Purchasing Terms and Conditions

June 2018

Purchase Order Terms and Conditions

1. GENERAL

1.1 Except where clause 10 applies, these terms and conditions apply to every order placed by Probrand Limited (“Probrand”) with any individual, firm or company (the “Supplier”). No terms and Conditions in, or attached to, any catalogue, invoice or other sales literature or document or tender or dispatch/delivery note, which are inconsistent with these terms and conditions, or which purport to add to or vary them in any way, shall have any effect unless formally accepted by Probrand in writing. In the absence of such written acceptance, the Supplier shall be deemed to have withdrawn or waived its terms and conditions and to contract solely based on these terms and conditions. Acceptance of goods and/or services shall not constitute, or be deemed to constitute, acceptance by Probrand of the Supplier’s terms and conditions. The contract shall commence, and the Supplier will be contractually bound upon the despatch of a purchase order by Probrand.

2. PURCHASE ORDER

2.1 The Supplier shall ensure that the goods and/or services shall:

• (a) correspond with the quantity, type, sort, quality and description set out in the purchase order;
• (b) meet the performance standards and dates specified on the purchase order or notified to the Supplier by Probrand;
• (c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by Probrand;
• (d) where applicable, be free from defects in design, materials and workmanship and remain so for 12 months after delivery
• (e) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the goods.

2.2 If the goods and/or services do not comply with the Probrand purchase order and/or instructions, Probrand is entitled at its option to either return the goods at the risk of the Supplier; reject the goods and/or services; require the Supplier to re-perform the services or accept the whole or part of the goods and/or services supplied by the Supplier but without prejudice to any rights of Probrand to claim compensation or damages for loss or damage suffered as a result of failure to comply.

2.3 If the Supplier fails to deliver the goods and/or perform the Services by the date specified in the purchase order Probrand shall be entitled to terminate the contract without notice.

3. PRICE, PAYMENT AND SET OFF

3.1 The price for the goods and/or services shall be the price set out in the purchase order and shall be inclusive but not limited to the costs of packaging, insurance and carriage of the goods and/or provision of the services. No extra charges or price amendments shall be effective unless agreed by Probrand.

3.2 In respect of goods, the Supplier shall invoice Probrand on or at any time after completion of delivery. In respect of services, the Supplier shall invoice Probrand in full, monthly, or quarterly as agreed. The valid VAT invoice must contain the purchase order number and shall include such supporting information required by Probrand to verify the accuracy of the invoice.

3.3 Probrand will pay the invoiced amounts on net monthly terms unless otherwise agreed in writing, to a bank account nominated in writing by the Supplier.

3.4 Probrand may, without limiting its other rights or remedies, set off any amount owing to it by the Supplier against any amount payable by Probrand to the Supplier.

4. DELIVERY

4.1 The Supplier shall deliver the goods in accordance with any delivery timescales, delivery dates and delivery instructions (to include, without limitation, delivery location and delivery times) set out in the purchase order or as otherwise agreed with Probrand in writing. If no such date is specified or agreed, then the Supplier shall deliver the Goods during normal working hours.

4.2 Delivery shall be completed when the goods have been unloaded at the location specified by Probrand and such delivery has been received by a duly authorised agent, employee or location representative of Probrand.

4.3 Delivery of goods that are shipped direct to the Probrand customer (“Customer”) site will be completed when the goods have been unloaded at the location specified by Probrand and such delivery has been received by a duly authorised agent, employee or location representative of the Customer.

4.4 The Supplier shall ensure that a delivery note shall accompany each delivery of the goods. Such delivery note shall, as a minimum, contain the Probrand purchase order number, the name and address of Probrand, the name and address of the Supplier, a description and quantity of the Goods.

4.5 Unless otherwise agreed with Probrand in writing, the Supplier shall be responsible for carriage, insurance, transport, all relevant licences, all related costs, and all other costs associated with the delivery of the goods to the delivery location and unloading of the goods at that location.

4.6 All third-party carriers engaged to deliver the goods shall at no time be an agent of Probrand and accordingly the Supplier shall be liable to Probrand for the acts and omissions of all third party carriers engaged to deliver the Goods to Probrand and its Customers

4.7 All stocked items must be part shipped to the specified delivery address with no additional carriage charges other than what was laid out on the purchase order.

5. CANCELLATION

Where clause 9.4 does not apply, Probrand reserves the right to cancel any part of the purchase order at any point prior to shipment of the applicable goods.

6. INDEMNITY AND INSURANCE

The Supplier shall indemnify and keep indemnified Probrand against any and all claims, actions, proceedings, damages, lost profits, damage to goodwill, costs, expenses, special indirect and consequential loss and any other loss and/or liability resulting from any breach of the terms of this contract by the Supplier. The Supplier shall at all times have sufficient insurances in place and provide written evidence to Probrand upon request.

7. CONFIDENTIALITY

The Supplier shall treat all confidential information belonging to Probrand as confidential and safeguard it accordingly, and shall not disclose any confidential information without the prior written consent of Probrand.

8. CONTRACT TERM AND TERMINATION

8.1 Where a service contract is for an initial term, with automatic renewal if termination is not notified in advance, Probrand will only accept enforcement of that clause if it has been informed in writing of the clause, between 30 and 45 days in advance of notice of termination being required, and Probrand responds in writing to confirm that the contract can automatically be renewed.

8.2 In addition to clauses 2.3 and 5, if at any time after the commencement of the contract the Supplier commits: a material or persistent breach of the contract and (if such a breach is remediable) fails to remedy that breach within 7 days after receiving notice of the breach; or commits a material breach which cannot be rectified, then Probrand may terminate the contract with immediate effect.

9. GENERAL

9.1 Force majeure: Neither party shall be liable to the other as a result of any delay or failure to perform its obligations under the contract if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of that party which by its nature could not have been foreseen by such a party or if it could have been foreseen was unavoidable. If such event or circumstances prevent the Supplier from supplying the goods and/or services for more than 4 weeks, Probrand shall have the right, without limiting its other rights or remedies, to terminate this contract with immediate effect by giving written notice to the Supplier.

9.2 Assignment and subcontracting: The Supplier shall not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the contract without the prior written consent of Probrand.

9.3 Notices: Any notice or other communication required to be given under or in connection with this contract shall be in writing and shall be delivered to the other party by email.

9.4 Special Order Items: Any goods laid out on the purchase order that are subject to special order and/or non-cancellable terms must be agreed in writing by Probrand before the purchase order is processed.

9.5 Waiver: No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of the contract shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this contract.

9.6 No partnership: Nothing in the contract is intended to, or shall be deemed to, constitute a partnership of any kind between any of the parties.

9.7 Contracts (Rights of Third Parties) Act 1999: A person who is not a party to the contract shall not have any rights under or in connection with it.

9.8 Variation: Any variation, including any additional terms and conditions, to the contract shall only be binding when agreed in writing and signed by Probrand.

9.9 Severance: of any provision in this contract shall in whole or in part be held to any extent to be unlawful or unenforceable under any enactment or rule of law, the remainder of the provisions shall stand in full force and effect.

9.10 Statutory Requirements: The Supplier shall comply with all statutes, orders, regulations or bye laws applicable to the performance of this contract and shall indemnify Probrand against all losses, claims or liabilities, expenses, proceedings or otherwise as a result of the Suppliers noncompliance with the same.

9.11 Governing law and jurisdiction: The contract shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

10. TERMS AND CONDITIONS

These terms and conditions will apply unless Probrand specifies different terms and conditions in its tender or quotation documentation or some other contract entered into by the parties. If different terms and conditions are specified, or otherwise agreed in writing, by Probrand those terms and conditions will override the purchase order terms and conditions and will apply instead of these.

11. BRIBERY

The Supplier shall not (i) offer, promise or give a financial or other advantage to a Probrand officer, employee, contractor, agent or any third party in order to induce or reward improper performance by that person in connection with the Order; or (ii)request, agree to receive or accept a financial or other advantage from a Probrand officer, employee, contractor, agent or any third party intending improper performance by the Supplier or another person in connection with the Order. “Improper performance” shall have the meaning set out in the Bribery Act 2010.

12. ANTI-SLAVERY AND HUMAN TRAFFICKING

12.1 The Supplier undertakes, warrants and represents that neither the Suppler nor any of its officers, employees, agents or subcontractors has:

• a) Committed an offence under the Modern Slavery Act 2015 or
• b) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
• c) is aware if any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015

12.2 it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy; and

12.3 it shall notify Probrand immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of Supplier’s obligations under Clause 12.1.