Cellar Key Ltd will only do business with the Supplier on the basis of Cellar Key Ltd.’s Conditions. When Cellar Key Ltd places an order with the Supplier it is placed subject to these Conditions only. The terms and conditions of the Supplier will not apply unless expressly agreed by Cellar Key Ltd Limited in writing. No course of dealing or business between Cellar Key Ltd and the Supplier will be relevant to explain or supplement any condition save as provided for in accordance with these conditions.
1.1 In these general conditions of purchase (“Conditions”) the following words have the following meanings:
(a) “Contract” means a contract between Cellar Key Ltd and the Supplier for the supply of goods (“Goods”) and/or services (“Services”), incorporating these Conditions, the relevant PO and any other document(s) referred to therein;
(b) “Order” means any order of Goods or Services made by Cellar Key Ltd to the Supplier either by PO or otherwise;
(c) “PO” means a Purchase Order for the Goods and/or Services placed by Cellar Key Ltd on Cellar Key Ltd.’s standard form;
(d) “Supplier” means the supplier of the Goods and/or Services specified on the PO or the Order; and
(e) “Delivery Address” means the address specified for delivery of the Goods and/ or Services on the PO or the Order.
2.1 Acceptance of a PO or an Order will take place if the Supplier accepts the PO or Order in writing; or if, with Cellar Key Ltd.’s written agreement, all of the Goods are manufactured, shipped or delivered by the Supplier or its duly authorised sub-contractors to Cellar Key Ltd; or if, with Cellar Key Ltd.’s written agreement, all of the Services are performed by the Supplier or its duly authorised sub-contractors.
2.2 If for any reason whatsoever the Supplier intends only to fulfil part of an Order as described in the PO or otherwise intends to supply Goods or Services other than those specified in the PO or Order, then the Supplier shall notify Cellar Key Ltd of its counter-offer prior to issuing any acceptance of the PO or Order. Cellar Key Ltd can thereafter decide whether to accept the counter-offer in whole or in part and shall inform the Supplier in writing whether it accepts the counter-offer.
2.3 Cellar Key Ltd may retract a PO or an order at any time prior to acceptance in accordance with Condition 2.2 or 2.3, and in that event the PO or Order shall have no effect.
3. Quality and Provenance of Goods and Services
3.1 The Supplier warrants that it is either the sole owner of the Goods or is fully authorised by the owner of the Goods to sell them on behalf of the owner.
3.2 The Supplier warrants that all Goods supplied to Cellar Key Ltd for onward sales to customers shall:
3.2.1 meet the highest quality standards in the industry for equivalent Goods (for example Wines shall be of a quality to be expected for that particular vintage and shall neither be oxidised, nor corked nor be tainted by any bacterial fault);
3.2.2 have clean labels and the wine levels shall be at least to the base neck level or higher unless otherwise agreed by the Parties;
3.2.3 if the Goods are wine, be in original wooden cases, not contaminated by wood-worm, unless otherwise agreed by the Parties;
3.2.4 be of the best workmanship and of proper material in terms of packaging;
3.2.5 be free from faulty design in terms of packaging;
3.2.6 not have strip labels;
3.2.7 comply with EU and UK labelling laws and shall specifically mention sulphites and egg/dairy residues, with relevant labelling to be in English and preceded by the word “contains” (regardless of the language that the rest of the label is in);
3.2.8 display a bottling lot number on the bottle in accordance with EU Regulation 89/396;
3.2.9 not be sourced from outside of the European Economic Area without Cellar Key Ltd’s prior written consent;
3.2.10 otherwise comply with and perform in accordance with the PO or Order and conform to Cellar Key Ltd.’s requirements where specified in the PO or in the Order in all respects, including confirming to the case size specified in the PO, and shall be packaged accordingly. Cellar Key Ltd shall be notified of any and all instances of any discrepancies prior to acknowledgement of the PO.
3.3 The Supplier shall provide a condition report on the Goods including a photograph of the specific Goods themselves (not similar Goods) and evidence of provenance upon request.
3.4 Cellar Key Ltd reserves the right to taste a sample of any wine products supplied to ensure quality standards and other warranties are complied with.
3.5 Cellar Key Ltd reserves the right to reject any Goods that do not comply with warranties or that do not match the specifications detailed in the PO and the Supplier shall either replace any Goods not conforming with these warranties or reimburse Cellar Key Ltd for the full cost of the Goods at the sole discretion of Cellar Key Ltd. Furthermore, the Supplier shall be liable for all reasonably foreseeable costs relating to replacing or returning the Goods or any other costs incurred as a result of sourcing equivalent Goods for the customer.
3.6 The Supplier shall provide the Services:
(a) using reasonable skill care and diligence using suitably skilled, experienced and qualified staff and where staff are named in the PO or Order shall not use any other staff to provide the Services unless agreed in writing;
(b) using a high standard of workmanship and materials;
(c) in compliance with the PO or Order and any applicable specifications that the Company provides in relation to the PO or Order; and
(d) to meet Cellar Key Ltd’s requirements in all respects.
The Services shall be deemed to include the services, functions and responsibilities ancillary to and customarily included within services equivalent or similar to the Services.
3.7 The warranties set out herein which are in addition to any statutory or other applicable warranties will apply for the benefit of Cellar Key Ltd, its successors, assignees and customers.
4. Liability and Insurance
4.1 The Supplier will indemnify Cellar Key Ltd in full against all claims, liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by Cellar Key Ltd as a result of or in connection with:
(a) breach of any warranty given by the Supplier;
(b) any claim that the Goods or Services infringe, or their importation, use or resale infringes, the patent, copyright, design right, trade mark or other intellectual property rights of any other person anywhere in the world, except to the extent that the claim arises from: (i) compliance with any specification supplied by Cellar Key Ltd; or (ii) unauthorised modifications made by Cellar Key Ltd;
(c) any liability to consumers in respect of the Goods or Services including a breach of the above warranties; and
(d) any act or omission by the Supplier or its employees, agents or sub-contractors in supplying, delivering or installing the Services.
4.2 The Supplier shall maintain in force a Policy of Insurance satisfactory to Cellar Key Ltd in respect of its liabilities under the Contract and will provide Cellar Key Ltd with evidence of such insurance on request.
5.1 The delivery date specified to the Supplier in the PO or in the Order must be met and time is of the essence. Cellar Key Ltd does not waive its rights with respect to a delay in delivery or completion unless specifically agreed in writing. The Supplier shall comply with all delivery or performance instructions notified to it, failure to do so may result in the delivery of Goods and/or the provision of Services being refused and cancellation of the PO or the Order, and the Supplier will be responsible for any additional costs resulting
5.2 Notwithstanding the foregoing sentence, If the Supplier is unable to meet the delivery/completion/required date specified in the PO, the Supplier must promptly notify Cellar Key Ltd to confirm Cellar Key Ltd.’s instructions and the Supplier shall be responsible for any additional costs and/or loss resulting from the Supplier not meeting the delivery/completion/required date.
5.3 All Goods will be delivered to the Delivery Address in the PO / the Order.
5.4 The Supplier shall ensure that all Goods supplied shall be properly protected against damage and deterioration in transit, and shall bear the description, the quantity of the contents and the PO Number or Order on each package unless otherwise agreed.
5.5 Unless otherwise stated in the PO or Order, the Supplier will make no charge for containers, packaging material, crating, boxing, or storage.
5.6 Unless agreed prior to delivery, Cellar Key Ltd assumes no obligation for Goods shipped in excess of the quantity ordered in the PO or Order. Shipments in excess of the quantity ordered and not accepted by Cellar Key Ltd may be returned to the Supplier, and the Supplier will pay Cellar Key Ltd for all expenses incurred in connection with such shipments.
6.1 The Supplier will also provide Cellar Key Ltd with all certificates of origin, quantity, quality, insurance and compliance with industry requirements or standards and in such form as Cellar Key Ltd may from time to time reasonably request.
6.2 The Supplier will:
(a) send on the day of delivery for each consignment a separate advice note and invoice for each delivery including details of the Goods supplied to the Delivery Address;
(b) send on the day of completion of the Services a separate advice note and invoice for each Service (as itemised in the PO) including details of the Services provided;
(c) mark clearly the PO Number on each package, packing notes, invoices, monthly statements and all other correspondence or documents relating to the PO; and
(d) Send together with the delivery of each Order a packaging list that confirms the product and volume and all accompanying duty documentation from Her Majesty’s Revenue and Customs service including a copy of a copy of EAD (ARC) paperwork and for Duty Paid deliveries a dispatch note with Goods and volume.
6.3 The documents referred to in Conditions 6.1 to 6.3 are herein collectively referred to as “Delivery Documents”.
7. Title and Risk of Loss
7.1 Risk of loss or damage to the Goods will not pass to Cellar Key Ltd until the Goods have been delivered into Cellar Key Ltd.’s possession or collected by our third party representative on our behalf and are confirmed by Cellar Key Ltd to be in accordance with the Contract, a PO and/or these Conditions.
7.2 Title to the Goods will pass to Cellar Key Ltd when the Goods are delivered to the Delivery Address or collected by Cellar Key Ltd or their representatives, unless payment is made prior to delivery in which case title shall pass upon payment being made. Except in the case of En Primeur, upon transfer of title to Cellar Key Ltd the Supplier shall appropriate the Goods to Cellar Key Ltd at an agreed time and shall then keep them separate from all other goods in the possession of the Supplier and shall clearly mark the Goods as the property of Cellar Key Ltd. Passing of title shall not in respect of the Goods prejudice any right of rejection or other right, which Cellar Key Ltd may have.
8. Price and Payment
8.1 The price shall be as stated in the PO or Order and unless otherwise stated shall be exclusive of applicable value added tax. No additional charges, fees or expenses will be payable unless agreed by Cellar Key Ltd in writing in advance. Any variation of the price requires the prior written agreement of Cellar Key Ltd.
8.2 All payments are contingent upon the Goods conforming with the PO or Order and any specifications accompanying the PO or Order, and receipt of the Delivery Documents to the reasonable satisfaction of Cellar Key Ltd.
8.3 Payment will be made in accordance with the PO or Order.
8.4 Payments of all undisputed amounts will be made within 60 days of receipt of a correct and complete invoice (including the valid PO Number and VAT invoice details) or 30 days for broking Suppliers at the Cellar Key Ltd address set out in the PO or in the Order, or at intervals otherwise agreed in writing by Cellar Key Ltd and the Supplier against the Goods and/or Services delivered. Notwithstanding the foregoing, Cellar Key Ltd operates a weekly payment run and payment may therefore be made up to 7 days after this 60-day (or any other agreed) payment period. All payments will be made without prejudice to Cellar Key Ltd rights should the
Goods or performance of the Services prove unsatisfactory or are not in accordance with the Contract, the PO or Order (or any specifications accompanying the PO) or these Conditions.
8.5 Cellar Key Ltd shall have the right to set-off any amounts which may become payable by it to the Supplier against any amounts the Supplier may owe to Cellar Key Ltd.
8.6 Cellar Key Ltd may withhold payment of any invoiced amount which is the subject of a bona fide dispute between the parties. If as part of the resolution of such a dispute Cellar Key Ltd either agrees or is ordered by a court of competent jurisdiction to pay the disputed sum (or any part thereof) to the Supplier, Cellar Key Ltd will make payment of the relevant amount within 60 days of such agreement or order, unless otherwise agreed or ordered.
8.7 Should payment be made after the date referred to in Condition 8.4 above, Cellar Key Ltd shall be liable to pay interest on the amount outstanding, at an annual rate of 2% above the European Central Bank base rate from time to time in force.
8.8 Nothing in these Conditions obligates Cellar Key Ltd to purchase or acquire any minimum level of goods or services from the Supplier.
9. Intellectual Property
9.2 Cellar Key Ltd or its affiliates are the proprietor of all Cellar Key Ltd trademarks and associated goodwill. The Supplier will not gain any right, title or interest in any names, logos or trademarks owned by Cellar Key Ltd or its affiliates and shall not make any use of the same without Cellar Key Ltd.’s prior written approval.
9.3 Any permission to reproduce the Cellar Key Marks on any Goods, Services or Works (as defined in Condition 9.11) is solely for the purpose of fulfilling the Contract and will expire once the Contract is fulfilled or cancelled whichever occurs earlier.
9.4 Any Goods, Services or Works created in connection with the provision of the Goods or Services supplied to Cellar Key Ltd by the Supplier incorporating Cellar Key Marks are supplied on a sole and exclusive basis. The Supplier shall not supply the same or similar goods, services or works to any other party or dispose of them in any way whatsoever other than to Cellar Key Ltd, unless otherwise specified in the PO.
9.5 Any excess Goods produced bearing Cellar Key Marks which are not supplied to Cellar Key Ltd must be promptly notified to Cellar Key Ltd and destroyed, unless otherwise agreed by Cellar Key Ltd in writing.
9.6 The Supplier will not do anything intended or likely to damage the Cellar Key Marks or the name or reputation of Cellar Key Ltd or those of its products. If the Services involve an association with the Supplier as an individual (e.g. as a brand ambassador for a Cellar Key Ltd brand), or association with an individual who is retained by the Supplier, the Supplier shall not engage (and shall procure that any retained person does not engage) in any conduct that is likely to harm or misuse or bring into disrepute the good name, image or reputation of the individual, Cellar Key Ltd, or any affiliates or brands of Cellar Key Ltd.
9.7 The Supplier warrants that the provision of the Goods and/or Services and use of them by Cellar Key Ltd in accordance with the PO and the Contract shall not infringe any third-party intellectual property rights.
9.8 The Supplier will defend, indemnify and hold Cellar Key Ltd harmless against all claims and proceedings arising from alleged infringement of any third party’s intellectual property rights by reason of the Supplier’s provision of the Goods and/or Services. Cellar Key Ltd will notify the Supplier in writing of any allegation of infringement and will allow the Supplier to secure a right of continued use for Cellar Key Ltd or modify or replace the Goods and/or Services, or any item provided as part thereof, so as to avoid the infringement, provided that the modification or replacement does not materially adversely affect the nature and quality of the Goods or the Service.
9.9 The Supplier hereby grants to Cellar Key Ltd and its affiliates a royalty-free, fully paid up, non-exclusive licence to use the Supplier’s name and trade marks (“Supplier Marks”) on Cellar Key Ltd.’s websites, advertising, merchandising and promotional material for the purpose of advertising, marketing and selling the Goods supplied to Cellar Key Ltd by the Supplier.
9.10 The Supplier acknowledges that in connection with the provision of Goods or Services supplied to Cellar Key Ltd, the Supplier may develop for Cellar Key Ltd works and/or materials, including documents, models, prototypes, software, data, formulae, specifications, inventions, concepts, processes, techniques, analyses, compilations, studies, reports, graphic designs, three dimensional designs, moulds, photographs, names or logos (“Works”).
9.11 In connection with all Works:
(a) the Supplier hereby assigns to Cellar Key Ltd, with full title guarantee and without restriction, the legal and beneficial ownership of all intellectual property rights subsisting in or relating to any Works (collectively the “Intellectual Property”);
(b) the Supplier shall procure that its employees and subcontractors shall waive all moral rights arising under the Copyright, Designs & Patents Act 1988, Copyright and Related Rights Act 2000 and, so far as legally possible, any broadly equivalent rights they may have in any territory of the world;
(c) to the extent that any Intellectual Property is not capable of being assigned at the date of any PO, the Supplier hereby agrees to assign to Cellar Key Ltd, with full title guarantee and without restriction, all Intellectual Property at Cellar Key Ltd.’s request; and
(d) the Supplier agrees, at Cellar Key Ltd.’s request and cost, to do all such things as may be necessary or desirable to vest in Cellar Key Ltd the full benefit of all Intellectual Property subsisting in or relating to any Works.
For the avoidance of doubt nothing in condition 9.11 is intended to transfer or assign any right or interest in the supplier marks to Cellar Key Ltd.
10.1 The existence and terms of the Contract, the existence of any relationship or association between Supplier and Cellar Key Ltd, and any other information and materials relating to Cellar Key Ltd or its business disclosed to the Supplier by or on behalf of Cellar Key Ltd (“Confidential Material”) prior to or after the entering into of the Contract shall be confidential information of Cellar Key Ltd. The Supplier shall only use Confidential Material in the performance of its obligations under the Contract and shall not disclose the same to any third party or use the same for any other reason, without Cellar Key Ltd.’s prior written consent.
10.2 This Condition 10 does not apply to information which is:
(a) in the public domain through no breach or fault of the Supplier;
(b) in the possession of the Supplier before disclosure by Cellar Key Ltd;
(c) obtained by the Supplier from a third party who is free to disclose the same; or
(d) legally required to be disclosed.
10.3 The Supplier’s obligations set out in this Condition 10 shall continue in force after the date of the performance of the Contract and thereafter in perpetuity.
10.4 The Supplier shall take all necessary precautions to ensure the security of all Confidential Material and shall comply with Cellar Key Ltd.’s directions in relation to all Confidential Material.
10.5 The Supplier shall ensure that Confidential Material is disclosed only to those of its employees who need to know it for the purpose of performing the obligations of the Supplier under the Contract and who are bound by appropriate and legally binding confidentiality and non-use obligations. The Supplier shall be fully responsible for all disclosure and use of the Confidential Material including any unauthorised disclosure or use of the Confidential Material by its employees.
10.6 All documents, files and other items (in whatever format or medium) which contain or record Confidential Material shall remain or become the property of Cellar Key Ltd, and the Supplier shall cease to use them and deliver them to Cellar Key Ltd upon request, together with all copies thereof.
10.7 The Supplier shall not, and shall ensure that its employees shall not, in any way publicise its relationship with Cellar Key Ltd and its associated companies without the express written agreement of Cellar Key Ltd.
10.8 It is acknowledged by the Parties that a violation of this Condition 10 would cause irreparable harm to Cellar Key Ltd, for which monetary damages would be inadequate and injunctive relief may be available for a breach of this Condition.
11. Breach, Termination, Etc.
11.1 If the Goods or Services are not supplied or performed in accordance with the Contract Cellar Key Ltd may, without prejudice to any other remedy, require the Supplier to supply replacement Goods or re-perform Services within 7 days; alternatively or if the Supplier fails to do so Cellar Key Ltd may cancel the Contract, require refund of any part of the Contract price already paid and claim damages and any losses and costs incurred by Cellar Key Ltd.
11.2 Cellar Key Ltd may terminate the Contract immediately, by written notice without any liability to the Supplier, if:
(a) the Supplier makes any arrangement with its creditors, becomes subject to an administration order or goes into bankruptcy, liquidation, or receivership;
(b) a receiver, trustee or liquidator is appointed over any of the Supplier’s property or assets;
(c) anything or any step equivalent to the matters referred to in Conditions 11.2(b) or 11.2(c) above occurs in any other jurisdiction;
(d) the Supplier becomes unable to pay its debts generally as they become due, or ceases or threatens to cease to carry on business; or
(e) Cellar Key Ltd reasonably considers that any of the events set out in Condition 13.2(a) to (c) is about to occur to the Supplier.
11.3 On cancellation/termination of the Contract by Cellar Key Ltd, the Supplier will immediately return to Cellar Key Ltd, any of Cellar Key Ltd.’s property held by the Supplier at no further cost to Cellar Key Ltd. Cellar Key Ltd may enter the Supplier’s premises to recover such property.
11.4 The rights set out in this Condition 11 are in addition and without prejudice to Cellar Key Ltd.’s other legal rights and remedies.
12. Cancellation & Termination
12.1 Cellar Key Ltd may at its option cancel the Contract in whole or in part with respect to any undelivered Goods or Services not performed to completion. Cellar Key Ltd.’s only obligation for cancelling the Contract covering standard stock Goods will be to pay for Goods shipped prior to cancellation. If Cellar Key Ltd cancels the Contract covering Goods made to its specification or for Services part-performed and initiated at its request, and the Supplier is not in breach of the Contract, the PO or these Conditions subject to delivery and/or performance of the same, Cellar Key Ltd will pay the Supplier the agreed unit price for Goods completed and/or Services part-performed calculated as a reasonable percentage of the agreed completed Services price, and also the direct and proven costs arising from the manufacture of the Goods incurred by the Supplier before the Supplier received notice of cancellation. Under no circumstances will the total payment upon cancellation exceed the total Contract price. Cellar Key Ltd will not be liable for prospective or anticipated profits by reason of such cancellation or other economic or consequential loss.
13. Assignment and Subcontracting
13.1 Cellar Key Ltd may assign the Contract and its rights and obligations to any other company directly or indirectly owned and/or controlled by Cellar Key Ltd.
13.2 The Contract is personal to the Supplier and the Supplier may not without Cellar Key Ltd.’s prior written consent assign, mortgage, charge or dispose of any of its rights or obligations, or sub-contract or otherwise delegate performance of its obligations. Without prejudice to the foregoing, If the Suppler engages any subcontractor in the performance of its obligations under the Contract, then the Supplier shall be responsible for any acts or omissions of such subcontractor in connection with the Contract as if those acts or omissions were its own.
13.3 The Supplier will on request provide Cellar Key Ltd with full details of any suppliers to the Supplier of goods or services which are or are intended to be incorporated in the Goods and/or Services supplied to Cellar Key Ltd.
14. Bribery & Corruption
14.1 The Supplier agrees that, at any time after the effective date of the Contract, it shall not and it shall procure that its directors, employees, agents, representatives, contractors or subcontractors shall not commit any offence under any legislation or common law anywhere in the world creating offences in respect of bribery or fraudulent or corrupt acts, including but not limited to the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act 1977.
15. Data Protection
15.1 The Supplier warrants and undertakes to comply with its obligations under applicable laws relating to data protection and privacy, and, without prejudice to the foregoing, the Supplier shall not act or omit to act in a manner that will or is likely to result in Cellar Key Ltd or any of its affiliates breaching its obligations under such applicable laws.
15.2 To the extent the Supplier processes any personal data on behalf of Cellar Key Ltd or any of its affiliates, the Supplier shall: (I) process such personal data only in accordance with Cellar Key Ltd.’s instructions; (ii) implement appropriate technical and organisational measures to protect such personal data against unauthorised or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure; (iii) ensure the reliability of any its personnel with access to such personal data and that such personnel have a binding obligation to protect the confidentiality of such personal data; (iv) notify Cellar Key Ltd promptly in writing (but in any event within 24 hours of becoming aware of it), of any suspected, potential or actual data incident, including any suspected, potential or actual accidental, unlawful or unauthorised destruction, disclosure, loss, alteration or access in relation to personal data processed on behalf of Cellar Key Ltd or any of its affiliates; (v) allow Cellar Key Ltd to conduct physical inspections of the Supplier’s premises to ensure compliance with this clause; (vi) not subcontract any processing of such personal data without the prior written consent of Cellar Key Ltd; and (vii) upon termination or expiry of this agreement, at Cellar Key Ltd.’s
request, promptly delete or return all personal data; and (viii) not process and/or transfer any such personal data to any country outside the European Economic Area without the prior written consent of Cellar Key Ltd.
16.1 Nothing in this Agreement will create, or be deemed to create, a partnership or the relationship of principal and agent or employer and employee between Cellar Key Ltd and the Supplier.
16.2 The Contract contains the entire agreement between the parties with respect to its subject matter and may only be modified by a written document signed by duly authorised representatives of both parties.
16.3 Cellar Key Ltd may from time to time alter these Conditions in such manner as it determines. Such alteration will, however, not affect any Contract that Cellar Key Ltd may have entered into with the Supplier prior to the alteration.
16.4 The Supplier acknowledges that, in entering into the Contract, the Supplier does not do so on the basis of, nor rely on, any representation, warranty or other provision except as expressly set out in the PO.
16.5 If any provision of the Contract is held by any court or other competent authority to be void or unenforceable in whole or part, the Contract will continue to be valid as to its other provisions.
16.6 A reference to a “Condition” in these Conditions is a reference to a clause of these Conditions.
16.7 Unless otherwise provided this Contract is not intended to be enforceable by any third party who is not expressly a party to it.
17.1 Any notice required or authorised under these Conditions to be given by a party to the other will be given by delivering it by hand or sending it by pre-paid recorded delivery post to the other party at its registered office and marked for the attention of the Company Director or to such other address as may be agreed from time to time.
18. Governing Law
These Conditions and any Contract of which these Conditions form part will be governed by English law, and subject to the exclusive jurisdiction of the English Courts.