1 DEFINITIONS
In these Terms and Conditions the following definitions apply:
“Affiliate” means, in relation to any party, any subsidiary undertaking or parent undertaking of that party and any subsidiary undertaking of that parent undertaking for the time being;
“Buyer” means Brake Bros Limited and/or its Affiliates;
“GDS” means the process by which product information is standardised between Sellers and retailers, which is governed by a set of data and procedural standards administered by GS1;
“GDSN” means the Global Data Synchronisation Network into which all product information is entered (i.e. a certified datapool), by the Seller and extracted by the retailer;
“Group” means in relation to any party, that party and its Affiliates;
“GTIN” means the Global Trade Item Number and is a product code (barcode), approved and issued by a recognised datapool, which is globally recognised as the identifying code of a given product;
“Goods” means the materials, products or services or any of them (including Nominated Products) which are described in the Buyer’s Order;
“Nominated Products” means products that are not sourced by the Buyer but which at the request of a customer the Buyer has agreed to purchase from the Seller and supply to the Buyer’s customer;
“Order” means an order for Goods placed by the Buyer;
“Out of Pocket Costs” means ad hoc expenses including but not limited to reimbursements or compensation to claimants;
“Seller” means the person, firm or company to whom an Order is addressed;
“Technical Guidance” means the product quality specification set out in the technical guidance document issued by the Buyer from time to time to its Sellers;
“Terms and Conditions” means these terms and conditions.
2 GENERAL
(1) These Terms and Conditions shall be incorporated into an Order (but in the case of an Order for the provision of services only so far as they are relevant). The Seller’s acknowledgement of the Order, commencement of work on the Goods, shipment or supply of the Goods, whichever occurs first, shall be deemed to be the Seller’s acceptance of the Order. THE SELLER’S ACCEPTANCE OF THE ORDER IS LIMITED TO ACCEPTANCE OF THESE TERMS AND CONDITIONS AND THE BUYER SHALL NOT BE BOUND BY ANY OTHER TERMS OR CONDITIONS PROPOSED BY THE SELLER OR PRINTED IN ANY DOCUMENTATION PROVIDED BY THE SELLER IN CONNECTION WITH THE ORDER.
(2) An Order shall also incorporate the provisions of the current edition of the document entitled “Working with Brakes”, (the Buyer’s guide for suppliers) which the Buyer has provided to the Seller and a further copy of which is available on demand from the Buyer. In the event of any conflict between these Terms and Conditions and the “Working with Brakes” document, these Terms and Conditions will prevail. Both documents are reproduced on the website at brakesgroup.co.uk
3 VARIATION
The Buyer reserves the right to amend these Terms and Conditions from time to time on giving 4 weeks prior notice to the Seller.
4 SPECIFICATION
(1) The Seller warrants that the Goods shall conform with the specification requirements set out in the Technical Guidance, together with any other specifications, drawings, samples or other descriptions agreed between the Seller and Buyer. Conformity with the foregoing shall not absolve the Seller of any other legal or moral responsibility relating to the supply of the Goods or any other aspect of its activities.
(2) The Seller shall provide relevant product information to enable formulation of a comprehensive product specification for the Goods or otherwise to satisfy the Buyer that appropriate legislative or regulatory requirements are
complied with, such information to be provided via GDSN (in accordance with Clause 15 below (E-Commerce). No changes shall be made to the agreed specification without the prior agreement of the Buyer’s Technical Department and Commercial Manager.
(3) The Buyer reserves the right for its employees or representatives to visit the Seller’s premises to verify at source that the Goods conform to specification. The Seller shall provide the Buyer with all facilities reasonably required for inspection and testing. Such inspection and testing shall not absolve the Seller from liability or responsibility under these Terms and Conditions nor imply acceptance of any of the Goods.
(4) Unless otherwise agreed in writing between the parties, should the Seller wish to cease supply, for whatever reason, of an existing product to the Buyer, it is the Seller’s responsibility to ensure 12 weeks’ written notice is provided to the Buyer. Notice should be served in accordance with Clause 27 of these Terms and Conditions.
(5) Where new ambient branded product lines are introduced to the Buyer’s core listing, sales of these product lines shall be reviewed at the regular review meetings. In relation to the first three months of orders placed by the Buyer, where stock is either returned to the Seller or destroyed because it subsequently passes its best before date (whether this occurs before or after the three month period), the Seller shall underwrite the cost to the Buyer of all such stock and charges.
5 LEGISLATIVE REQUIREMENTS
The Seller warrants that the Goods including their packaging and labelling shall comply with all relevant UK and EC legislation, regulations, British standard specifications, codes of practice or general trade or other recognised regulations or specifications relating to the supply and sale of the Goods. Without prejudice to the generality of the foregoing the Seller warrants that:
(1) all goods supplied to the Buyer shall not have been rendered injurious to health and shall be of the nature, substance and quality described in the specification agreed by the Buyer;
(2) it has carried out such checks as a major, prudent supplier could reasonably be expected to carry out to comply with all the aforementioned legislation and regulations and that it is in all the circumstances reasonable for the Buyer to rely on those checks;
(3) all its premises, equipment, machinery and other apparatus used in connection with the manufacture, storage and supply of goods comply with the appropriate standards of cleanliness and hygiene;
(4) all foodstuffs supplied to the Buyer (whether as ingredients or finished products) which will be sold by the Buyer under a trademark or name belonging to or associated with the Buyer, are free from any genetically modified material (or material derived from crops that have been genetically modified, including additives and flavourings);
(5) all foodstuffs supplied to the Buyer which will be sold by the Buyer under a trademark or name belonging to the Seller will be free from any genetically modified material (or material derived from crops that have been genetically modified, including additives and flavourings) unless otherwise agreed in writing between the Buyer and the Seller;
(6) all foodstuffs (and any ingredients/raw materials used therein) supplied to the Buyer shall not have been subjected to any irradiation treatment; and
(7) all manufacturing premises of the Seller supplying the Buyer with foodstuffs have attained:
(i) ‘A’ or ‘B’ grade certification against the BRC Global Standard for food; and (ii) catering supplies and equipment, certification against the BRC Global Standard for consumer products unless otherwise agreed in writing between Buyer and Seller.
6 PRODUCT QUALITY, FITNESS FOR PURPOSE AND SELLER'S CARE AND SKILL
(1) The Seller warrants that the Goods shall be of the agreed quality, free from defects in material or workmanship and wrapped, packaged and labelled appropriately so as to prevent damage or deterioration in delivery or storage.
(2) The Seller warrants that the Goods shall be fit for the particular purpose for which Goods of this type are normally used.
(3) Where the Order is for the provision of services the Seller warrants that it will provide the services in a good and workmanlike manner using all reasonable care and skill and in accordance with any service level agreement agreed between the Buyer and the Seller.
7 NO THIRD PARTY RIGHTS
The Seller warrants that the Goods shall be free from any third party lien, claim, title or interest.
8 INTELLECTUAL PROPERTY RIGHTS
(1) The Seller shall indemnify the Buyer from and against any and all liability, actions, proceedings, claims, costs, expenses, losses or damage incurred by the Buyer in relation to any actual or alleged infringement of any patent, registered design, trade mark, copyright or other registered or unregistered intellectual property right arising out of the sale or use of the Goods provided always that the Seller shall not be required to indemnify the Buyer against such infringements where the Goods are supplied to the particular design or specification of the Buyer.
(2) The use by the Seller of any material in which the copyright, patent, trade mark, trade name, registered design, or other intellectual property rights are vested in the Buyer shall be limited solely to performance of the Order.
(3) Labels, packaging and any other materials bearing or subject to the Buyer’s name, trade mark or other intellectual property shall, upon termination or cancellation of an Order, be at the Buyer’s option either delivered up to the Buyer carriage paid or destroyed.
(4) All data, specifications, recipes or other materials supplied by or paid for by the Buyer in connection with the supply of the Goods shall be and remain the property of the Buyer. The Seller hereby waives any lien or other rights that it might otherwise have on or in respect of any of the Buyer’s property.
(5) Where the Buyer commissions the Seller under or in connection with the Order to create any work, design, concept, data, invention, recipe, new product or improvement, ownership of such works, designs, concepts, data, inventions, recipes, new products and improvements including all intellectual property rights therein shall vest in the Buyer upon their creation and any right, title or interest which may be vested in the Seller is hereby assigned to the Buyer with the intent that all such intellectual property rights shall be the sole and absolute property of the Buyer.
(6) Without limitation to Clause 8(5) above, the Seller hereby assigns to the Buyer all works, designs, concepts, data, inventions, recipes, improvements and discoveries (whether such is patentable or not or capable of any kind of registration) created or conceived after the Buyer commissioning the Seller to create or conceive the same made by any person employed by or working under the direction of the Seller including all intellectual property rights therein.
(7) The Supplier shall on request give to the Buyer the originals and copies of all documents, designs, drawings, data and information of whatsoever nature in its possession or under its control belonging to the Buyer pursuant to Clauses 8(5) and 8(6).
9 CONFIDENTIALITY
The Seller may as a result of an Order receive confidential or market sensitive information concerning the Buyer. The Seller may also be in possession of property belonging to the Buyer pursuant to Clause 8. The Seller agrees that it will treat all such information as confidential and will not directly or indirectly disclose it or use it for any purpose other than to fulfil its obligations to the Buyer under the Order.
10 PRICE
(1) The prices agreed between the Seller and Buyer shall not be subject to any increase or additional levy, save for the application of VAT (subject to Clause 10(2)) or any increase in the rate thereof, unless agreed by the Buyer 3 months in advance of the application of such increases and where the Seller provides all relevant justification documents in support of
such increases. Any increases sought should be timed to coincide with the issue by the Buyer of its own customer price lists where applicable.
(2) It is the responsibility of the Seller to notify the Buyer of the VAT status of each product and any subsequent changes to that status. The Seller shall be liable for all costs incurred by the Buyer for failure to notify such status or changes thereof.
(3) The Buyer shall be entitled to any discount for prompt payment, bulk or volume purchase customarily granted by the Seller, whether or not shown on its own terms and conditions of sale.
11 PAYMENT
(1) All invoices must be validated against delivery notes. Invoices may not be issued prior to the date of delivery of the Goods. All invoices must quote the Buyer’s official Order number and sent to the Buyer at an address specified by the Buyer. A signed delivery note will be made available on request
(2) In the event that the Seller’s invoice is for an amount greater than the price of the Goods to which the invoice relates as recorded in the Buyer’s ledger, the Buyer may withhold payment of the full amount of the invoice pending agreement of the amount outstanding. Alternatively, the Buyer may raise and forward to the Seller a detailed debit note for the difference and deduct such amount from the invoice. The Buyer may, at its discretion, charge an additional £20 administration fee.
(3) Save for Goods delivered in accordance with Clause 11(5) below, if a signed delivery note does not accompany the Seller’s invoice and the quantity of Goods to which the invoice relates is greater than the quantity of Goods recorded in the Buyer’s copy of the delivery note, the Buyer will raise and forward to the Seller a detailed debit note for the value of the undelivered quantity of Goods and deduct such amount from the invoice. The Buyer may, at its discretion, charge an additional £20 administration fee.
(4) Unless otherwise previously agreed in writing, and subject always to Clause 11(5) below, payment will be made by BACS. The Buyer shall pay for the Goods weekly, no earlier than 57 days after date of delivery. Whenever any sum of money shall be recoverable from or payable by the Seller, the same may be deducted from any amount then due, or which may at any time thereafter become due, to the Seller from the Buyer.
(5) The Buyer may require the Seller to deliver via the Buyer’s Depot Consignment operation. Where this is the case, the Buyer will make payment through the Buyer’s “Self Billing” function, in accordance with delivery notes and the Seller shall not submit invoices for such Goods, as otherwise required by this Clause.
(6) In the event that the Buyer’s “Self Billing” payment is for an amount less than the agreed price of the Goods to which it relates, the Seller shall notify the Buyer and, where such additional payment is validated by the Buyer, it shall raise a supplementary billing document for the difference.
(7) Where an overrider or other financial agreement requires additional information to be submitted by the Seller to the Buyer, the Seller shall submit the relevant information in the required format by the agreed date. Late submission of information shall result in an administration charge of £500.
(8) If the Seller does not supply an invoice for Goods delivered within 6 months of the date of delivery the Buyer shall not be obliged to make payment for the Goods (save for Goods delivered in accordance with Clause 11(5) above).
(9) Seller must return a signed copy of these terms and conditions, and the Buyer’s Pro-Forma Self Billing Agreement, where required, before payment will be made.
(10) Any queries relating to invoices or self billing payments, part paid or not paid, or deductions made by the Buyer from a payment to the Seller, must be made within 12 months of the date of delivery of the goods or services or the deduction being made or the Buyer shall not be obliged to make any payment to the Seller in relation to those items.
12 DELIVERY
(1) Unless otherwise agreed the Seller shall deliver the Goods to such destination as the Buyer may direct. Each delivery shall be accompanied by a delivery note clearly marked with the Buyer’s Order number, the consignee, the relevant GTIN(s), the description and number of units of the Goods, the unit size and, if appropriate, the best before date of all Goods, as well as such other relevant information or paperwork as requested by the Buyer or as otherwise required by any applicable legislation or regulations.
(2) The Seller shall further ensure that the Buyer’s Order number and the GTIN for all Goods are clearly shown on all invoices, credit notes and other correspondence relating to the Order. All invoices and credit notes must be valid for VAT purposes.
13 RISK
The Goods will be delivered to the destination directed by the Buyer at the risk of the Seller who will maintain adequate insurance. Risk shall not pass from the Seller to the Buyer until the Goods have been unloaded, checked and accepted on the Buyer’s behalf at the designated delivery point.
14 PROPERTY
Property in the Goods shall pass to the Buyer when the Goods have been delivered to the Buyer (or the Buyer’s appointed recipient), unloaded, checked and accepted on the Buyer’s behalf.
15 E-COMMERCE
(1) All communications between the Seller and the Buyer, and.or any nominated service providers, will require the use of the GDS and GTINs. The Seller acknowledges that only Goods listed through GDS will be maintained as part of the Buyer’s product catalogue and that the Seller’s internal product codes will not be recognised by the Buyer.
(2) It is the Buyer’s intention to continue to develop its e-commerce systems and programmes and the Seller shall ensure that its systems are fully compatible with the Buyer’s systems from time to time.
(3) The Seller shall be a member of a recognised Datapool system, and any and all data interchange between the Seller and the Buyer (including, without limitation, in relation to any new listing or amendments to existing Goods) will be transmitted by such datapool, unless agreed otherwise in writing by the Buyer.
(4) The Seller is required to subscribe to the Buyer’s isupply! web portal to enable it to receive purchase orders, sales history, delivered service performance information, inventory visibility and any self billing documents relating to consolidation and/or consignments and agrees to execute any further terms and conditions relating to such web portal required by the Buyer.
(5) The Seller shall be fully liable for any and all subscription monies (and associated charges) payable in connection with the requirements of this Clause and Clause 4(2), (including, without limitation, any isupply!, Assure or GDSN subscription charges).
16 FORCE MAJEURE
Neither party shall be responsible for any delay or failure to make or take delivery of all or any part of the Goods due to causes beyond the party’s control, specifically excepting pricing or cost increases. Notwithstanding the foregoing the defaulting party shall use its best efforts to mitigate the effects of any default which, in the case of the Seller, shall include using its best efforts to secure an alternative source of supply for the Goods.
17 REJECTION
(1) Without prejudice to any other rights it may have, if any of the Goods or the packages containing the same shall be found within a reasonable time of delivery to be defective or, in the Buyer’s reasonable judgment, to not comply with the Order or with any of these Terms and Conditions or any term implied by law including quantity, quality, specification, or description, the Buyer shall be entitled to reject those Goods or any part of them irrespective of whether the Buyer had initially accepted them. The whole of any consignment may be rejected if a reasonable sample of the Goods taken indiscriminately from that consignment is found in the Buyer’s reasonable judgment not to conform in every material respect with the aforementioned requirements.
(2) The Buyer will be entitled to return rejected Goods to the Seller (and the Seller shall bear all risks and expenses related to the return of rejected Goods including without limitation freight, duties and insurance) or the Buyer may elect to store such Goods at the Seller’s risk subject to a storage charge payable by the Seller for the period until collection by the Seller or destruction by the Buyer (and the costs of such destruction by the Buyer shall be borne by the Seller). In any event, the Buyer shall be entitled to charge the Seller for any costs incurred by the Buyer as a result of rejections of Goods in accordance with the Buyer’s ‘Working with Brakes’ guide for suppliers or these Terms and Conditions.
(3) In the event that rejected Goods are returned to the Seller, the Seller shall ensure that the Buyer’s labelling and any other reference to the Buyer, its products or services is removed from such Goods prior to their subsequent disposal to any third party.
(4) Any acceptance by the Buyer of Goods which are in any way defective or which do not otherwise conform with these Terms and Conditions or any term implied by law shall be without prejudice to any rights or remedies which the Buyer may have against the Seller.
18 TERMINATION FOR CAUSE
Without prejudice to any of its other rights or remedies and without incurring any liability, the Buyer may terminate an Order or any part thereof in the event that the Seller commits a material breach of its obligations contained in the Order or any form of insolvency proceedings are commenced in respect of the Seller. Upon receipt of a notice of termination from the Buyer, the Seller shall immediately stop and cause all of its suppliers and sub-contractors to stop all work under the Order or the part which has been terminated.
19 NON-DELIVERY
Time is of the essence for an Order. If the Goods are not delivered on the date(s) specified in the Order, the Buyer may, without liability and without prejudice to any other rights or remedies it may have: (a) terminate the Order by notice to the Seller effective upon receipt in respect of Goods not yet shipped or services not yet rendered; and (b) buy substitute Goods elsewhere and recover from the Seller any additional expenditure reasonably incurred.
20 ASSIGNMENT AND SUB-CONTRACTING
The Seller shall not assign, transfer, or sub-contract the production or supply of any Goods without the prior written consent of the Buyer.
21 BUYER'S STAFF
The Seller agrees that, in order to protect the confidential information of the Buyer, it will not without the Buyer’s prior written consent, employ any senior member of the Buyer’s personnel for six months from the date on which they leave the Buyer’s employment.
22 INDEMNITY
In addition to the Seller’s other obligations hereunder, the Seller shall defend, indemnify and hold the Buyer harmless against any and all demands, damages, claims, liabilities, losses, costs and expenses (including legal expenses) arising out
of or resulting from any known or unknown defect in the Goods or the negligence of, default of or breach of these Terms and Conditions (including breach of any warranty) by the Seller, its agents, employees or sub-contractors.
23 INSURANCE
The Seller shall insure with an insurance company of good repute against its liability under clause 22 (Indemnity), in the minimum sum of £10 million pounds, or such other sum as may be agreed, in respect of any one incident and in the event that the Seller fails to do so the Buyer may effect such insurance and charge the cost of the same together with an administrative charge of 5% to the Seller.
24 WAIVER AND REMEDIES
Neither the Buyer’s failure to insist on the performance of any of these Terms and Conditions, nor its failure to exercise any right or privilege, nor its waiver of any breach hereunder, shall be deemed to be a waiver of any of these Terms or Conditions or breaches by the Seller of an Order whether of the same or a similar type.
The Buyer’s signature of receipt, inspection, testing, payment for or use of the Goods furnished under an Order shall not affect the Seller’s obligations under the warranties contained in these Terms and Conditions which shall survive the Buyer’s inspection, testing, acceptance and/or use.
The rights and remedies provided by these Terms and Conditions are cumulative and are not exclusive of any rights or remedies provided by law.
25 DISPOSAL OF GOODS TO THIRD PARTIES
In the event that in anticipation of Orders the Supplier has produced Goods or packaging which bear the Buyer’s labelling or any other reference to the Buyer, its products or services which the Buyer notifies the Seller in writing are in excess of its requirements, the Seller may dispose of such Goods or packaging to third parties but only after it has removed the Buyer’s labelling and any other reference to the Buyer, its products or services from such Goods or packaging.
26 THIRD PARTY RIGHTS
The parties do not intend that any term of an Order will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
27 NOTICES
All notices required to be given under these Terms and Conditions must be in writing and delivered by hand or sent by registered post guaranteed next day delivery to the address notified by each party to the other or failing such notification to the registered office address. Any notice so served shall be deemed to have been given if delivered by hand on the day of delivery or if sent by registered post guaranteed next day delivery on the day after posting.
28 GOVERNING LAW AND JURISDICTION
An Order shall be governed by and construed in accordance with English law and the parties submit to the non-exclusive jurisdiction of the English courts over any claim or matter arising under or in connection with an Order and the legal relationships established by the Order.
29 BUYER'S LABELLING AND PACKAGING
The labelling and packaging of Goods shall comply with the requirements laid down by the Buyer’s Packaging Services and Technical Departments and must be approved by them prior to first delivery. The Seller shall pay the following artwork charges unless otherwise agreed by the Buyer in writing :
Labels £ 100.00 + VAT
Cases £230.00 + VAT
Film £550.00 + VAT
These charges may be amended by the Buyer upon reasonable notice to the Seller.
30 SELLER'S LABELLING AND PACKAGING
The Seller shall be responsible for ensuring that all of its labelling and packaging complies with all prevailing and future legislation likely to come into force during the shelf life of the Goods. The Buyer reserves the right to reject any Goods that in its view do not comply with such legislation.
31 COMPLAINTS
Without prejudice to Clause 22 (Indemnity), costs associated with complaints from customers relating to the Goods which are dealt with by the Buyer will be reimbursed by the Seller with a standard handling charge as the Buyer may impose from time to time plus “Out Of Pocket Costs” incurred by the Buyer. In the case of injury to customers or a serious complaint, the Seller shall provide the Buyer with all assistance reasonably required by the Buyer until the matter is resolved.
32 RECALLS/CLAIMS
The Seller shall immediately inform the Buyer of any adverse analytical, microbiological or other quality defect which may affect the Goods and which is discovered before or after delivery. Without prejudice to Clause 21 (Indemnity) in the event of a withdrawal of any of the Goods due to any manufacturing or other defect, the Seller shall be responsible to the Buyer for all costs, losses and expenses incurred by the Buyer including without limitation loss of profit on sales, administration, recall and disposal/return expenses and any other consequential costs which may be incurred.
33 SERVICE LEVELS
(1) The Seller shall achieve the following targets for deliveries:
Quantity delivered: 99.8 percent of Order quantity
Delivery time: 99 percent of Orders within 30 minutes of delivery time
If these standards are not achieved the Buyer may seek appropriate recompense.
(2) Without prejudice to Clause 22 (Indemnity) if an out of stock situation is created for the Buyer due to the Seller’s failure to deliver at the agreed time the Buyer may seek appropriate recompense from the Seller which may be based on the value of each lost sale to the Buyer at the Buyer’s current list selling price.
(3) Without prejudice to Clause 22 (Indemnity) if the Seller fails to deliver at the agreed time to any of the Buyer’s manufacturing sites and this results in lost production and/or wastage of other raw materials the Buyer may seek appropriate recompense from the Seller.
Additional terms for Nominated Products:
34 DELIVERIES TO THE BUYER
Deliveries of Nominated Products will be made by the Seller into the Buyer’s specified depot(s) and will be in quantities relating to weekly purchases thereof by the Buyer’s customer, by distribution area, or as otherwise determined by the Buyer.
35 PRICES AND PRICE ALTERATIONS
Where the Seller makes a special pricing arrangement for a Nominated Product with a customer of the Buyer, the Seller shall ensure that such special price (including the date from which it shall take effect and the period for which it shall apply) is recorded in a written agreement signed by authorised representatives of the Seller and the Buyer’s customer. The Seller shall provide the Buyer with a copy of such agreement following which the Buyer shall assign such special price to its customer. In the event that the Buyer is required to participate in any rebate process in connection with such special pricing arrangement it may charge the Seller an appropriate administration fee to cover its costs of doing so.
Any variation to the cost price of Nominated Products will only be accepted and actioned by the Buyer on written instruction from the Buyer’s customer, and subject to a minimum 14 days’ written notice.
36 PAYMENT FOR NOMINATED PRODUCTS
The Buyer will pay the Seller for Nominated Products on a weekly basis only after it has received full payment in cleared funds for the Nominated Products from its customer provided that payment will be made no sooner than 60 days after the date of delivery.
