1.1 Unless varied by agreement between the parties, the following definitions shall apply:
Business Day: a day other than a Saturday, Sunday, public holiday or bank holiday in England.
Buyer: the entity so described in the Contract, or in the absence of a Contract, in the Order.
Buyer Facilities: the Buyer’s premises as agreed between the parties.
Commissioning: following Installation, the preliminary use of the Equipment to ensure it is working as expected, in accordance with the Specification and in a safe manner; prior to use by the Buyer in the ordinary course of business. “Commissioned” shall be construed accordingly.
Conditions: the terms and conditions contained within this document.
Confidential Information: any and all information of a confidential nature relating to the performance of obligations under the Contract including without limitation intellectual property rights, know-how, business information including without limitation technical, customer or personal data.
Contract: the agreement entered into between the Buyer and Supplier for the provision of the Equipment or Equipment and Services, where applicable, for the avoidance of any doubt, the Buyer’s purchase order backed by or referencing these Conditions and Specification may constitute the Contract.
Control: the ability to direct the decisions or affairs, directly or indirectly, of another whether by ownership of voting securities or otherwise.
Data Protection Legislation: (a) the EC Data Protection Directive 95/46/EC or any implementing or related legislation in any member state of the European Economic Area; (b) the EC Directive on Privacy and Electronic Communications (Directive 2002/58/EC) or any implementing or related legislation in any member state in the European Economic Area; and (c) all other applicable laws and regulations in any jurisdiction relating to or impacting on the processing of personal data, all as may be amended and supplemented from time to time.
Delivery: delivery of the Equipment to the Buyer Facilities DDP.
Delivery Date: the date on which the Equipment is delivered to the Buyer Facilities, if the Equipment is delivered in instalments, this shall be the date on which the final instalment of Equipment is delivered.
Equipment: the goods, machinery or other products, including related accessories, spare parts and documentation, as set out in the Order to be supplied according to the Specification.
Force Majeure Event: any cause beyond the reasonable control of the party affected (after exercise of reasonable care to put in place disaster recovery arrangements) which prevents or delays the party from performing its obligations under the Contract, including without limitation act of God, flood, fire, earthquake or other natural disaster, explosion, war, terrorism; and strike, lock-out, industrial action except involving the Supplier’s or its suppliers’ workforce.
Insolvent: bankruptcy, suspension or threatened suspension of debts or inability to pay debts as they fall due, entering negotiations with any creditors to reschedule debts, passing of resolution for winding up or a court ordered winding up order is given, a step is taken to appoint a receiver or administrator, or anything analogous to the foregoing in any jurisdiction.
Installation: putting the Equipment in place, whether by fixture to the Buyer’s Facilities or otherwise, in preparation for the Equipment being utilised in accordance with the Specification, or purpose notified to the Supplier by the Buyer. “Installed” shall be construed accordingly.
Intellectual Property: any patent, copyright, trade mark, brand name, trade name, know-how, rights in Confidential Information, in each case whether registered or not and in whichever part of the world such rights exist.
Order: the document requesting the supply of the Equipment or Equipment and Services, where applicable, by way of purchase order with these Conditions attached or referenced.
Price: the agreed monies to be paid by the Buyer to the Supplier for the Equipment or Equipment and Services, as set out in the Order.
Services: the Installation and Commissioning of the Equipment provided by the Supplier, including any technical support, as set out in the Order and Specification.
Specification: the agreed particulars of the Equipment, or Equipment and Services, where applicable, including where given, any intended uses of the Equipment.
Supplier: the entity selling the Equipment or Equipment and Services, where applicable.
Supplier Personnel: the employees, agents, contractors or other persons acting under the instruction of the Supplier in performance of the Contract.
1.2 Unless the context otherwise requires; (a) each gender includes the other, (b) the singular includes the plural and vice versa, (c) general words are not limited by example, (d) references to clauses are to the clauses in these Conditions, and (e) references to any legislation will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2.1 The Buyer shall submit an Order to the Supplier, such order shall be construed as an offer or counteroffer where applicable to the Supplier to supply the Equipment, and the Services where applicable, subject to these Conditions. The Supplier shall acknowledge receipt of the Order to the Buyer, acknowledgement of receipt shall constitute acceptance of the Order and agreement to be bound by the Contract, expressly including these Conditions.
2.2 For the avoidance of any doubt, should the Buyer send any documentation to the Supplier containing or referring to the Supplier’s general conditions or similar terms, in whole or part, they shall have no effect of the Contract and / or the Conditions and are expressly excluded and shall not be binding on the Buyer.
2.3 An Order shall be accepted when the Supplier expressly accepts as at clause 2.1 or when the Buyer reasonably considers that the conduct of the Supplier is consistent with acceptance.
2.5 The Supplier shall be able to amend the Order with the prior written consent of the Buyer where such amendment does not materially affect the performance of the Equipment nor its conformity to the Specification.
3.1 Notwithstanding anything in the agreed Incoterm to the contrary, the Supplier shall be responsible for ensuring all documentation, approvals / permits and obligations are fulfilled to ensure that the Equipment is cleared for both export and import, where applicable. The Buyer shall assist where necessary to give effect to the above.
4.1 The parties shall agree the Specification in advance, and conformity with this Specification shall be a condition of the Contract, except in the circumstances where compliance with such Specification may be unlawful, in such circumstances only the part deemed unlawful shall be excepted from this obligation.
4.2 Upon issuing the Specification for the Equipment, the Supplier represents that it is capable of manufacturing the Equipment to good industry standards expected of a manufacturer of the same or analogous types of equipment.
4.3 The Intellectual Property rights relating to the Equipment, including, without limitation, the designs, drawings, calculations, formulae, software given to the Buyer by the Supplier shall remain the property of the Supplier, except where agreed between the parties.
4.4 Where relevant, the Supplier grants to the Buyer, a free, unlimited, non-exclusive licence to use the Equipment and any software relating to the use or operation of the Equipment.
5 Price & Payment
5.1 Price shall be as stated in the Order, or in default of such provision, the price shall be calculated in accordance with the scale of charges as advised by the Supplier prior to the Order being placed. No increase in price may be made after the Order is placed.
5.2 The Supplier shall not be entitled to increase the Price should their costs to produce the Equipment increase.
5.3 The Price shall be exclusive of any applicable Value Added Tax, which shall be charged to the Buyer at the then applicable rate.
5.4 Notwithstanding anything from the Supplier to the contrary, the currency for the payment shall be Euros (€).
5.5 Payments terms shall be end of month plus 45 days made as follows: 30% upon Order invoice, 30% upon Delivery Date, 30% after the completion of the Services; and 10% upon final acceptance and agreed conformity with the Specification.
5.6 Time shall not be of the essence with regard to payment of monies due to the Supplier. Where any payments are not paid in full according to clause 5.5, by way of compensation to the Supplier, the Buyer shall pay interest on the overdue sum on a daily basis until the payment is made in full at a rate of 2% per annum above the Bank of England base rate. The Supplier acknowledges that this is a substantial remedy for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998.
5.7 In the event that payment has not been made within the agreed timeframe, the Supplier shall not be entitled to delay performance of the Services.
5.8 The Buyer may set off any liabilities which it has to the Supplier against any other liabilities under the Contract or any Order or which it has to the Supplier howsoever arising.
6.1 The Supplier shall ensure that all Equipment shall be properly packaged during transit to the Buyer Facilities and adequate insurance is in place to cover any potential damage or loss to the Equipment.
6.2 The parties shall agree a date for Delivery of the Equipment, and Supplier shall use all reasonable endeavours to ensure Delivery occurs on the agreed delivery date. If the Supplier is not able to deliver the Equipment on the agreed delivery date, it shall promptly notify the Buyer.
6.3 Time shall be of the essence with regard to Delivery, if the Supplier notifies the Buyer in accordance with clause 6.2 the Buyer shall be entitled, in its sole discretion and without prejudice to any other rights and remedies, to (a) terminate the Contract (in whole or part), or (b) recover from the Supplier all costs and losses resulting to the Buyer, including where applicable any difference in price should the Buyer have to source either the Equipment or Services from another supplier.
6.4 Taking delivery of the Equipment shall not constitute acceptance, the Equipment will not be deemed to be accepted until the Services are completed and the Buyer has expressly confirmed to the Supplier that the Equipment adheres to the Specification. The Buyer may reject the Equipment which is not in compliance with the Specification. Any acceptance of defective, late or incomplete Equipment or payment made in respect thereof shall not constitute a waiver of any of the Buyer’s rights and remedies including its right to reject. Any rejected Equipment may be returned to the Supplier at the Supplier’s cost and risk.
6.5 Unless as expressly agreed between the parties, the Supplier shall not deliver the Equipment in more than one delivery.
6.6 Supplier shall take all reasonable steps customary, practicable or applicable in connection with handling the Equipment to ensure that, as far as possible, any risk to health or safety is eliminated or reduced to which delivery, loading, unloading or use of the Equipment may give rise.
7.1 The Supplier shall supply all equipment, tools, or otherwise to enable the carrying out and completion of the Delivery and Services.
7.2 Where (1) applicable, or (2) provided by the Supplier in the normal course of business or (3) if requested by the Buyer; Supplier shall assist with the Installation and Commissioning of the Equipment.
7.3 The Buyer may stipulate a date by which the Installation and Commissioning respectively must be completed. The Supplier shall use all reasonable endeavours to ensure compliance with this date, if the Supplier is not able to complete the Services on the agreed delivery date, it shall promptly notify the Buyer.
7.4 Time shall be of the essence with regard to completion of the Services, if the Supplier notifies the Buyer in accordance with clause 7.3 the Buyer shall be entitled, in its sole discretion and without prejudice to any other rights and remedies, to (a) terminate the Contract (in whole or part), or (b) recover from the Supplier all costs and losses resulting to the Buyer, including where applicable any difference in price should the Buyer have to source the Services from another supplier.
7.5 The Supplier shall ensure that all Supplier Personnel comply with all applicable legislation or regulations, the Buyer’s site safety rules, and all policies which will be notified to the Supplier in advance. Buyer shall not be liable to the Supplier for any failure of the Supplier or Supplier Personnel to observe the provisions of this Condition.
8 Risk & Title
8.1 Notwithstanding anything to the contrary (including reference to Incoterms 2010), upon Delivery of the Equipment to the nominated Buyer Facilities, title to the Equipment shall pass to the Buyer. The passing of title shall not prejudice any of the Buyer’s rights and remedies, including the right to reject.
8.2 Notwithstanding anything to the contrary (including reference to Incoterms 2010), the risk of any loss, deterioration or damage to the Equipment, shall pass to the Buyer at the latter of the following, and subject to the inspection by the Buyer and confirmation that the Equipment and Services conform to the Specification and warranties given by the Supplier:
8.2.1 If the Equipment is being delivered, Installed and Commissioned by the Supplier, risk passes at completion of Commissioning.
8.2.2 If the Equipment is being delivered and Installed (without any Commissioning) by the Supplier, risk passes at completion of the Installation.
8.2.3 If the Equipment is only being delivered (without any Services) by the Supplier, risk passes at the time the Equipment is delivered to the nominated Buyer Facilities.
9 Quality and Warranties
9.1 The Supplier warrants that the Equipment shall be (1) of satisfactory quality, (2) manufactured in accordance with industry best practice, (3) comply with all applicable legislation or regulations, (4) be fit for the purpose as notified by the Buyer, (5) meet the agreed Specification, (6) be free from defects, (7) comprise new materials (not reconditioned or similar unless expressly requested by the Buyer), (8) be free from all liens and encumbrances, and (9) that on the Delivery Date, title is fully vested in the Supplier such that it has the right and ability to transfer title to the Buyer.
9.2 The Supplier warrants that for a period of not less than 24 months following the completion of the latter of Delivery or Services, any failure or defect of the Equipment (excluding fair wear and tear) shall be repaired or replaced at the Supplier’s sole expense including without limitation replacement parts, labour and travel. Upon any failure or defect of the Equipment, the Buyer shall promptly notify the Supplier, and Supplier shall use best endeavours to rectify the failure or defect.
9.3 If the Equipment fails to comply with the warranty give at 9.1, the Supplier shall (notwithstanding whether the Equipment has been used since Commissioning): (a) replace all or part of the Equipment which fails to comply with the warranty or (b) refund the Buyer as agreed between the parties.
9.4 The Supplier warrants that the Services shall be (1) carried out by suitably trained persons, (2) be carried out in accordance with due care, attention and skill and in accordance with industry best practice, (3) comply with all applicable legislation or regulations, and (4) meet the agreed Specification.
9.5 The Supplier warrants that for a period of not less than 24 months following the completion of the Services, any errors, failures or defects in completion of the Services shall be rectified by the Supplier at Supplier’s sole expense including without limitation replacement parts, labour and travel.
9.6 If the Services fail to comply with the warranty give at 9.4, the Supplier shall (notwithstanding whether the Equipment has been used since Commissioning): (a) redo any of the Services which fails to comply with the warranty or (b) refund the Buyer as agreed between the parties.
9.7 The Supplier agrees that the approval of the Specification or acceptance of the Equipment shall not relieve the Supplier of any of its obligations under this Condition.
9.8 The Supplier shall indemnify the Buyer for any injury or death to any person, or damage to property caused by any negligent act or omission or wilful misconduct of the Supplier or Supplier Personnel carrying out the Services, or due to any defect in the Equipment.
9.9 The Supplier warrants that it owns the Intellectual Property rights to the Equipment, including, without limitation, the designs, drawings, calculations, formulae, software; or is otherwise able to perform its obligations herein under a licence, or similar.
9.10 Should the Supplier fail to perform its obligations under clauses 9.3 and 9.6, the Buyer may procure such repair, replacement, or similar from a third party, and the Buyer may recover any and all costs involved from the Supplier.
10 Liability and Indemnity
10.1 The Supplier shall indemnify and keep the Buyer indemnified against all claims, costs and expenses which the Buyer may suffer or incur directly or indirectly as a result of Supplier’s breach of any of the Supplier’s obligations under the Contract.
10.2 Notwithstanding anything in the agreed Incoterm to the contrary, the Supplier shall have in place or obtain insurance against all risks to the Equipment to the full value of the Equipment until such risk transfers to the Buyer under the Contract, and to cover all other obligations and / or liabilities under the Contract. At the reasonable request of the Buyer, the Supplier shall provide evidence of the insurance policy.
10.3 The Buyer’s total liability howsoever arising in respect of its performance under the Contract, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise shall be limited to the Order value.
10.4 The Buyer excludes all liability to the fullest extent permissible by law, however nothing in these Conditions shall seek to limit the liability for (a) death or personal injury caused to the Supplier’s Personnel, should this be as a result of the Buyer’s negligence or wilful misconduct, (b) fraudulent misrepresentation, or (c) in a manner or to an extent not permissible by law.
10.5 The rights and remedies provided for the Buyer within the Contract are cumulative and not exclusive of any rights and / or remedies provided by law.
10.6 Neither party shall be liable to the other for any indirect or consequential loss or damage, including without limitation, loss of profit, loss of business or depletion of goodwill.
10.7 The Supplier shall fully indemnify and hold the Buyer harmless against any and all claims, disputes, and actions or threatened claims, disputes or actions relating to the actual or potential infringement of any third party Intellectual Property rights relating to the Equipment.
11.1 The parties may disclose certain Confidential Information to the other, the parties shall only use the Confidential Information as required to perform the Contract and, subject to clause 11.3, shall not, without the prior written consent of the party disclosing such Confidential Information, disclose such information to any third party whatsoever except where (a) the information was already in the public domain or known by party at the time of disclosure, (b) the information is subsequently in the public domain other than by breach of these Conditions or (c) the party lawfully comes into the possession of the information from a third party.
11.2 The Supplier acknowledges that Delivery and/ performance of the Services at the Buyer Facilities may involve access to certain information which may be confidential, whether this is in writing, oral or visual. The Seller acknowledges that all information received during a visit to the Buyer’s Facilities, whether written, oral or visual, is confidential to the Buyer and the Supplier is obligated to keep such information confidential.
11.3 A party may be obligated by law, regulation, court or government order or similar request by a authority of competent jurisdiction to disclose the other party’s Confidential Information, in such circumstances the party so obligated should inform the other party as soon as reasonably practical and use reasonable endeavours to obtain confidential protection for the information.
11.4 This clause shall remain in effect for a period of 10 years from the Order date.
11.5 Subject only to clause 11.3, the Supplier shall not make any public announcement or disclose any information relating to the Contract.
12 Force Majeure
12.1 A party shall not be in breach of these conditions or otherwise liable to the other party for any failure or delay in performing its obligations under these Conditions to the extent that such delay is due to a Force Majeure Event. The party claiming such Force Majeure Event shall immediately notify the other party and shall use best endeavours to keep the other party informed and provide a date upon which the party reasonably believes it shall be able to continue to perform the obligations. Should the Force Majeure Event last more than 30 Business Days, the other party may at its sole discretion (a) terminate the agreement with immediate effect or (b) renegotiate the Contract to achieve, as far as practicable, the original commercial intent of the parties. Costs arising from a Force Majeure Event shall be borne by the party incurring such costs.
13.1 Without prejudice to any other provision of these Conditions, the Buyer shall be entitled to terminate the Contract with immediate effect on written notice and without any liability to the Supplier if the Supplier:
13.1.1 Commits a material breach of the Contract which is either incapable of remedy or capable of remedy and Supplier has failed to remedy within 20 Business Days
13.1.2 Becomes Insolvent
13.1.3 Declares a Force Majeure Event which is to last more than 30 Business Days
13.1.4 Suspends trading, ceases to carry on business, or threatens to do either or there is a material change in ownership or Control of the Supplier
13.2 Upon termination, any clause which expressly or by implication is to survive termination shall do so.
13.3 Termination shall be without prejudice to any rights or liabilities accrued at the date of termination, however following termination, subject to clause 11, neither party shall have any further obligations to the other.
14.1 Any notices required to be given by one party to another, shall be in writing and sent to the relevant address specified in the Contract or if no address is specified, the registered office of that party, or such address which may have been notified to the party from time to time in accordance with these Conditions.
14.2 Notices sent by pre-paid first class post or international courier shall be deemed to be served three Business Days after posting; notices sent by email shall be deemed to be served when confirmation is posted, those delivered by hand will be deemed served at the time of delivery.
15 Relationship of the Parties
15.1 Nothing in these Conditions shall have the effect of creating any relationship of employee / employer, agent, representative or other relationship or authority to carry out acts on behalf of the other. At all times, the Supplier shall be responsible for the acts and omissions of the Supplier Personnel.
15.2 Subject to clause 17.3 and 17.5, nothing within these Conditions shall entitle third parties to enforce any of the Conditions contained herein and the parties do not intend any of the provisions of the Contracts (Rights of Third parties) Act 1999 or similar to apply or be enforceable by any party who is not a party to the Contract.
16 Disputes and Jurisdiction
16.1 The Contract shall be governed by and construed in accordance with English law, and the parties agree to submit to the exclusive jurisdiction of the English Courts.
16.2 The parties agree to use their respective reasonable endeavours to promptly resolve any issues or disputes which may arise in connection with the Contract.
16.3 If any dispute is not resolved between the parties within 30 Business Days, either party may refer the matter to be finally resolved by arbitration under the UNCITRAL Rules in force at the date of this agreement. The tribunal shall consist of a sole arbitrator to be agreed between the parties, in default of the parties’ agreement, the appointing authority shall be LCIA. The seat of the arbitration shall be London, the law governing the agreement is English and the language of arbitration shall be English.
17.1 Except as provided for above at clause 2.4, no variation to these Conditions may be made except in writing and signed by a duly authorised representative of each party.
17.2 Should any condition or part thereof be held to be void, illegal or unenforceable by a court of competent jurisdiction, that provision or part thereof shall not affect the validity of the remainder of the Conditions, and all remaining Conditions shall continue in full force and effect. At the discretion of the Buyer, the Condition or part thereof which is deemed to be invalid shall be replaced with a similar condition giving effect to the original intention of the parties.
17.3 The Supplier shall not be entitled to assign its obligations under these Conditions, in whole or part, without the prior written consent of the Buyer. Without prejudice to this, if the Seller disposes of its business the Supplier will, at the Buyer’s request, procure that the successor to its business will perform the obligations herein and the successor directly undertakes to the Buyer to do so. The decision to grant such assignment shall be at the sole discretion of the Buyer. The Buyer shall be entitled to assign the Contract, in whole or part without the prior written consent of the Supplier. Any assignment is subject to the assignor being obligated to perform any and all obligations up to assignment, and the assignee being bound on the same terms as the assignor.
17.4 Each right or remedy under these Conditions is without prejudice to any other right or remedy the Buyer has under the Contract or otherwise. No failure by the Buyer to enforce any of its rights under the Conditions shall constitute a waiver of those rights now or in the future for the same or any future event.
17.5 Buyer is a member of a group of companies whose holding company is R&R Ice Cream Plc, and accordingly, at Buyer’s absolute discretion, Buyer may complete any of its obligations or exercise any of its rights hereunder by any other member of the group, provided that the act or omission by the other member shall be deemed to be an act or omission by the Buyer.
17.6 Each party shall, at all times, comply with their respective obligations with regard to applicable Data Protection Legislation and except where unavoidable, neither party shall provide any personal data to the other in connection with this Contract.
17.7 These Conditions have been drafted in English and the English version shall prevail in the event of a differing translation thereof. Where any Contract documentation is provided in English and one or more other languages, the English version shall prevail in the event of a differing translation thereof.
17.8 The headings in the Conditions are for guidance only and will have no effect on the interpretation of these Conditions.
17.9 The parties agree that the Contract constitutes the entire agreement between them in respect of this subject matter. Each party acknowledges that it has not entered into this agreement in reliance on any representation or warranty that is not set out herein.
17.10 Should there be any conflict between the provisions of the relevant documents comprising the Contract, the order of precedence shall be (1) the Order, (2) the Specification, and (3) these Conditions.