TERMS AND CONDITIONS OF PURCHASE GOODS FOR RESALE (FOOD)

Transcription

1 TERMS AND CONDITIONS OF PURCHASE GOODS FOR RESALE (FOOD) TESCO STORES LIMITED Registered company Tesco House, Shire Park, Kestrel Way, Welwyn Garden City, Hertfordshire AL7 1GA 1

2 TERMS AND CONDITIONS OF PURCHASE 1. DEFINED TERMS Capitalised words have the meaning set out in these Terms: Additional Terms has the meaning in Clause 2.1. Anti-Bribery Policy our anti-bribery policy as amended, and made available to you from time to time. Applicable Laws all applicable laws, regulations, regulatory requirements, directives, orders and codes of practice in any relevant jurisdiction, as amended and in force from time to time (including the ETI base code). Change has the meaning in Clause 9.2. Claim any claim, demand or action. Code has the meaning in Clause 2.4. Confidential Information information in any form which is expressed to be confidential or which might reasonably be regarded as confidential in nature, not including information to the extent it: (a) was already lawfully known to the receiving party at the time of disclosure; (b) became lawfully known to the receiving party independently; or (c) is in, or comes into, the public domain other than by wrongful use of or disclosure by the receiving Party. Contract has the meaning in Clause 2.2. Control for a company or any other corporate body, the power to directly or indirectly secure that the affairs of that company or other corporate body are conducted with a person or corporate body s wishes or directions by: (a) the holding of shares or the possession of voting power in or in relation to that company or any other corporate body; or (b) any powers conferred by the articles of association or other document regulating that company or any other corporate body. Cost of Goods has the meaning in Clause 4.1. Data Obligations Policy our supplier data obligations policy as amended, and made available to you from time to time. Deals and Charges Webform an agreement between you and us on additional terms called the Deals and Charges Webform, or any successor agreement. Delivery delivery of the Goods during normal business hours to the premises notified by us or collection of the Goods by us (where we have agreed to collect the Goods). Engagement has the meaning in Clause 3.1. EPW emergency product withdrawal. EPW Goods Goods subject to an EPW and/or any other Goods supplied by you that we (acting reasonably) believe customers will not buy at the intended retail price as a direct result of that EPW. Ethical Trading Policy our ethical trading policy as amended, and made available to you from time to time. Excess Goods Goods delivered in excess of the quantities ordered. Fixed Deal Webform an agreement between you and us on additional terms called the Fixed Deal Webform, or any successor agreement. Force Majeure Event an event beyond the reasonable control of a Party which does not relate to its fault or negligence (not including industrial action by employees of that Party or its Representatives, or any breakdown of plant or machinery under the control of that Party or its Representatives), where the impact could not have been avoided by the use of reasonable business continuity/disaster recovery measures. Gift and Entertainment Policy our gift and entertainment policy as amended, and made available to you from time to time. Goods goods and any other work products and deliverables to be supplied by you as set out in an Order (including any packaging and labelling). Groceries as defined in the Code. Group your Group or our Group (as relevant). GSCOP Order the Groceries (Supply Chain Practices) Market Investigation Order Holding Company as defined in section 1159 of Companies Act 2006 (as updated or replaced from time to time). Incoterms the Incoterms 2010 rules specified in the Order (or where none are stated DDP (destination as stated in the Order) Incoterms 2010 rules). Indemnified Party the Party being indemnified. Indemnifying Party the Party providing the indemnity. Infringing Materials has the meaning in Clause Intellectual Property Rights all copyright, rights in the nature of copyright, design rights, patents, trademarks, database rights, applications for any of the above, moral rights, rights in confidential information, know-how, domain names and any other intellectual or industrial property rights (and any licences in connection with any of the same) whether or not registered or capable of registration subsisting in the UK or another part of the world. Losses any Claims, awards, judgments, settlements, costs, expenses, liabilities, damages and losses (including all interest, fines, penalties and reasonable professional costs and expenses). New Materials has the meaning in Clause Order any order for Goods made in writing (including by purchase order and ), sent by us to you. our Group the group made up of: a. us; b. Tesco plc; c. any Subsidiary of us or Tesco plc ; and d. any other entity we or they Control, and member of our Group will be construed accordingly. our Materials has the meaning in Clause 10.3 our Property any tangible resource provided by us to you for incorporation in any 2

3 Goods or otherwise. Party or Parties you and us, each a Party and together the Parties. Policies a. the Anti-Bribery Policy, Ethical Trading Policy, Gift and Entertainment Policy and Data Obligations Policy, and b. all other policies, technical, quality management, auditing and other procedures, codes of practice and/or protocols issued by a member of our Group including through an electronic platform such as Tesco Technical Library or Tesco Partners Toolkit. Representatives as applicable, your (or a member of your Group s) or our (or a member of our Group s) directors, officers, employees, agents, auditors, licensors, professional advisers, and contractors. Specification the specification for the Goods set out in the Tesco Technical Library or as otherwise agreed with you. Subsidiary as defined in section 1159 of the Companies Act 2006 (as such definition may be updated or replaced from time to time). Supply Agreement Webform an agreement between you and us on additional terms called the Supply Agreement Webform, or any successor agreement. Terms means these Terms and Conditions of Purchase. Tesco Partners Toolkit the online supplier portal found at its predecessor TescoLink (found at or any successor portal. Tesco Standard Payment Terms Policy our standard payments policy as amended, and made available to you from time to time. Tesco Technical Library the online supplier portal found at or any successor portal. we, us or our Tesco Stores Limited (company no ), registered office at Tesco House Shire Park, Kestrel Way, Welwyn Garden City, AL7 1GA. Webform Agreement any Supply Agreement Webform, any Fixed Deal Webform, and Deals and Charges Webform and/or any document called webform agreement we agree with you from time to time. you or your the person, firm, company or other entity entering into the Contract with us. your Group the group made up of: a. you; b. your Holding Company (if any); c. any Subsidiary of you or your Holding Company; and d. any other entity you or they Control, and member of your Group will be construed accordingly. your Materials has the meaning in Clause FORMING THE CONTRACT 2.1. Our agreement comprises these Terms and a. any Webform Agreement(s); b. any additional contract(s) agreed between you and us; c. any Order; d. the Policies; e. if applicable, the Code; and f. if applicable, the Incoterms, (together the Additional Terms ) 2.2. By accepting an Order you create a legally binding agreement to supply the Goods on these Terms and any Additional Terms (together, the Contract ) Where you deliver Goods to us from outside the UK the Incoterms apply to the Contract The Groceries Supply Code of Practice along with any interpretative guidance issued by the Groceries Code Adjudicator, (together, the Code ) applies to all Contracts for the supply of Groceries for the purpose of resale in the United Kingdom. Any provision of a Contract for the supply of Groceries that is inconsistent with the Code is unenforceable The Contract replaces all previous agreements or any course of dealing relating to, and is the entire agreement between you and us for, the Goods The Contract shall apply to the exclusion of, and shall prevail over, any terms and conditions contained in or referred to in any documentation submitted by you, or in any correspondence or elsewhere or implied by trade custom, practice or course of dealing Nothing in any Order or Webform Agreement varies these Terms or the Additional Terms unless it specifically references the particular Clause which the Parties wish to vary If there is any conflict or inconsistency between the documents which make up the Contract, the following order of precedence will apply: a. the Code (if applicable); b. the Policies; c. Clause 2.7 of these Terms; d. the Order; e. the Webform Agreement(s); f. these Terms; and g. the Incoterms (if applicable). These documents all form part of your supply agreement with us Except where expressly set out in an Order, there are no minimum volume commitments. Any forecasts provided to you shall not be binding on us. We will only be bound to a volume commitment once an Order has been placed with you. We shall not be liable to you, whether to pay compensation, place an Order or cover your losses, if a forecast proves to be incorrect. We shall communicate to you the basis on which any forecast is prepared. 3. ENGAGEMENT 3.1. You are appointed on a non-exclusive basis to provide Goods to us (the Engagement ) Your Engagement starts on the date we agree these terms and continues unless and until terminated by you or us in accordance with these Terms or the Additional Terms Either Party can suspend the provision or delivery and/or reduce the volume or scope of the Goods, or terminate the Engagement on reasonable notice. For termination, reasonable notice shall always be at least 30 days Termination of your Engagement under Clause 3.3 will not terminate any live Contracts or Orders, and does not affect your rights under the Code, the GSCOP Order or Applicable Laws Where the Code applies, we will follow the Code s de-listing process where terminating your Engagement On or around the date we agree these terms, the Parties will enter into a Supply Agreement Webform if one is not already in place The Supply Agreement Webform will be reviewed periodically. Where the Parties agree to make any changes to a Supply Agreement Webform they will enter into a new Supply Agreement Webform which will, from the date it is entered into, replace and supersede the old Supply Agreement Webform. 3

4 4. CHARGES AND PAYMENT TERMS 4.1. We will pay you the costs as set out in the Order ( Cost of Goods ) for Goods in accordance with the Contract in the currency specified in the Order. The Cost of Goods will exclude VAT but include any other duties, customs or levies VAT, excise and other duties and taxes are those that apply at the date of delivery of the Goods If the rate of VAT charged is deemed to be incorrect: a. in the event of an overcharge, you will refund the full amount of VAT overcharged on the invoice to us; or b. in the event of an undercharge, we will accept an additional charge providing it is supported by a tax invoice If our output tax costs increase by virtue of clause 4.3, you and we agree to share any deficit equally Where subsequent to the issue of an invoice on which VAT is charged, a discount is granted or there is a reduction in the amount charged, you hereby agree to the treatment permitted under Section of the UKVAT Guide (HMRC Notice 700) whereby the amount of VAT charged on the original invoice may remain unaltered We will pay each invoice in line with the Tesco Standard Payment Terms Policy and on such payment terms as are agreed in writing with you, unless we have reasonable grounds to dispute the invoice If either Party pays late, the other Party can charge interest at 2% per annum above the base rate of Barclays Bank plc If we pay late, or you have an invoice query then please contact UKFood.Invoicequeryteam@uk.tesco.com All invoices or debit notes issued by us to you must be paid in line with our Tesco Standard Payment Terms Policy, and on such payment terms as are agreed in writing with you, unless you have reasonable grounds to dispute the invoice or debit note Any invoices or debit notes will only be issued by us to you after we give reasonable notice to you of the charge or deduction to be invoiced Either Party may conduct an internal forensic accounting audit of Cost of Goods and invoices in accordance with Applicable Laws or as otherwise agreed between the Parties in writing Where the Code applies, if you reciprocate the commitment, we will limit internal forensic accounting audits to the current and two immediately previous financial years. 5. DELIVERY, EXCESS GOODS AND DISPOSAL 5.1. You will comply with our reasonable requirements in relation to the supply of the Goods (including warehousing, quality control, the return of returnable packaging or delivery materials, bar coding and quality assurance). We must give you reasonable notice of any changes to such requirements You will deliver the Goods: a. to the premises set out in the Order or to such other premises as notified by us (subject to us paying you any reasonable additional costs); b. on the date set out in the Order (or where none is stated, as soon as possible), such date to be strictly adhered to; and c. by the time set out in the Order (where a time is stated) such time to be strictly adhered to, and Delivery will be complete when we give you a receipt note Unless the Order says otherwise: a. we do not have to accept delivery by instalments or outside the delivery hours notified by us from time to time (acting reasonably) or, where none are stated, our normal hours of business; b. except where the Incoterms apply and say differently, if we pay for any Goods before they are in our possession and control, you will insure those Goods against all risks from payment to Delivery, for an amount at least equal to the Cost of Goods; and c. all Goods must include a delivery note containing a description of the Goods and volume delivered together with any other information we have told you in advance that we reasonably require We do not have to pay for Excess Goods unless we accept them pursuant to Clause If you do not collect any Excess Goods within 7 days of request, we may dispose of them without liability to you and charge you our reasonable costs You will: a. at your expense, supply everything necessary for the performance of your obligations under the Contract and leave our premises as clean, tidy and safe as they were when you entered them; and b. promptly provide to us, or at our direction to any customs, export and/or importation authority, any and all authorisations and/or documents required by such authority to facilitate the export and/or importation of Goods anywhere in the world and take all necessary action to ensure the Goods are granted prompt customs clearance. 6. TITLE AND RISK 6.1. Except where the Incoterms apply and say otherwise, risk of damage to, or loss of, the Goods will pass to us on Delivery except for (a) any Excess Goods where risk stays with you unless and until we accept the Excess Goods in accordance with Clause 7.2; and (b) rejected Goods where the risk passes back to you from the date of rejection Title in the Goods will pass to us on payment of the Cost of Goods payable under these Terms for those Goods or where we have set off in respect of the Cost of Goods for those Goods. We can re-sell the Goods before title passes to us but we are still obliged to pay the Cost of Goods. 7. ACCEPTANCE AND REJECTION OF GOODS 7.1. If (acting reasonably) we determine that the Goods do not comply with the Contract or if you fail to deliver the Goods in accordance with Clause 5, we can reject Goods within 30 days of Delivery (or 60 days for Excess Goods) If we do not reject Goods within the periods set out in Clause 7.1, you can assume they are accepted. By accepting any Goods we are not waiving either Party s obligations or rights under the Contract or otherwise under Applicable Laws You acknowledge that: a. the Goods are supplied for resale; b. packaging and distribution procedures prevent examination of the Goods until after they are displayed for sale; and c. some defects may not be discovered until a consumer draws them to our attention Subject to Clause 7.5, if we discover that any of the Goods do not comply with the warranties in Clause 11 or become unfit for resale sooner than permitted by the Specification, we may (acting reasonably) issue an EPW. Where we issue an EPW you will pay to us the EPW withdrawal fee as agreed and we can (acting reasonably): a. reject and either require you to promptly collect or(where reasonable) ourselves destroy (in either case at your cost) the EPW Goods; b. require you to replace the EPW Goods; and/or c. terminate any Contract for EPW Goods We cannot exercise our rights in Clause 7.1 or 7.4 where the noncompliance was caused exclusively by us We will tell you if we reject the Goods. If you disagree that we are entitled to reject them, you must tell us within 3 days and you and we will negotiate in good faith to resolve the dispute. 4

5 7.7. Where we have paid for any Goods we reject under a Contract: a. you will provide us with a refund for those Goods within 30 days of the date of rejection; and b. until we receive the refund, you are not entitled to collect those Goods If we choose to ask you to deliver Goods to replace any rejected Goods you will do so in accordance with our reasonable requirements, at no more than the cost of the rejected Goods set out in the relevant Order Where you dispose of any Goods you will (at your expense) remove all references to us that are on the Goods. 8. CONSUMER COMPLAINTS 8.1. If we can resolve a consumer complaint in-store, by phone or online by refunding the retail price or replacing the relevant Goods, we may require you to make a payment to us for resolving the complaint provided that: a. the payment shall not exceed the retail price of the Goods; and b. we are satisfied on reasonable grounds the complaint is reasonable and attributable to your breach of the Contract If we cannot resolve a consumer complaint in-store, by phone or online we may require you to make a payment to us for resolving the complaint provided that: a. the payment is directly related to our costs arising from the complaint; b. we have verified the complaint is justifiable and c. attributable to your breach of the Contract; and d. we send you a report about the complaint, including details of why we believe the complaint is justifiable and attributable to your breach of the Contract Notwithstanding the above, we may agree with you from time to time a standard payment to be made by you for resolving consumer complaints provided that this standard payment does not exceed our expected costs of resolving the complaints The payments referred to in this Clause shall be the only payments that we may require from you for resolving consumer complaints. 9. CHANGE CONTROL PROCEDURE 9.1. We can revise any agreed Specification on giving reasonable notice to you at any time before placing an Order (subject to us paying any reasonable additional costs). If you do not agree to that revision you do not have to accept the Order Changes to a Contract can be requested by either Party at any time (including, without limitation, where we change any of the Policies) (a Change ) As soon as reasonably practicable after a Change is requested (and in any event within 14 days or such other period as agreed between the Parties) the Party proposing the change will give to the other a written proposal setting out: a. the impact of the Change; b. a timetable for implementing the Change; c. changes to the Contract (including the Cost of Goods) to reflect the Change; and d. any necessary and reasonable charges for the implementation of the Change When a Change is requested by us, you must raise any objections in writing within a reasonable timeframe. Otherwise, we will consider you to have accepted Neither Party will unreasonably withhold or delay its consent to a Change Until a Change is agreed, you will continue to perform your obligations under the Contract as if the Change had not been proposed. You will not implement Changes to the Order before they have been agreed in writing, and any activities you carry out in contemplation of a Change will be at your own expense. 10. INTELLECTUAL PROPERTY RIGHTS We will own the Intellectual Property Rights in any materials or products which you or your Representatives create for us ( New Materials ) and you assign to us by present and future assignment, with full title guarantee, all legal and beneficial rights, title and interest in the New Materials You will continue to own the Intellectual Property Rights in any materials, products, know-how and techniques that you or your Representatives do not create for us under the Contract ( your Materials ). Where your Materials are included in any Goods then you grant us a perpetual, irrevocable, worldwide, sub-licensable, assignable, royalty- free, non-exclusive licence to use your Materials to the extent necessary to take the full benefit of the Contract We will continue to own the Intellectual Property Rights in any materials, products, know-how and techniques we make available to you or your Representatives ( our Materials ) Where we provide you with our Materials then we grant you a revocable, non-assignable, worldwide, royalty-free, non-exclusive licence to use them in accordance with any guidelines we send you from time to time, solely to the extent needed to fulfil your obligations under the Contract If a Claim is made that the Goods (excluding our Materials) infringe the Intellectual Property Rights or any other rights of a third party (the Infringing Materials ), you will promptly (at your cost) : a. where possible, obtain the right for us to lawfully use and/or sell the Infringing Materials; or b. where possible, modify the Infringing Materials so they no longer infringe (but still comply with the Contract); or c. replace any Goods containing the Infringing Materials with Goods which do not infringe (but still comply with the Contract). 11. WARRANTIES AND REPRESENTATIONS Each of the Parties warrants and represents that: a. it has the right to enter into and perform the Contracts; b. it will not (and will ensure its Representatives will not) breach or cause the other Party to breach Applicable Laws when performing its obligations under the Contract; and c. anything it provides to the other Party, including: i. in your case the Goods (excluding our Materials), your Materials and the New Materials; and ii. in our case our Materials; will not (to the extent used in accordance with the Contract) infringe the Intellectual Property Rights or any other rights of a third party You warrant and represent that: a. all written information provided by you is, when provided, accurate and comprehensive in all material respects; b. the Goods will on Delivery or technical handover (whichever is later): i. be of a standard at least equivalent to any sample you have provided to us or such higher standard as required in the Order; ii. be in all material respects as described in the Contract, any related tender documentation, any Specification and any standard, procedure or requirement agreed between the Parties in writing from time to time; iii. comply with all Applicable Laws; and iv. not be the subject of any security interest, lien, encumbrance, charge or adverse title; c. you will obtain and provide to us on request all licences and documentation relating to the Goods required under Applicable Laws and promptly give copies to us; and d. you, your Representatives and any premises from which you or your Representatives perform your obligations under the 5

6 Contract, comply and will continue to comply with all Applicable Laws. 12. PROBLEMS CAUSED BY US If you comply with Clause 12.2, you will not be liable for failing to provide the Goods to the extent this is directly caused by our failure to comply with the Contract If you believe we have failed to comply with the Contract, and that failure will impact on your ability to provide the Goods, you must: a. notify us promptly, providing sufficient details of the noncompliance and the impact it is having; and b. take all reasonable steps to minimise the effects of our failure. 13. CONFIDENTIALITY Each Party will: a. not disclose the other Party s Confidential Information, except to your or our Representatives (as applicable) on a need to know basis and on the condition they are subject to binding confidentiality obligations no less onerous than those in this Clause 13; b. use the other Party s Confidential Information only for the proper performance of the Contract; c. inform the other Party immediately if this Clause has been breached; and d. on request, return or destroy the other Party s Confidential Information, unless prevented by Applicable Laws or in our case we need the Confidential Information to use and resell the Goods Either Party may disclose Confidential Information relating to the other to the extent required by any court or authority with jurisdiction. Unless prevented by Applicable Laws, the disclosing Party will notify the other of this disclosure in advance Neither Party will make any announcement relating to the other, any dispute, the Engagement or any Contract without the other s prior written consent (except as required by law or by any legal or regulatory authority) Each Party will respect the confidentiality of information received from third parties. 14. DATA If either Party supplies personal data (as defined by Applicable Laws) to the other Party: a. the Party supplying the data warrants and represents that the data has been fairly and lawfully obtained and it has the right to lawfully supply it; and b. the Party receiving the data warrants and represents that it will: i. comply with the Data Obligations Policy; ii. comply fully with all Applicable Laws relating to the use, disclosure or other processing of that data; iii. put in place and maintain appropriate technical and organisational measures against the accidental, unlawful or unauthorised processing, destruction, loss, damage or disclosure of that data; iv. only use that data for the performance of its obligations under a Contract; v. not retain that data for longer than is necessary (in accordance with Applicable Laws); vi. immediately on request, destroy that data or return it to the other Party; vii. not transfer that data outside the European Economic Area or to any third party without the other Party s prior written consent (in the form of a signed agreement including the standard contractual clauses issued by the European Commission from time to time for transferring personal data outside the EEA); and viii. notify the other Party as soon as reasonably practicable if it believes it may have breached this Clause, and will cooperate fully in dealing with the consequences of such breach. 15. INDEMNITIES Each Party (each, the Indemnifying Party ) will indemnify the other (the Indemnified Party ) against all Losses incurred by the Indemnified Party, any member of its Group and/or their Representatives, arising out of or in connection with: a. the Indemnifying Party s (or its Representatives ) fraudulent or criminal behaviour; b. any penalties or fines awarded in connection with a breach of Clause 11.1(b) by the Indemnifying Party or its Representatives; or; c. any Claim that: i. (in our case) our Materials; and ii. (in your case) the Goods, your Materials (used in accordance with the Contract) and/or any New Materials; have infringed or will infringe any Intellectual Property Rights of a third party You will indemnify us against all Losses incurred by us and/or any member of our Group and/or our Representatives, arising out of or in connection with any breach by you of Clauses 11.2(b)(ii), 11.2(b)(iii), 11.2(c) or 11.2(d) The Indemnified Party will promptly notify the Indemnifying Party of any Claim made relating to any matter the Indemnifying Party has agreed to indemnify it against. Where such a Claim arises: a. subject to Clause 15.3(a), the Indemnified Party will, at the request of the Indemnifying Party, give the Indemnifying Party express authority to conduct all negotiations and litigation arising from that Claim, at the Indemnifying Party s expense (subject always to the Indemnifying Party making the request promptly); b. where we are the Indemnified Party and we have reasonable grounds to believe the Claim may have a materially adverse impact on our reputation, we can conduct all negotiations and litigation arising from that Claim ourselves, at your reasonable expense; and c. the Party who is: i. conducting the Claim will: ii. give the other Party all information as it may reasonably require relating to the progress of the Claim; not settle the Claim without the consent of the other Party (such consent not to be unreasonably withheld or delayed); not conducting the Claim will promptly give the other Party conducting the Claim all information and assistance as it may reasonably require and will not make any admission in respect of the Claim Neither Party will use the other Party s name in any action or Claim without the express prior written consent of that Party s company secretary or head of legal. 16. LIMITATION OF LIABILITY Subject to Clauses 16.2 and 16.3, the liability of you and us (whether arising from contract, negligence or otherwise) is limited to: a. for liability arising from loss of or damage to property, 10,000,000 per occurrence; and b. for all other liabilities, in aggregate under all Contracts in any 12 month period, the higher of: i. 100,000; or ii. 150% of the total amounts paid and which would be payable under all Contracts in the previous 12 months Neither Party will be liable in contract, negligence or otherwise 6

7 for any indirect or consequential loss The exclusions and limitation of liability set out in this Clause do not apply to: a. liability arising from death or injury to persons; b. any breach of Clause 13 (Confidentiality), Clause 14 (Data), Clause 18 (Fraud, Bribery and Ethical Trading) or any of the Policies; c. any indemnity; or d. anything else which cannot be excluded or limited at law, to which no limit applies. 17. INSURANCE You will maintain in force for at least the term of your Engagement, with a reputable insurer, at your own expense, all necessary insurances including the following (each for a minimum amount of 10,000,000 per occurrence or such other amount or currency agreed between you and us in writing): a. employer s liability insurance; b. public and product liability insurance; together the Insurance Policies You will within 14 days of a request by us, provide such evidence of the Insurance Policies as we reasonably require. 18. FRAUD, BRIBERY AND ETHICALTRADING Each Party will comply, and use all reasonable endeavours to ensure its Group and its Representatives comply, with the Anti- Bribery Policy and Ethical Trading Policy Where you have reasonable grounds to believe that there has been any fraud, criminal behaviour or breach of the Anti- Bribery Policy or Ethical Trading Policy by you, any of your Representatives, or by any of our Representatives, you will promptly notify us If we have reasonable grounds to believe you or your Representatives have committed fraudulent or criminal behaviour or breached the Anti-bribery Policy or Ethical Trading Policy we may, acting reasonably suspend the delivery of Goods and/or withhold payment of any Cost of Goods falling due to you pending an investigation and until that investigation is completed. 19. AUDIT You will maintain, in line with good industry practice, complete, accurate and up to date records and supporting documents in connection with the Contract (including your compliance with the Contract and any amounts payable by us under it) ( Records ). You will retain the Records for the term of your Engagement and thereafter for as long as is required by Applicable Laws Subject to us giving you at least two business days notice (except for the purposes of audits carried out to confirm compliance with Applicable Laws or the Policies where no notice will be required) you will provide us and our Representatives (who we will ensure are not your material competitors and are subject to binding confidentiality obligations), at no charge, with all reasonable: a. access to and copies of the Records; b. access to all relevant information, premises, data, Representatives and assets at all premises from which your obligations are being carried out (including any premises where Goods or raw materials are manufactured, processed, packaged, stored or collated) for the purposes of carrying out an audit of your compliance with the Contract; and c. assistance in carrying out such audit When carrying out an audit, we will use reasonable endeavours to avoid material disruption to your business. If an audit reveals: e. any non-compliance with the Contract, you will promptly carry out such action as we reasonably require to correct that non-compliance, at no additional cost to us; or f. any non-compliance with the Policies, we can terminate the Contract and/or Engagement immediately, without liability to you except to pay the Cost of Goods for any Goods provided in accordance with the Contract which we have accepted (unless, as a result of the non-compliance, we subsequently choose to reject them); or g. any overcharge, you will repay the amount of the overcharge to us within 30 days Any inspection, audit or examination carried out by us or our Representatives will not absolve you from responsibility or liability under any Contract or Applicable Law nor imply acceptance of the Goods by us. 20. TERMINATION You and we may terminate your Engagement and/or any Contract immediately by notice to the other Party if the other Party: a. commits a material breach of the Contract which is not capable of remedy or which is capable of remedy but it fails to remedy within a reasonable period (not exceeding 30 days) of receiving a notice requiring the breach to be remedied; b. commits a material breach of Clause 13 (Confidentiality), Clause 14 (Data), Clause 17 (Insurance), or Clause 18 (Fraud, Bribery and Ethical Trading); c. ceases or threatens to cease to trade (in whole or part), becomes insolvent, is unable to pay its debts as they fall due within the meaning of section 123 Insolvency Act 1986, has a receiver, administrative receiver, administrator or manager appointed of the whole or any part of its assets or business, makes or offers to make any composition or arrangement with its creditors, d. or becomes the subject of an order or resolution for dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction), is the subject of any petition for winding up, or any application for an administration order or any notice of intention to appoint an administrator, or any distress or execution is levied upon its property or assets or any of its property is subject to the exercise of commercial rent arrears recovery; or e. suffers any events analogous to the events set out in Clause 20.1(c) in any jurisdiction We may also terminate your Engagement and any Contract (in whole or in part) with immediate effect at any time by notice to you if: a. you undergo a change of Control; b. your Representatives or a member of your Group do or omit to do anything which in our reasonable opinion may materially damage our reputation or the reputation of any member of our Group; or c. you commit a breach of any term or similar term of the Contract more than 3 times in any rolling 12 month period Each Party has the right to terminate the Engagement under Clause FORCE MAJEURE EVENTS Neither Party will be responsible for a failure to carry out any obligations under the Contract to the extent the failure is directly caused by a Force Majeure Event, as long as the affected Party: a. promptly notifies the other Party that it has occurred, how long the Party thinks it will last and immediately notifies the other Party when it has ended; b. takes all reasonable steps to prevent, avoid and minimise the effects of the Force Majeure Event; c. carries out its duties to the best level reasonably achievable while the Force Majeure Event is on-going; and d. complies with any agreed disaster recovery plan If the Force Majeure Event prevents one Party from complying with any material obligation under the Contract and continues for more than 30 days, the other Party may terminate any 7

8 affected Contract with immediate effect by giving notice. 22. NOTICES All notices must be in writing and delivered personally, sent by first class post (or equivalent) or (subject to Clause 22.2) to (in your case) your contact named in the Order at your registered office or (in our case) our Group General Counsel and contact named in the Order (both at our registered office) or such other person as either Party notifies the other Party Notification by will not be effective service in any legal action, including arbitrations A notice sent by: (a) hand is served when delivered; (b) first class post (or equivalent) is served two business days after posting; or (c) is served when transmitted (without bounce-back or other error) You shall keep your contact details up-to-date via the Tesco Partners Toolkit. 23. GENERAL Each Party is responsible for the acts or omissions of that Party s Representatives as if they were their own No third party will have the right to enforce the Contract except a. for any member of either Group which can enforce the Contract to the extent it confers a benefit to it; or b. such third party is an assignee of the rights under the Contract and such assignment is in accordance with Clause The Parties can terminate or vary the Contract without the consent of any third party Neither Party may assign, novate, transfer, charge or create a trust over the Contract or otherwise deal in its rights or obligations under the Contract or any interest in them, without the other Party s prior written consent (not to be unreasonably withheld or delayed). The Contract is binding on the Parties, their successors and assignees Title in our Property will remain with us at all times. Risk (but not title) in our Property will pass to you on delivery. You will keep our Property separately stored, protected, insured and clearly identified as belonging to us. You will not have a lien over our Property and will ensure you are not deemed to be the owner of our Property We may accept all coupons presented by consumers. We do not check the validity of non-tesco-specific coupons upon redemption. We redeem all coupons without requiring proof of purchase, and you will reimburse us for coupons reasonably applied to your account You will, promptly on request, supply to us any documentation, assistance or information we may require to enable us to comply with our own legal or other obligations relating to a Contract You will immediately notify us of any notification or allegation you become aware of regarding alleged failure of you or your Representatives to comply with any Applicable Laws. You will keep us fully informed of all steps taken to resolve any such issue You will not engage sub-contractors (other than those set out in the Order) to perform any material part of a Contract without our express prior written consent (which we will not unreasonably withhold or delay) We will have no responsibility for any loss of or damage to any equipment you bring onto our premises (except where caused by our negligence) Each Party will (and will ensure its Representatives will) at the request of the other Party execute any deed or document and do anything reasonably necessary to implement the Contract You are an independent contractor dealing at arm s length. Nothing in the Contract constitutes a partnership, jointventure, co-ownership or any employment relationship between the Parties Except, as expressly stated in the Contract, neither Party has (or will hold itself out as having) authority to act for, bind or otherwise create or assume any obligation on behalf of the other When the Contract refers to something being agreed, or a Party providing its authorisation or consent, that agreement, authorisation or consent must be in writing No variation to a Contract will be effective unless it is expressly agreed in writing by the Parties, with the exception of changes to Policies Subject to Clauses and 23.17, if there is a dispute between the Parties, before commencing any court or similar proceeding, the Parties will discuss the issues in good faith with a view to resolving the dispute amicably. Where appropriate, the Parties may also consider alternative dispute resolution The Contract and any dispute between the Parties (contractual or otherwise) is governed by English law and, subject to the below, the Parties agree to submit any dispute to the exclusive jurisdiction of the English courts. Nothing prevents either Party from applying for injunctive or other interim relief from any court Where the Code applies, any dispute arising under Articles 11(2) or 11(3) of the GSCOP Order will be exclusively dealt with in accordance with the dispute resolution scheme in Article 11 of the GSCOP Order. 8