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Holland & Barrett - Standard Conditions of Supply
1. Interpretation
In these conditions:
'Agreement' means the Commercial Terms, these Conditions, the Supplier Manual and all Purchase Orders issued under the Agreement
H&B means Holland & Barrett International Limited (registered in England and Wales under number 04515155) or such of its subsidiary companies stated on the relevant Purchase Order.
Commercial Terms means the document which sets out the basis of H&B’s commitment to purchase Products and/or Services and any additional terms agreed between the parties.
Conditions means these Standard Conditions of Supply, along with the Manual and all documents referred to in the Manual and any amendments, updates or replacement from time to time to these Standards Conditions of Supply or any documents referred to in the Manual.
Incoterms means the international rules for the interpretation of trade terms of the International Chamber of Commerce latest version in force at the date when a Purchase Order is issued. Unless the context otherwise requires any terms or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions the latter shall prevail
Manual means the document entitled “Doing Great Business Together-Supplier Partnership Manual” issued to the Supplier by H&B; along with all documents and attachments to the Manual.
New Line Form means H&B’s standard document made available to and completed by the Supplier on the Supplier Portal which sets out key information about the Supplier branded Products.
New Supplier Account Form means H&B’s standard document issued by H&B to the Supplier and completed with the required information for account creation.
Products means the raw ingredients or finished products (including any instalment of the raw ingredients or finished products or any parts of them and all relating documentation and all packaging, labelling, usage instructions, product design, associated artwork) which the Supplier is to supply in accordance with these Conditions, the Commercial Terms and relevant Purchase Orders including products supplied as part of a Service.
Purchase Order means H&B’s standard accounts document (substantially in the format set out in the Manual) issued by H&B to the Supplier.
Service means the service(s) (including any parts of the service) which the Supplier is to supply in accordance with these Conditions; details of which will be set out in the relevant Commercial Terms and Purchase Order(s)
Specification means:
- In the case of H&B Own Label Brand Products and Services, completed versions of any technical, descriptive and specification documentation relating to the raw materials and / or finished Products (including shelf life, product claims , claims validation, ingredient and quality requirements) as uploaded into the Product Lifecycle Management Database (“PLM”) or as otherwise agreed in writing; or
- In the case of Supplier branded Products, the label and shelf life of the Product and any other Product information uploaded to the New Line Form or as required by H&B in order to meet relevant laws.
Supplier means the party whose details are set out in the Commercial Terms.
Supplier Portal means H&B’s online application used for Supplier and Product management.
Writing includes email, but not faxes or SMS / text messaging applications via a mobile phone or other device.
1.1. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.2. Where terms referred to within this Condition 1 are used within other documents which comprise the Conditions, unless the context otherwise requires, they shall have the same meaning as within this Condition 1.
1.3. The terms of the Agreement shall prevail over and override any inconsistent terms or conditions whether expressed or implied contained in or referred to in the Supplier’s quotation, any Supplier’s terms and conditions, acceptance, delivery note or correspondence or elsewhere or in any purchase order. Any agreements to the contrary are hereby excluded. No addition to or variation of or exclusion of the Agreement or any of its terms shall be binding upon H&B unless confirmed expressly and specifically in writing by a director of H&B. If there is any conflict or inconsistency between these Conditions, the Agreement, the Supplier Manual and any Purchase Order, the following order of precedence will apply: (1) any Purchase Order; (2) the Commercial Terms (3) these Conditions; and (4) the Supplier Manual.
2. Supply of Product and Services
2.1. The Supplier shall supply Products and/or Services to H&B in accordance with this Agreement (including the Supplier Manual).
2.2. Offers to purchase Products from the Supplier will only be made by Purchase Order. An order shall be deemed to be accepted on the earlier of the Supplier issuing a written acceptance of the Purchase Order and the Supplier doing any act consistent with fulfilling the Order.
2.3. The Supplier shall supply the Products or Services in accordance with the delivery address(es), date(s) and times for delivery set out in such Purchase Order, or such other delivery address(es) date(s) and time(s) as are agreed in writing by H&B. The time for delivery shall be of the essence.
3. Forecasts and Stock Holding
3.1. Unless stated in the Commercial Terms, there will be no minimum order value nor any volume commitment on H&B.
3.2. Forecasts provided by H&B are indicative only, are not binding orders and may be increased or decreased by H&B at its discretion; however H&B shall use all reasonable endeavours to give as much prior notice of adjustment to any forecasts as it is reasonably able.
3.3. The Supplier shall, if requested to do so by H&B, promptly provide it with such information as it may reasonably request from time to time to assist with the completion of its forecasts.
3.4. The Supplier shall promptly inform H&B if at any time it anticipates that it will be unable to meet H&B’s forecasted requirements for the Products.
3.5. The Supplier shall ensure that it manufactures or procures materials and packaging to enable it to hold a minimum of four and a maximum of twelve weeks’ volume of Products in stock at any time.
3.6. Where the Supplier proposes to delist certain Products, it must obtain H&B’s prior written consent to such proposals, which may not be implemented until at least 6 months after such written consent.
4. Delivery and Inspection
4.1. The Supplier shall ensure that all deliveries are made in accordance with the Purchase Order and the Supplier Manual. Time and date of delivery of Products and/or Services are of the essence.
4.2. The Supplier shall be responsible to H&B for ensuring the accuracy of the terms of any Commercial Terms and Purchase Order submitted by H&B, including but not limited to quantity, price, quality, description of, delivery date and any Specification
4.3. H&B reserves the right to inspect the Products and/or Services within a reasonable period of delivery (notwithstanding any prior payment or acceptance of the Products and/or Services thereof) and, (in addition to any other right and remedies available under law), to cancel the relevant order (and any subsequent orders for the same type of Products and/ or Services or previous orders where H&B reasonably believes the same breach is likely to apply to any unsold stock) and to (at H&B’s option) reject the Products and/or Services in the event that these fail to (i) meet the Specification or (ii) comply with the provisions of Condition 9 . All shortages in order quantity will be notified to the Supplier in writing within 72 hours of delivery and a debit note issued by H&B for the full amount.
4.4. The Supplier shall be liable to H&B for any and all losses, costs and expenses sustained as a result of the Supplier’s breach of, and /or H&B exercising its rights under, any of these Conditions at Condition 4.
4.5. If the Supplier fails to deliver Products or perform Services in accordance with the stated time for delivery, the Supplier shall pay H&B on demand or H&B may deduct from its payments to the Supplier 3% of the price payable for such Products or Services for each week’s delay, up to a maximum of 12% as liquidated damages. The parties confirm that these sums represent a genuine pre-estimate of H&B’s loss for these periods of delay. After 4 weeks delay, the delivery shall be deemed to be a total failure to deliver and H&B shall have all rights and remedies available to it, howsoever arising, whether at law or otherwise to terminate the contract and recover damages for the Suppliers total failure to deliver.
4.6. The Supplier acknowledges the importance to H&B of delivering the correct quantities of Products as specified in the Purchase Order to H&B’s premises and that H&B suffers losses where incorrect quantities of Products are delivered. Accordingly, H&B shall not be responsible for Products delivered in excess of the quantity specified in the Purchase Order and shall be entitled (but not obliged), where it becomes aware of an over-delivery, in respect of any such over-delivered Products (a) to sell the same if the Supplier fails at its own expenses to remove such Products within 7 days of notice of such over-delivery and (b) 8.1.2. to retain from the proceeds of sale, the costs of sale, storage, transport and other chargers incurred related to the over-delivery and any other monies due from the Supplier, before then paying the balance to the Supplier in accordance with the payment terms stated in the Commercial Terms. H&B may at its sole option elect to reject a delivery of Products if the Supplier delivers less than the quantity of Products ordered. If H&B rejects the delivery then (without prejudice to H&B’s general rights of recourse for breach of these Conditions) it shall be deemed a failure to deliver and the provisions of Condition 4.5 shall apply.
4.7. The Supplier shall not be allowed additional time outside of the time stated for delivery without the express written consent of H&B.
4.8. Unless inconsistent with this Agreement, all Products shall be delivered DDP as set out in the INCOTERMS to the location(s) stated in the Purchase Order.
4.9. On or prior to delivery of Products, the Supplier (or its appointed carrier) shall provide H&B with (i) such export or import licences and consents and documents as may reasonably be required by H&B; (ii) certificates of origin as H&B may reasonably request; (iii) such other certificates or documentation as are specified in the Manual or on the Purchase Order; and (iv) a delivery note for the Products. All Products will be delivered by the Supplier to H&B in compliance with all import laws and regulations of the European Union and the United Kingdom applicable at the time of delivery. H&B shall be entitled but not obliged to reject any Product supplied which either does not meet, or is not supplied in accordance with the requirements of this Condition
4.10. The Supplier will indemnify H&B for and against the costs incurred, as a result of any failure by the Supplier to supply ,or of the Supplier supplying any incorrect or incomplete documentation, any export or import documents, certificate of origin, certificate of analysis/certificate of conformance, other certificates supplied by the Supplier in relation to those Products and/or Services, any other required import or export information or data, and commodity codes and meursing codes for the Products.
5. Packing and Shipment
5.1. Products must be packed safely and securely following usual and accepted practice and deliveries should be made in accordance with the Goods Inwards delivery procedures as set out in the Supplier Manual. The Supplier shall be responsible for ensuring that all deliveries include a readily accessible advice note and the required labelling and information set out in the Supplier Manual. If applicable, a certificate of conformity must be posted separately to H&B’s Quality Assurance Manager, if requested, and in the form specified by H&B.
5.2. The Supplier shall be liable to H&B for a pro rata refund of any prepaid transportation costs, where prepaid transportation costs are authorised and the Supplier does not ship against the specified account.
6. Terms of Payment
6.1. The Supplier shall be entitled to raise an invoice upon delivery of the Products and/or Services to H&B.
6.2. Payment terms shall be as within the Manual or as agreed between H&B and the Supplier in the New Supplier Account Form. If for any reason the New Supplier Account Form is incomplete, H&Bs standard payment terms of 90 days shall apply.
6.3. Payment shall be made to the Supplier after receipt of the Supplier’s correctly raised invoice and delivery of all Products and/or Services (including all documentation as requested in the Manual, Commercial Terms and/or relevant Purchase Order), and in accordance with H&B’s standard payment terms and any agreed early settlement discount
6.4. Settlement of invoices shall not constitute acceptance of the Products and/or Services; or impair H&B’s right of inspection and/or rejection.
6.5. Without prejudice to any other right or remedy available to it, H&B reserves the right to set off any amount owing at any time from the Supplier to H&B against any amount payable by H&B to the Supplier.
6.6. H&B may withhold payment of invoices disputed in good faith until such dispute is resolved.
7. Prices, Costs and Fees
7.1 The price for the Products and/or Services ordered shall be fixed subject to one cost price review in any rolling 12 month period as per the Manual.
7.2 Unless otherwise agreed by H&B in Writing, the prices specified in the Purchase Order will be the maximum prices to be paid exclusive of VAT and any rebates, supplier funding, or other contributions agreed under the Commercial Terms but inclusive of all other costs, charges and expenses (including, but not limited to, charges for packing, packaging, tooling, artwork, samples, delivery, carriage, import tariffs, customs charges, insurance and any testing or inspection requirements of the Supplier and H&B).
7.3 H&B shall not be bound by any price increase which has not been expressly agreed to in Writing by H&B. Any increase agreed in accordance with the Manual shall be subject to written acceptance by H&B in its absolute discretion and, if agreed, shall apply to any Purchase Orders issued on or after twelve weeks from the date of written acceptance by H&B or in line with such alternative date agreed between the parties and confirmed by H&B in its written acceptance. .For the avoidance of doubt, orders placed before the expiry of that 12 week period but delivered after it shall be at the price prior to the agreed increase.
7.4 If H&B rejects a proposed price increase in accordance with Condition 7.3, the price increase shall not take effect but the Supplier shall have the right to terminate the Commercial Terms by written notice to H&B. Termination shall be effective from the date twelve weeks after the date of such written notice. For the avoidance of doubt, during such twelve-week period, the price in force prior to the date of the proposed price increase shall continue to apply.
7.5 H&B shall be entitled to require a price decrease in accordance with the Manual. If the Supplier rejects a proposed price decrease, H&B shall have the right to terminate the Commercial Terms by written notice to the Supplier and with effect from the date twelve weeks after the date of such notice. For the avoidance of doubt, during such twelve-week period, the price in force prior to the date of the proposed price decrease shall continue to apply.
7.6 H&B may invoice the Supplier in respect of the following:
7.6.1 its costs of carrying out testing, checks or audits as provided by Condition 9.5 and the provisions of the Manual;
7.6.2 any amounts owed to H&B in accordance with the Business Investment Plan (“BIP”) agreed with the Supplier including without limitation, the agreed level of contribution to the Supplier’s promotional campaigns and additional promotional activity, as described in the Manual and specified in the Commercial Terms;
7.6.3 the agreed contribution towards the Supplier’s international transfer costs; as specified in the Manual;
7.6.4 the agreed contribution towards product testing and shelf-life stability testing; as specified in the Manual ;
7.6.5 additional costs, charges and expenses expressly set out in the Manual, Commercial Terms or relevant Purchase Order; and
7.6.6 the costs, charges, expenses and liquidated damages referred to in these Conditions including without limitation at Conditions 4.5, 5.3, 6.6 and 9.9.
7.7 The sums referred to in Condition 7.6 will be paid to H&B by the Supplier within 90 days of the date of the relevant invoice. Subject to the provision of a valid VAT invoice the Supplier shall also pay such VAT as may be properly payable.
7.8 H&B reserves the right to negotiate rebates and marketing contributions at any point during this Agreement. Where rebates and/or marketing contributions are agreed, the agreed rates and bands will be documented in Writing between the parties. The Supplier will pay such agreed rebates and/or marketing contributions to the Customer quarterly by debit note. Where a debit note cannot be raised, the Supplier will make any outstanding payment by BACS or cheque, at H&B’s option
8. Title and Risk to Products
8.1. Title to all the Products purchased hereunder shall pass directly to H&B from the Supplier at the point of delivery.
8.2. Risk of loss shall pass to H&B upon delivery of the Products in an undamaged condition in accordance with the relevant Purchase Order.
8.3. The Supplier shall bear all risks and expenses associated with returning any rejected Products after notice of rejection including, but not limited to storage, freight, insurance, packing, materials and labour..
9. Warranties and Liabilities
9.1 The Supplier warrants that for a period of no less than the shelf life stated in the Specification (as calculated from the date of acceptance of the Products by H&B) the Products shall:
(i) be in full conformity with all Specifications, drawings and/or other descriptions, representations or samples, whether given or approved by the Supplier or H&B
(ii) be of merchantable and / or satisfactory quality
(iii) be fit for their intended purpose and for human consumption
(iv) be safe and without risk to health or property when correctly used
(v) be made from new materials (except where the use of recycled materials forms part of the agreed specification) and free from defects in design, materials and workmanship
(vi) include all necessary information about the use of the Products and all instructions and warnings relating to the Products necessary for the safe use of the Products and for H&B to comply with its obligations under applicable laws,
(vii) save if and to the extent that the Manual, Commercial Terms or Purchase Order states that such obligations rest with H&B, be designed, manufactured, processed, stored and transported with all reasonable skill and care by properly qualified and experienced persons
(viii) be in full compliance with all applicable statutory and regulatory requirements relating to their manufacture, labelling, safety marking, packaging, storage, handling, shipment and delivery (and this warranty shall include any marketing and point of sale wording and sell copy, artwork, leaflets and training materials provided by the Supplier to H&B for use by H&B)
(ix) be free from any security interest or lien or encumbrance and
(x) not infringe any patents, trademarks, copyrights or other intellectual property rights of any third party.
9.2 The Supplier warrants that any Service(s) covered by the Commercial Terms/ Purchase Order will be performed in accordance with best practice in the Supplier’s industry, profession or trade.
9.3 The warranties in Condition 9.1 9.2 and 9.13 shall (i) be in addition to any other warranties implied or expressly given by the Supplier or implied in favour of H&B by applicable laws, (ii) survive inspection, delivery, acceptance of and payment for the Products and/or Services and (iii) extend to H&B, its successors, assigns and customers.
9.4 The Supplier shall ensure that at all times it has carried out its own quality control inspections and testing of Products in accordance with all applicable laws and industry standards (and provide copies of such inspection and testing to H&B) and has in place and shall maintain all the registrations, licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Commercial Terms and Purchase Order and shall immediately notify H&B if such licences, permissions, consents, authorisations or permits are withdrawn or removed (or are likely to be withdrawn or removed).
9.5 H&B shall have the right to inspect and test the Products at any time before or after delivery. In addition, on reasonable prior written notice, H&B shall have the right to carry out audits of the Supplier’s facilities and records relating to the Products (including throughout the entire supply chain) as set out in the Manual and:
9.5.1 to inspect manufacturing processes, controls and Product(s);
9.5.2 to investigate customer complaints or complaints of a regulatory body and evaluate any responses by the Supplier;
9.5.3 to review any records or accounts relating to manufacture, supply, distribution or delivery, and
9.5.4 to otherwise review and assess the Supplier's compliance with its obligations under these Conditions.
The Supplier shall provide all reasonable co-operation, access and information to H&B (and its agents) to enable it to carry out such audits and H&B shall take all reasonable steps to minimise any disruption to the Supplier’s day to day business.
9.6 If following such inspection or testing H&B considers that the Products do not conform or are unlikely to comply with the Supplier's undertakings at Condition 9.1, H&B shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
9.7 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Products and any such quality control, certification, inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Purchase Order, and H&B shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.
9.8 H&B may, at its option (and at the Supplier’s expense), either return (or require the Supplier to uplift) for full credit or require prompt correction or replacement of defective or non-conforming Products or parts thereof, or re-performance of the defective or non-conforming Services, which rights shall be in addition to such other rights H&B may have under applicable law. Any Products so replaced or repaired or Services re-performed will be subject to the same warranties outlined in Conditions 9.1 9.2 and 9.13.
9.9 If the Supplier shall fail to repair or replace such defective Products, or fail to re-perform defective Services, H&B has the right to have the work of repair or replacement or re-performance undertaken by a third party and recover the costs incurred from the Supplier.
9.10 In the event that H&B brings a claim against the Supplier to enforce performance of any section written under these Conditions, or should H&B be forced to defend a claim brought against it by any third party or parties arising from the Supplier’s performance or non-performance , the Supplier shall be liable for all costs and expenses incurred, including but not limited to legal fees.
9.11 The Supplier shall inform H&B immediately if it becomes aware of any potential quality, safety, or labelling issue in relation to the Products and/or Services, any proposed or actual change of site at which Products are manufactured or processed or any actual or potential breach of its obligations under these Conditions.
9.12 The Supplier shall assign to H&B any warranties related to Products and/or Services or, if it is unable to do so, shall bring claims under such warranties on behalf of and at the request of H&B.
9.13 Notwithstanding the general obligations in this Condition 9, the Supplier warrants that accurate and legally compliant allergen information shall be provided on the labelling of all Products and H&B to enable accurate information to be provided to end consumers. Should the Specification of the Products or any packaging or labelling or the manufacturing process change, the Supplier agrees to notify H&B of any updates (including but not limited to the allergen information) before the change is put in to effect.
10. Indemnification
10.1 The Supplier shall indemnify and hold harmless H&B, its successors and assigns and their respective officers, directors, employees, agents and customers from all claims, demands, liabilities, costs (including without limitation withdrawal and/or recall costs) and expenses (including without limitation legal fees) arising from any actual or alleged:
10.1.1 defect in the Products and/or Services provided by the Supplier;
10.1.2 failure of the Products and/or Services to comply with all relevant Specifications;
10.1.3 product liability arising under the Consumer Protection Act 1987 or the General Product Safety Regulations 2005 (as amended) or otherwise in respect of product safety
10.1.4 failure of the Products and/or Services to comply with the express or implied warranties of the Supplier;
10.1.5 failure of the Products and/or Services to comply with all applicable laws, rules and regulations;
10.1.6 bodily injury or death, damage to property or any loss of use of any tangible or intangible property (including loss of business profits) caused by the Products and/or Services and/or the Supplier’s negligence;
10.1.7 infringement or alleged infringement of any patents, trade names, trademarks, copyrights registered or unregistered designs, or other intellectual property rights of H&B or any third party (including where H&B reproduces such intellectual property rights in accordance with Condition 16.6) by the provision of the Services or the sale of the Products or their packaging labelling or advertisement (including without limitation any claim for passing-off or alleged passing-off of the Products or Services by reason of their labelling packaging or advertisement as those of any third party);
10.1.8 failure by the Supplier to provide import or export documents, certificates of origin or other certificates required or the provision of false or inaccurate documents or certificates;
10.1.9 Products and/or Services supplied that do not conform with any export or import documents, certificate of origin, certificate of analysis/certificate of conformance or other certificates supplied by the Supplier in relation to those Products and/or Services, or
10.1.10 any breach by the Supplier of these Conditions
10.2 The indemnification and hold harmless obligations of this Condition 10 shall survive delivery of the Products and/or Services supplied under a Commercial Terms or Purchase Order.
10.3 H&B shall have a duty to take all reasonable steps to mitigate any claims, demands, liabilities, costs and expenses suffered or incurred.
11. H&B’s Property
11.1 The Supplier acknowledges that all and any materials, equipment and tools, drawings, Specifications, and data supplied by H&B to the Supplier (H&B Materials) and all intellectual property rights in H&B Materials are and shall remain the exclusive property of H&B. The Supplier shall keep H&B Materials in safe custody at its own risk, maintain them in good condition until returned to H&B, and not dispose or use the same other than in accordance with H&B’s written instructions or authorisation.
11.2 All trademarks of H&B that H&B requests or permits the Supplier to affix to the Products purchased hereunder are owned by H&B and the Supplier shall not acquire or claim any right, title or interest therein, or use any such trademarks for any other purpose.
12. Confidentiality
12.1 Any drawings, data, tools, designs, Specifications, equipment, software programs or other property supplied by H&B to the Supplier in connection with the Commercial Terms or Purchase Order shall remain the property of H&B and such information shall be kept confidential.
12.2 Such property shall (i) be used exclusively in connection with the Products and/or Services ordered hereunder, (ii) maintained in first class condition and (iii) returned by the Supplier to H&B on termination or expiry of the Commercial Terms; or earlier if H&B should so request.
12.3 The Supplier shall not make any news release or public announcement regarding a contract of purchase or business relationship with H&B without the prior written consent of H&B.
13. Insurance
13.1 The Supplier shall take out and maintain in force, with a reputable insurance company, comprehensive product liability insurance and public liability insurance as set out in the Manual or such level as agreed between the parties in writing to cover the liabilities that may arise under or in connection with the Commercial Terms or Purchase Order or the Supplier’s obligations under it or these Conditions however the maintenance of such insurance shall not in any way limit the liability of the Supplier.
13.2 Where performance of the contract requires entry on to any premises or facilities of H&B or involves the use or operation of property furnished by H&B, the Supplier shall also obtain and maintain property damage insurance in an amount sufficient to cover any loss.
13.3 The Supplier shall provide evidence of cover and the current annual premium receipt for all insurances as specified in the Manual.
13.4 All insurance shall be primary and non-contributory.
14. Termination
14.1 H&B may terminate a Purchase Order and/or Commercial Terms in whole or in part at any time (i) for any default by the Supplier hereunder (including but not limited to the Supplier’s failure to deliver Products and/or Services within the time specified by H&B), and/or (ii) in the event that the Supplier becomes the subject of any claim or court proceeding or ruling for the relief of debtors or otherwise becomes insolvent or bankrupt or makes an assignment for the benefit of its creditors.
14.2 In the event of termination, all right, title and interest in and to all or any portion of material acquired by the Supplier and paid for by H&B in relation to the performance of a Purchase Order, work in progress and/or completed items specified in such notice shall pass immediately to H&B.
14.3 Without prejudice to the provisions of Condition 14.1, H&B may terminate an existing Purchase Order and/or Commercial Terms in respect of Products not yet supplied or Services not yet performed on written notice to the Supplier prior to delivery of the relevant Products or performance of the relevant Services. The Supplier will take all reasonable steps to minimise any costs incurred as a direct result of such cancellation. As the Supplier’s exclusive remedy, H&B will reimburse the Supplier for any unavoidable costs incurred as a result of such termination (less any net savings realised by the Supplier as a result of such cancellation) if and to the extent that the Supplier is able to evidence such loss to H&B’s reasonable satisfaction. For the avoidance of doubt, the provisions of this Condition 14.3 shall not relieve the Supplier from its obligation to mitigate its loss and H&B shall have no liability to the Supplier for Products (whether finished or unfinished) that are readily useable, reusable or saleable and which are not bespoke to or commissioned by H&B or supplied to H&B on an exclusive basis.
14.4 In the event of termination under Condition 14.1, H&B may purchase similar Products and/or Services elsewhere or secure the manufacture and delivery of Products and/or performance of Services by contract or otherwise, and the Supplier shall be liable for any excess cost incurred by H&B.
14.5 Termination of the Commercial Terms or a Purchase Order, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination.
14.6 Conditions which expressly or by implication survive termination shall continue in full force and effect.
15. Tooling
15.1 Where H&B has agreed to make a contribution towards the Supplier’s costs in relation to tooling required to manufacture the Products, the Supplier agrees that as a condition of that contribution it shall not use that tooling other than in relation to production of the Products to be provided to H&B, unless and until it has been expressly agreed to in Writing by H&B.
16. Intellectual Property
16.1 Where H&B appoints the Supplier to provide Products (including but not limited to product design, packaging, information labels, usage instruction leaflets/manuals and associated artwork) or Services embodying H&B’s intellectual property and/or which are specifically commissioned by and bespoke to H&B (“Own Label Products or Services”), H&B grants the Supplier a non exclusive royalty-free licence to use H&B’s intellectual property for the purpose only of providing the Own Label Products or Services to H&B and the Supplier shall not acquire or claim any right, title or interest therein.
16.2 All trademarks of H&B that H&B requests or permits the Supplier to affix to the Products purchased hereunder are owned or licensed by H&B and the Supplier shall not acquire or claim any right, title or interest therein, or use any such trademarks for any other purpose.
16.3 Except as may be expressly set out in the Commercial Terms, all existing and future rights, titles and interests in any and all inventions or discoveries arising, or to arise from such Own Label Products or Services shall vest in H&B to the fullest extent permissible by law. The Supplier fully and irrevocably assigns to H&B, with full title guarantee and free from all third party rights, the intellectual property rights and all other rights, titles and interests in all works written, drawn or otherwise recorded, originated, conceived or made by or on behalf of the Supplier in connection with the Own Label Products or Services (the “Works”) including all documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Own Label Products or Services in any form, including computer programs, data, reports and Specifications (including drafts).
16.4 Insofar as they do not so vest automatically by operation of law or under these Conditions, the Supplier holds legal title in such intellectual property rights and all other rights, titles and interests in all such Works on trust for H&B. As and when requested by H&B the Supplier will execute such assignment/transfer documents as H&B requires in order to transfer legal title to H&B and to record such transferred title at any relevant official intellectual property office.
16.5 The Supplier waives any moral rights to which it is now or may at any future time be entitled in any of the Works, and shall obtain waivers of any moral rights in any and all such Works to which any individual is now or may at any future time be entitled, under Chapter IV of the Copyright and Designs and Patents Act 1988 or any similar provision of law in any jurisdiction.
16.6 The Supplier warrants that any and all trademarks of the Supplier (or any third party) relating to the Products purchased hereunder or their ingredients or formulations are owned or licensed by the Supplier and the Supplier grants H&B (including its appointed agents/ suppliers) a non exclusive, irrevocable, royalty-free licence to use (and to authorise others to use) such trademarks as may be reasonably required in order to promote, market and /or advertise through all sales and marketing channels, such Products for sale. H&B shall not acquire or claim any right, title or interest therein, or use any such trademarks for any other purpose. This right and license granted shall be for the duration of the Agreement and following termination of the Agreement for the period that it takes H&B to sell any remaining stock of Products.
17. Amendments, Cancellations and Terminations
17.1 H&B shall have the right at any time by giving 12 weeks’ notice in Writing to Supplier (or such other shorter period of notice as H&B considers reasonable taking into account the relevant circumstances), to make changes in any one or more of the following provisions of or to otherwise vary the terms of the Commercial Terms (with the exception of any variations to the price, in respect of which Condition 18 shall apply):
17.1.1 quantity;
17.1.2 method of shipping or packing;
17.1.3 drawings, designs or Specifications (H&B Own Label Brand Products only);
17.1.4 place of delivery; and/or
17.1.5 delivery schedule.
17.2 H&B shall have the right to amend an existing Purchase Order prior to delivery of the relevant Products or performance of the relevant Services. If H&B is able to demonstrate that such change(s) will reduce the Supplier’s costs or if the Supplier is able to evidence that such change(s) will materially increase its costs or materially affect its ability to fulfil the Purchase Order within 7 days from the date of such change and that it has taken all reasonable steps to minimise such delays/costs, H&B will discuss and agree a fair adjustment to the price and/or delivery schedule. For the avoidance of doubt, the provisions of this Condition 17.2 shall not relieve the Supplier from its obligation to take all steps reasonably necessary to fulfil such amended Purchase Order whilst such discussions are taking place.
17.3 H&B reserves the right of approval for any amendments to the label, insert or other packaging changes to Product(s); along with any amendments to and/or additions to claims relating to Products. The Supplier agrees to provide H&B with at least 90 days’ prior written notice of any such amendments or additions; subject to which, H&B will not unreasonably withhold or delay its approval to such changes.
18. Variation
18.1 Except as set out in these Conditions, any variation to these Conditions and/or the contract between the parties, including the introduction of any additional terms and conditions, shall only be binding when expressly agreed to in Writing by H&B.
19. Excess Stock
19.1 In the event that the Supplier suffers any insolvency event or the Commercial Terms or a Purchase Order is terminated, and subject to payment by H&B of any sums properly due to the Supplier in respect of such Products, the Supplier grants H&B (and its agents, advisors and subcontractors) the right to enter onto any premises where the Product(s) are located to remove any of the Product(s) and/or any packaging bearing H&B’s name, brand name, trade names, trademarks or other intellectual property rights from such premises.
19.2 If and to the extent that the Supplier holds Product(s) or packaging which are not to be transferred or delivered to H&B (whether following the rejection of Product(s), on the termination or cancellation of the Commercial Terms or a Purchase Order, or otherwise) and such Product(s) or packaging bear H&B’s name, brand name, trade names, trademarks or other intellectual property rights then H&B shall be entitled to require the Supplier (at H&B’s option) to:
19.2.1 promptly destroy such excess or rejected Product(s) and packaging and provide a certificate of destruction in a form reasonably acceptable to H&B; or
19.2.2 ensure that such Product(s) and packaging are not at any point distributed, released or otherwise made available for sale without the prior written consent of H&B and subject always to the Supplier completely removing all references to any trade marks, brand names, trade names or other intellectual property of H&B to H&B’s satisfaction.
20. International Provisions
20.1 Unless otherwise agreed with H&B in Writing in advance, when delivering Products to H&B from outside the UK, the Supplier must be the importer of record for the purpose of all regulatory requirements of the UK Customs and Border Protection Agency or any other UK governmental authority having jurisdiction over UK imports and must maintain records relating to such international transactions for a period of five years.
20.2 The Supplier acknowledges that H&B is unable to accept Products or Services purchased or provided from any country subject to US, EU, Canadian or UK sanctions or Products or Services which are subject to US export control laws or regulations and will ensure that none of the Products or Services originate from any of these countries or are subject to such laws or regulations.
20.3 The United Nations Convention on the International Sale of Goods shall not apply to these Conditions.
21. Health and Safety
21.1 When on H&B’s premises or H&B’s customer premises, the Supplier shall comply with H&B’s policies outlined in H&B’s most current edition of ‘H&B HEALTH AND SAFETY MANUAL’ which shall be provided to the Supplier upon request.
22. Anti-Bribery And Anti-Corruption
22.1 The Supplier, its subsidiaries and affiliates, and all their respective directors, officers, employees and authorised agents and any other person associated with or acting on behalf of the Supplier shall:
22.1.1 comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 and the U.S. Foreign Corrupt Practices Act 1977 (Relevant Requirements);
22.1.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK or otherwise with the Relevant Requirements;
22.1.3 comply with H&B’s Anti-bribery and Anti-corruption Policies (a copy of which will be provided to Supplier upon request), as H&B may update them from time to time (Relevant Policies);
22.1.4 have and shall maintain in place throughout the term of these Conditions its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies and Condition 22.1.2, and will enforce them where appropriate;
22.1.5 promptly report to H&B any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of these Conditions, and
22.1.6 immediately notify H&B (in Writing) if a foreign public official becomes an officer or employee of the Supplier or acquires a direct or indirect interest in the Supplier and the Supplier warrants that it has no foreign public officials as direct or indirect owners, officers or employees).
22.2 The Supplier shall ensure that any person associated with the Supplier who is performing Services or providing Products or Services in connection with these Conditions does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Supplier in this Condition 22 (“Relevant Terms”). The Supplier shall be responsible for the observance and performance by such persons of the Relevant Terms and shall be directly liable to H&B for any breach by such persons of any of the Relevant Terms.
23. Modern Slavery
23.1 In performing its obligations under these Conditions, the Supplier shall:
23.1.1 comply with all applicable anti-slavery and human trafficking laws, statutes and regulations and codes from time to time in force including but not limited to the Modern Slavery Act 2015 (Anti- Slavery Legislation);
23.1.2 have and maintain throughout the term of this agreement its own policies and procedures to ensure its compliance;
23.1.3 not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015, and
23.1.4 include in its contracts with its subcontractors and suppliers anti-slavery and human trafficking provisions that are at least as onerous as those set out in this Condition 23 to ensure that each of its subcontractors and suppliers shall comply with all applicable Anti-Slavery Legislation.
23.2 The Supplier shall indemnify H&B against any losses, liabilities, damages, costs (including but not limited to legal fees) and expenses incurred by H&B or awarded against H&B as a result of any breach of the Anti- Slavery Legislation.
23.3 The Supplier represents and warrants that:
23.3.1 neither the Supplier nor any of its officers, employees or other persons associated with it: (i) has been convicted of any offence involving slavery and human trafficking; and (ii) has been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence of or in connection with slavery and human trafficking, and
23.3.2 the Supplier shall implement due diligence procedures for its subcontractors and suppliers and other participants in its supply chains, to ensure that there is no slavery or human trafficking in its supply chains.
23.4 The Supplier shall notify H&B as soon as it becomes aware of any actual or suspected slavery or human trafficking in a supply chain which has a connection with these Conditions.
23.5 The Supplier shall prepare and deliver to H&B on request a report setting out the steps it has taken to ensure that slavery and human trafficking is not taking place in any of its supply chains or in any part of its business.
24. Anti-Facilitation of Tax Evasion
24.1 The Supplier shall:
24.1.1 not engage in any activity, practice or conduct which would constitute either: (i) a UK tax evasion facilitation offence under section 45(5) of the Criminal Finances Act 2017; or (ii) a foreign tax evasion facilitation offence under section 46(6) of the Criminal Finances Act 2017;
24.1.2 have and shall maintain in place throughout the duration of the Supplier relationship with H&B such policies and procedures as are both reasonable to prevent the facilitation of tax evasion by another person (including without limitation employees of the Supplier) and to ensure compliance with Condition 24.1.1 above;
24.1.3 promptly report to H&B any request or demand from a third party to facilitate the evasion of tax within the meaning of Part 3 of the Criminal Finances Act 2017;
24.1.4 provide H&B with such supporting evidence of compliance with this Condition 26 as H&B may reasonably request.
24.2 The Supplier shall ensure that any person associated with the Supplier who is performing Services and providing Products in connection with these Conditions does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Supplier in 23.1 (Anti-Facilitation Terms). The Supplier shall be responsible for the observance and performance by such persons of the Anti-Facilitation Terms, and shall be directly liable to H&B for any breach by such persons of any of the Anti-Facilitation Terms.
24.3 Breach of Conditions 24.1 and / or 24.2 shall be deemed a material breach of these Conditions.
24.4 For the purposes of this Condition 24 the meaning of reasonable prevention procedure shall be determined in accordance with any guidance issued under section 47 of the Criminal Finances Act 2017 and a person associated with the Supplier includes but is not limited to any subcontractor of the Supplier.
25. Assignment
25.1 The Supplier shall not be entitled to assign, subcontract, charge or otherwise deal with these Conditions or any Commercial Terms and/or any Purchase Order or any part of it without the prior written consent of H&B. H&B may assign these Conditions, any Commercial terms and/or a Purchase Order or any part of it to any other party.
26. General
26.1 Failure on the part of H&B to exercise or enforce any rights conferred in the Agreement shall not been deemed to be a waiver of any such right nor operate so as to ban the exercise or enforcement thereof at any time or times thereafter.
26.2 The Supplier shall, if requested to do so by H&B, promptly provide it with such information, assistance and co-operation in relation to the Products and Services as it may reasonably request from time to time to enable it to comply with its obligations under applicable laws.
26.3 Each right or remedy of a party under these Conditions is without prejudice to any other right or remedy of that party whether under these Conditions or not.
26.4 If any provision of these Conditions is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of these Conditions and the remainder of the provision in question shall continue in full force and effect.
26.5 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to the other party or its Registered Office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
26.6 The Contracts (Rights of Third Parties) Act 1999 shall not apply to these Conditions.
26.7 This Agreement shall be subject to the provisions of English law and the parties agree to submit to the exclusive jurisdiction of the English Courts.
