General Terms And Conditions of HEINEKEN UK for the Purchase of Goods and/or Services
- In these General Purchasing Terms and Conditions the following definitions apply:
Buyer: the party so named in the Purchase Order either acting for itself or on behalf of any other Heineken Group Company.
Buyer Materials: all data, materials and equipment supplied by or on behalf of the Buyer to the Seller and which are and shall remain the property of the Buyer.
Condition: any provision of these general purchasing terms and conditions.
Contract: any contract, agreement or Purchase Order concluded between the Buyer and the Seller (whether written or oral) relating to the purchase of Goods and/or Services.
Customised Software: specific software developed as per the instruction of the Buyer, including additions to standard software.
Data Protection Laws: means the European Data Protection Laws, UK Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country. In the event of conflict between European Data Protection Laws and UK Data Protection Laws, UK Data Protection Laws shall prevail.
European Data Protection Laws: means the EU General Data Protection Regulation 2016/679 of the European Parliament and of the Council ("GDPR") and laws implementing or supplementing the GDPR.
General Purchasing Terms and Conditions: these terms and conditions of Heineken UK Limited for the purchase of goods and/or services,
Goods: any products, materials, liquids, equipment, design, software, hardware and all associated documentation supplied by or on behalf of the Seller to the Buyer under the Contract.
Heineken Group Company: any direct or indirect holding or subsidiary undertakings of Heineken UK Limited or any direct or indirect subsidiary of such holding company or other undertakings in which Heineken UK Limited has a direct or indirect interest.
Intellectual Property Rights: all registered and unregistered rights in trademarks, trade names, logos, distinctive signs, trade dress, design rights, inventions, copyrights, patents, pending applications, domain names, URL's and any other addresses for use on the internet, websites, software (including reports, scripts, source code, computer systems and other technical documentation related thereto), data and database rights, rights in confidential information, customer lists, "know-how" and any other intellectual property or any similar, corresponding or equivalent rights to any of the foregoing, and including any right to apply for registration of these rights relating to all material, processes, data, drawings, information, reports, know-how, inventions, trade secrets, improvements or techniques.
Parties: the Seller and the Buyer collectively.
Party: the Seller or the Buyer.
Purchase Order: any order for the purchase of Goods and/or Services issued by the Buyer to the Seller.
Seller: the person, firm, partnership or company that entered into a Contract with the Buyer in connection with the supply of Goods and/or Services to the Buyer.
Seller Background Intellectual Property Rights: Intellectual Property Rights that belong to or are licensed to the Seller prior to conclusion of the Contract in accordance with Condition 3.
Seller Personnel: persons engaged by the Seller, including employees and contractors of the Seller, for the performance of the Seller’s obligations under the Contract.
Services: any services performed and any associated documentation or reporting to be supplied by or on behalf of the Seller under the Contract.
Standard Software: all software that is not Customised Software.
Third Party / Parties: any persons or legal entity other than the Parties.
UK Data Protection Laws: means the Data Protection Act 2018, the "UK GDPR" as defined in section 3(10) of the Data Protection Act 2018, the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019 and other data protection or privacy legislation in force from time to time in the UK.
- In the General Purchasing Terms and Conditions and in any Contract between the parties:
- the singular includes the plural and vice versa;
- any phrase introduced by the terms “including”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
- unless otherwise specified, a reference to "writing" does include email but excludes fax. In respect of any formal legal notices served by either Party pursuant to the Contract, both email and fax are excluded;
- any reference to “persons” includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, governmental or state agencies, foundations and trusts (in each case whether or not having separate legal personality and irrespective of the jurisdiction in or under the law of which it was incorporated or exists);
- references to statutes, any statutory instrument, regulation or order shall be construed as a reference to such statute, statutory instrument, regulation or order as amended, supplemented or re-enacted from time to time; and
- words and expressions which are defined in the Companies Act 2006 have the same meanings as are given to them in that Act.
2 APPLICABILITY
2.1 The General Purchasing Terms and Conditions shall apply to the purchase of Goods and/or Services and shall be deemed incorporated into the Contract.
2.2 The General Purchasing Terms and Conditions are also applicable to all requests, quotations, offers, instructions, orders, order confirmations, agreements, whether written or oral, and any other acts with respect to the supply of Goods and the provision of Services to the Buyer by the Seller.
2.3 Any terms and conditions proposed by the Seller or which the Seller may purport to apply under any quote, offer, Purchase Order or confirmation of order or which are implied by trade, custom, practice or course of dealing are explicitly excluded. The signing or acceptance, whether written or oral, of any of the Seller’s documentation by the Buyer’s employees or agents shall not modify the General Purchasing Terms and Conditions or form part of any Contract between the Seller and the Buyer.
2.4 Subject to Condition 2.3, if there is any ambiguity or inconsistency between the documents comprising the Contract, the priority of the documents is in accordance with the following sequence:
- the front end of any signed agreement as agreed between the Buyer and the Seller;
- the Appendices of any signed agreement as agreed between the Buyer and the Seller (excluding the General Purchasing Terms and Conditions);
- The Purchase Order
- The General Purchasing Terms and Conditions.
3 CONCLUSION OF THE CONTRACT
3.1 A Contract shall be deemed concluded when the Buyer and the Seller sign a written agreement; or when Parties verbally agree on the purchase of Goods and/or Services; or when the Buyer issues a Purchase Order in accordance with the terms agreed between the parties, the Seller’s quotation, offer or any equivalent proposal.
3.2 If the Buyer submits a Purchase Order that deviates from the Seller’s quotation, offer or any equivalent proposal and the Seller executes any part of such Purchase Order or acts in any manner that is consistent with the acceptance of that Purchase Order, this is regarded as the Seller’s unconditional acceptance of such Purchase Order and a Contract shall be deemed concluded. If a Purchase Order is not rejected by the Seller within three (3) business days after it has been placed by the Buyer, it shall be deemed accepted by the Seller and a Contract shall be deemed concluded.
3.3 Any modification of, or any addition to, the Contract shall be valid only if explicitly agreed in writing by the Parties.
3.4 All costs involved in preparing a quotation, offer or any equivalent proposal shall be borne by the Seller.
4 PRICES AND PRICE REVIEWS
4.1 Prices are fixed and are exclusive of any value added tax but all-inclusive of all other taxes, duties, levies, fees (including license fees), charges, import costs and all other costs, including labour costs, travel costs, expenses and spare parts and/or material costs, including consumables.
4.2 The date of the relevant Purchase Order determines the price stated on the relevant invoice.
5 INVOICING AND PAYMENT
5.1 Unless provided otherwise in the Contract, invoices shall not be issued by the Seller prior to the Buyer’s acceptance of the Goods and/or Services.
5.2 Unless otherwise stated in the relevant Contract or Purchase Order, payment will normally be made by Heineken UK Limited acting for itself or on behalf of any other Heineken Group Company on or around 120 days from the date the Goods and/or Services are delivered or the invoice is agreed, whichever is the later. The invoice shall always state a Heineken UK Limited Purchase Order number where applicable, and each individual Purchase Order must be invoiced separately. Upon the Buyer’s request, the Seller shall provide the Buyer with relevant documentation such as copies of invoices of Third Parties, where applicable.
5.3 If a Party fails to make any payment due to the other Party 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 the Bank of England'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.
5.4 Without prejudice to any other right or remedy, the Buyer reserves the right to set off any amount owing at any time from the Seller to the Buyer against any amount payable by the Buyer to the Seller.
5.5 The Seller shall not be permitted to set-off, counterclaim, withhold or deduct any sum or any amount owed by the Buyer.
5.6 Payments made by the Buyer shall not imply a waiver of any right the Buyer has in relation to the Seller and do not release the Seller from its obligations and guarantees under the Contract.
5.7 In various countries, the Buyer has a supplier finance programme in place which allows suppliers to sell receivables towards certain banks and from which the Seller and any Seller affiliates may benefit. Access to or participation in any supplier finance programme shall not affect the applicable payment term.
5.8 Both Parties are familiar with applicable legislation on payment terms, including the Late Payment of Commercial Debts (Interest) Act 1988. The Parties have agreed the terms and conditions of their relationship. The Contract between the Parties includes provisions which are particularly beneficial to the Seller as well as provisions which are particularly beneficial to the Buyer, for this reason both Parties have agreed the payment terms set out in these General Purchasing Terms and Conditions are fair and in accordance with normal industry practice.
6 TERMINATION OF THE CONTRACT
6.1 The Buyer shall have the right at any time and for any reason (without prejudice to any of its rights against the Seller under the Contract) to terminate the Contract in whole or in part by giving the Seller not less than 14 calendar days’ written notice whereupon the contract will be terminated with immediate effect; all work on the contract shall be discontinued.6.2 In addition to any rights and remedies available under the Contract or at law, the Buyer can terminate (or suspend) the Contract immediately without incurring any liability vis-à-vis the Seller upon written notice if:
a) the Seller commits a breach of any of its obligations under the Contract which it fails to remedy within fourteen (14) calendar days of a notice in writing requiring that breach to be remedied;
b) the Seller becomes insolvent or (being a company) takes any step or action in connection with its entering administration, provisional liquidation or any compromise or arrangement with any creditors, being wound up (whether voluntarily or by order of the court, unless for the purposes of an amalgamation or solvent restructuring), having a receiver or administrative receiver appointed to any of its assets, or ceases, suspends, threatens to cease or suspend carrying on all or a substantial part of its business, or any similar event occurs in respect of the Seller;
c) the Contract or any further agreements or any actions entered into for the purpose of implementing the Contract fail to receive necessary government approvals, or if any such approvals are withdrawn or expire without being renewed during the term of the Contract.
6.3 Where the Buyer terminates the Contract under Condition 6.2, upon termination, the Seller shall have no right against the Buyer for compensation for loss of business, goodwill or any similar loss.
6.4 In addition to any rights and remedies available under the Contract or at law, the Seller can terminate (or suspend) the Contract immediately without incurring any liability vis-à-vis the Buyer upon written notice if:
a) the Buyer fails to pay any undisputed amount properly due under the Contract on the due date for payment and remains in default not less than thirty (30) days after being notified in writing to make such payment; and
b) the Buyer becomes insolvent or (being a company) takes any step or action in connection with its entering administration, provisional liquidation or any compromise or arrangement with any creditors, being wound up (whether voluntarily or by order of the court, unless for the purposes of an amalgamation or solvent restructuring), having a receiver or administrative receiver appointed to any of its assets, or ceases, suspends, threatens to cease or suspend carrying on all or a substantial part of its business, or any similar event occurs in respect of the Buyer.
6.5 Where the Seller terminates the Contract under Condition 6.4, upon termination, the Buyer shall have no right against the Seller for compensation for loss of business, goodwill or any similar loss.
7 CONSEQUENCES OF TERMINATION
7.1 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
7.2 On termination of the Contract: (i) each Party shall return to the other party all equipment, materials and property belonging to and supplied by that other Party in connection with the Contract; (ii) each Party shall return to the other Party all documents and materials (and any copies) containing the other Party’s confidential information and, to the extent possible, erase any such confidential information from its computer systems; and (iii) unless expressly stated otherwise, or unless agreed between the Parties in writing, any software or intellectual property licences granted by one Party to the other under this Contract shall terminate.
7.3 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
8 INDEMNITY AND INSURANCE
8.1 The Seller shall indemnify the Buyer and any other Heineken Group Company against all liabilities, costs, expenses, damages and losses arising out of or in connection with (i) any claim made against the Buyer or a Heineken Group Company by a Third Party arising out of or in connection with the provision of the Services or the supply of Goods, to the extent that such claim arises out of breach, negligent performance or failure or delay in performance of the Contract by the Seller, its employees, agents or subcontractors; or (ii) any claim made against the Buyer or a Heineken Group Company by a Third Party for death, personal injury or damage to property arising out of or in connection with defective Goods, to the extent that the defect in Goods is attributable to the acts or omissions of the Seller, its employees, agents or subcontractors.
8.2 Unless otherwise specified in the Contract, during the term of the Contract the Seller shall maintain in force, with a reputable insurance company, all necessary and appropriate insurance policies (including but not limited to professional indemnity insurance, product liability insurance and public liability insurance) to the minimum amount of five million pounds Sterling (£5,000,000) per claim, and shall, on the Buyer's request, produce the insurance certificate giving details of cover.
9 CONFIDENTIALITY
9.1 Each Party shall, and shall procure that its employees, agents and permitted sub-contractors shall, keep confidential all information of the other Party, whether in hard or soft copy format, including but not limited to ideas, research data, product plans, substances, samples, products, product formulae, recipes, trade secrets, know-how, knowledge, technology services, equipment, customer data, market research data, software, source codes, inventions, innovations, procedures, processes, techniques, designs, drawings, hardware configuration information, marketing and finance documents, prototypes, samples, data sets, plants and equipment and the like, which comes to its knowledge or possession in connection with the Contract and its performance and which has been designated as confidential or which can reasonably be assumed to be confidential as well as all other commercial information relating to the other Party in whatever form and shall not disclose or publish anything with regard to such matters without the prior written permission of the other Party.
9.2 Subject to Condition 9.3, each Party shall only disclose such confidential information if and to the extent required by law, court order or any competent governmental or regulatory authority, provided that, to the extent that it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
9.3 To the extent required by the Buyer to use the Goods or gain the benefit of the Services, the Buyer shall be permitted to use or disclose the confidential information of the Seller within its business (or the business of a Heineken Group Company) or to Third Parties engaged by the Buyer or a Heineken Group Company.
9.4 The provisions of this Condition shall not apply to any information that is or becomes generally available to the public (other than as a result of a Party’s disclosure in breach of this Condition 9) or was available to a Party on a non-confidential basis prior to the Contract.
9.5 Seller shall not make any announcements to Third Parties, in particular to the consumer and trade press, and including on any website owned or operated by it about the Buyer, the existence or contents of the relationship with Buyer or the activities undertaken or to be undertaken by the Seller for the Buyer.
9.6 The confidentiality obligation and the prohibition on publication referred to in this Condition shall survive for a period of two years following the termination of the Contract.
10 INTELLECTUAL PROPERTY RIGHTS
10.1 The Buyer and the Seller each retain ownership of their respective pre-existing Intellectual Property Rights developed or acquired independently of the Contract. Nothing in the General Purchasing Terms and Conditions shall cause, or may be construed as causing the transfer, assignment or licence (whether express or implied) to the other Party of any such pre-existing Intellectual Property Rights.
10.2 If in the context of the Contract the Seller develops or designs specifically for the Buyer, any Goods (including any accompanying documents) or if in the context of the Contract the Seller provides specifically for the Buyer any Services (including any accompanying documents), the Intellectual Property Rights which come into existence in connection with or as a result of such Contract between the Buyer and the Seller will be the property of the Buyer, and the Seller irrevocably assigns absolutely to the Buyer with full title guarantee, the whole right, title and interest, free from all encumbrances and third party rights, in and to such Intellectual Property Rights and the Seller shall, on creation of the rights, execute any document or deed necessary to assign such Intellectual Property Rights in the Buyer. To the extent that the Intellectual Property Rights do not vest automatically in the Buyer, the Seller undertakes that it shall irrevocably assign to the Buyer all Intellectual Property Rights in materials developed or designed for the Buyer which assignment shall be accepted by the Buyer. For the purpose of this Condition, Goods developed or designed specifically for the Buyer and Services specifically provided for the Buyer shall be deemed to include any (elements of) Goods and Services provided under this Contract which are bespoke and/or tailored or customised for the Buyer’s specific needs and/or Goods and Services which are not off the shelf (ready to be used), including any Customised Software.
10.3 To the extent required by the Buyer to use the Goods or gain the benefit of the Services, the Seller grants to the Buyer a perpetual, non-exclusive, assignable royalty-free and global licence to use, copy, modify and adapt (with the right to sub –licence such rights to other members of the Heineken Group Company or to other Third Parties engaged by the Buyer or a Heineken Group Company) any Seller Background Intellectual Property Rights within the Goods or Services or provided in conjunction with the Goods or Services.
10.4 In the case of any Seller Background Intellectual Property Rights licenced by the Seller from a Third Party and incorporated or provided in conjunction with or in any Goods or Services, the Seller warrants that it will have obtained any necessary authority, permission or licence from the relevant Third Party to grant a licence on the same terms as set out in Condition 10.3.
10.5 The Seller shall not make use of or refer to any of the Buyer’s proprietary items, such as trade secrets, market reports, trademarks, trade names, domain name, patent, design, copyright, or other Intellectual Property Rights of Buyer or any of the Heineken Group companies for any other purpose than authorised in the Contract, without the Buyer’s prior written consent. Any authorised use shall be strictly in accordance with the Buyer’s instructions and for the purposes specified. In particular, Seller shall not use such proprietary items in order to promote its own business, without the prior written consent of the Buyer.
10.6 All drawings or materials provided to the Seller by the Buyer or made or purchased by the Seller at the expense of the Buyer, are the property of the Buyer and may at all times be claimed by the Buyer without notice.
10.7 The Seller warrants to the Buyer that all Goods and/or Services delivered or provided will not infringe any rights of Third Parties, including Intellectual Property Rights.
10.8 The Seller shall be liable for and shall indemnify the Buyer for all losses, damages, costs and expenses incurred by the Buyer or any Heineken Group Company as a result of any action, proceeding or claim (in any jurisdiction) brought against the Buyer or any Heineken Group Company by a Third Party or Third Parties in connection with any claim that any one or more of the Goods delivered by the Seller to the Buyer or Services provided by the Seller under the Contract constitutes an infringement of the Third Parties’ Intellectual Property Rights and/or any other rights including but not limited to proprietary, contractual or statutory rights in respect of the Goods or Services.
11 DATA OWNERSHIP
11.1 The Buyer solely and exclusively owns and retains all right, title and interest, whether express or implied, in and to any and all confidential or non-confidential data relating to the Buyer’s or any Heineken Group Company’s business collected or disclosed whether or not in connection with the Contract (“Buyer Data”). The Seller shall acquire no right, title or interest, whether express or implied, in and to Buyer Data.
11.2 The Seller will only use Buyer Data for the purposes set forth in the Contract and will only access Buyer Data as necessary for performance of the Contract and in accordance with Condition 9 of these General Purchasing Terms and Conditions.
11.3 All Buyer Data must be promptly remitted to the Buyer by the Seller upon request or upon completion or termination of the Contract. In such case, Buyer Data shall be delivered by the Seller in electronic or hard copy format as exists on the date of the request. The foregoing shall not apply if the Buyer authorises the Seller in writing to sanitise and/or destroy Buyer Data and the Seller certifies in writing the sanitisation and/or destruction thereof.
11.4 Within ninety (90) calendar days following any remittance of Buyer Data, the Seller shall, unless otherwise instructed by the Buyer in writing, certify in writing that the sanitisation and/or destruction thereof has occurred. Any such remittance, sanitisation or destruction will be at the Seller’s sole cost and expense.
12 SOFTWARE
12.1 In the event that the Parties have agreed that the Seller shall provide, or the Seller shall otherwise give the Buyer, access to software whether incorporated into the Goods or Services being provided or separately from such Goods or Services, this Condition 12 shall also apply.
12.2 The Seller shall deliver the software to the Buyer ready for use and in accordance with the terms of the Contract and the specification.
12.3 The Seller shall ensure the compatibility of the software with the Buyer’s computer system and system software.
12.4 The Seller will grant to the Buyer a licence to use any Standard Software for the purposes and period of time as agreed in the Contract. The Seller shall indemnify the Buyer for any additional costs incurred by the Buyer in connection with its use of any Third Party Standard Software.
12.5 Where the contract relates to Customised Software:
a) the Seller shall ensure successful conclusion of the acceptance tests. The Buyer will be responsible for setting the test criteria and will be the sole judge of what constitutes successful conclusion;
b) the Seller shall provide practical training to the Buyer in the use of the software;
c) the Seller shall deliver to the Buyer the documentation necessary for the use and maintenance of the software in both digital and hard-copy form; and
d) on completion of the Customised Software - or an update, upgrade or new release of this software - the Seller shall deliver the source code, on an electronic medium to be later agreed between the parties, together with the accompanying documentation, to the Buyer.
12.6 If during the course of any testing it is established that the software has defects or it fails to comply with the specifications, the Buyer will notify the Seller of this fact.
12.7 The Seller shall remedy any defects or non-compliance with the specifications in terms of Condition 12.6 and shall provide assistance free of charge to the Buyer in carrying out the work that needs to be undertaken (or undertaken again) due to these shortcomings. These remediation activities shall be performed without delay.
12.8 The Seller guarantees uninterrupted use of the software to the Buyer.
12.9 The Buyer is permitted:
a) to use the software temporarily for the purpose of tests, preparation runs or development work on equipment other than the equipment for which the right of use is granted;
b) in the event of breakdown, to use the software temporarily on equipment other than the equipment for which the right of use is granted (computer back-up centre system); and
c) to make back-up copies of the software, on the understanding that in the events referred to under 11.9 (a) and 11.9 (b) the Standard Software will be completely removed from the temporarily used equipment as quickly as possible following the end of this temporary use.
13 CYBER SECURITY
13.1 Where relevant to the Goods or Services being procured, the Seller warrants that it shall:
a) implement and maintain the latest appropriate technologies, software, processes, procedures and controls, which are in accordance with industry standard practices and ‘’secure by design principles’' and designed to protect the digital environment from cyber security incidents;
b) have in place the latest appropriate, resources, plans and procedures to allow it to respond adequately to a cyber security incident in order to protect the Buyer from and limit any negative consequences thereof; and
c) regularly review its cyber security arrangements to verify its application in practice and maintain and keep records evidencing the same.
13.2 If and when a cyber security incident occurs:
a) the Seller will promptly notify the Buyer by telephone, email or other form of immediate communication. Such notification shall be sent to it-uk.security@heineken.co.uk and shall include: (i) the details, location and timing of this cyber security incident, (ii) the expected consequences thereof and (iii) all other data and information that will assist in handling the cause of the problem;
b) as soon as reasonably possible, but no later than one (1) business day after the original notification or after becoming available, the Seller shall provide the Buyer with all relevant information which may assist in mitigating and/or preventing any (further) effects of the cyber security incident;
c) the Seller shall promptly take appropriate actions and commercially reasonable steps to immediately prevent, mitigate and/or remedy any consequences of such cyber security incidents at its expense and in accordance with standard industry practices; and
d) the Seller shall provide regular updates to the Buyer of the cyber security incident.
13.3 Where relevant to the Goods or Services, the Seller shall comply with the Buyer’s information security policy, a copy of which shall be provided by the Buyer to the Seller.
13.4 The Seller shall be liable for and shall indemnify the Buyer for all losses, damages, costs and expenses incurred by the Buyer or any Heineken Group Company as a result of any breach by the Seller of the provisions of this Condition 13.
14 LAW, SAFETY AND ENVIRONMENT
14.1 The Seller and its sub-contractors shall comply with all applicable laws, statutes, regulations, codes and HMRC Excise Notices from time to time in force, including (but not limited to) the Bribery Act 2010, the Data Protections Laws, the Modern Slavery Act 2015, Criminal Finances Act 2017 and the Competition Act 1998.
14.2 The Seller shall comply with (i) the Heineken Supplier Code, (ii) the Heineken Anti-Tax Evasion Policy, (iii) the Buyer’s Travel and Expenses policy (where relevant) (iv) the Buyer's internal company rules, any applicable Heineken standards, provided that copies of such documents are provided upon the Seller’s request, and (v) regulations, guidelines and standards for safety, health, work procedures and/or the environment. The Seller Personnel shall familiarise themselves with the content of the Buyer's rules, regulations, conditions and circumstances applying to the Contract and the location where the Goods are delivered or the Services are provided, including those regarding safety, health and the environment and shall at all times comply with same.
15 FORCE MAJEURE
15.1 Provided it has complied with the provisions of Condition 15.2, neither Party shall be liable for failures or delay in performing any obligations under the Contract arising from, or is attributable to, acts events, omissions or accidents beyond the reasonable control of that Party, with the exception of the following events, if not specifically stated otherwise by applicable law: (i) lack of or illness of personnel, (ii) personnel strikes or industrial action, (iii) breach of contract by Third Parties engaged by Seller, (iv) failure of materials, (v) scheduled or government mandated power failures, (vi) failures of telecommunication facilities and (vii) liquidity or solvency problems ("Force Majeure").
15.2 Except where the nature of the event shall prevent it from doing so, the Party suffering a Force Majeure shall (i) as soon as reasonably practicable after the start of the Force Majeure, notify the other Party in writing of the Force Majeure, the date on which it started, its likely or potential duration, and the effect of the Force Majeure on its ability to perform any of its obligations under the Contract; and (ii) use all reasonable endeavours to mitigate the effect of the Force Majeure on the performance of its obligations.
16 ANTI-BRIBERY
The Seller shall, and shall ensure that its employees, subsidiaries (including their employees), affiliates, any Third Party engaged by it and/or any other persons involved in providing Goods and/or Services to the Buyer shall adhere to all applicable national and international laws, statutes, regulations and generally accepted principles relating to anti-bribery or anti-corruption.
17 AUDITS
17.1 At any time during the term of the Contract on giving reasonable notice, the Buyer may perform an audit (either itself or via a third party) at the Seller’s premises during normal working hours and provided such audit activities do not unnecessarily interfere with the Seller’s normal business operations.
17.2 The Seller agrees to cooperate fully with the auditor in order to facilitate the audit, most particularly by granting the auditor access to any location, installation, documentation, device, or information requested and shall allow the auditor access for sampling of Goods. The resources required for the audit shall be provided by the Seller at the Seller’s expense.
17.3 The Seller shall undertake all measures agreed by the Parties at the end of the audit within the time limits and under the conditions so agreed. The Seller undertakes to make all necessary quality improvements to the Goods in order to achieve the quality standards set forth in the Contract, should the audit establish that such quality standards are not met.
17.4 Any audits shall not affect the Seller’s liability or the guarantees given to the Buyer under the Contract.
18 ASSIGNMENT, TRANSFER, SUBCONTRACTING AND DELEGATION
The Seller is not permitted to transfer or assign its rights and/or obligations under the Contract or any part thereof or subcontract the performance of whole or part of the Contract, without the Buyer’s prior written permission. In the event that the Buyer consents to a transfer, assignment or any subcontracting by the Seller, the Seller shall remain liable to the Buyer for all obligations under the Contract as if any transfer, assignment or subcontracting by the Seller had not taken place.
19 SEVERENCE
If any condition or part-condition of the General Purchasing Terms and Conditions or if any provision or part-provision of the Contract becomes invalid, illegal or unenforceable (in whole or in part) it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable and the remaining conditions and/or provisions of the General Purchasing Terms and Conditions and/or the Contract shall remain valid 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 Condition shall not affect the validity and enforceability of the remaining provisions (and/or the remainder of such provision).
20 GOVERNING LAW AND DISPUTES
Any dispute or claim arising out of or in connection with the trading relationship between the Buyer and the Seller or the formation of any Contract (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and the English Courts shall have exclusive jurisdiction over any disputes arising, unless the Seller’s business is in Scotland, in which case such jurisdiction shall be non-exclusive.
21 MISCELLANEOUS
21.1 Failure by either Party to require strict performance by the other Party of any obligation under the Contract shall in no way affect its right thereafter to enforce any obligation under the Contract, nor shall a waiver by either Party of any breach be held to be a waiver of any previous or later breach. No waiver will have any effect unless it is specific, irrevocable and in writing.
21.2 Nothing in the Contract is intended to or shall be deemed to create an agency relationship between the Parties, or to create a partnership, joint venture or employment relationship between the Parties or shall be deemed authorise any Party to make or enter into any commitments for on behalf of any other Party.
21.3 Expiry, termination or cancellation of the Contract shall not affect any right or obligation, which expressly or by its nature survives such expiry, termination or cancellation, including but not limited to representations, guarantees, confidentiality obligations, Intellectual Property Rights and accrued rights.
21.4 To the extent not already set out in the Contract, the Parties shall agree, at the Buyer’s request, on a service level agreement on the basis of which any issues of a commercial and operational nature will be discussed between the Buyer and the Seller. The Parties shall ensure that the scope of any service level agreement will be limited to matters of an operational nature and shall not include legal provisions.
21.5 Unless expressly stated otherwise, the Contract between the Buyer and Seller does not give rise to any rights of Third Parties under the Contracts (Rights of Third Parties) Act 1999 or the Contracts (Rights of Third Parties) (Scotland) Act 2017 to enforce any term of the Contract.
22 PERSONAL DATA
22.1 Both parties will comply with all applicable requirements of the Data Protection Laws.
22.2 For information on how the Buyer manages personal data and data subject’s rights with respect to the personal data that the Buyer holds, please review the Privacy Policy (available from https://www.heineken.co.uk/legal-hub/heineken-corporate-privacy-policy) or email dataprotection@heineken.co.uk to request a copy).
23 VOLUME ESTIMATES
In the event the Seller requires volume estimates, the volume estimates given by the Buyer are intended only for planning purposes by the Seller and do not obligate the Buyer to purchase such volumes. Volume estimates, forecasts or any other advance notices shall not obligate the Buyer in any way to purchase any Goods.
24 DELIVERIES
24.1 Time shall be of the essence of the Contract and the Seller shall, at its risk and expense, deliver the Goods to the locations, in the manner and within such time limits, all as shall be specified by the Buyer.
24.2 The Seller shall ensure that each delivery is accompanied by a delivery note which shows the Purchase Order number (if applicable), the date of the order, and the quantity and content of the Goods in the delivery. Unless otherwise agreed, all deliveries shall made be within the normal business hours of the Buyer.
24.3 Delivery shall be deemed completed upon completion of the unloading of the Goods by the Seller at the delivery location specified by the Buyer.
24.4 The Buyer shall, on becoming aware, give notice to the Seller of any loss or damage to the Goods and at the Buyer’s request the Seller shall promptly repair or replace such lost or damaged Goods, without prejudice to the Buyer’s other rights and remedies.
24.5 If the Seller fails for any reason to meet timescales specified in the Contract, the Buyer may, at its option, grant to the Seller an extension to the timescale or terminate the Contract or any part thereof by providing notice in writing to the Seller in accordance with Condition 6.1.
24.6 If the Goods are delivered to the Seller in excess quantities, the Buyer shall not be bound to pay for the excess and any excess shall be and shall remain at the Seller’s risk and shall be collected at the Seller’s expense without any undue delay.
24.7 Unless provided otherwise in the Contract, the Goods shall be delivered duty paid (in accordance with the definition of DDP contained in Incoterms 2020) at the location designated by the Buyer. The Seller shall not make partial deliveries, unless otherwise agreed between the Parties writing. If the Parties have agreed that partial deliveries will be made, for the purpose of the General Purchasing Terms and Conditions, the term delivery shall then include partial delivery.
25 PACKAGING AND SHIPMENT
25.1 The Seller shall provide the Buyer with copies of all applicable licences, documents, information, specifications and instructions necessary for safe and proper transportation, usage, treatment, process and storage of the Goods and with all certificates of analysis and/or conformity as supplied by customs clearance in a timely manner.
25.2 Returnable packaging materials shall not be invoiced. The Seller shall collect and dispose of packaging material free of charge, upon Buyer’s request.
26 RISK AND TITLE
26.1 Risk of damage to or loss of the Goods, containers and equipment shall pass to the Buyer on completion of delivery in accordance with Condition 24 or, in the case of bulk products, when the relevant tanker seal is broken.
26.2 Title to the Goods (but not to any returnable containers or equipment) shall pass to the Buyer on the earlier of (i) the date payment for the Goods is made to the Seller; or (ii) on the date of delivery of the Goods.
27 WARRANTIES
27.1 The Seller warrants to the Buyer that all Goods delivered are:
a) of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose which would reasonably be expected having regard to the Goods;
b) free from defects in design, material and workmanship;
c) in conformity with the Buyer’s requirements, specifications and approved samples;
d) unencumbered by rights of Third Parties; and
e) compliant with all relevant and applicable statutes, European and national and international laws, regulations and/or self-regulatory rules, inter alia with regard to quality, health, safety, environment and hygiene, both in the country of delivery and in the country for which the Goods are destined.
27.2 The Seller shall repair or replace at its own cost (at the request of the Buyer) any defects in the Goods during the period of 12 months from putting into service or 18 months from delivery, whichever shall be the shorter, where such defects occur under proper usage and are attributable to faulty design materials or workmanship. Repairs and replacements hereunder shall themselves be subject to the foregoing obligation for a period of 12 months from the date of delivery, reinstallation, repair or replacement. The provisions of this Condition 27.2 shall be without prejudice to any other rights of the Buyer resulting from the defects in the Goods supplied.
28 INSPECTON AND TESTING
28.1 At any time prior to delivery of the Goods to the Buyer, the Buyer shall have the right to inspect and test the Goods. If, following an inspection or testing, the Buyer is of the opinion that the Goods do not conform or are unlikely to conform with the Contract and/or Purchase Order, the Buyer shall inform the Seller and the Seller shall take such action as the Buyer deems necessary to ensure conformity. Notwithstanding any inspection or testing, the Seller shall remain fully responsible for the Goods and any inspection or testing by the Buyer shall not diminish or otherwise affect the Seller's obligations under the Contract.
28.2 Without prejudice to the Buyer’s rights under Condition 28.1, all Goods shall be inspected by the Seller prior to delivery and the Buyer shall rely on the Seller’s skill and judgement in assessing the fitness for use of the Goods for the purpose specified or implied. The Seller shall make available to the Buyer such information as the Buyer may request in relation to such inspection and the Buyer shall be granted such reasonable right of access as the Buyer may require for checking inspection procedures.
29 REJECTION
If the Goods delivered by the Seller do not comply with the Contract or the Seller fails to comply with or breaches any of the General Purchasing Terms and Conditions, the Buyer may reject the Goods and thereupon, without prejudice to the Buyer’s right to damages, repudiation or rescission of the Contract, the Seller shall deal with the Goods in such manner as the Buyer may reasonably direct and any monies paid by the Buyer in respect of such rejected Goods shall be repaid to the Buyer by the Seller.
30 WARRANTIES
30.1 The Seller warrants that all Services provided:
a) are in conformity with the agreed requirements and specifications of the Contract;
b) are in accordance with the terms of the Contract, including any agreed timetables;
c) are suitable for the purpose for which the Purchase Order or any order, request, instruction or any equivalent proposal was placed or for which the Contract was concluded and compliant with the reasonable expectations of the Buyer relating to the intended purpose, characteristics and/or reliability of the Services;
d) meet or exceed the market standard service levels for the type of Services for which service levels are set; and
e) are compliant with all relevant and applicable statutes, European and national and international laws, regulations and/or self-regulatory rules, including but not limited to those with regard to quality, health, safety, environment and hygiene.
30.2 The Seller warrants that its employees, subcontractors and agents shall:
a) provide the Services in accordance with applicable law and the Contract using the standards, practices, methods and procedures conforming to legislation, adherence to timescales and good industry practice;
b) exercising that degree of skill, care and diligence that would reasonably be expected from a reputable, professionally qualified (in all relevant disciplines/activities) competent organisation experienced and specialist in carrying out activities of a similar nature, scope and complexity to the Services;
c) use personnel who are suitably skilled and experienced to perform the tasks assigned to them and in sufficient numbers to ensure that the Seller’s obligations are fulfilled;
d) maintain all necessary consents and licenses;
e) not do or omit to do anything which may cause the Buyer to lose any license, authority, consent or permission which it uses for the purpose of conducting its business; and
f) hold any Buyer Materials in safe custody at its own risk; maintain them in good condition until returned to the Buyer; and not dispose of or use them other than in accordance with the Buyer’s written instructions or authorisation.
30.3 If the Buyer reasonably determines that Seller does not comply with the any of the requirements of Condition 30.1 and/or 30.2, the Seller shall at its expense and on the Buyer's demand correct the non-compliant Services, at the discretion of the Buyer, without prejudice to the Buyer’s other rights in respect of the Seller's default (including the right to be compensated). All costs incurred in this connection shall be borne by the Seller.
30.4 The Seller shall regularly inform the Buyer about the progress of its performance of the Services. At the Buyer's request, the Seller shall without delay provide information in writing concerning the progress of the performance of the Services and the due date of completion of the Services. The Seller undertakes to inform the Buyer immediately when it anticipates constraints on its ability to (timely) supply the Services and/or in accordance with the Contract.