“Additional Charges” means any amount which the Supplier is entitled to charge in addition to the Price, including where applicable any delivery charges;
“Branded Products” means the Arrow Solution and/or Nielsen range of products offered for sale and stocked by the Supplier;
“Business Day” means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
“Conditions” means the Terms and Conditions of Sale set out in this Schedule 2;
“Delivery Date” means any date by or on which the Products, or any instalments of the Products are to be delivered by the Supplier, as stated in the Order Acknowledgment, or if no date is stated, as otherwise specified or agreed in accordance with these Conditions;
“Force Majeure Event” means in relation to a party, any event or circumstance beyond the reasonable control of that party, including without limitation: (1) acts of God; (2) war declared or undeclared, threat of war, terrorism, hostilities, or invasion; (3) revolution, riot, civil commotion, act of the public enemy, insurrection, public demonstration, or sabotage; (4) the act, directive, or requirement of any government agency or authority, or act of legislature; (5) strikes, lock-outs or other industrial actions or trade disputes of whatever nature; (6) lightning, fire, storm, flood, earthquake, accumulation of snow or ice, or lack of water arising from weather or environmental problems; (7) epidemic or pandemic; and (8) shortage of, or prevention from, or hindrance in, obtaining in any way any equipment, or any materials, fuel, energy, or other supplies, which could not have been avoided by due diligence;
“Insolvency Event” means:
“Intellectual Property Rights” patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.
“Material Safety Data Sheet” means the data sheet in respect of each Product (where relevant) setting out the description, and chemical components of the Product, together with physical data relating to the toxicity, health effects, storage, disposal, protective equipment, and spill-handling procedures of the Product;
“Order” means the Purchaser’s order for the Products, as set out in the Purchaser’s order form, or in the Purchaser’s written acceptance of the Supplier’s quotation, or in the online order form for purchases made via the Website or the request for any Products submitted via the Portal;
“Order Acknowledgement” means the document issued in writing by the Supplier, confirming receipt and acceptance of the Order, and setting out the particulars of the Order (including without limitation, the Products, the Price and Delivery Date);
“Portal” means the Supplier’s online portal, access to which is provided to the Purchaser, to facilitate Order requests
“Price” means the price payable for the Products, as stated: (a) on the Website, if purchasing online; (b) in the Order Acknowledgment, if a purchase is made offline; or (c), otherwise as agreed in writing by the parties;
“Private Label Products” means those products that are made bespoke to the Purchaser’s requirements;
“Products” the Branded Products and/or Private Label Products as set out in the Order;
“Purchaser” means the party in whose name the order is placed, as referenced in the Order;
“Specification” means the current specification and description of Products as set out in the Material Safety Data Sheet and Technical Data Sheet or as otherwise agreed in writing between the Supplier and the Purchaser;
“Supplier” means Reabrook Ltd, company registration number 00804733;
“Supply Contract” means each concluded contract between the Supplier and the Purchaser for the supply by the Supplier of a specified quantity of Products which incorporates these Conditions and the Order Acknowledgement, and unless otherwise stated, the date of the Supply Contract shall be (as applicable) the date upon which the Supplier issues an Order Acknowledgement;
“Technical Data Sheet” means the factsheet in respect of a Product setting out: (1) a description of each Product, including a list of the Product’s features; (2) its recommended usage; (3) directions as to the correct usage; (4) the technical specification of the chemical components of the Product; (5) results of any laboratory tests as to the effectiveness of the chemical components; (6) a list of approvals and accreditations of the product; and (7) instructions in respect of the correct storage of the Product;
“Unique Components” means any components, raw materials, or packaging purchased by the Supplier in connection with any Supply Contract, which in the sole discretion of the Supplier cannot be used in connection with the fulfilment of other orders from other purchasers; and
“Website” https://www.nielsenretail.co.uk.
All risk of loss of, or damage to, the Products from any cause shall pass to the Purchaser when the Products have been delivered to the carrier at the Supplier’s premises.
The Supplier shall ensure each delivery of the Products is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Products, special storage instructions (if any) and, if the Products are being delivered by instalments, the outstanding balance of Products remaining to be delivered.
Unless otherwise agreed in writing by the Supplier, the Products shall be delivered ex works as defined in Incoterms 2020 and shall be delivered to the address set out in the Order. The Supplier shall be entitled to Additional Charges for any additional costs or expenses it incurs due to any delay or difficulty in loading any of the Products and the Purchaser shall pay such Additional Charges in accordance with the payment terms agreed under the Supply Contract.
The Supplier shall use its reasonable endeavours to deliver the Products by the Delivery Date but time for delivery shall not be of the essence of a Supply Contract. If no Delivery Date has been agreed, the Delivery Date shall be such reasonable time as the Supplier and Purchaser shall agree, not to be unreasonably withheld or delayed, taking account of the quantity and type of Products ordered and the production capacity of the Supplier.
The Purchaser shall take delivery of the Products when tendered. If the Purchaser fails to take delivery of the Products on the Delivery Date then:
The Purchaser shall inspect the Products immediately on receipt.
The quantity of any consignment of Products as recorded by the Supplier on dispatch from the Supplier’s premises shall be conclusive evidence of the quantity received by the Purchaser on delivery unless the Purchaser can provide conclusive evidence proving the contrary.
The Supplier shall not be liable for any non-delivery of Products unless the Purchaser gives written notice to the Supplier of the non-delivery within 2 Business Days of the date when the Products would in the ordinary course of events have been received.
Any liability of the Supplier for non-delivery of the Products (and the Purchaser’s sole remedy) shall be limited to replacing the Products within a reasonable time or issuing a credit note at the pro rata Supply Contract rate against any invoice raised for such Products. The Supplier shall have no liability for non-delivery, where the same is as a result of a Force Majeure Event or, the acts and/or omissions of the Purchaser (including without limitation, the Purchaser failing to provide access to site or, adequate delivery instructions).
The Supplier shall be entitled to deliver the Products by instalments, which may be invoiced and paid for in instalments in accordance with condition 6 below.
The Purchaser shall pay the Price and Additional Charges for all Products delivered under the Supply Contract.
Unless otherwise agreed in writing by the Supplier, the Price for the Products is ex works and excludes the cost of delivery, carriage, transport, packaging and insurance in transit of the Products, and all customs, duties, and other taxes payable in respect of the Products, which shall be paid in addition to the Price, by the Purchaser.
Unless otherwise agreed in writing by the Supplier, the Supplier may invoice for the Price of any Products and all Additional Charges at the time the Supply Contract is entered into or at any time thereafter.
Unless otherwise expressly agreed in writing by the Supplier, the Price for any Products and any Additional Charges shall be paid within 28 days of the date of the Supplier’s Invoice. Purchases made via the Website, must be paid, in full, by the Purchaser at the time of placing the Order. Time for payment shall be of the essence of the Supply Contract.
The Supplier shall be entitled to set-off against any amount payable to the Purchaser, the amount of any liability which the Purchaser has to the Supplier. All amounts due under the Supply Contract by the Purchaser shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
All amounts payable by the Purchaser must be paid (at the option of the Supplier), by cheque, by electronic funds transfer to such bank account as the Supplier may nominate with each party meeting the costs of their respective banks in handling such payment, or by letter of credit.
Unless otherwise agreed in writing by the Supplier, all amounts payable by the Purchaser shall be paid in Pounds Sterling, with any necessary currency conversion taking place at the time of payment and the cost thereof being borne by the Purchaser.
If the Purchaser fails to make a payment due to the Supplier under the Supply Contract by the due date, then, without limiting the Supplier’s remedies under condition 12, the Purchaser shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this condition 6.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
Title to the Products shall not pass to the Purchaser until the Supplier has received in full (in cleared funds) all sums due to it in respect of:
Until ownership of the Products has passed to the Purchaser, the Purchaser shall:
The Purchaser may resell the Products before ownership has passed to it solely on the following conditions:
The Purchaser’s right to possession of the Products shall terminate immediately on the occurrence of:
The Supplier shall be entitled to recover payment for the Products notwithstanding that ownership of any of the Products has not passed from the Supplier.
The Purchaser grants the Supplier, its agents and employees an irrevocable license at any time to enter any premises where the Products are, or may be, stored, in order to inspect them, or, where the Purchaser’s right to possession has terminated, to recover them.
the Supplier shall provide the Purchaser with the remedies set out in condition 8.4 below.
The Purchaser acknowledges and agrees that in entering into the Supply Contract it does not rely on, and shall have no remedy in respect of, any statement, representation, or warranty given by any person relating to the Products or their supply (including as to condition, quality, and fitness for purpose) other than for the warranty set out in condition 8.1 or any other warranties expressly agreed in writing by the Supplier. All warranties implied by statute, common law, custom or otherwise as to the condition or quality of the goods, or fitness for purpose of the Products, or correspondence with any sample are hereby excluded.
The Supplier’s sole liability and the Purchaser’s sole remedy for any breach of any Warranty in relation to the Products, shall be at the option of the Supplier to make good any shortages, repair or rectify the lost or damaged Products, supply replacements for any lost or damaged Products, and/or refund to the Purchaser any amounts paid by the Purchaser in respect of the lost or damaged parts of the Products at the pro rata Supply Contract rate.
If the Supplier complies with condition 8.4 it shall have no further liability for a breach of the Warranty.
Subject to Condition 8.4, the following provisions set out the entire liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Purchaser in respect of:
referred to in this condition 9 as “liability”.
All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Supply Contract.
Nothing in these Conditions excludes or limits the liability of the Supplier:
Subject to condition 9.2 and condition 9.3:
If a party (the “Affected Party“) shall be affected by a Force Majeure Event then it must give notice in writing to the other party giving reasonable details as soon as reasonably practicable after it became aware of the Force Majeure Event.
On receipt of such notice, the Affected Party’s obligations which are affected by the Force Majeure Event shall be suspended, and the other party’s obligations which reasonably depend on performance by the Affected Party shall also be suspended for a reasonable period depending on the nature of such Force Majeure Event. However, the Supply Contract shall otherwise remain in effect notwithstanding such Force Majeure Event, and each party shall continue to comply with any and all of its other obligations under the Supply Contract which are not affected by such suspension.
The Purchaser agrees and acknowledges that the Supplier may have been required to purchase Unique Components to supply the Purchaser. Prior to such purchase, the Supplier shall obtain the prior written consent of the Purchaser.
The Supplier shall not be required to retain any unused Unique Components for more than three months or such other period as may be agreed between the parties from the date the Supplier received them.
If, following the expiry of the retention period specified in condition 11.2 above, the Supplier has not used all of the Unique Components, the Supplier shall be entitled to raise an invoice to the Purchaser for the full cost of such unused Unique Components together with any Additional Charges incurred in respect of delivering the Unique Components to the Purchaser. The Supplier shall not be required to deliver any such remaining Unique Components until it has received payment in full from the Purchaser.
If the Supplier does not receive payment in full in accordance with condition 11.3 above, within 30 days of the date of the invoice, the Supplier shall be entitled in its sole discretion to sell or dispose of such remaining Unique Components, and the Purchaser shall be liable for any shortfall between the invoiced amount and the price obtained by the Supplier following such sale or disposal.
A party may terminate a Supply Contract immediately by written notice to the other party, if the other commits a material breach which is either not capable of remedy, or, if capable of remedy, is not remedied within 30 days of giving written notice of the breach.
A party may terminate a Supply Contract immediately by written notice to the other party, if the other party suffers an Insolvency Event.
The Supplier may terminate a Supply Contract immediately by written notice to the Purchaser, if the Purchaser fails to pay any sum due to the Supplier by the due date for payment and remains in default for a period of 7 days after receiving written notification to make such payment.
Where any of the events referred to in conditions 12.1 or 12.2 or 12.3 occur in relation to the Purchaser, or the Supplier notifies the Purchaser that it has grounds for believing that the Purchaser will not pay or be able to pay for the Products:
The Purchaser shall pay to the Supplier all costs and expenses (including legal costs) incurred by the Supplier to enforce payment of any amounts payable by the Purchaser to the Supplier under a Supply Contract, or to recover any Products in which the Supplier retains title.
No Order for Bespoke Products may be cancelled by the Purchaser, once an Order Acknowledgement is issued by the Supplier without the prior written consent of the Supplier (such consent to be provided at the sole discretion of the Supplier) and subject always to the Purchaser paying the Supplier, upon demand, all and any costs and expenses incurred by the Supplier in fulfilling the Order, up until the date upon which cancellation is affected. No Order for Private Label Products may be cancelled by the Purchaser, once placed.
How we use any personal data you give us is in relation to the Supply Contract is as set out in our privacy notice available on the Website.
Unless otherwise agreed in writing between the parties, all Intellectual Property Rights in and to the Products shall be owned by the Supplier.
The Supplier may assign or transfer the benefit of the Supply Contract or any of its claims, rights, obligations or authorities under the Supply Contract
The Purchaser may not assign or transfer the benefit of the Supply Contract or any of its claims, rights, obligations or authorities under the Supply Contract without the prior written consent of the Supplier
Where any term or expression is used in the Supply Contract which is defined in Incoterms, there shall be incorporated into the Supply Contract the relevant terms of Incoterms, but if there is any conflict between the provisions of Incoterms and the provisions of the Supply Contract, the provisions of the Supply Contract shall prevail. “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date of the Supply Contract.
The rights of the Supplier or the Purchaser shall not be prejudiced or restricted by any indulgence or forbearance extended by either party to the other and no waiver by either party in respect of any breach shall operate as a waiver in respect of any subsequent breach. Any variation in the terms of the Supply Contract must be agreed in writing between the parties.
In the event that, for any reason, any provision or provisions in these Conditions or any part thereof is or is held to be void, unenforceable or otherwise invalid, any contract made which incorporates these Conditions shall continue to be fully binding and all other Conditions herein, including the remainder of any Condition where the effect of some part thereof is avoided, shall remain fully effective.
A person who is not a party to this Supply Contract may not enforce any of it terms under the Contracts (Rights of Third Parties) Act 1999.
Any notice under the Supply Contract shall be in writing and signed by a duly authorised representative, be sent by recorded delivery, facsimile transmission, or internet e-mail, and be sent to the address of the other party set out in this Agreement, or to such other address for notices as a party shall notify to the other from time to time in accordance with this condition. Service of any notice of any claim, dispute, termination, breach or legal proceedings in connection with this Agreement shall not be made by e-mail or facsimile, and shall be made to the registered office of the other party.
A notice shall be deemed to have been received: if sent by recorded delivery, on delivery; if sent by facsimile, on the day of completion of uninterrupted transmission by the sender; and if sent by internet e-mail, on the day of receipt at the mail server of the intended recipient. If in any case the day of deemed receipt is not a Business Day, or delivery or transmission is completed after 17:00 hours on the day of deemed receipt by the recipient, then the day of deemed receipt shall be the next Business Day.
The Supply Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Supply Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Supply Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Supply Contract.
The Supply Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by the laws of England and Wales, and the parties hereby submit to the non-exclusive jurisdiction of the courts of England and Wales.
