide a brokers letter to us to evidence that the insurances referred to in clause 11.1 are in place from time to time.
11.3 You shall ensure that any subcontractors also maintain adequate insurance having regard to the obligations under these terms and conditions which they are contracted to fulfil. In any event, such subcontractors insurance in respect of public liability and product liability insurance shall be no lesser than the insurance values detailed in clause 11.1 above.
11.4 You shall:
(a) do nothing to invalidate any insurance policy or to prejudice our entitlement under it; and
(b) notify us if any policy is (or will be) cancelled or its terms are (or will be) subject to any material change.
11.5 Your liabilities under these terms and conditions shall not be deemed to be released or limited by you taking out the insurance policies referred to in clause 11.1.
11.6 If you fail or are unable to maintain insurance in accordance with clause 11.1, or fail to provide evidence that such insurances are in place in accordance with clause 11.2, we may, so far as we are able, purchase such alternative insurance cover as we deem to be reasonably necessary and shall be entitled to recover all reasonable costs and expenses we incur in doing so from you.
12.1 You shall reimburse us in respect of all losses, claims, demands, actions, proceedings, damages and other payments, costs, expenses or other liabilities of any kind whatsoever, including any legal costs or other professional advisors’ fees or any losses or liability we may be liable for to third parties (including our customers) (including but not limited to the cost of hiring extra staff to mitigate our losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses and any direct losses) suffered or incurred by us arising out of or in connection with: 7
(a) any claim made against us for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the supply or use of the Products and/or Services;
(b) any claim made against us by a third party arising out of, or in connection with, the supply of the Products and/or Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by you, your employees, agents or subcontractors;
(c) any claim made against us by a third party for death, personal injury or damage to property arising out of, or in connection with, defective Products and/or Services, to the extent that the defect in the Products and/or Services is attributable to the acts or omissions of you, your employees, agents or subcontractors;
(d) any claim made against us by a third party resulting from or relating to your failure to deliver the Order on the Delivery Dates; and
(e) any claim against us by, or contractual remedial payments paid by us to, our customers as a result of any failure by you to satisfy your obligations under these terms and conditions.
12.2 Nothing in these terms and conditions shall limit or exclude the liability of either party for:
(a) death or personal injury resulting from negligence; or
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) breach of section 2 of the Consumer Protection Act 1987; or
(e) the liabilities described in clause 12.1; or
(f) the deliberate default or wilful misconduct of that party, its employees, agents or subcontractors.
12.3 Without prejudice to clause 12.2, neither party shall be liable to other, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any special, indirect or consequential damage or loss suffered by a party that arises under or in connection with this Contract.
13. HEALTH AND SAFETY
13.1 You shall ensure that the Products are designed, manufactured and delivered so as to be safe and without risk to the health and the safety of any person that comes into contact with the Products at any time before or after Delivery.
13.2 You shall ensure that the Products are designed, manufactured and delivered in accordance with the Control of Substances Hazardous to Health Regulations 2002.
13.3 You represent and warrant that you have made available to us adequate health and safety information about the Products and about any conditions necessary to ensure that when put into use the Products will be safe and without risk to health.
13.4 You shall comply with our health and safety policies as notified by us to you from time to time.
14.1 Each party undertakes that it shall not at any time during this Contract and for a period of ten years after termination disclose to any person any confidential information concerning the business, affairs, customer, clients or suppliers of the other party, including information relating to a party’s operations, processes, plans, product information, know-how (including, but not limited to, recipes), designs, trade secrets, software, market opportunities and customers (“Confidential Information”), except as permitted by clause 14.2.
14.2 Each party may disclose the other party’s Confidential Information: 8
(a) to its employees, officers, agents, consultants or subcontractors (“Representatives”) who need to know such information for the purposes of carrying out the party’s obligations under this Contract, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 14 as though they were a party to this Contract. The disclosing party shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this Contract are granted to the other party or to be implied from this Contract. In particular, no licence is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right held, made, obtained or licensable by either party now or in the future.
15. INTELLECTUAL PROPERTY RIGHTS
15.1 These terms and conditions shall not operate to assign to you any right, title or interest in any of our Intellectual Property Rights.
15.2 These terms and conditions shall not operate to assign to us any right, title or interest in any of your Intellectual Property Rights in existence prior to the Commencement Date.
15.3 In respect of any deliverables that are transferred to us as part of the Services, including without limitation the Products or any part of them, you warrant that you have full clear and unencumbered title to all such items, and that at the date of Delivery of such items to us, you have full and unrestricted rights to transfer all such items to us.
15.4 Subject to clause 15.2, you assign to us (and where relevant, shall procure the assignment), with full title guarantee and free from all third party rights, all Intellectual Property Rights in the products of the Services, including for the avoidance of doubt any Products developed as part of the Services.
16.1 Without affecting any other right or remedy available to us, we may terminate this Contract on giving not less than 30 days’ written notice to you.
16.2 You may terminate this Contract on giving not less than three months’ written notice to us.
16.3 Without affecting any other right or remedy available to it, either party may terminate these terms and conditions with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any undisputed amount due under these terms and conditions on the due date for payment and remains in default not less than 60 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of these terms and conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of these terms and conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these terms and conditions;
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party; 9
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party;
(h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.3(d) to clause 16.3(i) (inclusive);
(l) the other party ceases, or threatens to cease, to carry on all or substantially the whole of its business;
(m) any Force Majeure Event prevents the other party from performing its obligations under this Contract for any continuous period of three months.
16.4 For the purposes of clause 16.3(b), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from:
(a) a substantial portion of this Contract; or
(b) any of the obligations set out in clauses 3, 4, 5, 6, 10, 11, 13, 15, 18 and 19,
over the term of this Contract. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
17. CONSEQUENCES OF TERMINATION
17.1 Following termination, each party shall promptly:
(a) return to the other party all equipment, materials and property belonging to the other party that the other party had supplied to it in connection with the supply of the Products under this Contract;
(b) return to the other party all documents and materials (and any copies) containing the other party’s Confidential Information;
(c) erase all the other party’s Confidential Information from its computer systems (to the extent possible); and
(d) on request, certify in writing to the other party that it has complied with the requirements of this clause 17.
17.2 On termination clauses 1, 2, 3, 4, 6, 10, 11, 12, 14, 16, 17, 22 and 23 shall survive and continue in full force and effect.
17.3 Termination of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination. 10
18. ANTI-BRIBERY COMPLIANCE
18.1 You shall:
(a) comply with all Applicable Laws relating to anti-bribery and anti-corruption including the Bribery Act 2010 (“Relevant Requirements”);
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) have and shall maintain in place throughout the Term your own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and clause 18.1(b), and will enforce them where appropriate;
(d) promptly report to us any request or demand for any undue financial or other advantage of any kind received you in connection with the performance of this Contract;
(e) if requested during the Term, certify to us in writing signed by one of your officers, compliance with this clause 18 by you and all persons associated with you under clause 18.2. You shall provide such supporting evidence of compliance as we may reasonably request.
18.2 You shall ensure that any person associated with you who is providing Services in connection with this Contract does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on you in this clause 18. You shall be responsible for the observance and performance by such persons of such terms, and shall be directly liable to us for any breach by such persons of any of such terms.
18.3 Breach of this clause 18 shall be deemed an irremediable material breach under clause 16.3(b).
18.4 For the purpose of this clause 18, the meaning of adequate procedures and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), and section 8 of that Act respectively. For the purposes of this clause 18 a person associated with you includes any of your sub-contractors.
19. ASSIGNMENT AND SUB-CONTRACTING
19.1 You shall not assign nor otherwise transfer, nor sub-contract, any of your rights or obligations under the Contract (in whole or in part) without our prior written consent, which shall not be unreasonably withheld.
19.2 If you sub-contract any part of the provision of the Services, then you shall not be relieved from any liability or obligation whatsoever under the Contract, and you shall remain liable and be fully responsible for the acts, omissions or defaults of any sub-contractor (and its employees) as if they were the acts, omissions or defaults of your own.
19.3 We shall have the right to assign the benefit or novate the benefit and the burden of the Contract in whole or in part to any third party provided always that in the case of any assignment we shall serve notice of the assignment upon you within ten Business Days of completing any such assignment. You agree that you shall enter into an agreement in such form as we may reasonably require to effect the novation by us of any of our obligations under the Contract to a third party and to release us from its obligations and liabilities hereunder.
19.4 You acknowledge that Products and/or Services may be provided for the benefit of other members of the Frank Roberts Group and in the event of any negligence or breach of the Contract by you which results in any loss, damage, costs or expense (“Loss”) being suffered by a member of the Frank Roberts Group that Loss will be treated as if it had been suffered by us. Any Loss suffered by members of the Frank Roberts Group will not be treated as being special, indirect or consequential in terms of clause 12.3 simply because it has been suffered by members of the Frank Roberts Group and not by us directly.
19.5 If and to the extent that we are unable to recover Loss suffered by other members of the Frank Roberts Group under clause 19.4, each member will be entitled to recover such Loss directly from you and to 11
enforce the Contract against you Supplier for this purpose under the Contracts (Rights of Third Parties) Act 1999. However, us and you may withdraw from or vary the Contract or terminate it in accordance with its terms without the agreement of any other member of the Frank Roberts Group.
20.1 All notices to be given to a party under this Contract shall be in writing in English and shall be marked for the attention of the person, and delivered by hand or sent by first class pre-paid post or faxed to the address detailed in the Order. A party may change the details recorded for it in this clause by notice to the other in accordance with this clause 20.
20.2 A notice shall be treated as having been received: if delivered by hand between 9.00 am and 5.00 pm on a Business Day (“Business Hours”), when so delivered; and if delivered by hand outside Business Hours, at the next start of Business Hours; and if sent by first class post, at 9.00am on the Business Day after posting if posted on a Business Day, and at 9.00am on the third Business Day after posting if not posted on a Business Day; if sent by fax, upon receipt by the sender of the fax report that the fax has been transmitted to the addressee.
20.3 Where you are required by us to comply with the terms of a policy or procedure of ours, we shall be entitled to notify such policy or procedure to you by email or by way of a direction to a website.
21. FORCE MAJEURE
21.1 Neither party to the Contract shall be deemed to be in breach of the Contract or otherwise liable to the other party in any manner whatsoever for any failure or delay in performing its obligations under the Contract to the extent (and solely for the duration) that the same is caused by reason of Force Majeure.
21.2 If a party is unable to perform any of its obligations under this Contract by reason of Force Majeure then it shall give written notice to the other party, specifying the nature, extent and anticipated impact of the Force Majeure, immediately on becoming aware of the Force Majeure and will at all times use all reasonable endeavours to mitigate the severity of the Force Majeure. We shall only be obliged to pay you for Services actually delivered during the Force Majeure.
21.3 Immediately upon the cessation of the Force Majeure the party affected shall serve a notice informing the other party in writing that the Force Majeure has ceased. The party affected shall thereafter immediately resume full performance of its obligations under this Contract save where we have terminated this Contract in accordance with clause 21.4 below.
21.4 If pursuant to this clause 21, you are excused from the performance of any of your obligations for a period exceeding 30 days, then we may (whether or not we have previously exercised our rights under clause 21), terminate this Contract by giving written notice of termination to you.
22.1 Subject to clause 19.5, the Parties do not intend that a person who is not a party to this Contract shall have any rights to enforce any term of this Contract by virtue of the Contracts (Rights of Third Parties) Act 1999. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
22.2 Each party shall, at the request and cost of the other party, do or procure the doing of all such further acts and execute or procure the valid execution of all such other documents as may from time to time be reasonably necessary to give full effect to this Contract.
22.3 Except where an express provision of the Contract states to the contrary, each and every obligation of a party under the Contract is to be performed at that party’s cost.
22.4 No failure to exercise, nor any delay in exercising any right or remedy hereunder shall operate as a waiver thereof or of any other right or remedy hereunder, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy.
22.5 Nothing in this Contract is to be construed as establishing or implying any partnership or joint venture between the parties, or as appointing any party as the agent or employee of any other party. 12
22.6 If any provision of this Contract is declared by a judicial or other competent authority to be wholly or partly void, voidable, illegal or otherwise unenforceable that provision shall be deemed to be severed from this Contract and will not affect any other provisions of this Contract, which will remain in full force and effect, and enforceable to fullest extent permitted by law. The parties will in good faith endeavour to agree to amend this Contract to reflect as nearly as possible the spirit and intention behind the void, voidable, illegal or otherwise unenforceable provision but so that the amended provision complies with English law.
22.7 The Contract (together with all other documents to be entered into pursuant to it) sets out the entire agreement and understanding between the parties, and supersedes all proposals and prior agreements, arrangements, course of dealings and understandings between the parties, whether written or oral, relating to its subject matter.
22.8 Save as expressly indicated otherwise, all rights, powers and remedies granted to the parties shall be cumulative and without prejudice to any other right, power or remedy of us and no single or partial exercise of any right, power or remedy shall restrict or prejudice any other or further exercise of it or the exercise of any other right, power or remedy available to it.
22.9 No variation of the provisions of this Contract shall be valid unless in writing signed by one of our directors and a duly authorised representative on behalf of you.
22.10 The Contract shall be governed by the laws of England and Wales and the parties agree that the courts of England and Wales shall have exclusive jurisdiction over any claim or matter arising out of or in connection with the Contract, save that nothing in this Contract shall limit our rights to take proceedings against you in any other court of competent jurisdiction, whether concurrently or not.
23.1 The following terms shall have the following meanings:
Affiliate: means, in relation to a body corporate, any subsidiary, subsidiary undertaking or holding company of such body corporate, and any subsidiary or subsidiary undertaking of any such holding company for the time being;
Applicable Law: means any law, statute, regulation, bylaw, ordinance or subordinate legislation; any binding Court order, judgment or decree; and any licence, permit, approval, industry code, policy, guidance, standard or accreditation terms, which is in force from time to time.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: is the date specified in the Order Form.
Confidential Information: has the meaning given in clause 14.1.
Contract: means the contract entered into on these terms and conditions by you and us by completion of an Order.
Delivery: completion of delivery of an Order in accordance with clause 5.2.
Delivery Dates: the date specified for delivery of an Order in the Order Form.
Delivery Location: the location specified for delivery of an Order in the Order Form as updated from time to time.
Delivery Time: the time specified for delivery of an Order in the Order Form.
Force Majeure : means any cause preventing either party from performing any or all of its obligations under the Contract which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented (but for the avoidance of doubt excluding (i) strikes, lockouts or other industrial disputes which have their origin within the employees of the party so prevented; or (ii) the acts, omissions or defaults of suppliers or sub-contractors; or (iii) breakdown of vehicles). 13
Frank Roberts Group: means Frank Roberts & Sons Limited and any of its Affiliates;
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Life of the Product: the amount of time as stated on the Order Form that the Products are expected to be of the quality set out in clause 3.
month: a calendar month.
Order: an order for Products submitted by us by submission of a completed Order Form to you.
Order Form: the order form [attached to these terms and conditions].
Order Number: the reference number to be applied to an Order as set out in the Order Form.
Price Term: the period of time expressed in an Order Form during which the Product Price shall be fixed.
Products: the products set out in the Order form.
Product Prices: the prices of the Products as determined in accordance with clause 8 and Product Price means the price of an individual Product as determined in accordance with that clause.
Representatives: has the meaning given in clause 14.2.
Services: the obligations to be performed by you under these terms and conditions and any specific services as may be set out in the Order form.
Services Completion Date: the date specified for completion of the Services in the Order Form.
Specification: the specification of the Products set out in the Order Form.
Term: the term of the Contract, as determined in accordance with clause 1.
Trading Agreement: a document identified as such and agreed between the parties in writing which among other things may set out the Product Prices and the Price Term.
VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax.
you: the party other than us as named on the Order Form and terms such as “your” shall be construed accordingly.
23.2 In these terms and conditions (unless the context requires otherwise):
(a) the words “including” and “include” and words of similar effect shall not limit the general effect of the words which precede them;
(b) references to persons shall include natural persons, bodies corporate, un-incorporated associations and partnerships (whether or not any of them have separate legal personality) and vice versa;
(c) references to the singular shall include the plural and vice versa;
(d) writing includes any method of representing or reproducing words in a legible form including email;
(e) the headings, are all for reference only and shall be ignored when construing these terms and conditions; 14
(f) where these terms and conditions are referred to, such reference shall also include a reference to the Order Form and any other documents referred to within these terms and conditions;
(g) if there is any conflict, ambiguity or inconsistency between the parts of these terms and conditions the following order of precedence will apply:
(i) the Order Form;
(ii) the Trading Agreement; and
(iii) the clauses.
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