International Supply Agreement

Definitions

"Accepted Order" means an Order that has been accepted, or is treated as accepted, under the Orders clause.

"Business Day" means a day other than a Saturday, Sunday or public holiday in the place where the relevant obligation is to be performed or the relevant notice is to be received.

"Confidential Information" means all information of a confidential nature, in any form, that a party or its representatives disclose to the other party in connection with this agreement, including the terms of this agreement, the Specification, the Prices, Orders and forecasts, and information about the disclosing party's business, customers, suppliers, products, processes, plans and know-how.

"Force Majeure Event" means an event or circumstance beyond a party's reasonable control that it could not reasonably have avoided or overcome, such as natural disaster, epidemic, war, terrorism, civil unrest, government action, fire, flood, explosion, or failure of public utilities or transport networks, but not a lack of funds, a strike or labour dispute involving only that party's own workforce, or a failure by a subcontractor or supplier unless it is itself caused by such an event.

"Non-conforming Products" means Products that, when delivered, do not comply with the Accepted Order or with any of the warranties given in the Warranties clause.

"Order" means a written order for Products placed by the Buyer under the Orders clause.

Supply of Products

The Supplier agrees to sell, and the Buyer may buy, the Products on the terms of this agreement. Except where this agreement sets a Minimum Purchase Commitment, the Buyer is not obliged to buy any minimum quantity of Products, and the Supplier's supply is not exclusive to the Buyer.

Each Accepted Order forms a separate contract for the sale of the Products in it, on the terms of this agreement. Any terms printed on or referred to in an Order, an order acknowledgement, a delivery note, an invoice, a website or any other document of either party do not apply, even if that document is signed or accepted, unless both parties agree in writing that they vary this agreement.

If an Accepted Order conflicts with this agreement, this agreement prevails, except as to the Products, quantities, delivery dates and delivery instructions stated in the Accepted Order.

The Buyer may give the Supplier forecasts of its expected requirements for the Products. A forecast is a good-faith estimate given for planning only; it does not commit the Buyer to place any Order or the Supplier to accept one.

Orders

The Buyer may place an Order in writing, including by email or through any electronic ordering system the parties agree to use. Each Order must state the Products and quantities ordered, the requested delivery date and any delivery instructions, and must allow at least the Lead Time between the date of the Order and the requested delivery date unless the Supplier agrees otherwise.

The Supplier must accept or reject each Order in writing within the Order Acceptance Period and must not unreasonably reject an Order that complies with this agreement and is consistent with the Buyer's recent forecasts and ordering pattern. An Order that the Supplier neither accepts nor rejects within the Order Acceptance Period is treated as accepted.

The Buyer may change or cancel an Accepted Order only with the Supplier's written agreement. If the Supplier agrees to a cancellation or reduction, the Buyer must pay the Supplier's reasonable, documented costs of materials and work already committed to the cancelled Products that the Supplier cannot reasonably use elsewhere or otherwise mitigate.

Specification and Quality

The Supplier must manufacture or source, pack and supply the Products in accordance with the Specification, the Accepted Order and applicable law, and with the skill and care to be expected of a competent supplier of products of the same kind.

Neither party may change the Specification without the other's written agreement, except that the Supplier may make a change that is needed to comply with applicable law or safety requirements if it notifies the Buyer in advance and the change does not materially affect the form, fit, function, performance or price of the Products.

The Supplier must keep records sufficient to trace each batch or lot of Products to its components, manufacture and delivery for at least the Warranty Period or any longer period required by law, and must give the Buyer reasonable access to those records on request.

Delivery

The Supplier must deliver the Products in accordance with the Delivery Term on the delivery date stated in the Accepted Order, together with the commercial, transport and other documents that the Delivery Term requires of the Supplier and a packing list stating the Order reference, the Products and quantities delivered and any batch or lot numbers.

The Delivery Term determines when delivery takes place, which party arranges and pays for carriage and insurance, and which party is responsible for export and import clearance, duties and taxes. On any other matter, this agreement prevails over the Delivery Term.

The Supplier must notify the Buyer promptly if it expects to miss a delivery date, giving the reason and a revised delivery date. Time for delivery is not of the essence unless the Accepted Order says so.

If any Products have not been delivered within 30 days after the delivery date stated in the Accepted Order for them, for a reason other than a Force Majeure Event or the Buyer's own act or omission, the Buyer may cancel those Products by written notice given at any time before they are delivered, without liability, and the Supplier must promptly refund any amount paid for them.

The Supplier may deliver by instalments only if the Buyer agrees. If the Supplier delivers less than the quantity ordered, the Buyer pays only for the quantity delivered and the Supplier must deliver the balance within a reasonable time unless the Buyer cancels it. If the Supplier delivers more than the quantity ordered, the Buyer may reject the excess, which remains at the Supplier's risk and must be collected at its cost.

The Supplier must pack, mark and label the Products so that they reach their destination in good condition, and in accordance with the Specification, the Buyer's reasonable written instructions and applicable law.

Late Delivery

If the Supplier delivers Products late, for a reason other than a Force Majeure Event or the Buyer's own act or omission, the Supplier must pay the Buyer, or credit against the Prices, the Late Delivery Rate of the price of the late Products for each complete week of delay, up to the Late Delivery Cap. The parties agree that these payments are a genuine pre-estimate of the loss the Buyer is likely to suffer from late delivery. These payments are in full satisfaction of the Supplier's liability for the delay, but do not affect the Buyer's right to cancel late Products under the Delivery clause or its other remedies for Non-conforming Products.

Title and Risk

Risk of loss of or damage to the Products passes to the Buyer on delivery in accordance with the Delivery Term. Risk in any Products the Buyer rejects under this agreement passes back to the Supplier when the Buyer gives notice of rejection.

Title to the Products passes to the Buyer on delivery, free from any charge, lien or other encumbrance.

Inspection and Rejection

The Buyer must carry out a reasonable visual inspection and quantity check of the Products within the Inspection Period after they arrive at their destination, being the place to which they are to be carried as stated in the Accepted Order or the Buyer's delivery instructions. The Inspection Period runs from that arrival even where delivery under the Delivery Term takes place earlier, such as when the Products are handed to a carrier or loaded on board a vessel at the place of shipment, and this clause does not change when delivery takes place or when risk passes under the Delivery Term. The Buyer is not required to test the Products beyond that unless the Specification requires it.

The Buyer may reject Non-conforming Products by written notice to the Supplier, giving reasonable details of the non-conformity, within the Inspection Period or, for a non-conformity that a reasonable inspection would not have revealed, within a reasonable time after the Buyer discovers it and before the end of the Warranty Period.

Products that the Buyer does not reject within the Inspection Period are treated as accepted. Acceptance, and payment for Products, does not affect the Buyer's rights under the Warranties clause for a non-conformity that a reasonable inspection would not have revealed.

For Products the Buyer rejects, the Supplier must, at the Buyer's choice, replace or repair them within a reasonable time, or refund any amount paid for them, and must collect them at its own risk and cost.

Warranties

The Supplier warrants that, on delivery and for the Warranty Period, the Products will conform to the Specification and the Accepted Order; be free from defects in materials and workmanship and, except to the extent that the Buyer supplied the design, in design; be fit for the purposes for which products of that kind are ordinarily used; and comply with the laws applicable to them in the place of delivery.

The Supplier warrants that it has the right to sell the Products and that the Buyer will acquire good title to them free from any charge, lien or other encumbrance, except any interest the Supplier keeps under the Title and Risk clause until payment.

If Products do not comply with a warranty in this clause and the Buyer notifies the Supplier within the Warranty Period and within a reasonable time of discovering the non-compliance, the Supplier must, at its own cost and at its choice, repair or replace them within a reasonable time or, if repair or replacement is not possible within that time, refund the amount paid for them. The Supplier is not liable for a non-compliance caused by fair wear and tear, misuse, neglect, abnormal storage or use, failure to follow the Supplier's written instructions, or alteration without the Supplier's consent.

The warranties in this agreement replace any warranty, condition or other term as to the description, quality, conformity or fitness for purpose of the Products implied by law or by any international convention, which are excluded to the extent permitted by law.

Prices and Payment

In return for the Products delivered under each Accepted Order, the Buyer must pay the Prices in force when that Order was accepted. Unless the Prices state otherwise, they include all costs that the Delivery Term allocates to the Supplier.

The Prices are exclusive of value added tax, goods and services tax, sales tax and similar taxes, which the Buyer must pay where properly chargeable on receipt of a valid tax invoice. Each party is responsible for taxes on its own income.

If the law requires the Buyer to deduct or withhold tax from a payment, it may do so, but must pay the amount withheld to the relevant authority on time, give the Supplier evidence of payment, and cooperate with the Supplier to claim any available reduction, exemption or credit under a double tax treaty.

The Supplier may invoice for Products on or after delivery. Each invoice must quote the Order reference and the Products and quantities invoiced. The Buyer must pay each valid, undisputed invoice within the Payment Period, in the currency of the Prices, to the bank account the Supplier notifies in writing. The Buyer may verify any change to the Supplier's bank details directly with the Supplier before paying to a new account.

If the Buyer disputes an invoice in good faith, it must notify the Supplier of the disputed amount and its reasons before the invoice falls due, and must pay the undisputed part on time. The parties must try to resolve the dispute promptly, and any amount agreed or determined to be due must be paid within 10 Business Days after it is agreed or determined.

Each party must pay amounts due under this agreement in full without set-off or deduction, except for amounts that the other party has agreed in writing, or that have been finally determined, to be due from it.

If the Buyer does not pay an undisputed amount by its due date, the Buyer must pay interest on the overdue amount at the Late Payment Rate, accruing daily from the due date until the date of actual payment, whether before or after judgment.

If an undisputed amount remains unpaid 15 Business Days after the Supplier has given the Buyer written notice of non-payment, the Supplier may suspend further deliveries until it is paid, without liability for the resulting delay.

Price Changes

The Prices are fixed for the Initial Term. After that, the Supplier may change the Prices by giving the Buyer at least the Price Change Notice Period's written notice, but not more than once in any 12 months. A change does not apply to Orders accepted before it takes effect. If the Buyer does not accept a change, it may terminate this agreement by written notice given before the change takes effect, with effect from that date.

Minimum Purchase Commitment

The Buyer must place Orders for at least the Minimum Purchase Commitment.

If the Buyer's Orders fall short of the Minimum Purchase Commitment for any period, other than because of the Supplier's failure to supply conforming Products on time or a Force Majeure Event, the Supplier may, as its sole remedy, terminate this agreement by giving at least the Termination Notice Period's written notice within 60 days after the end of that period.

Product Compliance and Recall

The Supplier must ensure that the Products, their labelling, packaging and accompanying instructions comply with the product safety, chemical, labelling and other laws that apply to them in each country of delivery identified in the Accepted Order, and must supply any certificates of conformity, test reports, safety data sheets and other documents those laws require.

Each party must notify the other promptly after becoming aware of any defect, safety issue, complaint pattern or regulatory enquiry concerning the Products that may require corrective action, a recall or withdrawal, or notice to a regulator, and must give the other the information it reasonably needs to respond.

The parties must cooperate in deciding whether a recall, withdrawal or other corrective action is needed, but either party may take that action where the law or a regulator requires it. The Supplier must bear the reasonable, documented costs of a recall to the extent it is caused by Non-conforming Products or the Supplier's breach, and the Buyer must bear them to the extent it is caused by the Buyer's design, instructions, handling or breach.

Buyer Property

Any tooling, moulds, dies, materials, equipment or packaging that the Buyer provides or pays for in connection with the Products remain or become the Buyer's property. While in the Supplier's possession, they are at the Supplier's risk and the Supplier must keep them insured, maintained and marked as the Buyer's property, use them only to make Products for the Buyer, not charge them, and deliver them to the Buyer on request or when this agreement ends.

Intellectual Property

Each party keeps ownership of its own intellectual property rights. Nothing in this agreement transfers or licenses any intellectual property right except as stated in this clause.

Where the Buyer supplies designs, specifications, trade marks, artwork or other materials for the Products, the Buyer grants the Supplier a non-exclusive, non-transferable, royalty-free licence to use them during this agreement solely to make and supply the Products to the Buyer. The Supplier must not supply to anyone else products made using those materials or bearing the Buyer's trade marks.

The Buyer and its customers may use, resell and incorporate the Products in other products without any further payment for any intellectual property right of the Supplier in the Products as supplied.

The Supplier warrants that the Products, and their sale and use in the form supplied, will not infringe any third party's intellectual property rights, except to the extent that an infringement results from designs, specifications or materials supplied by the Buyer. The Buyer warrants that the designs, specifications and materials it supplies will not infringe any third party's intellectual property rights.

Indemnities

The Supplier must indemnify the Buyer against all losses, damages, liabilities, reasonable legal fees and costs, and amounts paid in settlement arising from a third-party claim that the Products infringe that third party's intellectual property rights, except to the extent the claim results from designs, specifications or materials supplied by the Buyer, or that Non-conforming Products caused death, personal injury or damage to property.

The Buyer must indemnify the Supplier against all losses, damages, liabilities, reasonable legal fees and costs, and amounts paid in settlement arising from a third-party claim that designs, specifications or materials supplied by the Buyer infringe that third party's intellectual property rights.

A party seeking to rely on an indemnity in this clause must notify the indemnifying party promptly of the claim, must not admit liability for or settle it without the indemnifying party's consent (which must not be unreasonably withheld), must allow the indemnifying party to conduct the defence and settlement of the claim at its own cost, must give it reasonable assistance at its cost, and must take reasonable steps to mitigate its loss.

Insurance

The Supplier must maintain with reputable insurers product liability and public liability insurance, with cover of at least the Insurance Cover for each claim, during this agreement and for at least the Warranty Period after the last delivery of Products, and must give the Buyer reasonable evidence of that cover on request.

Liability

Nothing in this agreement limits or excludes liability for death or personal injury caused by negligence, for fraud or fraudulent misrepresentation, or for any other liability that cannot lawfully be limited or excluded.

Subject to the liabilities that this clause leaves unlimited, neither party is liable to the other for loss of profit, loss of revenue, loss of business, loss of goodwill, loss of anticipated savings, or any indirect or consequential loss, arising out of or in connection with this agreement.

Subject to the liabilities that this clause leaves unlimited, each party's total liability arising out of or in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, is limited to the Liability Cap. This limit does not apply to the Buyer's obligation to pay the Prices and other amounts properly due. This limit also does not apply to recall costs that the Product Compliance and Recall clause states are not subject to the Liability Cap.

Force Majeure

A party is not in breach of this agreement, and is not liable for any delay or failure to perform, to the extent that the delay or failure is caused by a Force Majeure Event, provided that it notifies the other party promptly of the event and its likely effect, takes reasonable steps to mitigate it and resumes performance as soon as reasonably practicable. A Force Majeure Event does not excuse an obligation to pay money.

While a Force Majeure Event limits the Supplier's ability to supply, the Supplier must allocate its available supply of the Products to the Buyer no less favourably than to its other customers, and the Buyer may buy products it cannot obtain from the Supplier from other sources without liability to the Supplier.

If a Force Majeure Event prevents a party from performing its material obligations for longer than the Force Majeure Period, either party may terminate this agreement, or the affected Accepted Orders, by written notice to the other.

Confidentiality

Each party (the recipient) must keep confidential the Confidential Information of the other party (the discloser), must use it only to perform its obligations and exercise its rights under this agreement, and must protect it with at least the care it uses for its own confidential information and no less than reasonable care.

The recipient may disclose the discloser's Confidential Information to its own and its affiliates' officers, employees, professional advisers, insurers and subcontractors who need to know it for the purposes of this agreement and are bound by duties of confidentiality no less protective than this clause, and the recipient is responsible for their compliance. The recipient may also disclose Confidential Information to the extent required by law, a court or a regulator, provided that, where lawful, it gives the discloser prompt notice and limits the disclosure to what is required.

This clause does not apply to information that the recipient can show is or becomes publicly available other than through a breach of this agreement, was lawfully known to it without restriction before disclosure, is lawfully received from a third party free to disclose it, or is independently developed without use of the discloser's Confidential Information.

The obligations in this clause continue during this agreement and for five years after it ends, and for any trade secret for as long as it remains a trade secret. On request after this agreement ends, the recipient must return or securely destroy the discloser's Confidential Information, except copies it must keep by law or that are held in routine back-up systems, which remain subject to this clause.

Data Protection

Each party may process the business contact details of the other party's personnel only to administer this agreement, acts as an independent controller of that data, and must comply with the data protection laws that apply to it in doing so.

If either party will process personal data on behalf of the other in connection with this agreement, the parties must first agree in writing the terms that applicable data protection law requires for that processing.

Compliance

Each party must comply with all anti-bribery and anti-corruption laws that apply to it, including, where they apply, the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act of 1977 and all other anti-bribery and anti-corruption laws that apply to it in connection with this agreement, and must not offer, give, request or accept any bribe or other improper payment or advantage.

Each party must comply with the sanctions, export control and customs laws that apply to the supply, export, import and use of the Products. The Supplier must give the Buyer, on request, the export control classification, country of origin and customs tariff code of each Product.

The Supplier must take reasonable steps to ensure that there is no slavery, forced or compulsory labour, child labour or human trafficking in its business or in its supply chain for the Products.

Either party may terminate this agreement immediately by written notice if the other party commits a material breach of this clause.

Term and Termination

This agreement starts on the date of this agreement and continues for the Initial Term. After that, it continues until either party terminates it by giving the other at least the Termination Notice Period's written notice, which may expire at the end of the Initial Term or at any time after it.

Either party may terminate this agreement immediately by written notice if the other party commits a material breach of it that is not capable of remedy, or that is capable of remedy and is not remedied within the Cure Period after written notice giving details of the breach and requiring it to be remedied.

Either party may terminate this agreement immediately by written notice if the other party becomes unable to pay its debts as they fall due, enters into any insolvency, bankruptcy, administration, liquidation or similar proceeding or any composition or arrangement with its creditors (other than for a solvent reorganisation), or ceases or threatens to cease to carry on business, to the extent the law allows termination on that ground.

Accepted Orders outstanding when this agreement ends must be completed on the terms of this agreement, unless the Buyer terminated this agreement for the Supplier's breach or insolvency, in which case the Buyer may cancel any of them by written notice without liability.

When this agreement ends, each party must return or destroy the other's Confidential Information in accordance with the Confidentiality clause, and the Buyer must pay all amounts properly due for Products delivered. Ending this agreement does not affect any rights or remedies that have accrued, or the continuation of any provision intended to continue, including the Title and Risk, Inspection and Rejection, Warranties, Prices and Payment, Intellectual Property, Indemnities, Liability, Confidentiality, Data Protection, Notices, General and Governing Law and Disputes clauses, the record-keeping obligations in the Specification and Quality clause and, where this agreement includes them, the Product Compliance and Recall, Buyer Property and Insurance clauses.

Notices

A notice under this agreement must be in writing in English and delivered by hand, by courier or by email to the Buyer at [TO BE CONFIRMED — Buyer notice address and email] or to the Supplier at [TO BE CONFIRMED — Supplier notice address and email], or to any other address a party notifies to the other under this clause.

A notice is received when delivered by hand or courier, or when an email enters the recipient's email system, unless the sender receives a delivery failure message. A notice received outside 9.00 am to 5.00 pm on a Business Day, in the place of receipt, is treated as received at 9.00 am on the next Business Day. This clause does not apply to the service of proceedings or other documents in legal proceedings or arbitration.

General

Neither party may assign, transfer or otherwise deal with any of its rights or obligations under this agreement without the other party's prior written consent, which must not be unreasonably withheld or delayed, except that either party may assign this agreement to a purchaser of all or substantially all of the business to which it relates on written notice to the other party. The Supplier may subcontract the performance of any of its obligations, but remains responsible for the acts and omissions of its subcontractors as if they were its own.

This agreement is the entire agreement between the parties about its subject matter and replaces all earlier drafts, agreements, arrangements and understandings between them about it. Each party acknowledges that it has not relied on any statement, representation or assurance that is not set out in this agreement. Nothing in this clause limits or excludes liability for fraud.

A variation of this agreement is effective only if it is in writing and signed by authorised representatives of both parties.

A failure or delay in exercising a right or remedy is not a waiver of it. A waiver is effective only if given in writing and applies only to the circumstance for which it is given.

If any provision of this agreement is or becomes invalid, illegal or unenforceable, it is to be treated as modified to the minimum extent necessary to make it valid, legal and enforceable or, if that is not possible, deleted. The rest of this agreement is not affected.

Nothing in this agreement creates a partnership, joint venture, agency, employment or fiduciary relationship between the parties, and neither party has authority to bind the other.

A person who is not a party to this agreement has no right to enforce any of its terms.

This agreement may be signed in any number of counterparts, each of which is an original and which together form one agreement, and may be signed electronically.

Governing Law and Disputes

This agreement and any non-contractual obligations arising out of or in connection with it are governed by the Governing Law, without regard to any conflict-of-laws rule that would apply another law.

Any dispute arising out of or in connection with this agreement, including any question about its existence, validity or termination, will be finally resolved by arbitration under the Arbitration Rules by a sole arbitrator. The seat of the arbitration is the Seat and the language of the arbitration is English. Nothing in this clause prevents a party from seeking urgent interim relief from any court of competent jurisdiction.

This agreement is made in English. If it is translated into another language, the English text prevails.

The United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) does not apply to this agreement or to any Accepted Order.