Standard Terms and Conditions for the supply of Goods and/or Services to Isle of Man Creamery Ltd
Definitions, Interpretations and Basis of Contract
1. In these Conditions, unless the context requires otherwise, the following words and phrases shall have the meanings set opposite them:
Business Day means a day (other than a Saturday, Sunday, or public holiday) when banks in the Isle of Man are open for business.
Conditions mean the terms and conditions for the purchase of Goods and/or Services as set out in this document.
Contract means the agreement concluded between the Creamery and the Supplier for the supply of Goods and/or Services incorporating the Conditions.
Contract Price means the price, exclusive of VAT, payable to the Supplier by the Creamery under the Contract for the full and proper performance by the Supplier of the Contract.
Confidential Information means all information, acquired from any source by the Supplier (and whether designated confidential or not), relating to the Creamery, its projects, its business, finances, dealings, transactions and affairs and all designs, drawings, plans, working papers, patent documents, data, methods, processes, techniques, operating procedures, technology, and know-how of any description relating to the Creamery, its business, any member of the Creamery group or their business.
Creamery means Isle of Man Creamery Ltd whose registered office is Isle of Man Creamery, Ballafletcher Farm Road, Cronkbourne, Isle of Man, IM4 4QE.
E&OE means Errors and Omissions Excepted.
Goods and/or Services means the products and/or services to be supplied under the Contract as defined in the Contract.
Party/Parties means the Creamery and the Supplier.
Personal Data means any information relating to an identified or identifiable natural person.
Purchase Order means the Contract, purchase order document, agreement, or commissioning letter to which these Conditions are attached and/or in which these Conditions are referred to.
Supplier means the supplier of Goods and/or Services to the Creamery.
2. Clause, schedule, and paragraph headings shall not affect the interpretation of this Contract.
3. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.
4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
5. Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
7. A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment, and includes any subordinate legislation for the time being in force made under it.
8. A reference to writing or written includes faxes and email.
9. Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
10. In these Conditions, except where the context otherwise requires, any reference to the words "include" or "including" is to be construed as meaning without limitation.
Good faith and fair dealing
11. In carrying out their obligations under this Contract the Parties will act in good faith and in accordance with the principles of fair dealing.
Entirety of Contract
12. All Contracts for the Goods and/or Services between the Creamery and the Supplier are, unless otherwise agreed in writing by the Creamery, subject to these Conditions which are to be read in conjunction with and are expressly referred to and incorporated in any Contract. These Conditions together with the Purchase Order and the Contract shall constitute the whole agreement between the Creamery and the Supplier. These Conditions shall apply to the Contract to the exclusion of any other terms and conditions of the Supplier including, without limitation, any terms and conditions on which any quotation has been given to the Creamery or subject to which the Purchase Order is accepted or purported to be accepted by the Supplier.
13. If any provision or clause of this Contract is found to be null or unenforceable, the Contract will be construed as a whole to effect as closely as practicable the original intent of the Parties; however, if for good cause, either Party would not have entered into the Contract knowing the interpretation of the Contract resulting from the foregoing, the Contract itself shall be null.
14. No variation, amendment or change to the Purchase Order or these Conditions shall be binding unless accepted in writing by the Creamery.
15. The Purchase Order constitutes an offer by the Creamery to the Supplier to purchase Goods and/or Services specified therein subject to these Conditions. The Purchase Order must be accepted by the Supplier in writing within 7 days of its date. If the Purchase Order is not accepted by the Supplier unconditionally and in writing within 7 days of its date, then the Creamery may at its discretion withdraw the Purchase Order without liability at any time.
16. If the Supplier supplies Goods and/or Services either before or without accepting the Purchase Order in writing, they the Goods and/or Services will be deemed have been supplied at the prices quoted within the Purchase Order (E&OE).
17. All supplies of Goods and/or Services must have an authorised additional Purchase Order to this Contract specifying the exact prices at which that supply will be charged, prior to the commencement of supply. Any supply of Goods and/or Services provided without such additional Purchase Order will, at the sole discretion of the Creamery, be either deemed to be at the price that Goods and/or Services of the same or similar description were most recently supplied to the Creamery by the Supplier, or alternatively, be rejected by the Creamery at the Supplier’s expense.
Performance of duties, delivery, and Supplier warranties
18. The Supplier shall provide the Goods and/or Services in a proper, diligent, expeditious and professional manner to the satisfaction of the Creamery.
19. The Supplier shall, at all times in supplying the Goods and/or Services:
a. act in the best interests of the Creamery,
b. use its best endeavours to promote the interests of the Creamery,
c. perform the services dutifully, timely and in good faith,
d. observe and adhere to all such requests and restrictions as the Creamery may make or impose on it,
e. not process Personal Data for, or on behalf of the Creamery, without written permission.
20. The Supplier shall:
a. only employ staff with valid work permits, and/or other relevant regulatory permissions to be able to work within the Contract,
b. only employ personnel as shall possess the appropriate experience, skills, and qualifications necessary for the Goods and/or Services to be supplied in accordance with the Contract,
c. nominate a senior manager or director within the Supplier to have overall responsibility for the Contract.
21. In the event that the Supplier is unable to provide the Goods and/or Services at any time, they shall inform the Creamery promptly of becoming aware of this fact.
22. The Supplier shall not:
a. without the prior written approval of the Creamery, incur any liability on behalf of the Creamery, nor pledge the credit of the Creamery in any way nor make any legally binding representations, enter into any contracts or agreements, or give any warranty on behalf of the Creamery, or
b. engage in any conduct which, in the opinion of the Creamery, is prejudicial to the Creamery’s business or the business of any member of the Creamery.
23. The Supplier warrants, undertakes and represents that:
a. the Goods and/or Services shall be supplied in compliance with all applicable laws, enactments, orders, regulations, codes of practice and other similar instruments,
b. it will comply with the Creamery’s Anti-Bribery Policy, of which a copy can be provided upon request,
c. the Goods and/or Services shall be delivered in accordance with the Purchase Order and any other specification supplied or advised by the Creamery to the Supplier or agreed in writing by the Creamery.
24. The Supplier shall deliver to the Creamery the Goods and/or Services at the times and on the dates specified in the Purchase Order and to the satisfaction of the Creamery.
25. Unless specifically agreed in writing, or within the Purchase Order, the Supplier will deliver the Goods and/or Services to/at the Creamery within 7 days of the date of the Purchase Order.
26. The time(s) and date(s) of delivery of the Goods and/or Services shall be of the essence.
27. The Goods and/or Services shall be fit for purpose.
28. If the Supplier fails to commence the supply of the Goods and/or Services within the time promised or specified then, without prejudice to any other rights and remedies which it may have, the Creamery reserves the right to:
a. cancel the Contract in whole or in part
b. recover from the Supplier any expenditure, costs of losses reasonably incurred or suffered by the Creamery in obtaining substitution from another supplier; and/or
c. claim damages for any additional costs, losses or expense incurred by the Creamery which are in any way attributable to the Supplier's failure to supply the Goods and/or Services in accordance with the Contract.
29. The Supplier shall indemnify the Creamery in full against all claims, demands, actions, costs, expenses (including but not limited to legal costs and disbursements on a solicitor and client basis) losses and damages arising from or incurred or paid by the Creamery as a result of or in connection with:
a. breach of any warranty given by the Supplier in relation to the Goods and/or Services; or
b. any act or omission of the Supplier or its employees, agents or sub-contractors in supplying and delivering the Goods and/or Services.
30. Unless otherwise agreed in writing, the terms of delivery will be Incoterms 2020 DDP Isle of Man Creamery, Isle of Man, IM4 4QE, and the supplier will be responsible for insuring the Goods until offloaded at the Creamery site in the Isle of Man.
Price and payment
31. The Contract Price for the Goods and/or Services shall be as stated in the Purchase Order and, unless otherwise so stated, shall be exclusive of any applicable value added tax (which shall be payable by the Creamery subject to receipt of a valid VAT invoice).
32. Unless otherwise agreed in writing, the Purchase Order price will be Incoterms 2020 DDP Isle of Man Creamery, Isle of Man, IM4 4QE.
33. No increase in the Contract Price may be made (whether on account of increased material, labour or other costs, fluctuation in rates of exchange or otherwise) without the prior written consent of the Creamery.
34. Subject to the Supplier providing and delivering the Goods and/or Services to the satisfaction of the Creamery, the Supplier may invoice the Creamery after supply of the Goods and/or Services to the Creamery’s satisfaction. The Creamery will pay the Contract Price together with any VAT properly payable thereon to the Supplier within 30 days of receipt by the Creamery of a valid VAT invoice for sums properly due.
35. The Supplier shall ensure that all such invoices include the Creamery’s Purchase Order number, a description of the Goods and/or Services and the period to which it relates.
36. The Supplier shall pay all taxes and other outgoings or expenses payable in consequence of the Contract and the Supplier shall indemnify the Creamery in respect of any demand, costs or expense suffered by the Creamery, whether during the period of the Contract or following termination of the Contract (howsoever caused) or otherwise in relation to any tax or employer's national insurance contributions or other expense payable in respect of the Supplier, its employees, agents or sub-contractors or in relation to the provision of the Goods and/or Services.
37. Without prejudice to any other right or remedy the Creamery reserves the right to set off any amount owing at any time from the Supplier to the Creamery against any amount payable by the Creamery to the Supplier under the Contract or any other contract between the Creamery and the Supplier.
Acceptance and rejection
38. The Creamery will make quality and specification checks before using the Goods and/or Services. The Creamery does not accept Goods and/or Services and take title to them until they have passed these checks.
39. If Goods and/or Services do not pass the quality and specification checks, then:
a. the Creamery may, at the Creamery’s sole discretion, return the Goods and/or reject the Services (or with agreement from the Supplier, dispose of the Goods) together with the reason for rejection, and the Supplier will issue a full credit in respect of those Goods and/or Services,
b. the Supplier will immediately issue replacement Goods and/or Services within specification.
40. The Supplier will remain responsible for any latent defects and will reimburse the Creamery for any losses incurred as a result of such defects.
41. The Creamery may reject any product that does not reach full shelf-life in a marketable quality, including organoleptic specifications, at the sole discretion of the Creamery, and the Supplier will reimburse the Creamery for such product rejections.
42. If the Supplier is unable to issue Goods and/or Services within specification within timescales required by the Creamery, then the Creamery may source alternative Goods and/or Services from an alternative source without penalty.
43. The Supplier will inform the Creamery immediately of any product specification changes. The Creamery will have the right to cancel any order for which the product specification has changed without the Creamery’s written acceptance of the product specification change.
44. If delivery is delayed, the Creamery may reject such deliveries at the sole discretion of the Creamery.
45. All costs of rejected deliveries will be borne by the Supplier.
46. The Creamery may charge the Supplier reasonable costs for dealing with customer complaints relating to the Goods and/or Services supplied under this Contract.
Traceability and audits
47. The Supplier will comply with all Creamery requests to supply information in respect of product specifications and traceability, that the Creamery reasonably needs for accreditation purposes, or for customer purposes, and will allow the Creamery access to Supplier premises to audit as necessary.
Invoicing and payment terms
48. The Supplier will send invoices to the Creamery either by EDI, or by email to firstname.lastname@example.org. If either of these two options are not possible, then invoices can be posted to the Creamery, but if posted, may incur a delay in payment at the risk of the Supplier. Invoices emailed to any other email address may also incur a delay in payment at the risk of the Supplier.
49. Invoicing and/or payment queries may be sent to the Creamery by email to email@example.com.
50. Goods will be invoiced in GBP Sterling and payment of invoices will be made in GBP Sterling.
Title and risk
51. Title and risk in the Goods and/or Services passes from the Supplier to the Creamery after they have passed the Creamery quality and specification checks.
52. If there has been a supply of Creamery products to the Supplier for Services, such as contract packing, the Supplier will keep such products segregated and separately identifiable as products belonging to the Creamery.
53. To the fullest extent permitted by applicable law, any products, ingredients and/or raw materials from the Creamery or 3rd parties to be used, or in the process of being used and/or converted into Goods to be supplied to the Creamery, or the Creamery’s representatives, shall remain the property of the Creamery throughout, and full access will be granted to the Creamery to collect the products in whatever state they have reached, by the Supplier, or the Suppliers representatives, including in the event that the Supplier has become insolvent, or steps towards insolvency or reorganisation have commenced. In such circumstances, the Creamery will pay the Supplier, or the Supplier’s representatives, a reasonable fee for the conversion of the products into their current state, but such a fee will not exceed 100% of the price that would have been payable for satisfactory completion of the Service under normal circumstances.
Product Recall liability
54. The Supplier will be responsible for all product recall liabilities, costs, and expenses, and will indemnify the Creamery in full against all such liabilities, costs, and expenses.
55. It will be the responsibility of the Supplier to recall any defective products. However, the Creamery may recall any products supplied by the Supplier if it has reasonable grounds to believe that the products might be harmful to health.
56. The Supplier shall at all times hold any Confidential Information gained in the course of this Contract as confidential on behalf of and for the exclusive benefit of the Creamery and shall not at any time, unless the Creamery otherwise decides, remove any material and media relating to the Confidential Information from the offices of the Creamery or such other place or places as the Creamery may from time to time decide as suitable for the storage or safe custody of them.
57. Neither Party shall, during and after termination of this Contract, without the prior written consent of the other Party, use or disclose to any other person any information of the other party which is identified as confidential, or which is confidential by its nature.
58. Each party shall on demand and on termination of this Contract surrender to the other party all materials relating to such Confidential Information in its or its personnel's, agents' or representatives' possession.
Limitation of liability
59. Nothing in these Conditions shall limit or exclude either Party’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,
c. breach of any terms implied by any legislation in force in the Isle of Man,
d. any matter in respect of which it would be unlawful for either Party to exclude or restrict liability.
60. These provisions shall not be taken as limiting the right of the Creamery to claim from the Supplier for:
a. directly incurred loss of profits, business, revenue, goodwill, or anticipated savings,
b. additional operational and administrative costs and expenses, and/or
c. expenditure or charges rendered unnecessary as a result of any breach of the Contract by the Supplier.
61. The Supplier shall have in place at all times during the term of the Contract insurance with a reputable insurance company to cover all liabilities under the Contract. Evidence of such insurance shall be made available to the Creamery at any time on request.
62. The Creamery shall maintain in force for the duration of this Contract, Public & Products Liability Insurance with a reputable insurer who holds a minimum A+ Security Rating as set by S&P Moody’s or similar Rating Agencies, with an Indemnity Limit of no less than £5,000,000.
63. The Supplier shall maintain in force for the duration of this Contract, Public & Products Liability Insurance with a reputable insurer who holds a minimum A+ Security Rating as set by S&P Moody’s or similar Rating Agencies, with an Indemnity Limit of no less than £5,000,000.
64. The Supplier shall maintain in force for the duration of this Contract, Product Recall Insurance with a reputable insurer who holds a minimum A+ Security Rating as set by S&P Moody’s or similar Rating Agencies, with an Indemnity Limit of no less than £1,000,000.
65. Either Party shall have the right to terminate the Contract at any time by providing three months written notice unless specifically agreed otherwise in writing by both Parties. If the Contract has been in force for more than five years, the period of notice required for termination will be increased from three to six months. The termination date of the Contract must coincide with the end of a calendar month.
66. Each Party may terminate this Contract with immediate effect, by notice given in writing by means of communication ensuring evidence and date of receipt (for example, registered mail with return receipt, special courier), in case of a substantial breach by the other Party of the obligations arising out of the Contract, or in case of exceptional circumstances justifying the earlier termination.
67. Any failure by a Party to carry out all or part of its obligations under the Contract resulting in such detriment to the other Party as to substantially deprive such other Party of what it is entitled to expect under the Contract, shall be considered a substantial breach. Circumstances in which it would be unreasonable to require the terminating Party to continue to be bound by this Contract, shall be considered as exceptional circumstances.
68. Furthermore, the Parties agree that the following situations shall be considered as exceptional circumstances which justify the earlier termination by the other Party: bankruptcy, moratorium, receivership, liquidation, or any kind of arrangement between debtor and creditors, or any other circumstances which are likely to affect substantially one Party’s ability to carry out its obligations under this Contract.
69. If a Party terminates the Contract according to these earlier termination provisions, but it is thereafter ascertained that the reasons put forward by that Party did not justify the earlier termination, the termination will be effective, but the other Party will be entitled to damages for the unjustified earlier termination. Such damages will be equal to the gross profits of the sale of the Products for the period the Contract would have lasted in case of normal termination, based on the turnover of the preceding year, unless the damaged Party proves that the actual damage is higher (or, respectively, the Party having terminated the Contract proves that the actual damage is lower).
70. Termination of the Contract, however arising, shall not affect any of the Parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
71. Neither Party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a Party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
72. If a Force Majeure event happens, the affected Party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for three (3) weeks, the Party not affected may terminate this Contract by giving ten (10) Business Days' written notice to the other Party.
73. The parties may at any time, without prejudice to the Arbitration Clause below, seek to settle any dispute arising out of or in connection with this Contract in accordance with generally accepted Isle of Man mediation rules, for which the Parties may agree to the framework provided by International Chamber of Commerce (ICC) Mediation Rules, if Isle of Man rules allow at the time.
74. If any question or difference shall arise out of, or in connection with any transaction under this Contract, or as to the construction thereof, the same shall be referred to an arbitrator to be agreed on by the Creamery and the Supplier or in default of agreement, to be appointed by the President of the Isle of Man Law Society. The Arbitration Acts of the Isle of Man shall apply to every arbitration consequent on a reference under this Arbitration Clause.
75. Any guarantee provided by the Supplier will continue in force until it expires, and unless the Supplier has provided a guarantee in excess of 12 months, the Supplier guarantees the Goods and/or Services, subject to fair wear and tear, for a period of 12 months from being brought into use by the Creamery, or until the end of shelf-life for food and drink products, if earlier. Any warranty provided by the Supplier will continue in full force after the end of the guarantee period.
76. Any notice given under the Contract may be given by hand or sent by recorded delivery post to the other Party at their last known address or such other address as may from time to time be notified in writing to the Party giving such notice or other communication by the Party to whom such notice or other communication is given.
77. Notices shall be deemed given, in the case of notice given by recorded delivery post, one day after the date of posting.
Assignment and subcontracting
78. Neither Party shall, without the prior written consent of the other Party (such consent not to be unreasonably conditioned, withheld or delayed), assign, transfer, mortgage, charge, declare a trust of or deal in any other manner with this Contract or any of its rights and obligations under or arising out of this Contract (or any document referred to in it), or purport to do any of the same.
79. Neither Party shall subcontract or delegate in any manner any or all of its obligations under this Contract to any third party or agent without the prior written consent of the other Party. Each Party shall in all cases retain sole responsibility for the performance of the tasks assigned to it under this Contract, regardless of the use of authorised subcontractors.
80. Each Party that has rights under this Contract is acting on its own behalf and not for the benefit of another person.
81. No failure or delay by a party to exercise any right or remedy provided under this Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
82. If any court or competent authority finds that any provision of this Contract (or part of any provision) is invalid, illegal, or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Contract shall not be affected.
83. If any invalid, unenforceable or illegal provision of this Contract would be valid, enforceable, and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid, and enforceable.
Rights and remedies
84. All such rights and remedies arising out of any breach this Contract as are by and of the conditions of this Contract (except those contained in the immediately preceding clause) expressly conferred upon either Party to the Contract, are hereby declared to be in addition and without prejudice to any other rights and remedies whether statutory or otherwise.
85. The Contract shall be governed by and construed in accordance with Isle of Man law and the parties hereby submit to the exclusive jurisdiction of the Isle of Man courts.
Issued on 08.06.2023