Supplier terms & conditions

INTERPRETATION

Definitions

“Adday” refers to Adday Wellness, a brand trademark registered in the United Kingdom as a trading brand of AYMES International Limited, company number UK 6603123);

“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 as amended from time to time in accordance with Clause 13.4;

“Contract” the contract between Adday and the Supplier for the sale and purchase of the Deliverables in accordance with these Conditions; “Data Protection Legislation” all UK Data Protection Legislation and any other applicable European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications);

“Data Protection Legislation” all UK Data Protection Legislation and any other applicable European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications);

“Deliverables” the goods or services (or any part of them) set out in the Order;

“Delivery Date” the date specified in the Order, or, if none is specified, within 30 days of the date of the Order;

“Delivery Location” the address for delivery of Deliverables as set out in the Order;

“Intellectual Property Rights” patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, software, rights in confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection subsisting now or in the future in any part of the world;

“Order” Adday order for the Deliverables, as set out in Adday purchase order form, Adday written acceptance of the Supplier’s quotation or as the case may be;

“Specification” Any specification for the Deliverables that is agreed by Adday and the Supplier;

“Supplier” The person or firm from whom Adday purchases the Deliverables; and

“UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).

Interpretation

1.2.1 References to “Clauses” and “Schedules” are to the clauses of and schedules to these Conditions and a reference to a “Paragraph” is to a paragraph of the relevant Schedule;

1.2.2 The expressions “Controller”, “Processor”, “Data Subject”, “Personal Data”, “processing” and “appropriate technical and organisational measures” shall haver the meanings given to those terms in Data Protection Legislation;

1.2.3 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;

1.2.4 Any phrase introduced by the terms “including”, “include” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

1.2.5 A reference to “writing” or “written” includes faxes and emails.

Basis of contract

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2 The Order constitutes an offer by Adday to purchase the Deliverables in accordance with these Conditions.

2.3 The Order shall be deemed to be accepted on the earlier of:

2.3.1 The Supplier issuing a written acceptance of the Order; and

2.3.2 The Supplier doing any act consistent with fulfilling the Order, at which point the Contract shall come into existence.

2.4 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.

The deliverables

3.1 The Supplier shall ensure that any Deliverables comprising goods shall for the whole life of such Deliverables:

3.1.1 Correspond with their description and any applicable Specification;

3.1.2 Be 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 by Adday to the Supplier expressly or by implication, and in this respect Adday relies on the Supplier’s skill and judgement; and

3.1.3 Comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Deliverables.

3.2 In supplying any Deliverables which are services, the Supplier shall:

3.2.1 Co-operate with Adday in all matters relating to such services, and comply with all instructions of Adday;

3.2.2 Perform such services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;

3.2.3 Use a suitable number of suitably skilled and experienced personnel to provide such services;

3.2.4 Ensure that such services conform with all descriptions and specifications set out in any Specification, and that the Deliverables shall be fit for any purpose that Adday expressly or impliedly makes known to the Supplier;

3.2.5 Provide all equipment, tools and vehicles and such other items as are required to provide such services;

3.3 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.

3.4 Adday may inspect and test any Deliverables which are goods at any time before delivery. The Supplier shall remain fully responsible for the Deliverables despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract.

3.5 If following such inspection or testing Adday considers that the Deliverables do not conform or are unlikely to comply with the Supplier’s undertakings at Clause 3.1, Adday shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.

3.6 Adday may conduct further inspections and tests after the Supplier has carried out its remedial actions.

3.7 The Intellectual Property Rights in the Deliverables shall the date of the Contract (or, if later) the date of creation of the rights from time to time, vest in Adday. The Supplier assigns (by way of present and, where appropriate, future assignment) all such Intellectual Property Rights with full title guarantee to Adday.

3.8 The Supplier shall do and execute, or arrange for the doing and executing of, each act, document and thing that Adday may consider necessary or desirable to perfect the right, title and interest of Adday in and to the Intellectual Property Rights in the Deliverables.

Delivery

4.1 The Supplier shall ensure that, in respect of Deliverables which are goods:

4.1.1 Such Deliverables are properly packed and secured in such manner as to enable them to reach their destination in good condition;

4.1.2 Each delivery of the Deliverables is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Deliverables, special storage instructions (if any); and

4.1.3 If the Supplier requires Adday to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.

4.2 The Supplier shall deliver or supply Deliverables:

4.2.1 On or by no later than the Delivery Date;

4.2.2 At such Delivery Location as is specified by Adday; and

4.2.3 During Adday normal business hours, or as instructed by Adday.

4.3 Delivery of Deliverables which are goods shall be completed on the completion of unloading the Deliverables at the Delivery Location.

4.4 If the Supplier delivers more or less than the quantity of any Deliverables ordered, Adday may at its discretion accept or reject the Deliverables (in whole or in part) and any rejected Deliverables shall be returnable at the Supplier’s risk and expense.

4.5 The Supplier shall not deliver any Deliverables in instalments or stages without Adday prior written consent. Where it is agreed that the Deliverables are to be delivered by instalments or stages, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle Adday to the remedies set out in Clause 5.

Remedies

5.1 If the Deliverables are not delivered on or supplied by the Delivery Date, or do not comply with the undertakings set out in Clause 3.1 or 3.2, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Deliverables, Adday may exercise any one or more of the following remedies:

5.1.1 To terminate the Contract;

5.1.2 To reject the Deliverables (in whole or in part) and return any Deliverables which are goods to the Supplier at the Supplier’s own risk and expense;

5.1.3 To require the Supplier to replace any rejected Deliverables (or, in the case of services, reperform such services), or to provide a full refund of the price of the rejected Deliverables (if paid);

5.1.4 To refuse to accept any subsequent delivery or performance of Deliverables which the Supplier attempts to make;

5.1.5 To recover from the Supplier any costs incurred by Adday in obtaining substitute goods or services from a third party; and

5.1.6 To claim damages for any other costs, loss or expenses incurred by Adday which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.

5.2 If the Deliverables are not delivered on the Delivery Date Adday may, at its option, claim or deduct 2% of the price of the Deliverables for each week’s delay in delivery by way of liquidated damages, up to a maximum of 20% of the total price of the Deliverables. If Adday exercises its rights under this Clause 5.2, it shall not be entitled to any of the remedies set out in Clause 5.1 in respect of the Deliverables’ late delivery (but such remedies shall be available in respect of the Deliverables’ condition).

5.3 These Conditions shall apply to any repaired, replaced or reperformed Deliverables supplied by the Supplier.

5.4 Adday’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.

Title and risk

6.1 Title and risk in Deliverables which are goods shall pass to Adday on completion of delivery.

Price and payment

7.1 The price of the Deliverables shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date the Contract came into existence.

7.2 The price of the Deliverables:

7.2.1 Excludes amounts in respect of value added tax (“VAT”), which Adday shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and

7.2.2 Includes the costs of any packaging, insurance and carriage of any Deliverables.

7.3 No extra charges shall be effective unless agreed in writing with Adday.

7.4 The Supplier may invoice Adday for the price of the Deliverables plus VAT at the prevailing rate (if applicable) on or at any time after the completion of delivery. The Supplier shall ensure that the invoice includes the date of the Order, the invoice number, Adday order number, the Supplier’s VAT registration number, and any supporting documents that Adday may reasonably require.

7.5 Adday shall pay correctly rendered invoices within 60 days of receipt of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier.

7.6 If a party fails to make any payment due to the other under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the rate of 2% per annum above HSBC Bank plc’s base rate 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 defaulting party shall pay the interest together with the overdue amount. This Clause shall not apply to payments the defaulting party disputes in good faith.

7.7 Adday may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to Adday against any liability of Adday to the Supplier.

Indemnity

8.1 The Supplier shall keep Adday and AYMES International Limited indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Adday as a result of or in connection with:

8.1.1 Any claim made against Adday for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the supply or use of the Deliverables, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;

8.1.2 Any claim made against Adday by a third party for death, personal injury or damage to property arising out of or in connection with defects in Deliverables, to the extent that the defects in the Deliverables are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and

8.1.3 Any claim made against Adday by a third party arising out of or in connection with the supply of the Deliverables including any claim arising out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.

8.2 This Clause 8 shall survive termination of the Contract.

Insurance

9.1 During the term of the Contract and for a period of three years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on Adday request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.

Compliance with relevant laws and policies

10.1 In performing its obligations under the Contract, the Supplier shall:

10.1.1 Comply with all applicable laws, statutes, regulations from time to time in force; and

10.1.2 Comply with the requirements of the principles contained in Schedule 1.

10.2 Adday may immediately terminate the Contract for any breach of Clause 10.1 and may terminate the Contract for a breach of the principles contained in Schedule 1 in accordance with that Schedule.

Termination

11.1 Adday may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. Adday shall pay the Supplier fair and reasonable compensation for any work in progress on the Deliverables at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.

11.2 Without limiting its other rights or remedies, Adday may terminate the Contract with immediate effect by giving written notice to the Supplier if:

11.2.1 The Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

11.2.2 The Supplier commits persistent breaches of any term of the Contract;

11.2.3 The Supplier takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

11.2.4 The Supplier takes any step or action in connection with the Supplier being made bankrupt, entering any composition or arrangement with his creditors, having a receiver appointed to any of his assets, or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

11.2.5 The Supplier suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; or

11.2.6 The Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;

11.2.7 the Supplier’s financial position deteriorates to such an extent that in Adday’s opinion the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

11.2.8 Any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Clauses 11.2.3 to 11.2.5 (inclusive).

11.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination.

11.4 Clauses that expressly or by implication survive termination of the Contract shall continue in full force and effect.

Force majeure

12.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure results from an event, circumstance or cause beyond its reasonable control. If the period of delay or non-performance continues for 90 days, the party not affected may terminate this Contract by giving written notice to the affected party.

Data protection

13.1 The parties shall comply with their data protection obligations set out in Schedule 2.

General

14.1 Assignment and other dealings

14.1.1 Adday may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract.

14.1.2 The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Adday.

14.2 Subcontracting. The Supplier may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of Adday. If Adday consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.

14.3 Confidentiality. The Supplier party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of Adday, except a disclosure:

14.3.1 To its employees, representatives or contractors who need to know such information for the purposes of carrying out its obligations under the Contract (and on terms that such employees, representatives or contractors comply with this Clause 13.3); and

14.3.2 As may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

14.4 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

14.5 Variation. 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 agreed in writing and signed by Adday.

14.6 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

14.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Clause shall not affect the validity and enforceability of the rest of the Contract.

14.8 Notices.

14.8.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or fax or email.

14.8.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 13.7.1; if sent by pre-paid first class post or other next working day delivery service, at 9:00 am on the second Business Days after posting; if sent by pre-paid airmail, on the fifth Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.

14.8.3 This Clause does not apply to the service of any proceedings or other documents in any legal action, or other method of dispute resolution.

14.9 Third party rights. No one other than a party to the Contract and their permitted assignees shall have any right to enforce any of its terms.

14.10 Governing law. 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.

14.11 Jurisdiction. 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.