TERMS AND CONDITIONS

TERMS AND CONDITIONS

(1) TSC FOODS LIMITED, (Company Number 2499642), whose registered office is at Cunard Building, Water Street, Liverpool,  L3 1EL (“Customer”); and 

1. DEFINITIONS AND INTERPRETATION
1.1  The definitions and rules of interpretation in this clause apply in this agreement.
“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.  

“Business Day” means a day (other than a Saturday, Sunday or public holiday) when the banks in London are open for business.

“Commencement Date” means the date of this agreement.

“Confidential Information” has the meaning given in clause 21.    

“Delivery” means the completion of the delivery of the Goods pursuant to a Purchase Order in accordance with clause 4.

“Delivery Date” means such date as is set out in a Purchase Order (as may be amended by the parties in accordance with this Supply Agreement).

“Delivery Location” means the address, as set out in a Purchase Order (as may be amended by the parties in accordance with this Supply Agreement) in accordance with clause 6.

“Force Majeure Event” means any cause preventing either party from performing any or all of its obligations under this Supply Agreement 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, lock-outs 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).

“Group” means in relation to a company, that company, its subsidiaries, its holding companies and their subsidiaries.

“Intellectual Property Rights” means patents (including rights in, and/or to inventions), trademarks, service marks, rights in goodwill, design rights, rights in and/or to business names and domain names, copyright (including future copyright and all neighbouring and related rights), database rights, rights to use, and to 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 of any nature subsisting worldwide at any time. 

“Losses” means all losses, 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 the Customer may be liable for to third parties (including its customers) incurred or suffered by the Customer.

“Month” means a calendar month.

“Purchase Contract” means a contract formed between the Customer and the Supplier for the sale and purchase of Products pursuant to any Purchase Order.

“Purchase Order” means an order for Products submitted by the Customer in accordance with clause 4.

“Products” means the products agreed in writing and, where the context requires, the Products ordered by and supplied to the Customer. 

“Product Prices” means the prices of the Products agreed in writing and “Product Price” means the price of an individual Product as determined in accordance with clause 5.

“Representatives” means the Customer and/or any of the Customer’s Affiliates and their nominated sub-contractors (in each case for the time being) who received the Products or places an order to receive the Products under this Supply Agreement.

“Specification” means the specification of the Products set out in Schedule 2.

“Supply Agreement” means this supply agreement between the Customer and the Supplier.

“Term” means the term of the agreement as determined in accordance with clause 14.

“VAT” means value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax.

“Year” means a calendar year.


1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3 A “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 The schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement and any reference to this agreement includes the schedules.

1.5 A reference to a “company” shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.

1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.8 A reference to a statute, statutory provision or any subordinate legislation made under a statute is to such statute, provision or subordinate legislation as amended or re-enacted from time to time and, in the case of a statute, includes any subordinate legislation made under that statute from time to time.

1.9 A reference to “writing” or “written” includes faxes and (unless stated to the contrary) e-mail.

1.10 Any obligation in this agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.

1.11 A reference to an agreement is a reference to that agreement as varied or novated (in each case, other than in breach of the provisions of this agreement) at any time.

1.12 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule.

1.13 Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

1.14 References herein to Conditions are, unless otherwise stated, to Conditions in this Supply Agreement.

1.15 "holding company" and "subsidiary" shall have the meanings given to them in section 1159 of the Companies Act 2006 and a company shall be treated for the purposes only of the membership requirement contained in subsections 1159(1) (b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee. In the case of a limited liability partnership, which is the subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: a) references in sub sections 1159 (1) (a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159 (1) (b) to the right to appoint or remove members holding a majority of the voting rights.  "Subsidiary undertaking" shall have the meaning given to it in sections 1161 and 1162 of the Companies Act 2006.


2. BASIS OF SUPPLY AGREEMENT

2.1 All Purchase Contracts shall be concluded upon the basis of this Supply Agreement together with any special conditions issued by the Customer to the Supplier at any time prior to the Supplier's acceptance of the Customer's Purchase Order. 

2.2 Subject to any variation under clause 24, or unless expressly agreed otherwise by the parties in writing, no terms or conditions submitted by the Supplier, irrespective of their date, shall prevail over this Supply Agreement and the Supplier waives any right which it might otherwise have to rely on such terms and conditions.

2.3 The Supplier shall supply the Products in accordance with the timescales and other requirements of this Supply Agreement and as set out in a Purchase Order and time is of the essence with respect to such timescales.

2.4 The Customer may at any time prior to the despatch of the Products amend or cancel a Purchase Order, at its entire discretion, by written notice to the Supplier.  If the Customer amends or cancels a Purchase Order, its liability to the Supplier shall be limited to payment to the Supplier of all costs reasonably and properly and demonstrably incurred by the Supplier in fulfilling the Purchase Order up until the date of receipt of the notice of amendment or cancellation, except that where the amendment or cancellation results from the Supplier's failure to comply with its obligations under this agreement the Customer shall have no liability to the Supplier in respect of such amendment or cancellation.


3. SUPPLIER’S OBLIGATIONS

3.1 The Supplier shall:

  • (a) supply and deliver the Products:
    • (i) in accordance with the Specifications;
    • (ii) by/on the Delivery Date; at the Delivery Location; and in compliance with all other requirements of a Purchase Order and/or any Purchase Contract;
  • (b) act diligently and in good faith in all of its dealings with the Customer;
  • (c) take or procure to be taken such steps as may be necessary to ensure that all paperwork issued by or on behalf of the Supplier to the Customer (including without limitation, invoices, correspondence and delivery notes), is complete, accurate and clearly references a Purchase Order date and number;
  • (d) at all times maintain sufficient manufacturing capacity and stocks of Products to enable it to meet an issued Purchase Order and/or any Purchase Contract; and
  • (e) at all times maintain full quality and traceability records.

3.2 The Supplier shall ensure that and warrants and represents that the Products shall:

  • (a) conform as to the quality, quantity and description with the particulars stated in the Specifications and with any samples provided by the Supplier;
  • (b) be free from defects in design, materials and workmanship;
  • (c) be of satisfactory quality within the meaning of the Sale of Goods Act 1979 (as amended) and fit for any purpose held out by the Supplier or made known to the Supplier in writing at or before the time of a Purchase Order;
  • (d) not, and that the receipt, use or sale of the Products shall not, infringe the Intellectual Property Rights of any third party;
  • (e) (where applicable) be fit for human consumption; and
  • (f) comply with all applicable laws relating to the Products and to the packaging and labelling of the Products.


4.  PURCHASE CONTRACTS AND PURCHASE ORDERS

4.1 The parties may from time to time agree to enter into a Purchase Contract which sets out the Products that may be purchased by the Customer from the Supplier including pricing and volume terms.  Such Purchase Contract may be entered into for a specified term and the parties may from time to time agree to enter into further Purchase Contracts in respect of additional Products, for a different term, which may be subject to different pricing and volume terms.  Any such Purchase Contracts shall be in writing and in the form set out in Schedule 1 and shall be signed by authorised representatives of each party.  Where any such Purchase Contract is agreed the parties shall comply with its terms in accordance with the terms of this Supply Agreement.

4.2 The Customer shall have no obligation to place any Purchase Orders for the purchase of Products pursuant to any Purchase Contract either at the time of entering into a Purchase Contract or any time thereafter.

4.3 The Customer may place Purchase Orders with the Supplier and the Supplier shall supply the Products in accordance with the Customer’s Purchase Orders.

4.4 Each Purchase Order shall:

  • (a) be given electronically by email and must be confirmed back by email to procurement@tscfoods.com within one (1) business day of receipt; and
  • (b) specify the type and quantity of the Products ordered, and the Delivery Date and Delivery Location.

4.5 The Supplier is responsible for ensuring that all details contained within the Purchase Order are correct, any errors or omissions are to be communicated at the time of Purchase Order acknowledgement in accordance with clause 4.4(a).

4.6 The Supplier shall ensure that no substitutions, changes to contracted case configurations or over deliveries are made without the prior written consent of the Customer.

4.7 Any unconfirmed Purchase Orders will be deemed to be accepted by the Supplier on the terms and prices stated on the Customer's Purchase Order.

4.8 Without prejudice to clause 2.4, a Purchase Order which has been accepted in accordance with clause 4.4 or deemed accepted in accordance with clause 4.7 shall constitute a contract in respect of the supply of the relevant Products by the Supplier to the Customer.\

4.9 Each Purchase Order shall form the basis of a separate legal agreement between the Supplier and the Customer incorporating the terms and conditions of this Supply Agreement and any relevant Purchase Contract.


5. PRICE AND PAYMENT

5.1 All Prices agreed in writing by the parties, will remain firm and fixed for the term of this Supply Agreement unless otherwise agreed in writing.

5.2 All invoices, credit notes and statements are to be sent to accountspayable@tscfoods.com and must:

  • (a) include a Purchase Order number;
  • (b) state Products in the same sequential order as the Purchase Order and include the Customer’s product codes;
  • (c) relate to only one Purchase Order;
  • (d) not be submitted in duplicate or in advance of delivery; and
  • (e) be in the same currency as the Purchase Order.

5.3 Any failure to submit invoices in the correct format or correct time will result in the invoice being returned to the Supplier.

5.4 Any invoice will be classified as invalid and returned to Supplier if it contains the following:

  • (a) prices and/or quantities are not in line with contracted terms as agreed in writing;
  • (b) additional charges or items which do not form part of the original Purchase Order;
  • (c) charges for unsolicited services;
  • (d) insufficient supporting information; or
  • (e) services not formally agreed in writing.

5.5 Any invoices which are held in query or dispute will be held in dispute until an agreement is reached in writing between two parties.

5.6 Upon any such dispute being upheld the Supplier will raise a credit note which contains:

  • (a) reason for the credit;
  • (b) original invoice number;
  • (c) original Purchase Order; and
  • (d) Delivery location.

5.7 All payments are contingent upon receipt of fully acceptable Products and will be made within 90 days of receipt of Products, by BACS (Bankers Automated Clearing Services).

5.8 Each party shall be entitled to receive interest on any payment not paid when properly due pursuant to the terms of this Supply Agreement, calculated from day to day at a rate per annum equal to 2% above the base rate of the Bank of England and payable from the day after the date on which payment was due up to and including the date of repayment (whether before or after judgement).

6.   DELIVERY OF PRODUCTS

6.1 The Supplier shall, unless otherwise agreed in writing between the Supplier and the Customer, or as stated in Appendix 1, deliver the Products at the Delivery Location on the Delivery Date or if the Customer expressly agrees in writing otherwise before the Delivery Date. If the Supplier fails to deliver any Products at the correct Delivery Location (otherwise than by reason of fault on the part of the Customer), the Supplier shall be solely responsible for the costs of correctly re-delivering such Products accordingly.

6.2 Without prejudice to clause 7, all Products must be properly packaged, labelled, and secured in such a manner as to reach their destination in good condition, undamaged and otherwise in accordance with the Specification and/or a Purchase Order. Any specific Delivery procedures or processes will be detailed in a Purchase Order, unless otherwise detailed in Appendix 1.

6.3 Each Delivery of Products shall be accompanied by a delivery note which quotes a Purchase Order number and adequately describes the Products delivered including the quantity. The signing of the delivery note by the Customer shall be proof only of the actual receipt of the Products, and such signing shall not constitute or be deemed to constitute either inspection or acceptance of the Products and shall not prejudice the right of the Customer to subsequently reject the Products. The Supplier shall not be entitled to payment for any Products unless a duly authorised representative of the Customer has signed for the relevant delivery.

6.4 Subject to clause 13 (Force Majeure) where the Supplier fails to supply and deliver the Products by their respective Delivery Date the Supplier shall pay on demand to the Customer reasonable Losses incurred by the Customer due to the Supplier’s failure to supply.

7.   REJECTIONS AND RETURNS

7.1 Without prejudice to any of the other rights, powers or remedies of the Customer (whether express or implied), if the Supplier fails to deliver or delays in delivering any Products, or any part of them, by their relevant Delivery Date or if the Supplier is otherwise in breach of this Supply Agreement, or if the Customer terminates this Supply Agreement in accordance with clause 15, then the Customer may, whether or not the Products (or any part of them) have been accepted by the Customer, by notice to the Supplier:

  • (a) cancel the whole or any part of a Purchase Order which remains to be fulfilled; and/or
  • (b) recover from the Supplier all additional costs, losses and expenses reasonably incurred by the Customer which is properly attributable to the Supplier's failure to deliver or delay in delivering the Products by their Delivery Date or which arises from its breach of this Supply Agreement or the termination of a Purchase Order pursuant to clause 15.2 including, without limitation, all additional costs incurred by the Customer in obtaining the Products (or any part of them) in substitution from an alternative supplier.

7.2 Where any Products are delivered to the Delivery Location which do not meet the Specifications detailed in the original Purchase Order and/or Purchase Contract or do not comply with the terms of Delivery detailed in this Supply Agreement, the Customer shall, without prejudice to any of its other rights powers or remedies (including those under clause 6.4) have the right to reject such Products by notice to the Supplier within twenty eight Business Days of the date of their Delivery. The Customer shall also have the right to reject the Products (as though they had never been accepted) during a period of twenty eight Business Days after any latent defect in the Products has become apparent.

7.3 Payment by the Customer shall not prejudice the rights of cancellation or rejection of the Customer under clauses 7.1 and 7.2.

7.4 Without prejudice to any of the other rights, powers or remedies of the Customer, if the Customer:

  • (a) rejects any Products in accordance with clause 7.2; or
  • (b) notifies the Supplier of a breach of warranty under clause 3.2 in respect of any Products,
    then the Supplier shall, at the sole option of the Customer and the Supplier’s sole cost, and as soon as reasonably practical either replace the Product or refund the price paid for the Product unless the Customer has materially altered, used or stored such Products contrary to any reasonable instructions provided by the Supplier to the Customer and the rejection under clause 7.2 or breach under clause 3.2 is wholly attributable to such alteration, use or storage.

7.5 The Customer shall not be obliged to return to the Supplier any Products to be replaced by the Supplier prior to Delivery of the replacement Products. Any return of rejected Products will be at the sole risk and cost to the Supplier.

7.6 If the Supplier is unable or unwilling or fails to provide replacement Products pursuant to clause 7.4 so that they conform with this Supply Agreement, the relevant Purchase Contract and/or the relevant Purchase Order within such period as the Customer shall reasonably determine as necessary, nothing shall prevent the Customer from purchasing replacement Products from an alternative supplier and to recover from the Supplier all additional costs, losses and expenses reasonably incurred by the Customer obtaining replacement or repaired Products from such alternative supplier. Where Products are obtained from such alternative Supplier, the Customer may amend the original Purchase Contract by that volume sourced.

8.   AUDIT AND INSPECTION

8.1 The Supplier shall maintain and keep until six years after the termination of this Supply Agreement full and accurate records of this Supply Agreement, including records of Customer payments.

8.2 The Supplier shall on request afford the Customer or the Representatives such access to those records as may be required in connection with this Supply Agreement.

8.3 The Customer shall have the right to inspect and take samples of the Products to ascertain the conformance of the Products with this Supply Agreement, the relevant Purchase Contract and/or the relevant Purchase Order.  Such inspection and/or taking of samples may take place at all reasonable times at the Delivery Location and/or the Supplier’s premises and/ or the premises of any sub-contractors of the Supplier (as the case may be) and the Supplier shall procure that access is given to the Customer to all such premises for that purpose. The Customer may at any time within a reasonable time following the point of inspection and/or testing reject any Products which, in the reasonable opinion of the Customer do not conform with this Supply Agreement, the relevant Purchase Contract and/or the relevant Purchase Order.

8.4 Any inspection, testing, checking, rejection or approval made, carried out or given by or on behalf of the Customer shall not relieve the Supplier or its sub-contractors from any obligation under this Supply Agreement, the relevant Purchase Contract and/or the relevant Purchase Order nor prejudice any of the powers or remedies of the Customer.

8.5 If, as a result of such inspection and/or samples under clause 8.3, the Customer is not satisfied that the Products will conform in all respects with this Supply Agreement, the relevant Purchase Contract and/or the relevant Purchase Order and the Customer so informs the Supplier within twenty eight Business Days of the date of inspection or, if testing is performed, of the date on which the Customer receives all of the results of such testing, the Supplier will promptly take all steps necessary to ensure conformance. Without prejudice to any of the rights, powers or remedies of the Customer, any failure of this obligation by the Supplier will be deemed to be a material breach which is incapable of remedy, entitling the Customer to terminate this Supply Agreement under clause 15.

9.   TITLE

9.1 The risk in the Products shall remain with the Supplier and shall not pass to the Customer until the Products have been delivered to the Delivery Location in accordance with clause 6.1, and signed for by a duly authorised representative of the Customer, whereupon risk in the Products shall automatically vest in the Customer.

9.2 The title in the Products shall pass to the Customer upon the earlier of payment being received by the Supplier or the Customer using the Products in the ordinary course of its business.

10. INTELLECTUAL PROPERTY

10.1 This Supply Agreement shall not operate to assign to the Supplier any right, title or interest in any Intellectual Property Rights of the Customer and/or any Representative.  In addition, this Supply Agreement shall not operate to assign to the Customer and/or any Representative any right, title or interest in any Intellectual Property Rights of the Supplier in existence prior to the Commencement Date.

10.2 In respect of any deliverables that are transferred to the Customer, including without limitation the Products or any part of them, the Supplier warrants that it has full clear and unencumbered title to all such items, and that at the Delivery Date, it has full and unrestricted rights to transfer all such items to the Customer or the Representative.

10.3 Subject to clause 10.1, the Supplier will assign to the Customer (and where relevant, shall procure the assignment of), with full title guarantee and free from all third party rights, all Intellectual Property Rights in the Products, including for the avoidance of doubt any products developed using the Products.

10.4 Any right, title and interest in Intellectual Property Rights in Products developed exclusively for the Customer shall be assigned to the Customer.

11. PRODUCT RECALL

11.1 The Supplier shall immediately notify the Customer in writing providing all relevant details if it discovers:

  • (a) that there is or may be a defect in the Products which have been delivered to the Customer at any time;
  • (b) any error or omission in the instructions for the use and/or assembly of the Products;
  • (c) a risk that the Supplier suffers or will suffer any incident that may damage the Customer’s reputation;
  • (d) that any such defect, error or omission represents a breach of any warranty which causes or may cause any risk of death, injury or damage to property; or
  • (e) that it receives any complaints relating to the Products from its customers or consumers of products deriving from or packed in the Products (as applicable).

11.2 Where any of the circumstances in clause 11.1 apply, the Customer may in its absolute discretion, or by order of any authority, at the Suppliers expense:

  • (a) recall any Products or any other products into which the Products have been incorporated and sold by the Customer to its customers (whether for a refund, credit or replacement, which shall in each case be undertaken by the Supplier at the Customer’s discretion); and/or
  • (b) issue any notification whether in writing or otherwise to its customers about the manner of use or operation of any Products or any other products into which the Products have been incorporated and sold by the Customer to their customers; in each case on the basis of the identification whether by the Customer, its customers or any third party of any defect in the relevant Products or any error or omission in the instructions for their use or assembly (whether or not that defect, error or omission represents a breach of any warranty) which the Customer reasonably concludes affects or may affect any of the Products supplied which causes or may cause any risk of death, injury or damage to property.

11.3 The Customer will wherever practicable notify the Supplier prior to taking such decision as detailed in clause 11.2 and afford the Supplier the opportunity to make representations.

11.4 If the Customer conducts a recall of Products , the Supplier shall cooperate with the Customer and provide all assistance that is reasonably required to ensure that the Products are recalled promptly and effectively. The parties shall have the following responsibilities:

  • (a) the Supplier shall follow local procedures covering recall of Products subject to any directions received from the Customer;
  • (b) the Supplier must ensure that it retains all batch records and product information relating to the recalled Products and that these records are made available to the Customer within four hours of notification of a Product recall;
  • (c) upon the Customer’s request, the Supplier shall cease delivering the recalled Products to the Customer;
  • (d) the Supplier shall only supply Product replacing the recalled Products upon the Customer’s request in writing.

11.5 The Supplier shall reimburse the Customer for Losses as a result of or in connection with such recall of Products and/or for arising out of the Supplier's performance, or purported performance of, or failure to perform, this Supply Agreement, any Purchase Contract and/or any Purchase Order.

12. INDEMNIFICATION AND INSURANCE

12.1 The Supplier shall indemnify the Customer against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with:  

  • (a) any claim made against the Customer 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:
  • (b) any claim made against the Customer by a third party arising out of, or in connection with, the supply of the Products, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this agreement by the Supplier, its employees, agents or subcontractors;
  • (c) any claim made against the Customer by a third party for death, personal injury or damage to property arising out of, or in connection with, defective Products, to the extent that the defect in the Products is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
  • (d) any recall of Products pursuant to clause 11.

12.2 The Supplier shall notify the Customer as soon as it knows or becomes aware of any event arising in connection with this Supply Agreement or any Purchase Contract or Purchase Order which it believes may give rise to a claim under the provisions of this clause 12 and the Supplier shall not make any admissions which may be prejudicial to the defence of settlement of any third party claim, allegation, demand or action in connection with any indemnities given in this Supply Agreement.

12.3 Nothing in this Supply Agreement excludes or limits the liability of either party or any Representative for death or personal injury caused by its own negligence (or the negligence of its directors, employees, agents or sub-contractors), for fraudulent misrepresentation by it, for fraud or for any matter for which it would be illegal for either party to exclude or attempt to exclude its liability.

12.4 Subject to clause 12.3 neither the Customer nor any Representative nor any of their agents or their employees shall be liable to the Supplier, any of its subcontractors or any third party in contract, tort (including negligence or breach of statutory duty), under statute or otherwise as a result of any of the information provided by the Supplier or any sub-contractors prior to the Commencement Date being incomplete and inaccurate.

12.5 Nothing in this clause 12 shall restrict or limit the Customer's general obligation at law to mitigate a loss which it may suffer or incur as a result of a matter that may give rise to a claim under this indemnity.

12.6 During the term of this Supply Agreement and for a period of one year afterwards the Supplier shall maintain in force the following insurance policies with reputable insurance companies:

  • (a) public liability insurance for not less than £5,000,000 (five million pounds) per claim; 
  • (b) product liability insurance for not less than £1,000,000 (one million pounds) for claims arising from any single event and not less than £5,000,000 (five million pounds) in aggregate for all claims arising in an year; and
  • (c) product recall insurance for not less than £500,000 (half a million pounds) for claims arising from any single event and not less than £1,000,000 (one million pounds) in aggregate for all claims arising in an year,
    or such other amount as is set out in a Purchase Contract or a Purchase Order.

12.7 On taking out and on renewing each policy, the Supplier shall promptly send a copy of the receipt for the premium to the Customer. On the Customer's written request, the Supplier shall provide the Customer with copies of the insurance policy certificates and details of the cover provided.

12.8 The Supplier shall ensure that any subcontractors used with the written consent of the Customer also maintain adequate insurance having regard to the obligations under this agreement which they are contracted to fulfil.

12.9 The Supplier shall:

  • (a) do nothing to invalidate any insurance policy or to prejudice the Customer's entitlement under it; and
  • (b) notify the Customer if any policy is (or will be) cancelled or its terms are (or will be) subject to any material change. 

12.10    The Supplier's liabilities under this Supply Agreement shall not be deemed to be released or limited by the Supplier taking out the insurance policies referred to in this clause 12.

12.11    If the Supplier fails or is unable to maintain insurance in accordance with this clause 12, or fails to provide evidence that it has paid the current year's premiums in accordance with this clause 12, the Customer may, so far as it is able, purchase such alternative insurance cover as it deems to be reasonably necessary and shall be entitled to recover all reasonable costs and expenses it incurs in doing so from the Supplier.

12.12    The Customer and the Supplier acknowledges that the above provisions of this clause 12 are reasonable and are reflected in the price of the Products.

13. FORCE MAJEURE

13.1 Neither party to this Supply Agreement shall be deemed to be in breach of this Supply Agreement or otherwise liable to the other party in any manner whatsoever for any failure or delay in performing its obligations under this Supply Agreement to the extent (and solely for the duration) that the same is caused by reason of Force Majeure.

13.2 If a party is unable to perform any of its obligations under this Supply Agreement 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. The Customer shall only be obliged to pay the Supplier for Products actually delivered during the Force Majeure.

13.3 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 Supply Agreement save where the Customer has terminated this Supply Agreement in accordance with clause 13.4 below.

13.4 If pursuant to this clause 13 the Supplier is excused from performing its obligations under this Supply Agreement for a period exceeding 30 days, then the Customer may (whether or not it has previously exercised its rights under clause 12) terminate this Supply Agreement affected by the Force Majeure by giving written notice of termination to the Supplier.

14. COMMENCEMENT AND TERM

14.1 This Supply Agreement shall commence on the Commencement Date and shall remain in effect until terminated in accordance with clause 15 (“Term”), provided that any notice to terminate served under clause 15.1 shall not be capable of terminating this Supply Agreement on a date prior to the expiry and/or termination of an existing Purchase Contract.

14.2 Purchase Orders shall not be capable of being placed pursuant to this Supply Agreement and/or any Purchase Contract following expiry or earlier termination of this Supply Agreement.
 

15. TERMINATION

15.1 Subject to the provisions of clause 14, the Customer may at any time terminate this Supply Agreement by giving the Supplier not less than three months' notice in writing.

15.2 Either party shall be entitled to terminate this Supply Agreement with immediate effect by giving notice in writing to the other party if:

  • (a) the other party fails to pay any undisputed amount due under this Supply Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment; or
  • (b) the other party commits a material breach of its obligations under this Supply Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after receipt of notice in writing requiring it to do so; or
  • (c) the other party commits a series of persistent minor breaches which, when taken together, amount to a material breach; or
  • (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; or
  • (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; or
  • (f)  a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in 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; or
  • (g) a creditor or encumbrance 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; or
  • (h) 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; or
    • (i)  a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver; or
    • (j)  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; or
  • (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 15.2(a) to clause 15.2(g) (inclusive); or
    • (l)  the other party ceases, or threatens to cease, to carry on all or substantially the whole of its business; or
  • (m)   any Force Majeure Event prevents the other party from performing its obligations under this Supply Agreement for any continuous period of three months.

15.3 A breach of any of clauses 2, 3, 4, 5, 6, 8, 10, 11, 12 or 21 shall be a material breach of obligations for the purposes of this clause 15.

15.4 Termination of this Supply Agreement shall not prejudice any of the parties' rights and remedies which have accrued as at termination. However for the avoidance of doubt, the Customer shall not be obliged to pay any cancellation charge or any compensation to the Supplier (including, without limitation, in respect of redundancy payments for the Supplier’s employees or loss of profits) by reason solely of termination of this Supply Agreement by the Customer.

16. OBLIGATIONS ON TERMINATION

16.1 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 or a member of its Group in connection with the supply of the Products under this Supply Agreement; 
  • (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 16.

16.2 The Customer shall be entitled to buy from the Supplier contracted stocks of the Products at the then prevailing price.

17. SURVIVAL OF OBLIGATIONS

On termination of this Supply Agreement the following clauses shall survive and continue in full force and effect: clauses 10, 12, 16, 21 and 29. 

18. ASSIGNMENT AND SUB-CONTRACTING

18.1 The Supplier may not assign or transfer or subcontract any of its rights, benefits or obligations under this Supply Agreement without the prior written consent of the Customer, which shall not be unreasonably withheld.

18.2 If the Supplier subcontracts any part of the provision of the Products, then the Supplier shall not be relieved from any liability or obligation whatsoever under this Supply Agreement and/or any Purchase Contract and/or any Purchase Order, and the Supplier shall 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 the Supplier.

19. EXPERT DETERMINATION

19.1 Where the Customer and the Supplier resolve to refer any disputes or differences which shall at any time hereafter arise between them in respect of the construction or effect of any of the terms of this Supply Agreement or the rights duties and liabilities of the Customer or the Supplier or any matter or event connected with or arising out of the terms of this Supply Agreement (a “Dispute”) for expert determination they shall refer such Dispute to such independent third party (the “Third Party”) as the Customer and Supplier shall jointly nominate

19.2 If the Customer and Supplier agree to refer any Dispute but shall fail to nominate a Third Party within 14 days of the date of the occurrence of the Dispute then the Third Party shall be nominated at the request of either the Customer or the Supplier by the President for the time being of the Liverpool Chamber of Commerce.

19.3 The Third Party (whether appointed under clause 19.1 or 19.2 above) shall act as an expert and not as an arbitrator whose decision (including as to costs) shall, except in the case of manifest error, be final and binding upon the Customer and the Supplier.

20. SET OFF

In the event of any sum or sums becoming due or owing by the Supplier to the Customer under this Supply Agreement such sum or sums may be set-off by the Customer against any sum or sums becoming due or owing by the Customer to the Supplier on any account whatsoever.

21. CONFIDENTIAL INFORMATION

21.1 The Supplier and the Customer each agree with the other to maintain secret and confidential all information of a confidential nature (including, without limitation, price sensitive information) (“Confidential Information”) obtained from the other both pursuant to this Supply Agreement and prior to and in contemplation of it and all information which it may acquire from the other in the course of this Supply Agreement, to respect the other's proprietary rights therein to use the same exclusively for the purposes of this Supply Agreement and to disclose the same only to those of its employees to whom and to the extent that such disclosure is reasonably necessary for the purposes of this Supply Agreement.

21.2 The Supplier shall procure that its employees who have access to any information of the Customer to which the obligations of Condition 21.1 apply shall be made aware of and subject to these obligations.

21.3 The confidentiality obligations of the parties hereto shall continue after the termination or expiry of this Supply Agreement.

22. SEVERANCE

If at any time any one or more of provisions of this Supply Agreement (or any part or parts thereof) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted here from and the validity and/or enforceability of the remaining provisions of this Supply Agreement shall not in any way be affected or impaired thereby. 

23. WHOLE AGREEMENT

23.1 Each party acknowledges that this Supply Agreement together with any variations and/or qualifications made pursuant to this Supply Agreement (and any Purchase Contracts made and Purchase Orders placed pursuant to it) contains the whole agreement between the parties and supersedes all previous agreements between the parties with respect to its subject matter.

23.2 This Supply Agreement is personal to the parties and neither of them may, without the written consent of the other, assign, mortgage, charge or dispose of any of its rights hereunder.

23.3 Each party acknowledges that in entering into this Supply Agreement (and any other document pursuant to it) it does not rely on any representation, warranty, collateral contract or other assurance of any person that is not set out in this Supply Agreement or the documents referred to in it.

23.4 Each party waives all rights and remedies, which, but for this clause, might otherwise be available to it in respect of any such representation, warranty, collateral agreement or other assurance. The only remedy available to any party in respect of any representation, warranty, collateral contract or other assurance that is set out in this Supply Agreement (or any document referred to in it) is for breach of contract under the terms of this Supply Agreement (or any document referred to in it) and where factual circumstances give rise both to a claim for breach of this Supply Agreement and for misrepresentation the parties agree that the innocent party’s remedies shall be limited to those for breach of contract and shall not extend to any remedy for or in respect of representation.

23.5 Nothing in this Supply Agreement shall, however, limit or exclude any liability of either party for fraud or fraudulent misrepresentation.

24. VARIATION AND WAIVER

24.1 Any variation of this Supply Agreement shall be in writing and signed by or on behalf of the parties.

24.2 Any waiver of any right under this Supply Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.

24.3 No failure to exercise or delay in exercising any right or remedy provided under this Supply Agreement or by law constitutes a waiver of such right or remedy, nor shall it prevent or restrict any future exercise or enforcement of such right or remedy.

24.4 No single or partial exercise of any right or remedy under this Supply Agreement shall prevent or restrict the further exercise of that or any other right or remedy.

25. NOTICES

Any notices to be served hereunder shall be delivered by hand or sent by first class post, telex with the correct answerback or facsimile to the relevant party at its last known address.  Notice shall be deemed served on delivery if delivered by hand, on the third day after posting if posted or 24 hours after despatch by telex or facsimile (weekends and bank holidays excepted).

26. NO PARTNERSHIP

Nothing in this Supply Agreement 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.

27. THIRD PARTY RIGHTS

A person who is not a party to this Supply Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce a term within this Supply Agreement and the Supplier and the Customer agree that the provisions of such Act shall not apply to this Supply Agreement. 

28. COUNTERPARTS

This Supply Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this agreement, but all the counterparts shall together constitute the same agreement

29. LAW AND JURISDICTION

29.1 This Supply Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.

29.2 The parties to this Supply Agreement irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Supply Agreement or its subject matter or formation (including non-contractual disputes or claims).

29.3 Nothing in this Supply Agreement shall limit the right of the Customer to take proceedings against the Supplier in any other court of competent jurisdiction, whether concurrently or not.