Terms and Conditions of Purchase

1 INTERPRETATION

1.1 In these Conditions the following terms shall have the following meanings:

(a) “Buyer” means Synergy Flavours Limited.
(b) “Conditions” means the terms and conditions of purchase set out in this document and (unless the context otherwise requires) any special terms and conditions agreed expressly in writing between the Buyer and Seller.
(c) “Contract” means any contractual arrangement relating to the supply of Goods to the Buyer by the Seller incorporating the Conditions and any Specification.
(d) “Debit Note” means any debit note issued by the Buyer to the Seller.
(e) “Delivery Location” means the location described in the Order.
(f) “Expiry Date” means the date recommended by the Seller beyond which the Goods cannot be warranted as being of satisfactory quality or fit for the purpose for which they were supplied.
(g) “Goods” means the goods (including any instalment of the goods or any part of them) described in an Order.
(h) “Law” includes common or customary law and any decree, judgment, legislation, order, ordinance, regulation, statute, treaty or other legislative measure in any jurisdiction or any present or future directive, regulation, request or requirement (in each case, whether or not having the force of law but, if not having the force of law, the compliance with which is in accordance with the general practice of persons to whom the directive, regulation, request or requirement is addressed).
(i) “Order” means the Buyer’s order for a specific quantity of the Goods.
(j) “Price” means the price set out in the Order, or, if no price is quoted, the price set out in the Seller’s published price list in force as at the date the Contract came into existence.
(k) “Revised Price” means the price of the Goods less the debited amount as stated in the Debit Note.
(l) “Seller” means the person so described in the Order
(m) “Shelf-Life” means the period of time between the date of manufacture of the goods and the expiry date.
(i) “Specification” means all technical specifications and descriptions of any Goods supplied by the Seller to the Buyer whether contained in the Contract or an Order or otherwise specified by the Buyer from time to time.

2 BASIS OF PURCHASE

2.1 An Order constitutes an offer by the Buyer to purchase the Goods subject to these Conditions.
2.2 The Order shall be deemed to be accepted on the earlier of:

(a) the Seller issuing a written acceptance of the Order; and
(b) the Seller doing any act consistent with fulfilling the Order,

at which point and on which date the Contract shall come into existence.
2.3 These Conditions shall apply to every Contract under which the Buyer acts as purchaser of the Goods to the exclusion of any other terms and conditions on which any quotation has been given to the Buyer or subject to which the Order is accepted or purported to be accepted by the Seller.
2.4 The Seller waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Seller that is inconsistent with these Conditions.
2.5 Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Buyer (or its authorised representative).
2.6 The Order number quoted on the Order and the stock code reference number must appear on all invoices, advice notes, packing lists and correspondence between the Buyer and the Seller.

3 SPECIFICATION

3.1 The quantity, quality and description of the Goods shall, subject as provided in these Conditions, be as specified in the Order and/or in any applicable Specification supplied by the Buyer to the Seller or agreed in writing by the Buyer.
3.2 The Seller warrants that it shall comply with all applicable Laws concerning the manufacture, packaging, labelling and delivery of the Goods including any applicable Laws relating to food products or product safety or the requirements of any relevant product licence, together with any relevant product declarations.
3.3 The Goods shall be marked in accordance with the Buyer’s instructions and any applicable Laws relating to the labelling, packaging and marking of the Goods or any applicable product licence, and shall be marked with the relevant Expiry Date in each case and shall be properly packed and secured so as to reach their destination in an undamaged condition in the ordinary course.
3.4 The Seller acknowledges that all materials, equipment and tools, drawings, specifications, and data supplied by the Buyer to the Seller (Buyer Materials) and all rights in the Buyer Materials are and shall remain the exclusive property of the Buyer. The Seller shall keep the Buyer Materials in safe custody at its own risk, maintain them in good condition until returned to the Buyer and not dispose or use them other than in accordance with the Buyer’s written instructions or authorisations.

4 PRICE OF GOODS

4.1 The Price of the Goods shall be as stated in the Order and, unless otherwise so stated, shall be:

(a) exclusive of any applicable Value Added Tax and any other sales duties and taxes; and
(b) inclusive of:

i. all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods to the delivery address stated in the Order; and
ii. any customs duties where applicable.

4.2 No increase in the Price may be made (whether on account of increased material, labour or transport costs, fluctuations in rates of exchange or otherwise) without the prior written consent of the Buyer. Unless we agree otherwise, a minimum of 90 days’ notice is required for any increase in price which, if accepted shall take effect for any future Orders not yet made at the date of such increase (and for the avoidance of doubt the Price in respect of existing Orders shall not be affected unless expressly agreed in writing by the Buyer).

5 TERMS OF PAYMENT

5.1 Unless otherwise stated in the Order the Seller shall be entitled to invoice the Buyer on or at any time after delivery of the Goods, and each invoice shall quote the number of the Order and any applicable stock code reference number in respect of the Goods.
5.2 Unless otherwise stated in the Order, the Buyer shall pay the price of the Goods [thirty (30)] days after the end of the month of receipt by the Buyer of a proper invoice or, if later, after acceptance of the Goods in question by the Buyer.
5.3 The Buyer may at any time, without notice to the Seller, set off any liability of the Seller to the Buyer (including in respect of any Debit Note) against any liability of the Buyer to the Seller, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract or any other Contract. Any exercise by the Buyer of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.
5.4 If a party fails to make a payment due to the other party under the Contract by the due date, then the defaulting party 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 clause will accrue each date 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%. Where a payment is disputed in good faith, interest is only payable after the dispute is resolved, on sums found or agreed to be due, from 30 days after the dispute is resolved until payment.

6 DELIVERY

6.1 The Goods shall be delivered at the delivery address and on the delivery date or within the period stated in the Order, in either case during the Buyer’s usual business hours.
6.2 Unless otherwise agreed the time of delivery of the Goods is of the essence of the Contract.
6.3 The Buyer or its authorised representatives shall, subject to giving the Seller reasonable notice where practicable, have the right to inspect and/or test the Goods during the Seller’s normal business hours at the Seller’s premises or any other place where the Goods are manufactured, stored or prepared for delivery, and at the Delivery Location at the time of delivery. The Seller shall provide all facilities, access and assistance reasonably required by the Buyer for the purposes of any such inspection or test.
6.4 If, following any inspection or test, the Buyer considers that the Goods do not comply, or are unlikely to comply, with the Contract, any Specification or the warranties given by the Seller under these Conditions, the Buyer may require the Seller promptly to take such remedial action as is necessary to ensure compliance before delivery.
6.5 The Buyer may conduct further inspections and tests after the Seller has carried out any such remedial action. If the Seller fails to take that remedial action within the time reasonably specified by the Buyer, or if the Goods fail any further inspection or test, the Buyer may reject the Goods in whole or in part and exercise any of its other rights and remedies under these Conditions.
6.6 Any inspection or test, or any failure by the Buyer to inspect or test the Goods, shall not constitute acceptance of the Goods, shall not affect the Seller’s obligations under the Contract and shall be without prejudice to the Buyer’s rights and remedies under these Conditions, the Sale of Goods Act 1979 and common law.
6.7 The Buyer shall be entitled to reject any Goods delivered, which are not in accordance with the Contract or do not comply with any Specification or sample or are not of satisfactory quality or are not fit for the purpose for which they are intended or are in breach of any of the warranties given by the Seller, and the Buyer shall not be deemed to have accepted any Goods until the Buyer has had at least fourteen (14) working days to inspect them following delivery or, if later, within a reasonable time (in the opinion of the Buyer) after any latent defect in the Goods has become apparent.
6.8 In the event that the Buyer rejects any Goods pursuant to this clause 6 the Buyer shall issue a Debit Note to the Seller stating the debit amount and reason for the debit. In the event that the Seller does not respond within 28 days of the date of the Debit Note then the Seller shall be deemed to have accepted the Revised Price.
6.9 These Conditions shall apply to any repaired or replacement Goods supplied by the Seller.
6.10 Unless otherwise agreed in writing, if the Seller:

(a) delivers less than ninety-five per cent (95%) of the quantity of Goods ordered, the Buyer may reject the Goods; or
(b) delivers more than one hundred and five per cent (105%) of the quantity of Goods ordered, the Buyer may reject the Goods or the excess Goods, and return any rejected Goods to the Seller at the Seller’s risk and expense.

If the Seller delivers more or less than the quantity of Goods ordered, and the Buyer accepts the delivery, the Seller shall make a pro rata adjustment to the invoice for the Goods.
6.11 The Seller shall not deliver the Goods in instalments without the Buyer’s prior written consent. If delivery of the Goods by instalments is agreed, the Seller shall invoice and the Buyer shall pay each instalment separately. However, any delivery by the Seller of the Goods by instalments without the Buyer’s prior written consent, failure by the Seller to deliver any one instalment on time or at all, or any defect in any instalment shall entitle the Buyer, without prejudice to any other remedy it may have including under Clause 9.4, to:

(a) reject the relevant instalment or the Goods as a whole;
(b) refuse to accept any subsequent instalment; and/or
(c) at the Buyer’s sole option, treat the Contract as terminated by the Seller’s breach.

6.12 The Buyer’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
6.13 The Seller shall supply to the Buyer at the time of delivery any instructions or other information required to enable the Buyer to accept delivery of the Goods including any relevant certificates of analysis in respect of the Goods. The Seller shall also provide with each delivery a delivery note confirming the quantity of the Goods delivered (including where Goods are delivered by instalments, the outstanding balance of Goods remaining to be delivered), any applicable stock code, a full description of all the Goods within the delivery, a batch number for each individual batch of Goods within the delivery, a product declaration confirming any specific standards with which the Goods must comply and a certificate of conformity.
6.14 In respect of all Orders and Contracts under which Goods are supplied for delivery in the United Kingdom from a territory outside the United Kingdom the Seller must obtain any necessary licences and consents for the exportation, transportation and importation into the United Kingdom of the Goods, and shall ensure that these licences are delivered to the Buyer.

7 RISK OF PROPERTY

7.1 Risk of damage to or loss of the Goods shall pass to the Buyer upon delivery to the Buyer in accordance with the Contract.
7.2 Title to the Goods shall pass to the Buyer on delivery without limiting any right of rejection, inspection or testing which the Buyer has under the Contract.
7.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location

8 CONFIDENTIALITY

8.1 Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or Sellers of the other party, except as permitted by Clause 8.2.
8.2 Each party may disclose the other party’s confidential information:

(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 8.2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

8.3 Neither party may use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

9 WARRANTIES & LIABILITY

9.1 The Seller warrants to the Buyer that the Goods:

(a) will be of satisfactory quality and fit for any purpose held out by the Seller or made known to the Seller in writing at the time the Order is placed and in this respect the Buyer relies on the Seller’s skill and judgement;
(b) will be free from defects in design, material and workmanship and shall remain so for 6 months after delivery (or such longer period as stated in an Order or otherwise set out in any correspondence between the Supplier and Buyer, promotional materials in respect of the Goods, or applicable Specification);
(c) will correspond in every respect with any relevant Specification or sample;
(d) will comply with all statutory requirements and regulations relating to the sale of the Goods;
(e) will not infringe the rights of any third party established under trade marks, trade names, copyright, patents or any other protection whatsoever and whether comprised in the Specification or otherwise; and
(f) unless otherwise agreed in writing by the Buyer will have at the time of delivery not less than seventy-five per cent (75%) of their Shelf-life remaining (as evidenced by the Expiry Date which will be marked on each unit of the Goods).

9.2 The Seller warrants to the Buyer that at the time of delivery the Seller will have carried out such final quality control procedures in respect of the Goods as may be appropriate for the same and that the Goods have properly satisfied such quality control procedures. As soon as practicable following a request from the Buyer, the Seller shall provide the results of such final quality control procedures to the Buyer.
9.3 The Seller shall ensure that it has and at all times maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract and shall comply with the Buyer’s anti-slavery and human trafficking, anti-bribery and anti-corruption, data privacy and security policies, in each case as notified in writing by the Buyer to the Seller from time to time. Any breach of this clause shall be deemed a material breach, which is irremediable, under clause 10.2(a).
9.4 Without prejudice to any other remedy the Buyer may have, if any Goods are not supplied in accordance with the Contract then the Buyer shall be entitled:

(a) to require the Seller to remove the Goods or any of them and either at the Buyer’s discretion to supply replacement Goods in accordance with the Contract within seven (7) days or to refund to the Buyer the Price paid by the Buyer together with all expenses directly or indirectly incurred by the Buyer in consequence of such rejection or removal; or
(b) at the Buyer’s sole option, and whether or not the Buyer has previously required the Seller to supply any replacement Goods, to treat the contract as discharged by the Seller’s breach and require the repayment of any part of the Price which has been paid.

9.5 The Seller shall indemnify the Buyer in full against all liability, loss, damages (whether for loss of profit or otherwise), costs and expenses or other claims of consequential compensation whatsoever (including legal expenses) awarded against or incurred or paid by the Buyer as a result of or in connection with:

(a) breach of any warranty given by the Seller in relation to the Goods;
(b) breach of any of these Conditions;
(c) any claim that the Goods infringe, or their importation, use or resale, infringes, the patent, copyright, design right, trademark or other intellectual property rights of any other person or third party, except to the extent that the claim arises from compliance with any Specification supplied by the Buyer;
(d) any claim by a third party for death, personal injury or damage to property arising out of or in connection with defective Goods supplied by the Seller, to the extent that the defect is attributable to the acts or omissions of the Seller;
(e) any claim by a third party arising out of or in connection with the supply of the Goods, to the extent that the claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Seller;
(f) any liability under the Consumer Protection Act 1987 in respect of the Goods; and
(g) any act or omission of the Seller or its employees, agents or sub-contractors in supplying or delivering the Goods.

9.6 Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from events, circumstances or causes beyond its reasonable control. If the period of delay or non- performance continues for 30 days, the party not affected may terminate the Contract by giving not less than 14 days’ written notice to the affected party.
9.7 Notwithstanding clause 6, the Buyer or its authorised representatives shall, subject to giving the Seller reasonable notice, have the right during normal business hours to inspect the Seller’s premises or such other places where Goods are manufactured or stored from time to time.
9.8 During the term of the Contracts and for a period of 5 years afterwards, the Seller shall obtain and maintain in force, with a reputable insurance company, adequate professional indemnity insurance, product liability insurance and public liability insurance to cover all its potential liabilities under any Contract in an amount of not less than £10 million and the Buyer shall be entitled to see such evidence as it may reasonably require to show that such insurance is in place at any time and shall be supplied on demand with the current premium receipt.
9.9 If the Buyer informs the Seller that, in its own reasonable opinion (or if the Seller and the Buyer agree), it is necessary or desirable to arrange for the recall from any customers of the Goods on the grounds of public safety or for any other reason, the Seller agrees that, without in any way limiting the Buyer’s rights and remedies the Seller will effect such recall and reimburse the Buyer with:

(a) all costs and expenses reasonably incurred by the Buyer in repossessing the Goods, arranging for them to be stored for such period as may be reasonably required, returning them, or disposing of them (or any one or more of the foregoing);
(b) amounts reimbursed by the Buyer to its customers who have purchased recalled Goods;
(c) all promotional and marketing expenditure in relation to the Goods concerned which the Buyer may have incurred due to the recall;
(d) all amounts incurred by the Buyer in publicising the recall;
(e) all costs and expenses incurred by the Buyer in the event of prosecution by any Authority on account of the sale or availability for sale of the Goods which are the subject of the recall.

10 TERMINATION

10.1 Unless otherwise agreed, the Buyer shall be entitled to cancel an Order or terminate this Contract for any reason with immediate effect by giving the Seller written notice at any time prior to delivery, this notice may be in respect of all or part only of the Goods. Where this occurs the Buyer’s sole liability shall be to pay the Seller fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
10.2 Without affecting any other right or remedy available to it, the Buyer may terminate the Contract with immediate effect by giving written notice to the Seller if:

(a) the Seller commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of seven (7) days after being notified in writing to do so;
(b) the Seller takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this Clause 10.2(b);
(c) the Seller suspends or ceases, or threatens to suspend or cease, carrying on business; or
(d) the Seller’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

10.3 On termination of the Contract, the Seller shall immediately return all Buyer Materials to the Buyer. If the Seller fails to do so, then the Buyer may enter the Seller’s premises and take possession of them. Until they have been returned, the Seller shall be solely responsible for their safe keeping and shall not use them for any purpose not connected with the Contract.
10.4 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
10.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

11 GENERAL

11.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
11.3 The Order is personal to the Seller and the Seller shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations under the Contract for the Goods.
11.4 The Seller may not subcontract any of its rights and obligations under the Contract without the prior written consent of the Buyer. If the Buyer consents to any subcontracting by the Seller, the Seller shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.
11.5 The Buyer may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
11.6 The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract
11.7 No waiver by the Buyer of any breach of the Contract by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision. A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
11.8 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part- provision of the Contract is deemed deleted under this Clause 11.8, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.9 Any notice given to the Buyer or the Seller under or in connection with the Contract shall be in writing and shall be:

(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the email address last notified in writing by the Buyer or the Seller (as applicable) to the other party.
11.10 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the relevant address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting; or
(c) if sent by email, at the time of transmission, or, if this time falls outside normal business hours in the place of receipt, when normal business hours resume.

11.11 Clauses 11.9 and 11.10 do not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
11.12 The construction, validity and performance of this Contract and any dispute or claim (including non-contractual disputes or claims) shall be governed by the laws of England and Wales and the parties hereby submit to the exclusive jurisdiction of the English and Welsh courts. However, the Buyer may bring proceedings in any court of competent jurisdiction including without limitation the courts in the country in which the Seller is based.