Frozen Brothers Limited’s Standard Terms and Conditions of Purchase
All goods and services bought by Frozen Brothers Limited (‘FB’) at any time are bought in accordance with these Conditions unless FB issues a set of contract documents (other than a Purchase Order or a set of special Conditions), in which case those contract documents will apply instead. All other terms and conditions are excluded unless FB agrees otherwise in writing. For the avoidance of doubt, any terms and conditions contained in any documentation given to FB purporting to supersede or replace these Conditions shall not apply.
1. DEFINITION AND INTERPRETATION
1.1. The following words and phrases have the following meanings in these Conditions unless the context requires otherwise:
1.2. ‘Conditions’ means these Standard Conditions of Purchase together with any FB special Conditions and any Purchase Order or any other terms that may be agreed from time to time between FB and its supplier.
1.3. ‘Down Time’ means a period of time (or aggregated periods of time) during which a production line is not able to operate or during which the production line runs at reduced capacity.
1.4. ‘Down Time Hour Equivalent’ means an hourly amount calculated with reference to the average efficiency and average charge rate for FB’s production lines as amended from time to time, (reduced pro rata by an appropriate percentage when the production line is not able to run at full capacity).
1.5. ‘Goods’ means the goods supplied by a supplier to, for or on behalf of FB together with any goods provided by the supplier to, for or on behalf of FB in relation to any Services the supplier may supply to FB.
1.6. ‘Purchase Order’ means any order for any Goods or Services placed by FB with a supplier or any other arrangement (whether in writing or not) for the supply of Goods or Services by the supplier to FB and includes any other documents referred to in a Purchase Order.
1.7. ‘Services’ means the acts, services and results of services provided by a supplier to, for or on behalf of FB together with any Services provided by the supplier to, for or on behalf of FB in relation to any Goods which the supplier may supply to FB.
1.8. ‘FB Special Conditions’ means any additional conditions agreed between FB and a supplier for the supply of Goods and/or Services by the supplier including but not limited to any such conditions which are attached to these Standard Terms and Conditions and including any other documents referred to in such FB special Conditions.
1.9. ‘FB’ means Frozen Brothers Limited
1.10. ‘You’ and ‘your’ means the supplier named in the special Conditions, a Purchase Order or other contract documentation issued by FB to a supplier.
1.11. The headings to the Conditions are for information only and do not affect their interpretation.
2. ACCEPTANCE
2.1. The issue of a Purchase Order or a set of special Conditions by FB constitutes an offer by FB to purchase the Goods and/or Services on the terms contained in the Conditions. The relevant Purchase Order or special Conditions shall be deemed to be accepted unless you notify FB otherwise within 24 hours of receipt of the relevant Purchase Order or special Conditions.
2.2. Any acceptance by you of a Purchase Order or of the Conditions or any performance by you of all or any part of a Purchase Order will mean that you have agreed to the Conditions.
2.3. You shall execute all reasonable modifications of the Purchase Order that FB has communicated to you in writing. Unless you have sought FB’s approval in writing within 7 days after the modification of the Purchase Order in relation to any resulting changes on price, delivery term or other conditions, all modifications will be executed at the same price, delivery term or conditions as the initial Purchase Order.
2.4. Verbal communications by FB’s representatives are only binding if FB has confirmed such communications in writing.
2.5. By accepting a Purchase Order you agree to be bound by an ongoing obligation to disclose to FB in writing the details of all of your directors, and all individuals with a position of influence within your business, who are related to a FB employee and/or are themselves ex-employees of FB, and that you acknowledge that the failure to provide this information accurately to FB will result in cessation of your trading with FB.
3. QUALITY OF GOODS
3.1. All Goods must be of satisfactory quality and must fully comply with FB requirements including any stated specifications requirements about quantity, quality, date and time of delivery, standards or description All Goods must be fit for the purpose for which they are supplied or for which they are commonly used. The Goods must also be free from defects in design, material and workmanship. You must promptly inform FB about any potential hazard or risk which you know about or which you think may arise in relation to the transport, handling, manufacture, distribution or use of the Goods.
3.2. In addition to any other rights FB might have, FB may, within a reasonable period following delivery, reject and return to you at your expense any Goods which are faulty or contain a latent defect or which do not fully comply with any stated Specifications or requirements about quantity, quality, date and time of delivery, standards or description stated in a Purchase Order, the Special Conditions or otherwise or which are not fit for the purpose for which they are supplied or for which they are commonly used. For the avoidance of doubt, the payment of any damages shall not prejudice any other remedies that FB might have under the Conditions.
3.3. You guarantee that you can supply FB with spare parts of the delivered Goods for a term of at least 5 (five) years after the delivery date.
4. QUALITY OF SERVICES
4.1. All Services must be performed diligently and conscientiously to the best standards possible and must fully comply with FB requirements including any stated specifications or requirements about standards, description or date and time of performance. You must promptly inform FB about any potential hazard which you know about or which you think may arise in relation to the supply of the Services.
4.2. You shall provide all labour, tools, equipment and materials required for the performance of the Services. If the Services have been performed at FB’s site, you agree to leave the site clean and tidy upon completion of the Services.
4.3. FB may refuse to pay for any Services which do not fully comply with FB’s requirements including any stated specifications or requirements about standards, descriptions or date and time of performance.
5. INDEMNITY
5.1. You are responsible for and shall fully indemnify FB and keep FB indemnified against all liability, losses, costs, claims, expenses (including legal expenses) and demands which FB may incur, howsoever arising from:
5.1.1. any failure by you to comply with any of the Conditions, any defect in the Goods or any defect in the performance of the Services, and
5.1.2. the death of or injury to any of your employees, agents or subcontractors while doing anything related to the supply of the Goods or the Services.
5.2. The only exceptions in each case are:
5.2.1. damage, loss or injury caused by any deliberate act or failure to do something by FB, or gross negligence by FB or any of FB’s authorised agents; or
5.2.2. liability which FB may have to you.
6. DELIVERY AND PERFORMANCE
6.1. You agree to supply the Goods or Services on time to FB in accordance with a Purchase Order, the FB special Conditions or as FB may reasonably advise you from time to time and you agree that all times stated in these Conditions or communicated to you by FB for the delivery of Goods or the performance of the Services shall be of the essence.
6.2. FB has the right to inspect the ordered Goods upon production, transformation or warehousing.
6.3. If FB has reasonable grounds to believe that you will not be able to comply with the Conditions, FB may request additional warranties from you.
6.4. FB reserves the right to adjust the rate of delivery of the Goods or the time at which the Services will be performed without incurring any liability to you.
6.5. Delivery of the Goods or Services before the agreed delivery date can only occur after FB’s prior written agreement. Such agreed early delivery shall not modify the agreed payment terms.
6.6. You agree to notify FB immediately if there is likely to be a delay in the delivery of the Goods or the time at which the Services will be performed, stating the estimated period of delay.
6.7. FB may cancel the Purchase Order if the Goods are not delivered by the date and time specified by FB without incurring any liability to you, but FB agrees to pay a reasonable sum for Goods already supplied to FB which comply with these Conditions. This right to cancel is in addition to any other rights FB may have.
6.8. FB may cancel the Purchase Order if the Services are not performed by the date and time specified by FB without incurring any liability to you, but FB agrees to pay a reasonable sum for Services already performed to our requirements. This right to cancel is in addition to any other rights FB may have.
6.9. Unless FB agrees otherwise in writing, you will transport the Goods to the delivery address stated on the Purchase Order or the special Conditions at your cost. All Goods and any packaging containing the Goods must be clearly marked with FB’s order number, details of contents (including quantity and description), and your name, together with any other information FB may have requested. Goods must also comply with any labelling instructions and identifications stated in the Purchase Order or otherwise communicated to you by FB.
6.10. If any failure by you to comply with your obligations under the Conditions causes FB, either directly or indirectly, to suffer Down Time then FB shall have the right, at FB’s sole discretion, to claim damages (measured as a genuine pre-estimate of FB’s losses and not as a penalty) at a rate equal to the relevant Down Time Hour Equivalent for each hour or part of one hour of Down Time caused by such failure. For the avoidance of doubt, the payment of any such damages shall not prejudice any other remedies that FB might have under the Conditions.
6.11. FB shall have the right from time to time to conduct delivery audits on the Goods that you provide. These audits will be conducted reasonably, and you will be given reasonable notice so that you can attend if you wish. The audit will be conducted in the following manner:
6.11.1. FB will place the required delivery in quarantine and you will be notified of the time and date that the audit will take place, and at the relevant time, the delivery will be opened and checked for both quantity and quality against the specification, the Conditions and any other terms agreed between FB and you (the ‘Delivery Criteria’).
6.11.2. If you attend the audit, the results of the audit and the percentage shortfall of delivered Goods i.e. the percentage of the number of delivered Goods failing to meet the Delivery Criteria (‘Percentage Shortfall’) (if any) will be reported immediately. The report will be signed by both FB and you.
6.11.3. If you do not attend the audit, FB will notify you of the results of the audit including the Percentage Shortfall (if any). The notified results of the audit will be deemed to be accepted by you.
6.11.4. If the delivered Goods are not in accordance with the Delivery Criteria twice in any three-month period, then FB will notify you of the average Percentage Shortfall noted in the audits conducted during such three-month period. FB will have the right either to deduct from any invoices submitted by you an amount calculated by reference to the same average percentage of all amounts you invoiced during the three months prior to the last audit conducted within the relevant three-month period, or to charge you the same amount. The average Percentage Shortfall is calculated by dividing the sum of all Percentages Shortfall noted during the relevant three-month period by the number of audits conducted within the same period.
7. PASSING OF PROPERTY AND RISK TO FB
7.1. You will retain ownership of and risk in the Goods until they are delivered by you to FB at the delivery address stated in the Purchase Order or the special Conditions and FB has confirmed receipt of delivery in writing. During such time as you retain ownership of the Goods you will adequately insure them with a reputable insurer and acknowledge that payment shall not be due from FB in the event of and to the extent of any insurance claim relating to the Goods. After this time FB will own and be responsible for the Goods whether or not payment has been made. This does not affect FB’s right to reject the Goods.
7.2. If FB makes payment in advance in respect of any particular Goods, then FB will own the Goods from the time that such payment is made. For the avoidance of doubt, you will retain the risk in the Goods and adequately insure the Goods with a reputable insurer until they are delivered by you to FB at the delivery address stated in the Purchase Order and FB has confirmed receipt of delivery in writing.
8. PRICE AND SET-OFF
8.1. Once any Purchase Order or any special Conditions issued by FB has been accepted by you, no increase in the price of the Goods or Services may be made by you whether due to increased material costs, labour costs or otherwise unless FB has agreed to this in writing.
8.2. FB reserves the right to deduct any money you may owe FB from time to time (including any legal costs and interest) from any money which FB may owe you. FB expressly excludes any right that you might have to deduct any money that FB may owe you from any money that you may owe FB from time to time.
8.3. The price of the Goods shall be inclusive of all charges for packaging, package, carriage, insurance, and delivery of the Goods to the delivery address and the price of the Goods and/or Services shall include any VAT and any other taxes or duties.
9. PAYMENT TERMS
9.1. FB may reject in writing the invoices for Goods or Services if they do not comply with the Conditions, within 60 days of receipt thereof. Invoices not mentioning FB’s Purchase Order number will be deemed to have been immediately rejected.
9.2. Unless otherwise agreed in writing, the invoices must have been given to FB on or before the 5th day following the month in which the Goods or Services have been delivered in accordance with the Conditions. If the Conditions have been duly complied with, FB will use all reasonable endeavours to pay all correct invoices which you may give FB by the end of the next calendar month following the date of invoice. You agree to show VAT, where applicable, on all invoices you give to FB.
9.3. FB will pay you by bankers automated clearing services (BACS), unless FB agrees in writing to pay you in a different way. You agree to supply FB with your bank account details when FB asks you, or whenever these bank account details are updated.
10. COMPLIANCE WITH LEGISLATION
10.1. You warrant that the Goods and Services supplied by you under these Conditions, and the manufacture, packaging, delivery and distribution of such Goods and Services by you, your employees, agents and sub-contractors, shall comply with:
10.1.1. all applicable national, local and/or EU legislation;
10.1.2. all industry and government codes of practice including, but not limited to, regulations relating to materials and articles which come into contact with food;
10.1.3. all health and safety requirements that FB may notify you of from time to time including, but not limited to, all safety and site rules and notices displayed by FB at its sites from time to time.
10.2. You agree to ensure that before starting work at any of our sites, your employees, agents and sub-contractors will be made aware of all relevant health and safety requirements which FB may notify you of from time to time, including but not limited to all FB’s safety and site rules.
10.3. You agree to provide FB with reasonable evidence of your compliance with 10.1 - 10.2 on demand.
11. BREACH
11.1. If you do not comply with any of the Conditions FB will have the right to treat the Conditions for the supply of Goods or Services as ended and you will indemnify FB against any liability, costs, loss, expenses (including legal expenses) or damage FB may suffer as a result of your failure. This does not affect any other rights FB may have.
11.2. Without prejudice to any other remedy, if any Goods or Services are not supplied in accordance with the Conditions, then FB will be entitled to either require you to supply replacement Goods or perform replacement Services within 48 hours or to require the repayment of any payment that has been made.
11.3. FB will have the right to terminate the Conditions immediately without any liability in the event that you enter into liquidation, become unable to pay your debts in the ordinary course of business, pass a resolution for a winding up, have a receiver appointed over all or any of your assets or otherwise become insolvent under the laws of the country in which you are incorporated.
12. CANCELLATION
12.1. FB may cancel the Purchase Order and terminate the Conditions for the supply of Goods or Services at any time by giving you notice of this in writing. If FB does this, FB agrees to pay you a reasonable price for all Goods which you have supplied (and which FB has not rejected) and for all Services you have performed in accordance with FB’s requirements up to the time of cancellation or termination. FB will not be responsible to you for any costs, loss or damage which you may suffer as a result of this.
13. INTELLECTUAL PROPERTY
13.1. You warrant that the supply by you to FB of the Goods or Services will not infringe any patent, trade mark, copyright or design or other intellectual property or related right.
13.2. You agree to fully indemnify FB and keep FB indemnified against any liability, costs, expenses (including legal expenses) loss or damages FB may suffer due to the breach of your warranty in 13.1.
13.3. All intellectual property rights which may be created in connection with the Goods or Services will belong to FB. You agree to assign to FB on demand these intellectual property rights including any patent, trade mark, copyright, design or any other intellectual property right at no cost to FB.
13.4. FB may supply to you or pay for materials which make use of patents, trade marks, copyright, designs or any other intellectual property rights. You agree not to use, copy or reproduce these intellectual property rights and materials without first obtaining FB’s agreement in writing. You agree to return to FB all of these items and copies you may have made of them when FB requests this of you at no cost to FB.
14. CONFIDENTIALITY
14.1. All documents, specifications, plans, drawings and any other information which FB may supply to you remain FB’s property. You agree to keep any information you may obtain from FB confidential and not to pass it on to anyone unless FB has agreed otherwise in writing or you have a legal obligation to do so or the information is available in the public domain. Neither you nor FB shall publicise or cause any public statement to be made about the Conditions without the prior written consent of the other. You agree that you will guarantee the same confidentiality compliance by your employees, agents or subcontractors.
15. ADVERTISING
15.1. You agree not to use any trading relationship between you and FB, FB’s name and trading style or any registered or unregistered trade mark which FB may use, for any marketing or advertising purposes, without first obtaining FB’s agreement in writing.
16. PAST FAILURE TO ACTION BREACH
16.1. FB may take action against you if you breach these Conditions even if FB has not taken any action against you in the past when you have breached these Conditions.
17. APPLICABLE LAW & JURISDICTION
17.1. The law of England and Wales applies to these Conditions and any agreement between you and FB. The application of the UN Convention on the International Sales Goods (CISG – Vienna, 1980) is excluded. You agree to any dispute between you and FB being dealt with by the English courts.
18. ENFORCEABILITY
18.1. If any part of these Conditions is not valid or if FB cannot enforce it, this will not affect any other part of the Conditions.
19. NOTICES
19.1. Any notice required or permitted to be given by either you or FB under the Conditions shall be in writing addressed to the other at its registered office or principal place of business or such other address as may have been notified to the other.
19.2. Any notice required to be given under the Conditions shall be deemed to have been properly served if delivered personally or sent by prepaid first class post to the party concerned at the address referred to in 19.1. In the absence of evidence of earlier receipt, any such notice shall be deemed to have been given;
19.2.1. if left personally, when left at the address referred to in 19.1;
19.2.2. if sent by pre-paid first class post, two days after posting, and
19.2.3. if sent by e-mail or fax, the day of e-mail or fax receipt.
20. ASSIGNMENT
20.1. The Conditions and any agreements made under them are personal to you and you cannot assign your agreement with FB or any part thereof or sub-contract or in any other way make over your obligations or any part thereof to any third party without FB’s prior written consent. If FB does grant such consent, you will still be under an obligation to comply with the Conditions. FB remains free to assign its rights and obligations under the Conditions as it see fit.
21. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
21.1. It is not intended that any term of these Conditions should be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person other than FB and its supplier.
Date of issue, January 27, 2015