Meller Group Limited Standard Conditions of Purchase
1. DEFINITIONS
In these Conditions:
Affiliate: means with respect to a company or person, any other company or person that directly or indirectly, controls, is controlled by or is under common control with such company or person; "control", and with correlative meanings, "controlled by" and "under common control with", shall mean: (a) the possession, directly or indirectly, of the power to direct the management or policies of a company or person, whether through the ownership of voting securities, by contract or otherwise; or (b) the ownership, directly or indirectly, of at least fifty percent of the outstanding voting securities or other ownership interest of a company or person.
Agreement: means the Order, the Conditions and any schedules.
Commencement Date: means the date on which the Order is accepted by the Supplier.
Conditions: means these standard conditions of purchase and any applicable schedules.
Confidential Information: means all information of a confidential or proprietary nature without regard to the form or manner in which such information is disclosed or obtained (including information disclosed orally or in documentary or electronic form or by way of model, or obtained by observation), and in addition shall include:
i. terms of this Agreement;
ii. information concerning the business, assets, affairs, customers, clients or suppliers of the other party;
iii. any information in respect of which Meller Group owes an obligation of confidence to a third party; and
iv. any deliverables and the content of all reports provided to Meller Group under Schedule 1 of this Agreement;
End-Customer: means the customer of Meller Group.
Services: means the development services as specified in the Order to be provided by the Supplier.
Goods: means the goods detailed in the Order to be provided by the Supplier.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, 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 which subsist or will subsist now or in the future in any part of the world.
Meller Group: means Meller Group LIMITED, a company registered in England and Wales with company number 05712299 whose registered address is Unit H, Bedford Business Centre, Mile Road, Bedford, MK42 9TW, and its subsidiary companies.
Order: means the purchase order sent by Meller Group to the Supplier via email, facsimile or mail and any listed attachments which together make up the contract between Meller Group and the Supplier.
Supplier: means the person or company on whom the Order is placed.
Supplies: means all Goods, Services and deliverables detailed in the Order.
Term: has the meaning given to it in clause 22(a).
2. APPLICATION
(a) These Conditions shall apply to the Order. Where the Order contains an order for Services, Schedule 1 shall be incorporated into this Agreement, and shall have precedence over any conflicting terms in these Conditions.
(b) The is Agreement shall be the entire agreement between Meller Group and the Supplier, and shall supersede all previous communications or representations between Meller Group and the Supplier, including any standard conditions of sale issued by the Supplier. This Agreement shall not be varied unless agreed in writing by Meller Group.
(c) If written notice of acceptance of the Order has not been received by Meller Group within twenty-eight (28) days from the date of the Order, Meller Group reserves the right to cancel that Order without incurring any liability to the Supplier.
(d) Any qualification of this Agreement which may appear in the Supplier's notice of acceptance shall constitute a counter-offer by the Supplier which shall have no effect unless accepted in writing by Meller Group.
(e) Meller Group's Order number and Order line number, where applicable, must be quoted on all documents and correspondence relating to the Order.
3. CHANGES
(a) Meller Group may direct a change to the Order with respect to the delivery date, the shipping or packing instructions, or the place of delivery and the Supplier shall comply with Meller Group's written instructions without delay.
(b) Within fourteen (14) days after notification of any changes in accordance with Clause 3(a), the Supplier shall notify Meller Group in writing of the effect of such change on the delivery schedule or the price. Meller Group and the Supplier shall agree any reasonable adjustment to the delivery schedule or the price and incorporate such agreement into the Order by written amendment.
(c) Meller Group may also amend the Order with respect to any of the following:
i) the quantity of the Supplies;
ii) the quality of the Supplies; or
iii) any specification;
provided that an Order amendment pursuant to clause 3(c) shall not take effect until Meller Group and the Supplier have agreed any reasonable adjustment to be made to the delivery schedule or the price stated in the Order, and incorporated such agreement into the Order by written amendment.
(d) Meller Group may at any time prior to dispatch cancel an Order by written notice to the Supplier. If Meller Group cancels an Order, its liability to the Supplier shall be limited to the payment to the Supplier of all costs reasonably incurred by the Supplier in fulfilling the Order up until the date of receipt of the notice of cancellation, except that Meller Group shall have no liability to the Supplier where the cancellation results from the Supplier's failure to comply with its obligations under these Conditions.
4. FORECASTS
(a) Where Meller Group provides the Supplier with a forecast of the Goods it expects to purchase in a specified period, the Supplier shall use all reasonable endeavours to ensure that it has sufficient stock levels to meet such anticipated purchase.
(b) Where the Supplier anticipates that it will be unable to meet Meller Group’s forecasted requirements it shall inform Meller Group in writing as soon as practicable and without limiting any other right or remedy that Meller Group may have, Meller Group may at its option:
i) agree alternative delivery dates for the relevant Supplies; or
ii) obtain from any other person substitute products for the Supplies which the Supplier anticipates it will be unable to supply.
5. DELIVERY, RISK AND TITLE
(a) The Supplier shall use its best endeavours to deliver the Goods in the Order to the location(s) named in the Order no later than the dates specified in the Order. Partial deliveries shall not be made unless agreed in writing by Meller Group.
(b) Delivery of an Order shall be complete on the completion of unloading of the Goods at the delivery place(s) named in the Order.
(c) Each delivery of Supplies shall be accompanied by a delivery note from the Supplier showing the Order number, the date of the Order, the type and quantity of Supplies included in the Order and, in the case of Supplies being delivered by instalments, the outstanding balance of Supplies specified in an Order remaining to be delivered.
(d) The Supplier shall obtain a signed receipt for each delivery from the End-Customer or a person authorised by the End-Customer and forward a copy of such receipt to Meller Group immediately on request.
(e) The Goods shall be packed to a high commercial standard suitable for the designated mode of transport and capable of long term storage without damage or degradation to the Goods.
(f) The Supplier shall obtain and maintain in force for the duration of this Agreement all licences, permissions, authorisations, consents and permits needed to supply the Goods in accordance with the terms of this Agreement.
(g) Title and Risk to the Goods shall pass to the End-Customer on delivery unless otherwise specified in the Order, but without prejudice to any right of rejection which may accrue to the End-Customer hereunder.
(h) If any of the Goods are not delivered by the date(s) specified in the Order, Meller Group shall be entitled to:
i) obtain substitute products from another supplier and recover from the Supplier any additional expenditure reasonably incurred by Meller Group in obtaining other equivalent Supplies in replacement.
ii) Subject to clause 19, claim damages for any other costs, expenses or losses resulting from the Supplier’s failure to deliver the Order on the specified delivery date.
6. ACCESS
Meller Group's representatives and those of its customer shall have access to the Supplier's works or place of business at all reasonable times for any purpose in connection with the performance by the Supplier of the Order. The Supplier shall secure the same rights of access to the premises of its subcontractors.
7. CONFORMITY WITH ORDER
(a)The Supplier warrants that the Supplies shall:
i) conform to the quantity, quality (including quality assurance requirements) and specification stated in the Order;
ii) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by Meller Group; and
iii) be free from defect in design (except where Meller Group is the design agent), materials and workmanship and remain so for 24 months after delivery; and
iv) comply with all applicable statutory and regulatory requirements.
(b) If we are notified by our End-Customer that the Supplies do not conform to the quantity, quality (including quality assurance requirements) or specification stated in the Order, or do not meet the required standards of design, material or workmanship, and that they reject the Goods, then Meller Group shall be entitled, without prejudice to any other remedy, to exercise one or more of the following rights:
i) to require the Supplier to collect the rejected Goods from the End-Customer;
ii) to credit Meller Group with the price of the Goods;
iii) to require the Supplier to promptly replace or repair the Supplies free of all cost and at the Supplier's risk; and/or
iv) to require the Supplier to indemnify all Meller Group' reasonable expenses and additional costs connected with such defect.
(c) The provisions of this clause 7 shall apply in addition to, and without prejudice to, any other of Meller Group' rights hereunder or at law, whether express or implied.
(d) This clause 7 shall apply to any repaired or replacement Goods supplied by the Supplier.
(e) If the Supplier fails to promptly repair or replace rejected Supplies in accordance with clause 7(b)iii), Meller Group may, without affecting its rights under clause 7(b)iv), obtain substitute products from a third party supplier, or have the rejected Supplies repaired by a third party, and the Supplier shall reimburse Meller Group for the costs it incurs in doing so.
(f) The warranty rights under this clause shall be assignable to Meller Group, or for the benefit of its End-Customer or the ultimate end-user of the Supplies, for a period of at least twelve (12) months from the actual date of delivery or from the Order date of delivery (whichever is later).
8. DATA PROTECTION
(a) The following definitions apply in this clause 8:
i) Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
ii) Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
iii) Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
(b) Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
(c) The parties acknowledge that for the purposes of the Data Protection Legislation, Meller Group is the Controller and the Supplier is the Processor.
(d) Without prejudice to the generality of clause 8(b), Meller Group will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of the Agreement.
(e) Without prejudice to the generality of clause 8(b), the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Agreement:
i) process that Personal Data only on the documented written instructions of MELLER unless the Supplier is required by Domestic Law to otherwise process that Personal Data. Where the Supplier is relying on Domestic Law as the basis for processing Personal Data, the Supplier shall promptly notify Meller Group of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Supplier from so notifying Meller Group;
ii) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by Meller Group, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
iii) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
iv) not transfer any Personal Data outside of the UK unless the prior written consent of Meller Group has been obtained and the following conditions are fulfilled:
(1) Meller Group or the Supplier has provided appropriate safeguards in relation to the transfer;
(2) the Data Subject has enforceable rights and effective legal remedies;
(3) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(4) the Supplier complies with reasonable instructions notified to it in advance by Meller Group with respect to the processing of the Personal Data;
v) assist Meller Group, at Meller Group's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
vi) notify Meller Group without undue delay on becoming aware of a Personal Data Breach;
vii) at the written direction of Meller Group, delete or return Personal Data and copies thereof to Meller Group on termination of the Agreement unless required by Domestic Law to store the Personal Data; and
viii) maintain complete and accurate records and information to demonstrate its compliance with this clause 8 and immediately inform Meller Group if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
(f) Meller Group does not consent to the Supplier appointing any third party processor of Personal Data under the Agreement.
9. CONFIDENTIALITY
(a) Each party undertakes that it shall not disclose to any person any Confidential Information, except as permitted by clause 9(b).
(b) Each party may disclose the other party's Confidential Information:
i) to its Affiliates, employees, officers, representatives, contractors or subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Agreement. Each party shall ensure that its Affiliates, employees, officers, representatives or advisers to whom it discloses the other party's Confidential Information comply with this Clause 9; and
ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) No party shall use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.
10. PUBLICITY
The Supplier shall not use Meller Group' name or any of the information contained in this Agreement for publicity purposes without Meller Group's prior written consent.
11. ANTI-BRIBERY
(a) Compliance. The Supplier shall, and shall ensure that its Affiliates shall:
i) comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
ii) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
iii) comply with the ethics, anti-bribery and anti-corruption policies made available by Meller Group as Meller Group may update them from time to time (“Relevant Policies”);
iv) have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies and clause 11(a)ii), and will enforce them where appropriate;
v) promptly report to Meller Group any request or demand for any undue financial or other advantage of any kind received by Meller Group in connection with the performance of this Agreement;
vi) immediately notify Meller Group (in writing) if a foreign public official becomes an officer or employee of the Supplier, and the Supplier warrants that it has no foreign public officials as officers or employees at the date of this Agreement;
vii) within 6 months of the date of this Agreement, and annually thereafter, certify to Meller Group in writing signed by an officer of the Supplier, compliance with this clause 11 by the Supplier. The Supplier shall provide such supporting evidence of compliance as Meller Group may reasonably request.
(b) Definitions. For the purpose of this clause 11, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purpose of this clause 11, a person associated with the Supplier includes any agent, delegate or subcontractor of the Supplier.
12. PRICE AND PAYMENT
(a) In consideration for the provision of Supplies by the Supplier and associated obligations defined herein:
i) The supplier may issue invoices to Meller Group in the amounts and at the times set out in the applicable Order. Each such invoice shall:
(1) be provided in the approved VAT format with any applicable VAT separately identified on the invoice;
(2) be accompanied by details of the Supplies to which it relates;
(3) detail the Order number, line number and match the Order specifically with regard to the price, quantity and unit of measure;
(4) be submitted in the same currency as the Order; and
(5) be submitted to Meller Group at the address stated on the Order and marked for the attention of the “Accounts Department”.
ii) Meller Group shall pay such invoices by the end of the month following the month of the invoice unless otherwise nominated on the Order.
(b) All prices shall be:
i) non-variable and inclusive of all taxes (other than VAT), duties, packaging and delivery of the Supplies to the destination or freight-forwarder stated in the Order; and
ii) on a VAT exclusive basis.
(c) Invoices which are not in the format or do not contain the details set out in clause 12(a)i) will not be processed by Meller Group.
(d) Notwithstanding clause 12(a), Meller Group shall not be obliged to pay to the Supplier:
i) any amount in excess of the amounts set out in the Order (as amended in accordance with this Agreement); or
ii) any amount for which a valid invoice is not received by Meller Group within 90 days after the earlier of:
(1) the successful delivery of the Goods or completion of the Services (as applicable), and
(2) termination or expiry of the relevant Order.
13. DOCUMENTATION
(a) Advice notes and certificates of conformity shall be submitted by the Supplier in duplicate, the original to accompany the Goods and a copy to be sent by post or email to Meller Group at the address stated in the Order.
(b) If a merchandiser has been identified in the Order, a copy of the advice notes and certificates of conformity shall also be sent by post or email to that merchandiser at the address stated in the Order.
14. INTELLECTUAL PROPERTY
(a) The Supplier acknowledges that the Intellectual Property Rights used on or in relation to the Goods and the goodwill connected with that use are the property of the Meller Group.
(b) Meller Group grants to the Supplier a non-exclusive licence for the duration of this agreement to use the Intellectual Property Rights inherent in the Goods for the purpose of fulfilling its obligations under this Agreement.
(c) The Supplier shall promptly give notice to the Meller Group it if becomes aware of any infringement or suspected infringement of the Intellectual Property Rights relating to the Supplies.
15. WARRANTIES
(a) The Supplier warrants that:
i) at the Commencement Date neither it nor its Affiliates is a party to an agreement which would prevent it from fulfilling its obligations under this Agreement;
ii) it has the facilities, resources, authorisations, and necessary ability to provide the Supplies in accordance with this Agreement;
iii) the delivery of the Goods and/or the performance of the Services by or on behalf of the Supplier will not infringe the Intellectual Property Rights of any third party;
iv) neither the Supplier, nor any of its Affiliates, is involved in any:
(1) legal or arbitration proceedings which individually or collectively may have a material effect on the financial position of the Supplier or its Affiliates; nor
(2) governmental, regulatory or other investigation or enquiry.
(b) The Supplier undertakes that during the term of this Agreement neither it nor its Affiliates shall:
i) enter into any agreement which would in any way restrict its ability to perform its obligations hereunder; nor
ii) do any other act which may give rise to a conflict of interest.
16. WAIVER
Failure on the part of Meller Group in exercising any right it may have under this Agreement shall not be deemed a waiver of that right.
17. INDEMNITIES
The Supplier shall indemnify Meller Group against all liability, damages, costs, loss, expense and damage (including 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 other professional costs and expenses) suffered or incurred by Meller Group arising out of or in connection with:
(a) any claim made against Meller Group 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 Supplies;
(b) any claim made against Meller Group by a third party arising out of, or in connection with, the supply of the Supplies, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this Agreement by the Supplier, its employees, agents or subcontractors; and
(c) any claim made against Meller Group by a third party for death, personal injury or damage to property arising out of, or in connection with, defective Supplies, to the extent that the defect in the Supplies is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors.
18. INSURANCE
The Supplier agrees that for Term and for a period of two years afterwards it shall maintain insurance cover with a reputable insurer for the following classes of risk in respect of work to be carried out under this Agreement:
(a) public liability insurance;
(b) employers liability;
(c) products liability; and (d) such other classes as are appropriate to the circumstances of the Order as specified by Meller Group, including professional indemnity if required in the Order.
19. LIMITATION OF LIABILITY
(a) References to liability in this clause 19 include every kind of liability arising under or in connection with this Agreement including liability:
i) in contract, tort (including negligence), misrepresentation, restitution or otherwise; and
ii) arising out of any use made or resale of the Supplies by Meller Group, or of any product incorporating any of the Supplies.
(b) Nothing in this Agreement limits any liability which cannot legally be limited, including liability for:
i) death or personal injury caused by negligence;
ii) fraud or fraudulent misrepresentation;
iii) breach of the terms implied by section 12 of the Sale of Goods Act 1979; and
iv) breach of section 2 of the Consumer Protection Act 1987.
(c) Nothing in this Agreement shall limit any liability under clause 17 of this Agreement.
(d) Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
(e) Subject to clause 19(b), clause 19(c) and clause 19(d), Meller Group shall not be liable to the Supplier, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise for any:
i) loss of profits;
ii) loss of sales or business;
iii) loss of agreements or contracts;
iv) loss of anticipated savings;
v) loss of use or corruption of software, data or information;
vi) loss of or damage to goodwill; or
vii) indirect or consequential loss, suffered by the Supplier that arises under or in connection with this Agreement.
(f) Subject to clause 19(b) and clause 19(d), Meller Group’s total liability to the Supplier shall not exceed the fees paid by Meller Group to the Supplier under the relevant Order.
20. SUBCONTRACTS
The Supplier shall not subcontract any of the work, nor assign any of its rights or obligations hereunder without first obtaining the written consent of Meller Group. Meller Group consent shall not relieve the Supplier of any of its duties, liabilities or obligations under this Order.
21. CONTINUITY OF SUPPLY
The Supplier agrees to accept further orders for similar Supplies at prices and delivery lead times no less favourable than those agreed in the Order, taking account of quantities, technical standards and economic conditions prevailing at the time of any further order. In the event that the Supplier is unwilling or unable to accept such orders it shall deliver to Meller Group without charge all the necessary drawings, manufacturing information and tooling to enable Meller Group to make the Supplies itself or have them made elsewhere.
22. DURATION, TERMINATION AND SUSPENSION
(a) This Agreement shall commence on the Commencement Date and shall continue until one party gives the other party written notice to terminate in accordance with this clause 22 (Term).
(b) Subject to clause 22(c), the Agreement may be terminated for convenience by:
i) Meller Group at any time in whole or part by giving written notice of termination to the Supplier. In the event of such notice being given the Supplier shall comply with any directions with regard to the Supplies which may be given by Meller Group;
ii) The Supplier by giving 60 day’s written notice of termination to Meller Group.
(c) The Supplier shall not be entitled to provide notice to terminate this Agreement under clause 22(b)ii) unless all Orders which have been accepted by the Supplier have been:
i) fulfilled by the Supplier to Meller Group’s satisfaction; or
ii) cancelled by Meller Group.
(d) The Supplier shall submit within one (1) month from the effective date of termination the Supplier's termination claim. Meller Group shall pay a fair and reasonable price to the Supplier in respect of any commitments, liabilities or expenditure reasonably and properly incurred by the Supplier in connection with the Order and which would otherwise represent an unavoidable loss to the Supplier. Meller Group shall not be liable to pay any sum which, when taken together with any other sum or sums paid or due to the Supplier under the Order, shall exceed the total price of the Supplies the subject or the said notice of termination.
(e) In the event of any stoppage, delay or interruption of Supplier's work or business as a result of strikes, lockouts, trade disputes, breakdown, accident or any cause whatsoever beyond the reasonable control of the Supplier, then Meller Group may suspend or postpone its obligations hereunder until the stoppage, delay or interruption has ceased.
(f) If the Supplier defaults on any of its obligations under this Agreement, Meller Group shall have the right to terminate all or part of any Order(s) which have been placed with the Supplier but not yet fulfilled by written notice without prejudice to any other of its rights or remedies, and shall be liable only for Supplies delivered and accepted by Meller Group.
(g) If the Supplier becomes insolvent or has a receiver or administrator appointed in respect of its business or any of its assets or is compulsorily or voluntarily wound up, Meller Group shall have the right to terminate the Agreement by written notice without prejudice to any other right or remedies, and shall be liable only for Supplies delivered and accepted by Meller Group.
(h) No termination or suspension of the Agreement shall prejudice any rights or obligations of either party hereunder or at law. Both parties shall use all reasonable endeavours to mitigate their losses on such termination or suspension.
23. NOTIFICATION OF NON-CONFORMING GOODS
(a) If, at any time during the period from delivery of the Supplies through the lifecycle of the Goods, the Supplier becomes aware of any defect in the Goods which adversely affects, or is likely to adversely affect, the operation or the safety of the Goods, the Supplier shall immediately give notice of the defect to Meller Group. Such notice shall be provided in writing as specified in clause 23(a) below.
(b) Where the adverse effect or likely adverse effect is critical to the operation or safety of the Supplies, the Supplier shall give notice to Meller Group immediately on becoming aware of the defect and shall provide a fully documented confirmation of the notice as specified in clause 23(a) below.
(c) Notices are to be sent to sales@mellerdesigns.co.uk.
24. FURTHER ASSURANCE
At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to this Agreement.
25. WAIVER
(a) A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
(b) A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
26. NOTICES
(a) With the exception of any notices provided pursuant to clause 23, any notice given to a party under or in connection with this Agreement shall be in writing and shall be:
i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
ii) sent by email to the email addresses specified on the Order (or an address substituted in writing by the party to be served).
(b) Any notice shall be deemed to have been received:
i) if delivered by hand, at the time the notice is left at the proper address;
ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
iii) if sent by email, at the time of transmission, or, if this time falls outside standard business hours in the place of receipt, when business hours resume.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
27. THIRD PARTY RIGHTS
Unless it expressly states otherwise, this Agreement does not give rise to rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
28. GOVERNING LAW
This Agreement 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.
29. 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 this agreement or its subject matter or formation.
Schedule 1 – Conditions for the provision of Research and Development Services
1.Interpretation
In addition to the definitions and rules of interpretation set out in the Conditions, the following definitions apply in this Schedule 1:
Materials: means the Original Materials and any and all materials that Meller Group provides to the Supplier under or in connection with this Agreement, and
i. all ingredients, fragrances, formulas, constructs, strains, portions, replications or unmodified derivatives directly or indirectly obtained from or as a result of the use of the Original Materials;
ii. all improvements and modifications to any of the foregoing;
iii. all materials containing or incorporating any of the foregoing; and
iv. all materials within the Results.
Original Materials: has the meaning set out in the relevant Order.
Representatives: means the directors, officers, employees, and advisors of a company.
Resulting Materials: has the meaning set out in clause 6(a)i).
Results: means:
i. all information and materials described in the Order as deliverables and/or intended to be provided by the Supplier to Meller Group;
ii. all data, information and/or materials first identified, developed, generated or created in the course of the Services;
iii. all data, information and/or materials obtained from the Materials or as a result of their use;
iv. all data, information and/or materials generated from the use of the Confidential Information which Meller Group has disclosed to the Supplier; and
v. all tangible records of such data and information.
2. THE SERVICES
(a) The Order sets out details of the Services agreed between Meller Group and the Supplier as at the date of this Agreement.
(b) Unless otherwise agreed between the parties in writing, the Supplier will provide the Services exclusively to Meller Group during the term of this Agreement. The Supplier undertakes that it will not develop or be involved in the research and/or development of any product which is identical to or similar to the products to be researched and/or developed as part of the Services, either for its own use or for use by a third party. Nothing in this clause 2(b) shall prohibit the Supplier from using, marketing or licensing any product or reports already in its possession which pre-exists the Commencement Date.
(c) The Supplier undertakes during the term of this Agreement and for a period of three years thereafter to refrain from approaching any End-Customer of Meller Group, directly or via third parties, with any offer or solicitation to produce or to sell any goods or provide any Services similar to those listed in the Order.
Changes to Services
(d) If Meller Group requests a change in the Services which the Supplier believes is material, the Supplier shall promptly notify Meller Group. As soon as possible and within 14 calendar days after such notification, the Supplier shall provide Meller Group with a written statement of the amendments required to be made to the Order and, if such amendments are agreed, the parties shall complete a written amendment and procure that such amendment is executed by authorised representatives of each party.
(e) Notwithstanding clause 2(d), in the event that a change to the Services is necessary in order to comply with any law or regulatory requirement, the Supplier shall promptly implement the necessary change. Thereafter, the parties shall discuss whether any amendment to the Order is required.
Third Parties and Sub-Contractors
(f) The obligations in this Agreement on the Supplier to provide information and/or materials to Meller Group will include an obligation to provide the same to any third party nominated by Meller Group. The obligations in this Agreement on Meller Group to provide information and/or materials to the Supplier may be satisfied by a third party on behalf of Meller Group, and the Supplier shall cooperate with such third party at the request of Meller Group. All information of a confidential or proprietary nature received by Supplier from a third party on behalf of Meller Group shall be deemed to be Confidential Information for the purpose of clause 9 of the Conditions.
(g) The Supplier may not sub-contract the performance of any part of the Services to any Affiliate or third party unless:
i) the Order provides that such services may be sub-contracted to such sub-contractor; or
ii) MELLER has given its prior written consent (which may be withheld at the sole discretion of Meller Group).
(h) Where sub-contracting of certain services is permitted pursuant to clause 2(g):
i) prior to sub-contracting such services, the Supplier shall enter into a written agreement with the sub-contractor under which the sub-contractor is obliged to:
(1) perform the sub-contracted services without further sub-contracting;
(2) provide the Services in accordance with the provisions of clause 4; and
(3) comply with clauses 2, 5(b), 5(c), and 6 of this schedule and clause 9 of the Conditions as if the sub-contractor were the Supplier; and
ii) the Supplier shall remain liable to Meller Group for the performance of the Supplier's obligations under this Agreement, and for any acts or omissions of any sub-contractor.
3. MATERIALS
Supply of Original Materials
(a) Meller Group shall, at a time agreed by the parties, make the Original Materials available to the Supplier. Such supply shall be without cost to the Supplier.
(b) Risk in the Original Materials shall transfer to the Supplier upon completion of delivery to the Supplier. Title in the Original Materials shall remain with Meller Group.
(c) The Supplier shall provide Meller Group with written confirmation of the safe receipt of the Original Materials promptly after their delivery to the Supplier.
(d) The Supplier warrants that it has full authorisation for the import (if applicable), receipt, storage, handling, use, return and disposal of the Materials.
Use of the Materials
(e) The Supplier shall:
i) to the extent reasonably practical, keep the Materials physically separate from other materials, and ensure that the Materials are at all times clearly labelled and/or identified as the property of Meller Group;
ii) procure that the Materials are kept secure at, and not removed from, the Supplier's laboratory located at the address specified on the Order or the relevant laboratory of an applicable permitted sub-contractor pursuant to clauses 2(g) and 2(h);
iii) subject to clause 3(f), ensure that no one has access to the Materials other than the Supplier's and its Affiliates' and permitted contractors' Representatives who reasonably require such access to the Materials for the performance of the Services; and
iv) use and procure that the Materials are used only for the Services and are not used for any commercial purpose nor any other sponsored research.
(f) Prior to allowing the Supplier's and its Affiliates' or permitted contractors' to have access to the Materials, the Supplier shall ensure that such persons:
i) have been informed of the proprietary nature of the Materials, Meller Group’s interest in the Materials, and the provisions of this Agreement, and have been instructed to comply with this Agreement; and
ii) have entered into legally binding obligations to the Supplier on terms that are no less onerous than those set out in this Agreement, and which extend to the Materials.
(g) The Supplier shall ensure that all those of its and its Affiliates' and permitted contractors' Representatives who have access to the Materials comply with the provisions of this Agreement. The Supplier shall be liable to Meller Group for any acts or omissions of any person to whom the Supplier or its permitted contractors have provided the Materials, that would, if effected by the Supplier, constitute a breach of this Agreement.
(h) The Supplier shall not:
i) sell, offer for sale, market, gift, transfer, or otherwise supply the Materials to any third party nor use the Materials to provide any service; nor
ii) except as expressly agreed by the parties in order to conduct the Services:
(1) attempt to replicate the Confidential Information or Materials nor investigate detailed aspects of the Confidential Information or Materials that were not disclosed by Meller Group or readily available from use of the Materials in the performance of the Services nor permit any third party to do the same; nor
(2) sequence, analyse or otherwise determine the sequence, structure and/or composition of the Materials nor assist nor permit any third party to do the same.
(i) Except as expressly stated in the Order, the Supplier shall not use the Materials nor permit the Materials to be used in humans or in animals or in connection with any diagnostic service.
(j) The Supplier shall use the Materials in accordance with current Good Laboratory Practice and with all due skill and care, and shall ensure compliance with any applicable laws, approvals, and regulations governing the import (if applicable), receipt, storage, handling, use, return and disposal of the Materials.
4. PERFORMANCE OF THE SERVICES
(a) The Supplier shall procure that the Services are conducted:
i) with all due skill and care using the professional judgment, technical skills and diligence reasonably expected of a competent professional entity providing services of a similar nature;
ii) by Representatives of the Supplier and/or Representatives of its permitted contractors who are properly trained, qualified and competent to perform the required tasks;
iii) in accordance with all applicable laws, regulations and guidelines of relevant governing bodies; and
iv) in accordance with the applicable Order and all reasonable instructions given by Meller Group from time to time.
(b) The Supplier shall keep detailed records of the progress of the Services and all Results in accordance with common best practice for patenting and regulatory purposes and shall provide such records to Meller Group upon request.
(c) The Supplier shall perform the Services in accordance with the timelines set out in the applicable Order or if no timetable is specified, within a reasonable time. If at any time the Supplier has reason to believe that it will not be able to comply with such timelines, Supplier shall inform Meller Group as soon as possible after it becomes aware of the delay and shall provide a full explanation for the delay together with a revised timetable for the provision of the affected Services. If the revised timetable is unacceptable to Meller Group, without prejudice to any other right of Meller Group, Meller Group may terminate the relevant Order with immediate effect by giving written notice to the Supplier.
(d) In the event that Meller Group becomes aware that performance of the Services and/or the Results are not in compliance, in all material respects, with the provisions of this Agreement and the applicable Order, Meller Group shall notify the Supplier in writing. Without prejudice to any other right or remedy of Meller Group, at the request and option of Meller Group the Supplier shall promptly (and within a reasonable time after such request) (i) repeat such Services at the Supplier's sole expense, or (ii) refund to Meller Group the amount paid in respect of the non-conforming Services.
5. COMMUNICATION AND AUDITS
(a) Meller Group and the Supplier shall hold regular meetings in person or by telephone at such venues and times as shall be agreed upon between the parties in order to ensure the smooth and efficient provision of the Services in accordance with this Agreement.
(b) In the event that the Supplier initiates or is requested by any third party to initiate an audit related to or which may have an adverse impact on the Results or the provision of the Services, the Supplier will immediately inform Meller Group.
(c) Meller Group shall have the right itself or through a third party, upon reasonable prior written notice to the Supplier, during normal business hours and at reasonable intervals, to audit the Supplier’s facilities where the Services are performed either before, during, or after the performance of the Services. In addition, the Supplier shall permit Meller Group, its designee or an independent auditor appointed by Meller Group or its designee to have access to such of the Supplier’s books and records as may be necessary to verify the amounts owed by Meller Group to the Supplier under this Agreement and compliance by the Supplier with this Agreement and any relevant law or regulation applicable to the provision of the Services.
(d) For a period of 10 years after the termination of this Agreement, the Supplier shall and shall procure that its permitted sub-contractors shall, maintain all records associated with the provision of the Services, in a manner consistent with the appropriate regulatory requirements. Upon 14 days’ notice, the Supplier shall make these records available at to Meller Group or its designee, or any relevant regulator for the purposes of assessing compliance with the terms of this Agreement.
6. RESULTS AND INTELLECTUAL PROPERTY RIGHTS
(a) Upon request by Meller Group from time to time, and within 14 days after completion of the Services (or at such other times as stated in the applicable Order):
i) the Supplier shall provide to Meller Group a written report describing the work conducted using the Confidential Information and/or Materials, and all Results; and
ii) to the extent that the Results comprise materials ("Resulting Materials"), the parties shall agree a mutually convenient time for delivery of the Resulting Materials. The Supplier shall deliver the Resulting Materials to Meller Group at the address of Meller Group set out in the Order or such other address as Meller Group may notify to the Supplier from time to time.
(b) All Results and the content of all reports provided to Meller Group under this Agreement shall be deemed to be the Confidential Information of Meller Group.
(c) The Results and all Intellectual Property Rights in the Results shall be the sole property of Meller Group. The Supplier hereby assigns and agrees to assign to Meller Group all of its right, title, and interest in the Results and Intellectual Property Rights in the Results. The Supplier agrees to do and procure to be done all acts necessary, including executing and procuring the execution of any document reasonably required by Meller Group, to vest ownership of the relevant Results and Intellectual Property Rights in the Results in Meller Group.
(d) The Supplier shall ensure that all of its and its permitted contractors' Representatives involved in the performance of the Services have entered into a written agreement with the Supplier or the permitted contractors on terms which enable the Supplier to assign to Meller Group all right, title, and interest in the Results and Intellectual Property Rights in the Results.
(e) If and to the extent that Meller Group needs a licence of any Intellectual Property Rights owned or controlled by the Supplier in order to exploit the Results or Intellectual Property Rights in the Results, the Supplier hereby grants to Meller Group a non-exclusive, fully paid-up, perpetual, irrevocable, transferable, worldwide licence (with the right to sub-license through multiple tiers) of such Intellectual Property Rights solely for the purpose of exploiting the Results or Intellectual Property Rights in the Results. To the extent that it is reasonably necessary to enable Meller Group to understand the Results, the Supplier shall disclose to Meller Group the relevant Confidential Information and/or Intellectual Property Rights of the Supplier.
(f) The Supplier shall use reasonable endeavours to provide prompt written notice to Meller Group in the event that the Supplier becomes aware that use of the Results may infringe the Intellectual Property Rights of any third party.
(g) The Supplier shall not:
i) make or seek to make any commercial gain from any Results;
ii) make any patent application or secure any other proprietary rights to legally protect the Results; nor
iii) permit nor cause any third party to acquire or retain any right, title, or interest in the Results or Intellectual Property Rights in the Results.
7. CONSEQUENCES OF TERMINATION
(a) In the event of termination of the Agreement or any Order before completion of the Services under such Order:
i) the Supplier shall use its best endeavours, upon receipt or issue of a termination notice, to incur no further expense and to perform no further Services under the relevant Order (and to procure the same from its sub-contractors) except as is reasonably necessary for orderly close down of the relevant Services within the given notice period;
ii) the Supplier shall promptly repay to Meller Group such part of the fees paid by Meller Group in respect of any Services that had not been provided by the Supplier as at the date of termination;
iii) Meller Group shall pay to the Supplier that part of the fees set out in the applicable Order and due for Services properly performed in accordance with this Agreement prior to the effective date of termination;
iv) the Supplier shall provide to Meller Group a written report describing the work conducted using the Confidential Information and/or Materials, and all Results under the applicable Order; and
v) the parties shall agree a mutually convenient time for delivery of the Resulting Materials and the Supplier shall deliver the Resulting Materials to Meller Group at the address of Meller Group set out in the Order or such other address as Meller Group may notify to the Supplier from time to time.
(b) Upon receipt of, or the giving of (as applicable), a termination notice, Meller Group shall promptly notify the Supplier in writing whether it requires the Supplier to perform wind-down services or to facilitate the transfer of the Services (including the Results and any tests and/or assays or the like within the Results) to Meller Group or a third party ("Termination Assistance"). Upon Meller Group’s request, the Supplier shall perform such Termination Assistance as directed by Meller Group. Except in the event of termination under clauses 22(d), 22(e) and 22(f) of the Conditions by Meller Group, Meller Group shall reimburse the Supplier for all actual costs, including time spent by the Supplier's personnel (at the Supplier's standard daily rates in effect as of the date of the termination), reasonably incurred by the Supplier to complete activities associated with the Termination Assistance. In the event of termination under clauses 22(d), 22(e) or 22(f) of the Conditions by Meller Group, the Supplier shall provide the Termination Assistance to Meller Group at the Supplier's expense.
(c) In the event of termination of any Order by Meller Group under clause 22(b) of the Conditions, the Supplier shall be entitled to payment for such third party costs which have been contractually committed by the Supplier in connection with the proper performance of the Services but which are not due for payment until after such effective date of termination, to the extent that they cannot be reduced, cancelled or applied elsewhere. The Supplier shall use all reasonable endeavours to reduce its liability to third parties for the same or procure that the same are or applied elsewhere.
(d) Upon termination or expiry of this Agreement or a Order for any reason, without prejudice to any other right or remedy it may have, Meller Group shall be entitled, to the fullest extent permitted by law, to set off and apply against any amounts payable to the Supplier, any amounts owed to Meller Group by the Supplier pursuant to this Agreement.
(e) In the event of termination of this Agreement or any Order:
i) the Supplier shall make no further use of any of the Materials (or in the event of termination of a Order, the Original Materials related specifically to such Order, and shall immediately return to Meller Group (or, if Meller Group so requests, destroy or erase) all such Original Materials;
ii) the parties shall agree a mutually convenient time for delivery of the Resulting Materials and the Supplier shall deliver the Resulting Materials to Meller Group at the address of Meller Group set out in the Order or such other address as Meller Group may notify to the Supplier from time to time; and
iii) upon request by one party, the other party shall provide to the requesting party a certificate, signed by an officer of the other party, confirming that the obligations in this clause have been complied with.