Business Day: a
day (other than a Saturday, Sunday or public holiday) when banks in London are
open for business.
Conditions: the terms and conditions set out in this document.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods pursuant to the relevant Order and to which these Conditions apply.
Customer: the person, company or firm who purchases the Goods from the Supplier.
Delivery Date: the date for delivery requested by the Customer in the relevant Order unless otherwise notified to the Customer by the Supplier.
EDI (Electronic Data Interchange): the transfer of data from one computer system to another by standardised message formatting used to place orders.
Force Majeure Event: an event or circumstance beyond a party's reasonable control.
Goods: the goods set out in the Order.
Net Price: the price of the Goods, less any costs of packing, insurance, transport, delivery, VAT and any other government taxes, duties or levies, and trade discounts, rebates and other allowances granted.
Order: the Customer's order for the Goods, as set out in the Customer's purchase order form submitted to the Supplier by email or through the Supplier’s EDI system.
Proof of Delivery: the Supplier’s form of proof of delivery as issued to the Customer on delivery of the relevant Order.
Specification: any specification for the Goods, including any instructions and/or labelling requirements, that is agreed in writing between the Customer and the Supplier.
Supplier: Beiersdorf UK Ltd (registered in England and Wales with company number 468710).
Supplier’s Warehouse: the Supplier’s warehouse located at Beiersdorf UK Ltd, Holford Way, Birmingham, B6 7AX.
(a) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) A reference to writing or written includes emails but not faxes.
2.1 The Supplier has agreed to sell, and the Customer has agreed to purchase Goods subject to the Contract.
2.2 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade, custom, practice or course of dealing.
2.3 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and the Specification, to the extent applicable, are complete and accurate.
2.4 The Order shall be deemed to be accepted subject to these Conditions upon placement of the Order by the Customer unless the Supplier notifies the Customer otherwise or there is any fault in the Supplier’s EDI system.
2.5 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of, or given orally by, the Customer that is inconsistent with these Conditions.
3.1 The Goods are described in the Supplier's new lines forms provided to the Customer by the Supplier’s national account manager for the Customer, as modified by any applicable Specification.
3.2 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
4.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the purchase order number, delivery number, product description, total quantity pieces and quantity delivered. Notwithstanding this clause 4.1, the Supplier shall have no liability (and for the avoidance of doubt shall not be subject to any penalties) in respect of any incorrect or missing delivery documentation.
4.2 Orders cannot be cancelled or amended less than forty-eight (48) hours prior to the Delivery Date. Any cancellations or amendments to Orders must be notified to the Supplier in writing.
4.3 The Supplier shall deliver the Goods to the location set out in the Order subject always to the Customer obtaining the prior written agreement of the Supplier to such location, or such other location as the parties may agree in writing in a form specified by the Supplier (Delivery Location). Any changes to the Delivery Location must be agreed with the Supplier in writing.
4.4 Delivery is completed on the completion of either unloading of the Goods at the Delivery Location by the Customer or, where the Customer or the Customer’s subcontractors collect the Goods from the Supplier's Warehouse or the Supplier’s sub-contractor’s premises, the point at which the Goods are made available to the Customer or the Customer’s subcontractors, as appropriate.
4.5 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Supplier fails to deliver an Order on the Delivery Date, its liability shall be limited to delivery of the Goods to the Customer to the Delivery Location in accordance with clause 4.3 at such other date agreed between the parties in writing. For the avoidance of doubt, this shall be the Customer’s sole remedy for non-delivery. To the extent that the Supplier delivers part of an Order, the Supplier shall not be required to deliver the remaining part of the Order and, subject to clause 4.9, the Customer shall be required to place a new Order in respect of such remaining Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.7 If the Customer fails to take delivery of the Goods on the date agreed for delivery, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract: (a) delivery of the Goods shall be deemed to have been completed on the date agreed for delivery; and (b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for and the Customer shall pay all related costs and expenses (including insurance and any charges imposed on the Supplier by the Supplier’s logistics suppliers).
4.8 If ten Business Days after the Delivery Date the Customer has not taken or accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods.
4.9 If the Supplier delivers more or less than the quantity of Goods ordered the Customer may not reject them. If the Supplier delivers less than the quantity of Goods ordered and the Customer does not choose to place an order for delivery of the remaining Goods in accordance with clause 4.6, provided that the Customer notifies the Supplier within 7 days of such under-delivery and provides the Supplier with the relevant signed proof of delivery which shows the actual quantity of Goods that was delivered and provides any evidence and information that the Customer can to support the Customer’s notification, a pro rata adjustment shall be made to the Order invoice. If the Supplier delivers more than the quantity of Goods ordered, the Customer shall notify the Supplier in writing and shall either pay for such additional Goods supplied at the price applicable to the Contract or make the Goods available for collection by the Supplier or the Supplier’s sub-contractors.
4.10 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 Unless agreed otherwise expressly in writing, the Supplier warrants that on delivery, and for a period of twelve (12) months from completion of delivery of the relevant Order in accordance with clause 4.4, the Goods shall conform in all material respects with their description and any applicable Specification, in each case as amended from time to time by written agreement of the parties.
5.2 The Customer may reject any Goods delivered to it that do not comply with clause 5.1, provided that: (a) notice of rejection is given to the Supplier: (i) in the case of a defect that is apparent on normal visual inspection, within seven (7) days of Delivery;(ii) in the case of a latent defect, within a reasonable time of the latent defect having become apparent; (b) the Customer provides the relevant signed proof of delivery with the notice referred to in clause 5.2(a) above; (c) the Customer obtains the Supplier’s prior written consent to the return of such Goods; (d) Goods rejected are returned in whole cartons; and (e) none of the events listed in clause 5.4 apply.
5.3 If the Customer fails to give notice of rejection in accordance with clause 5.2, it shall be deemed to have accepted such Goods.
5.4 The Supplier shall not be liable for Goods'
failure to comply with the warranty set out in clause 5.1 in any of the following
(a) the Customer makes any further use of, changes or alters such Goods after giving notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage of the Goods (including but not limited to temperature control, positioning and security) or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any Specification;
(d) the defect arises as a result of wilful damage, negligence, or abnormal storage conditions (including without limitation in the Customer’s facilities, distribution network or retail stores); or
(e) the Goods differ from their description and any applicable Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.5 If the Customer rejects Goods under clause 5.2 then the Customer shall be entitled to require the Supplier, at the Supplier’s sole discretion, either to replace the rejected Goods or reimburse the Customer for the Net Price of the Goods and the Customer shall, if directed by the Supplier and at the Supplier’s cost, destroy the rejected Goods. For the avoidance of doubt, this shall be the Customer’s sole remedy. Once the Supplier has complied with the Customer's request, it shall have no further liability to the Customer in respect of the rejected Goods' failure to comply with the warranty set out in clause 5.1.
5.6 These Conditions shall apply to any replacement Goods supplied by the Supplier.
5.7 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6.1 The risk in the Goods shall pass to the Customer
on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
(a) the Supplier receives payment in full (in cash
or cleared funds) for the Goods and all other sums due to the Supplier; or
(b) the Supplier notifies the Customer in writing that title to the Goods has passed to the Customer.
6.3 Until title to the Goods has passed to the
Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; and
(d) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
7.1 The price of the Goods and, if applicable at the sole discretion of the Supplier, any discount applicable to the price of the Goods, shall be as notified to the Customer on the date on which the Order is placed.
7.2 The Supplier may from time to time notify the Customer of increases in the Supplier’s prices.
7.3 The price of the Goods excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice.
7.4 The Supplier may invoice the Customer for the Goods on or at any time after despatch of the Goods from the Supplier’s Warehouse or the Supplier’s sub-contractor’s premises.
7.5 The Customer shall pay the invoice in full and in cleared funds in accordance with the payment terms specified on the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
7.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the maximum rate permissible at law from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount and the Supplier shall further be entitled to claim fixed sum compensation from the Customer as permitted by law to cover credit control overhead costs and to recover the cost of taking legal action to make the Customer pay.
7.7 The Customer shall indemnify the Supplier in full and hold it harmless from all expenses and liabilities the Supplier may incur (directly or indirectly including financing costs, legal costs on a full indemnity basis and the cost of instructing a debt recovery agency to recover a debt due to it if any) following any breach by the Customer of any of its obligations under any Contract.
7.8 Unless agreed otherwise in writing, all amounts due under the Contract 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).
8.1 Nothing in these Conditions shall limit or
exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation; or
(c) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
8.2 Subject to clause 8.1:
(a) the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:
(i) loss of profit;
(ii) economic loss;
(iii) loss of sales or business;
(iv) loss of agreements or contracts;
(v) loss of anticipated savings;
(vi) loss of or damage to goodwill; or
(vii) indirect or consequential loss, arising under or in connection with the Contract; and
(b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the Net Price of the Goods.
9.1 The Customer shall (i) comply with all applicable laws, regulations, codes and sanctions outlined in the Supplier’s Code of Conduct for Business Partners, (ii) in particular rules relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010, (iii) not bribe, promise or give financial advantage to another person (including a Foreign Public Official) whether directly or indirectly and must not receive any bribe, promise or other financial advantage from a third party which in each case may be designed or intended to induce or reward the improper performance of a function or activity, (iv) promptly report to the Supplier any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with the performance of any Contract and, at the Supplier’s request, confirm in writing that the Customer has complied with this clause 9.1 and provide such supporting evidence of compliance as the Supplier may reasonably request. Breach of this clause 9.1 shall be treated as a material breach of the Contract.
9.3 The Supplier shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for seven (7) days, the Supplier may, at its option, either terminate the Contract immediately by giving written notice to the Customer or deliver the Goods after the Force Majeure Event has ceased.
9.4 The 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 and construed in accordance with the law of England and Wales.
9.5 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.