STANDARD TERMS AND CONDITIONS OF PURCHASE OF GOODS AND SERVICES

1          Definitions and Interpretation

1.1        In these Conditions:

“Buyer” means Harbro Limited, a company registered in Scotland (Company No. SC230773) and having its registered office at Markethill Road, Turriff, Aberdeenshire, AB53 4PA, or any member of the Buyer Group as the case may be.

“Buyer Group” means the Buyer, its direct and indirect subsidiaries and any holding companies and any other direct and indirect subsidiaries of its holding companies from time to time and the expression “member of the Buyer Group” shall be construed accordingly.

“Conditions” means the standard terms and conditions of purchase set out in this document.

“Contract” means the contract for the sale and purchase of Goods and/or Services which shall comprise the Purchase Order, these Conditions and any special terms and conditions or amendment or variation of these Conditions as agreed in Writing between the Buyer and the Supplier (subject to Condition 9).

“Delivery Address” means the delivery address detailed in the Purchase Order.

“Goods” means the goods to be purchased by the Buyer from the Supplier as described in the Purchase Order.

“Holding company” and “subsidiary” mean a “holding company” and “subsidiary” as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in subsections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee;

“Price” means the price of the Goods and/or Services as detailed in the Purchase Order.

“Purchase Order” means the Buyer’s purchase order for Goods and/or Services.

“Services” means the services to be purchased by the Buyer from the Supplier as described in the Purchase Order.

“Specification” includes any schematic, recipe, formula, drawings, data sheet or other information relating to the Goods or the Services.

“Supplier” means the party supplying the Goods and/or the Services as set out in the Purchase Order.

“Writing” includes facsimile transmission, e-mail and comparable means of communication.

1.2        Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.

1.3        The headings in these Conditions are for convenience only and shall not affect their interpretation.

1.4        In these Conditions the singular includes the plural and vice versa.

2          Basis of Contract

2.1        The Purchase Order constitutes an offer by the Buyer to purchase the Goods and/or Services subject to these Conditions.

2.2        These Conditions shall apply to the Contract to the exclusion of any other terms and conditions on which any quotation has been given to the Buyer or subject to which the Purchase Order is accepted or purported to be accepted by the Supplier, and the Supplier waives any right which it otherwise might have to rely on such other terms and conditions.

2.3        The Purchase Order will lapse unless (i) unconditionally accepted by the Supplier in Writing and/or verbally within 7 days of its date; or (ii) the Buyer accepts any part of the Goods and/or the Services.  Acceptance of the Purchase Order in Writing and/or verbally or the Supplier doing anything consistent with fulfilling the Purchase Order including, without limit, supplying the Goods and/or the Services called for by the Purchase Order, shall be deemed acceptance of the Purchase Order. 

2.4        Subject to Condition 9, no variation to the Purchase Order or these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Supplier.

3          Specifications

3.1        The quantity, quality and description of the Goods and Services shall, subject as provided in these Conditions, be as specified in the Purchase Order and/or in any applicable Specification supplied by the Buyer to the Supplier, or a previously agreed specification between the Supplier and the Buyer or an industry recognised specification in conjunction, where applicable, to any feed assurance scheme or industry body

3.2        Any Specification or other information or data of any description, materials, drawings, know-how, documents, equipment or materials supplied by the Buyer to the Supplier, or specifically produced by the Supplier for the Buyer (along with the intellectual property rights in any Goods and/or Services resulting therefrom), in connection with the Contract, together with the copyright, design rights or any other intellectual property rights in the Specification and any modification or improvement thereto, shall be and shall remain the exclusive property of the Buyer.  The Supplier shall not disclose to any third party or use any such property except to the extent that it is or becomes public knowledge through no fault of the Supplier, or as required for the purpose of the Contract.

3.3        The Supplier shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods and Services (including, but not limited to, health and safety regulations).  The Supplier shall obtain all necessary licences, approvals, permits or authorities required in relation to the delivery of the Goods and Services and accepts full responsibility and liability in respect of any failure to obtain such permissions. 

3.4        The Supplier shall not unreasonably refuse any request by the Buyer to inspect and test the Goods during manufacture, processing or storage at the premises of the Supplier or any third party prior to despatch, and the Supplier shall provide the Buyer with all facilities reasonably required for inspection and testing. 

3.5        If as a result of inspection or testing the Buyer is not satisfied that the Goods will comply in all respects with the Contract, and the Buyer so informs the Supplier within 7 days of inspection or testing, the Supplier shall take such steps as are necessary to ensure compliance.  In the event that the Supplier does not take such steps within a further period of 7 days the Buyer may terminate the Contract without liability.  In the event that the Goods were paid for by the Buyer in advance, the Buyer shall be entitled to require the Supplier to refund the Price to the Buyer. 

3.6        The Goods shall be marked in accordance with the Buyer’s instructions (if any) and any applicable regulations or requirements of the carrier, and properly packed and secured so as to reach their destination in an undamaged condition.

4          Price of the Goods and Services

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

            4.1.1     exclusive of any applicable value added tax (which shall be payable by the Buyer subject to receipt of a VAT invoice); and

            4.1.2     inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods to the Delivery Address, and transportation and subsistence costs of personnel in respect of the delivery of the Services, and any other taxes, duties, fees, imposts or levies other than value added tax.

4.2        No increase in the Price may be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior consent of the Buyer in Writing.

5          Terms of payment

5.1        The Supplier shall be entitled to invoice the Buyer after satisfactory delivery of the Goods or the Services, as the case may be, and each invoice shall quote the number of the Purchase Order. 

5.2        Unless otherwise stated in the Purchase Order, the Buyer shall pay the Price within 30days after the end of the month of receipt by the Buyer of a proper invoice or, if later, after acceptance of the Goods or performance of Services in question by the Buyer. Payment will be made in £ sterling unless otherwise agreed in Writing.

5.3        the Buyer shall be entitled to set off against the Price any sums owed to the Buyer by the Supplier.

6          Delivery

6.1        The Goods and Services shall be delivered to, or performed at, the Delivery Address on the date or within the period stated in the Purchase Order, in either case during the Buyer’s usual business hours.  If no such date or period is specified in the Purchase Order then delivery or performance shall take place as soon as reasonably practicable and, in any event, within 28 days of the Purchase Order unless otherwise agreed in Writing by the Buyer.   

6.2        Where the date of delivery of the Goods or performance of the Services is to be specified after the placing of Purchase Order, the Buyer shall give the Supplier reasonable notice of the specified date.

6.3        A packing note quoting the number of the Purchase Order must accompany each delivery or consignment of the Goods and must be displayed prominently.

6.4        If the Goods are to be delivered by instalments, the Contract will be treated as a single contract and not severable.

6.5        Notwithstanding that property in the Goods may have passed to the Buyer in accordance with Condition 7.2 hereof, the Buyer shall be entitled to reject any Goods delivered which are not in accordance with the Contract, and shall not be deemed to have accepted any Goods until the Buyer has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the Goods has become apparent. 

            In the event of such rejection the Buyer at its option and sole discretion may: (a) terminate the Contract without liability in which case the Supplier shall reimburse the Buyer for any amounts the Buyer may have paid for such rejected Goods and title in the rejected Goods shall revert to the Supplier who shall be on risk from notification of termination and shall be responsible for arranging collection of the rejected Goods at the Supplier’s risk and cost, or (b) require the Supplier to deliver replacement Goods within 7 days of notification of non-conformance with the Contract.   

6.6        The Buyer shall not be obliged to return to the Supplier any packaging or packing materials for the Goods, whether or not any Goods are accepted by the Buyer.

6.7        If the Goods are not delivered on the due date, then the Buyer at its option and sole discretion and at the Supplier’s expense may (a) rescind the Contract without liability; (b) seek recovery of any damages and costs emanating therefrom; and (c) extend the delivery date. 

7          Risk, Property and Health & Safety

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. The Supplier shall off-load the Goods at its own risk where applicable ensuring all vehicles and transport complies with all applicable laws and regulations.

7.2        Property in the Goods shall pass to the Buyer upon delivery, unless payment for the Goods is made prior to delivery, when it shall pass to the Buyer once payment has been made and the Goods have been appropriated to the Contract.

7.3        Any Goods supplied under the Contract shall be formulated, designed, constructed, finished and packaged as to be safe and without risk to health and all Goods will be supplied with full instructions for their proper use and maintenance and with any necessary warning notices clearly displayed.  The Supplier agrees before delivery to furnish the Buyer in Writing with a list by name and description of any harmful or potential harmful properties or ingredients in the Goods to be supplied.  The Supplier shall indemnify the Buyer against all actions, suits, claims, demands, losses, charges, costs and expenses which the Buyer may suffer or incur as a result of or in connection with any breach of this Condition 7.3. 

7.4        The Supplier shall procure that its employees and contractors take all reasonable steps to safeguard their own safety and the safety of any other person who may be affected by their actions, and the Supplier agrees to indemnify and keep indemnified the Buyer from all and any liabilities, obligations, costs and expenses whatsoever arising from any loss, damage or injury caused to the Buyer or any third party by the Supplier’s employees and contractors.

8          Warranties, guarantee and liability.

8.1        The Supplier warrants to the Buyer that the Goods:

            8.1.1     will be new, of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier in Writing at the time the Purchase Order is placed.

            8.1.2     will be free from defects in design, material and workmanship.

            8.1.3     will correspond with any relevant Specification or sample.

            8.1.4     will comply with all statutory requirements and regulations relating to the sale or supply of goods.

            8.1.5     will not in any way infringe or violate any intellectual property rights, trade secrets or rights in proprietary information, except to the extent that the Goods are supplied conform to a Specification, the intellectual property in which is asserted as belonging to the Buyer.

            8.1.6     will be free of any claims of any nature including, without limit, liens or retention of title claims.

8.2        The Supplier warrants to the Buyer that the Services:

            8.2.1     will be of satisfactory quality and fit for any purpose held out by the Supplier or made known to the Supplier in Writing at the time the Purchase Order is placed.

            8.2.2     will be free from defects.

            8.2.3     will correspond with any relevant Specification; and

            8.2.4     will comply with all statutory requirements and regulations.

8.3        The Supplier warrants that it has full accreditation and/or qualifications and/or certification as detailed in the Specification and/or Purchase Order.

8.4        Without prejudice to any other remedy, if any Goods are not supplied in accordance with the Contract, then the Buyer shall be entitled:

            8.4.1     within 12 months from the date of delivery of the Goods to require the Supplier to repair the Goods or to supply replacement Goods in accordance with the Contract within 7 days (or such shorter or longer period of time as may be agreed in Writing between the Buyer and the Supplier) in which event all related costs and expenses (including, without limit, material, labour and handling costs and any consequential losses) shall be for Supplier’s account; or

            8.4.2     at the Buyer’s sole option, and whether or not the Buyer has previously required the Supplier to repair the Goods or to supply any replacement Goods, to terminate the Contract and require the repayment of any part of the Price which has been paid for such Goods.

A further warranty period of 12 months shall commence on the date of delivery of any such repaired or replaced Goods in respect only of the repaired or replaced Goods such that, if any such Goods are not supplied or performed in accordance with the Contract, then the Buyer shall be entitled within a further period of 12 months from the date of delivery of the Goods to require the Supplier to repair the Goods or to supply replacement Goods in accordance with the Contract within 7 days (or such shorter or longer period of time as may be agreed in Writing between the Buyer and the Supplier) in which event all related costs and expenses (including, without limit, material, labour and handling costs) shall be for Supplier’s account.

8.5        Without prejudice to any other remedy, if any Services are not performed in accordance with the Contract, then the Buyer shall be entitled:

            8.5.1     within 12 months from the date of performance of the Services to require the Supplier to correct any defects or re-perform the Services in order that they be completed in accordance with the Contract within 7 days (or such shorter or longer period of time as may be agreed in Writing between the Buyer and the Supplier) in which event all related costs and expenses (including, without limit, material, labour and handling costs and any consequential losses) shall be for Supplier’s account; or

            8.5.2     at the Buyer’s sole option, and whether or not the Buyer has previously required the Supplier to correct any defects or re-perform the Services, to terminate the Contract and require the repayment of any part of the Price which has been paid for such Services.

A further warranty period of 12 months shall commence on the date of correction of any defects or re-performance of any Services in respect only of the corrected or re-performed Services such that, if any such Services are not performed in accordance with the Contract, then the Buyer shall be entitled within a further period of 12 months from the date of purported correction or re-performance to require the Supplier to correct the defects or to re-perform the Services in accordance with the Contract within 7 days (or such shorter or longer period of time as may be agreed in Writing between the Buyer and the Supplier) in which event all related costs and expenses (including, without limit, material, labour and handling costs) shall be for Supplier’s account.

8.6        Supplier shall be responsible for, and shall indemnify and hold the Buyer harmless in respect of, all taxes, duties, levies, charges and contributions (and any interest or penalties thereon) for which Supplier is liable as imposed by any government and/ or taxation authority, whether or not they are calculated by reference to the wages, salaries, benefits or expenses and other remuneration paid directly or indirectly to persons engaged or employed by Supplier or (without limitation) to income, profits, corporation taxes on capital gains, turnover and value added taxes for which Supplier is liable, wheresoever arising.

8.7        The Supplier shall effect with a reputable insurance company a policy or policies at sufficient levels to cover its liabilities under the Contract and at law and shall at the request of the Buyer produce the relevant policy or policies together with receipts or other evidence of payment of the latest premium thereunder. 

8.8        All warranties given by the Supplier under the Contract shall apply to the Buyer, its successors, assignees and any end users of the Goods and Services covered by the Purchase Order. 

9          Changes

The Buyer may at any time make changes within the general scope of the Purchase Order in any one or more of the following areas: a) the Specification where the Goods to be furnished are to be specially manufactured for the Buyer; b) method of shipment or packing; c) place and time of delivery; d) amount of the Buyer’s furnished property; e) quality; f) quantity; or g) scope of Goods. Supplier shall not proceed to implement any change unless and until such change is provided in Writing by the Buyer. If any changes cause an increase or decrease in the cost of, or the time required for the delivery of the Goods, an equitable adjustment shall be made to the Price or delivery schedule, or both, in Writing. Any Supplier claim for adjustment under this clause will be deemed waived unless asserted within 7 days from Supplier’s receipt of the change notification, and may only include reasonable, direct costs that will necessarily and properly be incurred as a direct result of the change.

10       Termination

10.1      In addition to the Buyer’s rights to terminate the Contract under the other provisions of these Conditions, the Buyer shall be entitled to cancel the Purchase Order in respect of all or part only of the Goods and/or the Services by giving at least 7 days’ notice to the Supplier prior to delivery or performance, in which case the Buyer shall have no liability to the Supplier whatsoever. 

10.2      The Buyer shall be entitled to terminate the Contract with immediate effect and without liability to the Supplier by giving notice to the Supplier at any time if:

            10.2.1       the Supplier defaults in the performance or observance of any provision of the Contract.

            10.2.2.      the Supplier makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of a solvent amalgamation or reconstruction); or

            10.2.3       an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Supplier; or

            10.2.4       the Supplier ceases, or threatens to cease, to carry on its business; or

            10.2.5       the Buyer reasonably believes that any of the events mentioned above is about to occur in relation to the Supplier and notifies the Supplier accordingly.

10.3      The termination of the Contract shall not affect any of the following:

10.3.1       the rights, obligations or liabilities of any party accrued prior to and including the date of termination; or

10.3.2       the continued existence and validity of the rights, obligations and liabilities of the parties under those conditions which are intended expressly or by implication to survive termination or expiry.

11         General

11.1      The Buyer is a member of a group of companies and accordingly the Buyer may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of the Buyer Group.  The Buyer may assign the Contract or any part of it to any member of the Buyer Group.

11.2      The Purchase Order is personal to the Supplier and the Supplier 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 without the prior written consent of the Buyer.

11.3      The Supplier shall keep confidential and not disclose and shall procure that its employees, agents, consultants and permitted subcontractors keep confidential and do not disclose information relating to the contents, operation or performance of the Contract or any information of a confidential nature obtained by it or on its behalf by reason of any contact between the Supplier and the Buyer except information which is in the public domain otherwise than by reason of a breach of this provision.  Upon completion or termination of the Contract, the Supplier shall promptly return to the Buyer all such confidential information, including any copies thereof or, at the Buyer’s request, confirm that the confidential information (and any copies in any format) have been destroyed.  Supplier shall not make any announcement or release any information concerning this Contract or any part thereof to any third party except as required by applicable law without the Buyer’s prior written consent. 

11.4      The Supplier shall indemnify the Buyer from and against all liability, loss (including all consequential loss, whether foreseeable or not), damages, costs and expenses arising as a result of or in connection with any breach of the Supplier’s obligations under the Contract.

11.5      No waiver by the Buyer of any breach of the Contract by the Supplier shall be considered as a waiver of any subsequent breach of the same or any other provision.

11.6      If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.

11.7      The Supplier shall: –

(a)        comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010 and the United States Foreign Corrupt Practices Act 1977 (“the Acts”).

(b)        have and shall maintain throughout the duration of the Contract policies and procedures including adequate procedures under the Acts to ensure compliance with the Acts.

            (c)        promptly report to the Buyer any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of the Contract.

(d)        immediately notify the Buyer 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 officers, employees or direct or indirect owners at the date of the Purchase Order).

11.8      The Buyer is duty bound to ensure its actions and to the best of the Buyer’s knowledge the Buyer’s supply chains are managed in accordance with and with due diligence and adherence to the Modern Slavery Act 2015. The Buyer takes positive steps to inform suppliers of their respective requirement not to accept human trafficking within their supply chains and require any supplier to communicate details of any pending or previous investigation the supplier has been subject to in connection with Modern Slavery. The Buyer’s Modern Slavery Policy can be found at https://www.harbro.co.uk/modern-slavery-act/

11.9      The Supplier agrees that it is not a partner or agent of the Buyer and has no right to represent itself as such or to give any undertaking on behalf of the Buyer.  Nothing in the Contract shall have the effect of making any employee of the Supplier a servant or employee of the Buyer or vice versa. 

11.10    Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at 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.  In the case of any notice given by facsimile transmission or email, the notice shall only be deemed to have been received upon the recipient confirming receipt of the same or, in the case of email, the sender having received a read receipt. 

11.11    The Contract constitutes the entire agreement between the parties and supersedes all previous discussions, correspondence and negotiations between them relating to its subject matter.

11.12    In the event of any conflict between the provisions of these Conditions and the Purchase Order, the provisions of the Purchase Order shall prevail.

11.13    The Contract shall be governed by the laws of Scotland, and the Supplier agrees to submit to the non-exclusive jurisdiction of the Scottish courts.