Stateside Foods Limited (“STATESIDE”)
31-34 Great Bank Road, Wingates Industrial Park, Westhoughton, Bolton, BL5 3XU
Telephone: 01942 841200
Fax: 01942 845161
Registered in England with company number 024316556
General Terms & Conditions of Purchase
The Seller’s attention is drawn, in particular, to condition 13 below.
1.1 In these conditions (“the Conditions”) the following words shall have the following meanings:
“Contract” means the Order and the Seller’s acceptance of the Order;
“Final Product” means any product into which the Products are intended to be incorporated;
“Order” means Stateside’s written or oral instruction to the Seller to supply Products to Stateside, incorporating these Conditions and including any Special Conditions;
“Products” means any products agreed in the Contract to be purchased by Stateside from the Seller (including any part or parts of them);
“Seller” means the person, firm or company who accepts the Order; and
“Special Conditions” means any terms set out in and referred to as special conditions in the Order.
1.2 In these Conditions references to any statute or statutory provision or other law shall, unless the context otherwise requires, be construed as a reference to that statute or provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 Headings will not affect the construction of these Conditions.
1.5 The terms “including” and “includes” shall be deemed to be followed by the words “without limitation”.
1.6 In the event of any conflict between the Special Conditions and these Conditions, the Special Conditions shall apply.
2. Application of Terms
2.1 These Conditions are the only conditions upon which Stateside is prepared to deal with the Seller and they shall govern the Contract to the entire exclusion of all other terms or conditions.
2.2 Each Order for Products by Stateside from the Seller shall be deemed to be an offer by Stateside to purchase the Products subject to these Conditions and no Order shall be accepted until the Seller gives written notice of acceptance to Stateside, or impliedly accepts the offer by despatching the Products to Stateside or otherwise fulfils the Order in whole or in part. Stateside may cancel any offer at any time prior to its acceptance by the Seller in writing to Stateside by giving notice to the Seller of such cancellation.
2.3 No terms or conditions endorsed upon, delivered with or contained in the Seller’s quotation, acknowledgement or acceptance of order, specification or similar document will form part of the Contract and the Seller waives any right which it otherwise might have to rely on such terms and conditions.
2.4 These Conditions apply to all Stateside’s purchases and any variation to these Conditions shall have no effect unless expressly agreed in writing and signed by an authorised representative of Stateside.
3. Quality and Defects
3.1 The Seller and the Products shall comply with all UK and EU statutes, regulations, directives and codes of practice (as amended from time to time) which apply to Stateside, the Seller and/or the Products and all other applicable local laws notified to the Seller by Stateside where the Final Product is for sale outside the EU and all other requirements (whether national or international which apply to the manufacture, packaging, storage and distribution of Products) (together “Relevant Laws”).
3.2 The Seller warrants, represents and undertakes that:
(a) the Products shall be of the best quality, material and workmanship, shall be without fault, shall conform in all respects with the Order and any specification supplied or advised by Stateside to the Seller and shall be suitable for incorporation into the Final Product;
(b) the Products (upon delivery and, where appropriate, throughout their shelf-life) shall also comply with good and respected industry specifications and standards of quality in relation to their manufacture, packaging and storage;
(c) all Products supplied which are intended to be used for packing foodstuffs, including printing inks, shall be free from grease, odour, poisonous and any toxic and/or injurious substances and are suitable in every respect for food packaging;
(d) the Products have not and each ingredient within the Products has not been genetically modified in any manner whatsoever and in the case of dairy products shall not have been produced from cattle reared on or injected with BST or any similar substance(s) nor infected with BSE or any other disease, virus or infection harmful or potentially harmful to any consumer of such Products;
(e) in the production, supply and distribution of the Products and the provision of information relating thereto it will comply with the duties imposed on it by the Relevant Laws;
(f) it will perform the Contract such that no liability is incurred by Stateside under any of the Relevant Laws; and
(g) there will be no cross-contamination of the Products by any ingredients which are not set out in the specifications and, in particular, the Products shall not contain any ingredients or substances which are not set out in the specifications which are known to cause or may cause allergic reactions in humans or which are specified by any Relevant Laws as being required on the packaging of the Products. The Seller shall immediately notify Stateside if any of the foregoing should occur or it has reasonable grounds to suspect that the same has occurred.
3.3 Stateside’s rights under these conditions are in addition to the statutory conditions or warranties implied into the Contract in favour of Stateside by virtue of custom, law or regulation, including, those implied under the Sale of Goods Act 1979.
3.4 At any time prior to delivery of the Products to Stateside, Stateside shall have the right to inspect and test the Products and the Seller shall provide such access to the Seller’s premises and such samples of the Products as Stateside may reasonably request.
3.5 If the results of such inspection or testing cause Stateside to be of the opinion that the Products do not conform or are unlikely to conform with the Order, to any specifications supplied or advised by Stateside to the Seller and or any other provisions of the Contract, Stateside shall inform the Seller and the Seller shall immediately take such action as is necessary to ensure conformity and in addition Stateside shall have the right to require and witness further testing and inspection.
3.6 Notwithstanding any such inspection or testing, the Seller shall remain fully responsible for the Products and any such inspection or testing shall not diminish or otherwise affect the Seller’s obligations under the Contract or to adhere to its pre-contractual representations.
3.7 If any of the Products fail to comply with the provisions set out in this condition 3 Stateside shall be entitled to avail itself of any one or more remedies listed in condition 12 below.
3.8 The Seller shall notify Stateside immediately should it have any reason to believe that the Products supplied may not be safe, of the specified quality not in compliance with the Relevant Laws or otherwise not in accordance with the Contract or if any adverse results arising out of analytical, microbiological or other checks carried out in respect of the Products are discovered before or after their delivery.
3.9 All work performed by the Seller in exercising its obligations under the Contract shall be in accordance with best industry practice including any codes of practice, ethical trading initiatives or other industry requirements whether or not notified to the Seller by Stateside and shall pass such inspection(s) as may be required by Stateside, its customers or their agents or any Government department concerned.
3.10 Where Stateside discovers a defective Product in any given batch of Products delivered at the same time, Stateside shall be entitled to reject the entire batch.
4.1 All Products supplied under the Order must be properly packed and secured and in such manner as to reach their destination in good condition.
4.2 The Products shall be delivered, carriage paid (unless otherwise indicated in the Order), to the delivery location as set out in the Order, to such other place of delivery as is agreed by Stateside prior to delivery of the Products. The Seller shall off-load the Products at its own risk as directed by Stateside.
4.3 The Seller shall on or prior to delivery of the Products provide adequate information and instructions as to the transport, handling or use for which the Products were designed including all information about any potential hazard believed to exist including COSHH documents and such other similar documentation which relate to the Products.
4.4 The Seller will label all Products in accordance with any statutory or other legal labelling requirements and regulations including all information necessary or desirable for the proper and safe administration, storage and identification of all deliveries of the Products. The Seller shall also comply with all specific instructions given by Stateside in relation to labelling from time to time. A specification will be issued by Stateside on request.
4.5 The Seller shall ensure that each delivery is accompanied by a delivery note which shows, inter alia, the order number, date of order, date of delivery, number of packages and contents and, in the case of agreed part delivery, the outstanding balance remaining to be delivered.
4.6 The date for delivery shall be specified in the Order, or if no such date is specified then delivery shall take place within 14 days of the Order.
4.7 The Seller shall invoice Stateside on or after, but separately from, despatch of the Products to Stateside.
4.8 Time for delivery shall be of the essence.
4.9 Unless otherwise stipulated by Stateside in the Order, deliveries shall only be accepted by Stateside in its normal business hours.
4.10 The acceptance of any delivery or signature of any delivery note or similar documentation is evidence only of a delivery and not evidence of correct quantity or that the Products are otherwise in conformance with the Contract.
4.11 Stateside shall not be deemed to have accepted the Products until it has had a reasonable opportunity to inspect them following delivery which shall not be less than the period during which Stateside would normally store such Products and in the case of frozen products shall not be less than the period from delivery until Stateside has defrosted such products and has had a reasonable opportunity to inspect them following defrosting. Stateside shall also have the right to reject the Products as though they had not been accepted for 30 days after any latent defect in the Products has become apparent.
4.12 Without prejudice to Stateside’s rights and remedies under the Contract, any Products rejected under the above provisions must, at Stateside’s request, be replaced by the Seller. Rejected Products will be returned to Seller at Seller’s expense.
4.13 If, for any reason, Stateside is unable to accept delivery of the Products on or after the agreed delivery date, Seller will store and safeguard the products and take all reasonable steps to prevent their deterioration.
4.14 In the event that Products are delivered before the date specified in the Order then Stateside shall be entitled at its sole discretion to either: (a) refuse to take delivery of the Products in which case the Seller shall store the Products free of charge until such time as Stateside shall notify the Seller that it is able to accept delivery and take all reasonable steps to prevent their deterioration; or (b) charge the Seller for insurance and storage of the Products until the delivery date specified in the Order (such sums to be deducted in accordance with condition 7.5).
4.15 If the Products are not delivered on the due date then, without prejudice to any other rights which it may have under the Contract or otherwise, Stateside reserves the right to:
(a) cancel the Contract in whole or in part;
(b) refuse to accept any subsequent delivery of the Products which the Seller attempts to make;
(c) recover from the Seller any expenditure reasonably incurred by Stateside in obtaining the Products in substitution from another seller;
(d) not make any further payments in respect of Products already ordered and/or delivered; and/or
(e) claim damages for any additional costs, loss or expenses incurred by Stateside which are in any way attributable to the Seller’s failure to deliver the Products on the due date.
4.16 If the Seller requires Stateside to return any packaging material to the Seller that fact must be clearly stated on any delivery note delivered to Stateside and any such packaging material will only be returned to the Seller at the cost of the Seller.
4.17 Where Stateside agrees in writing to accept delivery by instalments the Contract will be construed as a single contract in respect of each instalment. Nevertheless failure by the Seller to deliver any one instalment shall entitle Stateside at its option to treat the whole Contract as repudiated.
4.18 If the Products are delivered to Stateside in excess of the quantities ordered Stateside shall not be bound to pay for the excess and any excess will be and will remain at the Seller’s risk and will be returnable at the Seller’s expense.
4.19 In the event of any strike, lock-out, fire, explosion or accident or of any stoppage of Stateside’s business or work for reasons beyond its reasonable control which may prevent or hinder the use of the Products, then delivery of such Products and the payment thereof may be suspended or postponed at Stateside’s option until the circumstances preventing or hindering the use of such Products has ceased.
5.1 Failure by the Seller to adhere to any provision as to time contained in the Order shall entitle Stateside at its option to treat the Contract as repudiated in whole or in part and Stateside reserves the right to purchase the Products or Services from other sources and to charge the Seller, on an indemnity basis, for any extra cost Stateside incurs in doing so.
5.2 Stateside shall be entitled to exercise its option pursuant to condition 5.1 at any time notwithstanding that it has acquiesced in any delay save where a written extension of time has been given to the Seller by an authorised officer of Stateside and the time of any extension has not elapsed.
5.3 Failure by Stateside to exercise its option under condition 5.1 in respect of any part of a Contract shall not be deemed to constitute a waiver with respect to any subsequent part of that Contract.
5.4 Without prejudice to condition 5.1, where Seller is unable to dispatch Products in time to reach Stateside by the dates specified in the Order, the Seller shall at its own expense, if so requested by Stateside, deliver the Products by whatever means necessary to ensure they reach Stateside as soon as practicable after the dates specified in the Order.
5.5 The Seller shall notify Stateside immediately if it anticipates that there will be a delay in delivery and it will provide Stateside with an estimated new delivery date and time.
6. Risk / Property
6.1 Without prejudice to any right of rejection arising under these Conditions or otherwise, the Products shall remain at the risk of the Seller until delivery to Stateside is complete (including off-loading and stacking) [when ownership of the Products shall pass to Stateside]. The Seller shall be responsible for transport and unloading costs and insurance of Products to their full value against all risks of damage or loss prior to completion of delivery by whomsoever effected.
6.2 All tools, equipment and materials of the Seller required in the performance of the Seller’s obligations under the Contract shall be and remain at the sole risk of the Seller whether or not they are on Stateside premises or elsewhere pursuant to the Order.
6.3 Where the Seller has contracted to perform services or work upon Products or materials without title thereto passing to or belonging to the Seller then in such event risk shall pass to the Seller in respect of such Products and materials when it takes delivery thereof and it shall remain at the Seller’s risk until the Products or materials processed or worked upon as the case may be are redelivered to Stateside. Delivery for the purposes of this condition 6.4 shall mean the time of parting with physical possession by Stateside and redelivery shall mean acceptance of delivery by a duly authorised officer, employee or representative of Stateside.
7. Price and Payment
7.1 The price of the Products shall be stated in the Order and unless otherwise agreed in writing by Stateside shall be exclusive of value added tax but inclusive of all other charges and shall be payable in pounds Sterling. Stateside shall pay the price of the Products in accordance with the terms of the Order, but time for payment shall not be of the essence of the Contract.
7.2 No upwards variation in the price nor extra charges will be accepted by Stateside and if no price is specified in the Order the price shall be the same or less than that previously quoted or charged by the Seller for those or similar Products.
7.3 No payment of or on account of the Price shall constitute any admission by Stateside as to proper performance by the Seller of its obligations under the Contract.
7.4 No payment will be made by Stateside for containers, pallets, crates or packing materials of any description except by special arrangement in writing (including any returnable containers). The Seller must notify Stateside of its intention to collect any containers, pallets, crates or packing materials and collect such items within one month of the date of delivery failing which Stateside may dispose of the same without any liability. The items will be available for collection by prior arrangement following delivery provided they are clearly marked with the Seller’s name.
7.5 Without prejudice to any other right or remedy under the Contract or otherwise, Stateside reserves the right to set off any amount owing at any time from the Seller to Stateside against any amount payable by Stateside to the Seller under any contract. The Seller shall not be entitled to set off any amount owing at any time from Stateside to the Seller against any amount payable by the Seller to Stateside under any contract.
7.6 Stateside reserves the right to deduct from any monies due or becoming due from Stateside to the Seller any monies due from the Seller to Stateside or to any parent, subsidiary or associated company of Stateside.
7.7 Stateside shall not be responsible for the payment of Products supplied in excess of Products required by the Order or any variation thereof unless authorised in writing by Stateside.
7.8 If any sum under a Contract is not paid when due then, without prejudice to the parties’ other rights under the Contract, that sum shall bear interest from the due date until payment is made in full, both before and after any judgment, at 2% per annum over the base rate of the Bank of England from time to time. The Seller is not entitled to suspend deliveries of the Products as a result of any sums being outstanding.
7.9 Stateside shall be entitled to any discount for prompt payment, bulk purchase or volume purchase customarily granted by the Seller whether or not shown on the Seller’s terms of sale.
8. Health and Safety
8.1 The Seller shall promptly inform Stateside of any matter of which the Seller is or reasonably should, as a seller of the Products, be aware relating to the sale of the Products by Stateside or the storage, transportation, handling, assembly or use of the Products by Stateside or its customers (including legislation or advice from responsible or professional or legal bodies in respect of raw materials or chemicals used in the manufacture of the Products) and the actions it has taken or proposes to take and those that Stateside or its customer should take in relation to such matters.
8.2 The Seller shall procure that all of its personnel and the personnel of its subcontractors working on Stateside site(s) shall comply with Stateside’s rules and regulations for its sites, including any security procedures. A copy of these rules and regulations shall be available on request.
8.3 The Seller shall immediately notify Stateside in writing upon becoming aware of any incidents, events or discoveries which are in any way relevant to the safe use and/or consumption of Products previously supplied to Stateside.
The Seller shall keep in strict confidence all technical or commercial know-how, recipes, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Seller by Stateside or its agents and any other confidential information concerning Stateside’s business or its products which the Seller may obtain and the Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Seller’s obligations to Stateside and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Seller. The Seller shall at the request of Stateside return to Stateside or destroy (at Stateside’s option) all such confidential material.
10. Stateside’s Property
10.1 Materials, equipment, tools, dies and moulds and any other property of Stateside supplied by Stateside to the Seller (or not so supplied but used by the Seller specifically in the manufacture of the Products) (“Stateside Property”) shall at all times be and remain the exclusive property of Stateside and shall be held by the Seller in safe custody at its own risk and maintained and kept in good condition by the Seller until returned to Stateside and shall not be disposed of other than in accordance with Stateside’s written instructions, nor shall such items be used otherwise than as authorised by Stateside in writing. Stateside Property shall be returned to Stateside on demand and at the cost of the Seller.
10.2 All copyright, design rights and other intellectual property rights and rights of a similar nature subsisting at any time, anywhere in the world (“IPR”) in relation to any Stateside Property, in any information, recipes, specifications and/or other materials provided by Stateside to the Seller shall belong to Stateside absolutely along with any goodwill in those rights and the Seller agrees to confirm such ownership by Stateside in such form as may be requested by Stateside. Where the Seller or any third party acting on behalf of the Seller develops any Product for Stateside then Stateside shall own all IPR in such Product and the Seller hereby assigns with full title guarantee all its right title and interest in and to all such IPR to Stateside with the intent that the same shall vest in Stateside forthwith upon the same coming into existence. The Seller shall do all things and execute all documents reasonably requested by stateside to vest such IPR in Stateside.
10.3 Seller shall indemnify Stateside against any loss or damage to Stateside’s Property arising while such items are in Seller’s possession or before redelivery to Stateside. Seller shall insure Stateside’s Property in its possession against all risks and (if necessary note Stateside’s interest on the policy).
11.1 Stateside shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Seller written notice whereupon all work on the Contract shall be discontinued and Stateside shall pay to the Seller all outstanding monies in respect of Products delivered and accepted but no further payments shall be made.
11.2 Stateside shall have the right at any time by giving notice in writing to the Seller to terminate the Contract forthwith if:
(a) the Seller commits a breach of any of the terms and conditions of the Contract or these Conditions;
(b) any distress, execution or other process is levied upon any of the assets of the Seller;
(c) the Seller has a bankruptcy order made against him or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory), except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation), or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Seller or notice of intention to appoint an administrator is given by the Seller or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Seller or for the granting of an administration order in respect of the Seller, or any proceedings are commenced relating to the insolvency or possible insolvency of the Seller; or
(d) the Seller ceases or threatens to cease to carry on its business; or
(e) the financial position of the Seller deteriorates to such an extent that in the opinion of Stateside the capability of the Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy; or
(f) the Seller fails to perform any of its obligations under the Contract by the date specified on the Order (or within a reasonable time if no date is specified); or
(g) Stateside shall receive information which leads it reasonably to believe that the Seller shall be unable to complete the Contract satisfactorily and on time.
11.3 The termination of the Contract, however arising, will be without prejudice to the rights and duties of Stateside which have accrued prior to termination. The conditions which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination of the Contract.
12.1 Without prejudice to any other right or remedy which Stateside may have, if any Products are not supplied in accordance with, or the Seller fails to comply with, any of the terms of the Contract, Stateside shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Products have been accepted by Stateside:
(a) to rescind the Order;
(b) to reject the Products (in whole or in part) and return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Products so returned shall be paid forthwith by the Seller;
(c) at Stateside’s option to give the Seller the opportunity at the Seller’s expense either to remedy any defect in the Products or to supply replacement Products and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
(d) to refuse to accept any further deliveries of the Products without any liability to the Seller;
(e) to carry out at the Seller’s expense any work necessary to make the Products comply with the Contract;
(f) to claim such damages as may have been sustained in consequence of the Seller’s breach or breaches of the Contract; and/or
(g) at Stateside sole option, and whether or not Stateside has previously required the Seller to replace the Products, to treat the Contract as discharged, either in its entirety or in relation to such Products that are directly affected by the Seller’s breach and require the repayment of the proportion of the Price paid which relates to such Products.
13. Indemnity and Insurance
13.1 The Seller shall keep Stateside indemnified in full against all losses (including direct, indirect and consequential losses, loss of profit, loss of revenue, loss of business, depletion of goodwill and like loss), liabilities, damages, injury costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by Stateside as a result of or in connection with:
(a) defective workmanship, quality or materials or other breach of the Contract in relation to or in respect of the Products;
(b) any infringement or alleged infringement of any intellectual property rights caused by the importation, storage, use, manufacture supply or sale of the Products whether alone or as part of any Final Product;
(c) any claim made against Stateside in respect of any liability, loss, damage, injury, cost or expense sustained by Stateside’s employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Products or any part thereof or as a consequence of any act or omission by the Seller or failure or delay in performance of the terms of the Contract by the Seller (including any claim brought pursuant to the Consumer Protection Act 1987, the Food Safety Act 1990 or any subsidiary legislation or similar laws);
(d) any product recall which arises directly or indirectly due to any breach of the terms of the Contract;
(e) the Seller’s failure to fulfil its express or implied obligations under the Contract;
(f) any claim that the Products or the importation, use, or resale of the Products (as appropriate) infringe the intellectual property rights (including any patent, design right, copyright or trade mark) or misuse the confidential information of any third party, save to the extent that the claim solely arises from the Seller’s compliance with designs supplied by Stateside;
(g) any claim in respect of any royalties payable by the Seller in respect of the Products or Finished Products;
(h) any examination, withdrawal and/or recall of Products in accordance with condition 15.2 (including all loss of profits on sales, rehabilitation costs, administration charges, carriage and disposal associated with such examination, withdrawal and/or product recall);
(i) any consumer complaints in respect of the Products (including a reasonable administration charge per complaint, the cost of re-imbursement and/or compensation paid); and
(j) any act or omission of the Seller, its employees, agents or its sub-contractors and any claims made against Stateside arising out of the same.
13.2 In respect of each Order, the Seller shall have in place, and shall maintain for 7 years after delivery of the Order, adequate product liability, comprehensive general liability insurance and product recall insurance to cover its liability under these Conditions arising in respect of that Order.
Any inspector or representative authorised by Stateside shall be entitled to inspect the Seller’s works or the works of any sub-contractor, including all machinery and tooling operated in connection with the Order and to inspect the Products either complete or in the process of manufacture and to require all defects or deficiencies to be made good and alterations made in the event of any failure in the opinion of Stateside to comply with the terms of the Order, provided nevertheless that such inspection or right to inspect shall not of itself constitute acceptance or approval of the Products.
15. Product Recall
15.1 The Seller shall notify Stateside immediately of any adverse results arising out of analytical, microbiological or other quality or specification checks carried out in respect of the Products and discovered before or after their delivery.
15.2 In the event that at the requirement, instruction, instigation, recommendation or suggestion of any governmental or regulatory body (whether local or national) or a customer of Stateside and/or if in the reasonable opinion of Stateside examination of any of the Products is required to be undertaken to investigate the fitness for the purpose of such Products and/or in the reasonable opinion of Stateside the Products should be withdrawn from sale and/or recalled after sale the Seller shall immediately provide all assistance required by Stateside in respect of such investigation or recall. Stateside shall handle consumer complaints in the first instance but the Seller shall nevertheless maintain in force a crisis management procedure to provide to Stateside such assistance as Stateside may request in order to deal with any such complaints.
15.3 Stateside shall be entitled to require the Seller to maintain in force product recall liability insurance for the joint benefit of the Seller and Stateside in such sum as Stateside may reasonably require. If so requested by Stateside the Seller shall procure that Stateside’s interest in such insurance be noted on the policy. Alternatively, Stateside shall be entitled to maintain in force product recall liability insurance for the joint benefit of the Seller and Stateside in such sum as Stateside shall reasonably require and to re-charge to the Seller such proportion of the insurance premium as Stateside deems appropriate.
16. Compliance with Laws
16.1 The Seller shall:
(a) comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Modern Slavery Act 2015 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 of the Contract its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and condition 16.1 (b), and will enforce them where appropriate;
(d) promptly report to Stateside any request or demand for any undue financial or other advantage of any kind received by the Seller in connection with the performance of the Contract;
(e) annually certify to Stateside in writing signed by an officer of the Seller, compliance with this condition 16.1 by the Seller and all persons associated with it under condition 16.2. The Seller shall provide such supporting evidence of compliance as Stateside may reasonably request.
16.2 The Seller shall ensure that any person associated with the Seller who is providing goods in connection with the 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 the Seller in this condition 16 (“Relevant Terms”). The Seller shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to Stateside for any breach by such persons of any of the Relevant Terms.
16.3 Breach of this condition 16 shall be deemed a material breach under condition 11.2.
16.4 For the purpose of this condition 16, 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), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this condition 16 a person associated with the Seller includes but is not limited to any subcontractor of the Seller.
17. Assignment and Sub-Contracting
17.1 The Seller shall not be entitled to assign or sub-contract the Contract or any part of it without the prior written consent of Stateside.
17.2 Stateside may assign the Contract or any part of it to any person, firm or company.
18. Force Majeure
Stateside reserves the right to defer the date of delivery or payment or to cancel the Contract or reduce the volume of the Products ordered if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Stateside including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
19.1 The Seller agrees to provide Stateside promptly with all information which could affect the trading relationship between Stateside and the Seller.
19.2 Each right or remedy of Stateside under the Contract is without prejudice to any other right or remedy of Stateside whether under the Contract or not.
19.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
19.4 Failure or delay by Stateside in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
19.5 Any waiver by Stateside of any breach of, or any default under, any provision of the Contract by the Seller will not be deemed a waiver of any subsequent or prior breach or default and will in no way affect the other terms of the Contract.
19.6 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter. Each party acknowledges that, in entering into this agreement, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in this agreement. Nothing in this condition shall limit or exclude any liability for fraud.
19.7 The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
19.8 The parties agree that the Vienna Convention on the International Sale of Products shall not apply to the Contract.
19.9 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts.
Engineering Terms and Conditions of Purchase (As of October 2011)
1. General Information
Our Standard Terms and Conditions of Purchase shall apply to any and all purchase orders. Any general terms and conditions employed by the contractor which deviate from these terms shall only apply if we recognize them expressly in writing. They will also have no effect even if we fail to contradict them in individual cases. Acceptance of deliveries, services or payment of such shall not constitute agreement with the general terms and conditions employed by the contractor.
2. Offers, Purchase Orders, Written Form
2.1 The submission of offers or the preparation of cost estimates by the contractor shall be free of charge. We shall not be responsible for any costs nor shall we pay any remuneration for visits, planning and any other advance performance in connection with the submission of offers to the extent that they do not form the subject of a separate agreement in individual cases.
2.2 Purchase orders, changes or amendments of such as well as any other agreements made with the conclusion of a contract shall be binding in the event that we state or confirm them in writing.
3. Prices and Discounts
Unless otherwise agreed all of the prices indicated by the contractor shall be carriage and insurance paid to the place of performance. They shall cover any and all services and deliveries owed by the contractor for performance of the respective obligations up to and at the agreed place of acceptance.
4. Forwarding Instructions, Origin of Goods
4.1 We shall be provided with a precise dispatch note/delivery note for each delivery on the date of dispatch. The contractor shall be responsible for the consequences of incorrectly issued consignment notes. Our purchase order number and the consignee shall be indicated on any forwarding documents. Transport insurance shall be taken out by the contractor at the contractor’s own expense unless otherwise agreed upon. In the event that delivery involves dangerous goods which may be subject to special national and international forwarding instructions, then such goods shall be correspondingly packaged, marked and dispatched.
4.2 The contractor shall provide us with the corresponding preference documents, e.g. certificate of origin or movement certificate, if the delivery has to comply with rules of origin under EU preferential agreements.
4.3 The contractor shall take back any transport packaging at the place of acceptance free of charge.
5. Ownership, Industrial Property Rights, Copyright
5.1 Any drawings, samples, formulas or other documents and aids which we make available to the contractor for execution of purchase orders shall remain our property. They may be only used in accordance with their intended purpose and shall be returned to us upon request at any time.
5.2 The contractor shall observe strict secrecy with regard to any documents made available to them, information about provisions of material and any other know-how to which they have gained access through their business relationship with us and not transfer or make them accessible to third parties without our express written approval. The contractor shall also observe strict secrecy with regard to any knowledge and results gained through their assignment; however, this provision shall not apply insofar as these have become accessible to the public without the active involvement of the contractor. In particular the contractor shall be obliged to preserve and respect our copyright and other industrial property rights. Their use shall only be permitted for the contractually agreed purposes. Products manufactured from documents, drawings or models prepared by us, by means of other materials provided by us or in accordance with our instructions shall neither be exploited by the contractor nor shall the contractor allow such products to be exploited by others. The contractor may neither offer nor deliver them to third parties.
6. Deadlines, Dates
6.1 Compliance with agreed dates and deadlines shall be determined by receipt of faultless delivery and/or service(s) at the place of acceptance and/or successful acceptance insofar as such is agreed upon or provided for by law.
6.2 The contractor shall be obliged to immediately notify us as soon as it becomes clear that the agreed dates and/or deadlines cannot be met on time either in part or as a whole, while indicating both the reasons and the prospective duration of the delay. Such notifications provided by the contractor shall not affect the legal rights and claims to which we are entitled in the event of default.
7. Liquidated Damages for Default
If liquidated damages have been agreed and become due in the event of default, then we shall be entitled to claim such damages until payment of the invoice for the delayed deliveries or services without having to reserve this right upon acceptance.
8. Partial, Excess or Short Deliveries
8.1 Partial deliveries and/or partial performance shall require our prior written approval. Even if we accept such without prior approval, this shall neither constitute accelerated maturity of payment obligations nor agreement to accept additional transport costs.
8.2 We reserve the right to honour excess or short deliveries in individual cases. If excess deliveries are made without our prior approval, then we shall be entitled to refuse acceptance of such deliveries, to store them at the contractor’s expense or to return them to the contractor.
9. Bearing the Risk, Acceptance and/or Acceptance Inspection, Force Majeure
9.1 The contractor shall bear the risk of accidental loss and deterioration up to the arrival of deliveries at the place of acceptance. If acceptance inspection is either agreed or prescribed by law, then the contractor shall bear the risk until successful acceptance by us.
9.2 Instances of force majeure (including industrial action) as well as other unforeseeable or uncontrollable external circumstances shall entitle us to postpone acceptance of deliveries and/or services and/or performance of acceptance inspections.
9.3 In all other respects we shall be obliged to only accept deliveries if the goods and services conform to the terms of the contract.
10. Invoice, Payment
10.1 Invoices shall be separately submitted in duplicate following complete delivery of goods and services which are free of defects, completion of service(s) or in the case of performance-related service(s) after their acceptance for each purchase order while indicating the respective purchase order data. Invoices without the respective purchase order number may be returned by us to the contractor without processing.
10.2 In the absence of any other written agreement payment shall be made within 14 days following proper invoicing with a 3% discount or net within 45 days. The payment period shall commence upon receipt of the invoice, however not before complete fulfillment of the contract and/or acceptance by us without defect. Payment shall be regarded as on time if we instruct the bank to make payment on the last day of the period for payment.
11. Notice of Defects, Quality of Deliveries and Services, Rights in the Case of Defects
11.1 In the event of a commercial duty to inspect and/or to make a complaint with regard to defects upon receipt of the goods, our obligation shall be limited to examination of the goods for quantity and identity, apparent transport or packaging damage as well as random sampling of the goods for their essential characteristics. In the case of obvious defects we shall report them to the contractor without delay, at the latest, however, within 10 days after delivery, and other defects immediately after their discovery. The values determined by us during inspection of incoming goods shall be conclusive in cases of doubt with regard to the number of items, weights and dimensions.
11.2 The contractor shall be obliged to provide deliveries and services without fault. Such deliveries and services shall exhibit the agreed characteristics of the contract as well as the warranted values and properties while satisfying the intended purpose. The contractor shall also be responsible for ensuring that such deliveries and services correspond with the current state of the art and the generally recognized codes of practice and that qualified personnel be deployed in the case of services. Any deliveries shall be provided with stipulated safety equipment. The contractor shall comply with all safety regulations. The relevant regulations regarding environmental protection, hazardous substances and dangerous goods as well as the relevant accident prevention regulations and the occupational health and safety regulations shall be observed. The provisions of all UK Product Safety legislation must be adhered to. The contractor shall observe any special safety and hygiene regulations valid at the place of performance and made known to them.
11.3 The respective requirements shall be fulfilled insofar as such deliveries and services involve products, items or parts that are subject to all regulations relating to Food Safety or which come into contact with such products. Insofar as the EU “REACH Regulation” applies to the delivery or parts thereof, then the respective substances must be pre-registered, registered or approved and any other requirements arising out of the same such as, for example, submission of a safety data sheet, must be fulfilled.
11.4 Release of submitted drawings, samples and other documents (e.g. papers, programming, etc.) on our part shall not affect the contractor’s responsibility with regard to proper performance of contract.
11.5 In the case of defective deliveries and/or service(s) and in the case of a warranty claim we shall be entitled to assert the legal rights associated with claims based on defective deliveries and/or service(s). If we are entitled to warranty claims that go beyond the legal rights associated with claims based on such defects, then such claims shall remain unaffected. A period of thirty-six (36) months which commences upon delivery and/or service and/or acceptance, if such is either agreed or prescribed by law, shall apply to any and all claims based on defects that are subject to the statute of limitations. Longer statutory periods of limitation for the limitation of claims based on defects and the term of the statutory period of limitation for warranties shall remain unaffected.
11.6 If a defect shows up within the period of limitation, then we shall have the option of demanding subsequent performance by means of reworking, subsequent delivery and/or remanufacture within an appropriate period. The contractor shall be responsible for any and all expenditures incurred in connection with determination and elimination of the defect – including to the extent that such is incurred by us – in particular investigation costs, removal and reinstallation costs, the costs of labour and materials as well as transport and other costs when it comes to the replacement of defective parts. The same shall apply to the extent that such expenditures are increased by the fact that the delivery item has been brought to a location other than the place of performance; however, not if disproportionate costs would be incurred as a result. In urgent cases, if the contractor is unavailable or where there is the danger of a disproportionately high amount of damage, we shall have the right to eliminate defects ourselves or to have such defects eliminated by third parties at the expense and risk of the contractor. We shall immediately inform the contractor of any such measure.
11.7 If subsequent performance is not effected by the contractor within the specified appropriate additional timescale has failed or if setting of the deadline proves to be dispensable, then we shall be entitled – in accordance with legal provisions – to withdraw from the contract and demand payment of damages instead of performance, replacement of wasted expenditures or abatement.
12. Industrial Property Rights of Third Parties
The contractor warrants that we will not violate the copyrights, patents or other industrial property rights of third parties through the contracted use and/or sale of the contractor’s deliveries or service(s). The contractor indemnifies us against any and all claims asserted against us due to violation or alleged violation of an industrial property right and be responsible for the costs of safeguarding our rights if such claims are based on culpable violation of duty by the contractor. We shall inform the contractor immediately in the event of any such claim.
13. Product Liability, Insurance
13.1 The contractor indemnifies us against any and all claims arising out of product liability if such claims are due to a defect in the delivery and/or service(s) provided by the contractor. Under the same conditions the contractor shall also be liable for any damage incurred by us in taking all appropriate precautionary measures, e.g. public warnings or recalls. Our right to assert our own damage claim(s) against the contractor shall remain unaffected.
13.2 The contractor shall be obliged to take out appropriate insurance against corresponding risks and provide evidence of such to us by submitting the corresponding insurance policy on request.
14. Data Protection
We shall be entitled to process and store any and all data required within the scope of performance of the contractual relationship with the contractor, even to the extent that personal data is involved.
The contractor shall not be authorized to use information with regard to an intended or existing contractual relationship for reference or marketing purposes without our written approval. Photographs taken on our properties or business premises as well as the use and/or publication of any kind shall be prohibited without our written approval.
16. Passing on Orders, Assignment, Setoff
16.1 The contractor may permit the execution of purchase orders or essential parts thereof to be carried out by third parties only after obtaining our prior written approval.
16.2 The contractor shall not be entitled to assign any claims against us or to have such collected by third parties except with our prior written approval.
16.3 We refute any retention of title provisions on the part of the contractor. Any retention of title provisions shall require prior written agreement on an individual basis. Should subcontractors nevertheless assert property rights, co-ownership rights or rights of lien and/or have execution measures carried out against us, then we in turn shall assert claims against the contractor for any and all damage incurred as a result.
17. Code of Conduct
We respect internationally recognized environmental, labour and social standards. This is laid down in the Südzucker Code of Conduct: http://www.suedzucker.de/en/Unternehmen/Unternehmensprofil/Strategische-Leitlinien/
The contractor must acknowledge and comply with this Code of Conduct.
18. Rights of Third Parties
A person who is not a party to the contract between us and the contractor shall not have any rights under or in connection with it.
19. Place of Performance, Applicable Law, Place of Jurisdiction
19.1 The place of performance for any and all obligations on the part of the contractor shall be the place of acceptance; however, the place of performance for payments shall always be England.
19.2 These Standard Terms and Conditions of Purchase shall be governed by English law. 19.3 The contractor shall submit to the exclusive jurisdiction of the courts of England and Wales. At our option we may also bring action against the contractor at the contractor’s general place of jurisdiction.