TERMS & CONDITIONS

DOUBLE DUTCH – STANDARD TERMS OF SUPPLY OF GOODS

These terms of supply (“Terms”) apply to the sale of Goods by Double Dutch Ltd or any of its subsidiaries or holding companies (“Double Dutch”) to the person, firm or company purchasing the Goods as set out in any purchase order or sales order (“Customer”).

1. Interpretation
   
   1. Definitions:

      Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
      Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.
      Goods: goods manufactured by or on behalf of Double Dutch (or any part of them) set out in the Order in accordance with any specification provided by Double Dutch from time to time.
      Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form or in any other format, and accepted by Double Dutch. An Order shall also include the Customer’s acceptance of a Double Dutch sales order or quotation.

2. Orders for Goods
   
   1. The Customer will be required to open an account with Double Dutch, providing all information reasonably requested by Double Dutch in order to open the account.
   2. Each order placed by a Customer or acceptance of a quotation by a Customer shall be deemed to be an offer by the Customer to purchase Goods subject to these Terms.
   3. All orders for Goods (and any services incidental thereto) are offered for sale subject to availability and in accordance with these Terms.
   4. These Terms apply to any Order to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
   5. Any Order constitutes an offer by the Customer to purchase the Goods in accordance with these Terms. The Customer is responsible for ensuring that the contents and quantities set out in any Order are complete and accurate.
   6. The Order shall only be deemed to be accepted when Double Dutch issues a written acceptance of the Order, at which point the Order shall come into existence. Double Dutch has the right to reject any Order for any reason.
   7. These Terms apply in addition to any other specific written distribution or supply agreement between Double Dutch and the Customer that has been duly executed by an authorised representative of each party (“Framework Agreement”) and where they are inconsistent, the terms of that agreement shall prevail.
   8. Any representations, warranties, samples, descriptive matter, prior statements or advertising, whether written or oral in connection with the Goods, outside of these Terms, and any descriptions or illustrations that may be contained in any of Double Dutch’s catalogues or brochures or in any social media are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Order nor have any contractual force.
   9. By submitting an Order, the Customer represents and Warrants:
      1. that it has obtained and will maintain in force all licences, permissions, authorisations, consents and permits needed to store, handle, deliver and sell to its customers the Goods;
      2. it has sound financial standing and is able to pay its debts when due; and
      3. it has all power and authority to place the Order and accept these terms and conditions.
3. Delivery and inspection of the Goods
   
   1. Double Dutch shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the type and quantity of the Goods (including the SKU number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
   2. Double Dutch shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Double Dutch notifies the Customer that the Goods are ready. The Customer shall be responsible for providing Double Dutch with any delivery instructions or any other instructions that are relevant to the supply of the Goods.
   3. Delivery is completed on the arrival of the Goods at the Delivery Location. The Customer shall be responsible for offloading Goods at the Delivery Location.
   4. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Double Dutch shall not be liable for any delay in delivery of the Goods for any reason whatsoever.
   5. If the Customer fails to accept delivery of the Goods within three Business Days of Double Dutch notifying the Customer that the Goods are ready then, without prejudice to any other remedies available to Double Dutch:
      1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Double Dutch notified the Customer that the Goods were ready; and
      2. Double Dutch shall store the Goods until delivery takes place, the Customer shall be liable to Double Dutch for all related costs and expenses (including redelivery, storage and insurance).
   6. The Customer shall not be entitled to reject the Goods if Double Dutch delivers up to and including 5 per cent. more or less than the quantity specified in the Order, but a pro-rata adjustment shall be made to the invoice in respect of the Order on receipt of notice from the Customer that a such variation in quantity of Goods was delivered.
   7. Double Dutch may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
   8. Double Dutch shall not be liable for any non-delivery in whole or in part of any Order, incorrect delivery or damage or breakages in transit unless notified to Double Dutch in accordance with clause 3.9 of these Terms.
   9. The Customer shall inspect the Goods immediately upon receipt and shall (a) within three Business Days give written notice to Double Dutch of any immediately apparent damage to, or shortage of the Goods and (b) within five Business Days give written notice to Double Dutch of anything which is or would have been apparent upon a reasonable inspection, of any ground on which the Customer alleges that the Goods are not otherwise in accordance with the Order or are defective. In the event of an alleged damage in transit, the original packaging must be retained by the Customer for inspection (if required) by Double Dutch’s carriers and/or insurers.
   10. If the Customer fails to give notice in accordance with clause 3.9:
       1. the Customer will be deemed to have accepted the Goods and to have waived any right to claim damages for short delivery or otherwise, howsoever caused; and
       2. the Goods shall be presumed to be in all respects in accordance with the Order and free from any defect which would be apparent on a reasonably thorough examination of the Goods.
   11. Following any notice given by the Customer in accordance with clause 3.9,
       1. any Goods that are affected shall be held by the Customer at no cost to Double Dutch, whilst awaiting Double Dutch’s instructions;
       2. the Customer shall comply with all reasonable instructions in connection with such affected Goods given by Double Dutch; and
       3. provided that Double Dutch complies with all reasonable health and safety requirements in connection with the premises, provide Double Dutch with access to the Customer’s premises during working hours to enable Double Dutch to inspect the affected Goods.
   12. If defect in the Goods or their being not in accordance with the Order is established by the Customer to Double Dutch’s reasonable satisfaction, the Customer’s sole remedy shall be the return of the Goods, and a replacement or credit of the price paid for the Goods.
4. Title and risk
   
   1. The risk of loss or damage to the Goods shall pass to the Customer on arrival at the Delivery Location.
   2. Title to the Goods shall not pass to the Customer until the earlier of the time that:
      1. Double Dutch receives payment in full (in cash or cleared funds) for the Goods and any other goods that Double Dutch has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
      2. the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 4.4.
   3. Until title to the Goods has passed to the Customer, the Customer shall:
      1. store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Double Dutch’s property;
      2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
      3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
      4. notify Double Dutch immediately if it becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(e); and
      5. give Double Dutch such information as Double Dutch may reasonably require from time to time relating to:
         1. the Goods; and
         2. the ongoing financial position of the Customer.
   4. Subject to clause 4.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Double Dutch receives payment for the Goods. However, if the Customer resells the Goods before that time:
      1. it does so as principal and not as Double Dutch’s agent; and
      2. title to the Goods shall pass from Double Dutch to the Customer immediately before the time at which resale by the Customer occurs.
   5. At any time before title to the Goods passes to the Customer, Double Dutch:
      1. may by notice in writing, terminate the Customer’s right under clause 4.4 to resell the Goods or use them in the ordinary course of its business; and
      2. require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
5. Storage and handling of the Goods
   
   1. Double Dutch will properly pack and secure the Goods in such manner as to enable them to reach the Delivery Location in good condition.
   2. Double Dutch warrants that the Goods:
      1. are of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and be fit for human consumption; and
      2. comply in all material respects with any written specifications provided to the Customer;
      3. comply with all applicable statutory and regulatory requirements.
   3. Double Dutch shall not be liable for any failure of the Goods to comply with the warranties set out in clause 5.2 if any such failure arises out of any action or inaction of the Customer, in particular by any transportation and storage arrangements of the Customer.
   4. The Customer shall handle, store and onward sell the Goods supplied to it under these Terms and any Order in accordance with all applicable generally accepted industry standards and practices, statutory and regulatory requirements, and any requirements reasonably specified in writing by Double Dutch relating to the quality, storage, refrigeration, handling, delivery, and sale of the Goods, including but not limited to: (a) only permitting the use of safety knives (no open blades or open sharp implements) for the de-shrouding of pallets and Goods supplied in film wrap with Goods supplied in boxes being opened by hand; (b) storing the Goods upright and in cool and dry conditions away from direct sunlight, with adequate ventilation, and ensuring that the Goods do not freeze at any time; (c) handling Goods with care acknowledging their pressurised nature; (d) racking pallets of finished Goods where possible and in the absence of racked storage, pallets of 500ml/275ml Goods should only be single stacked (i.e. no more than 1 pallet high), and pallets of 200ml Goods or 150ml canned Goods should only be stacked a maximum of 2 pallets high; (e) ensuring traceability of the Goods and rotating the Goods so that the oldest are sold first; (f) immediately removing any defective (or allegedly defective) Goods from sale; (g) ensuring adequate security to prevent theft and/or product tampering; (g) ensuring that a pest control system adequate for the location is in place; and (h) complying with best practice hygiene standards.
6. Product recall
   
   1. In the unlikely event of a Product Recall (as defined in clause [XX} of these Terms), and if required by Double Dutch, Customer will enforce Double Dutch’s procedures (as notified to Customer in writing) covering Product Recall and will cooperate with Double Dutch to ensure that the Product Recall is dealt with promptly and effectively.
   2. The Customer will immediately notify Double Dutch if it becomes aware that any Goods are unsafe, defective, unfit for purpose or otherwise noncompliant with any applicable law.
   3. Where Double Dutch notifies the Customer of a Product Recall:
      1. the Customer shall immediately cease all further sale or supply of the Goods that are subject to the Product Recall;
      2. the Customer shall, at Double Dutch’s cost and request, return all Goods that are subject to the Product Recall and which remain in Customer’s direct possession to Double Dutch within five (5) working days, or at Double Dutch’s option, destroy those Goods;
      3. the Customer shall take such other steps as Double Dutch may reasonably request at Double Dutch’s cost in order to protect consumers or otherwise to facilitate the carrying out of the Product Recall; and
      4. Double Dutch’s liability shall be limited to:
         1. the provision of replacement Goods or, where they are not available, credit, on receipt of the recalled Goods or proof of the Product Recall; and
         2. delivery and transportation charges which are reasonable in the opinion of Double Dutch.
   4. Except to the extent required by law or as set out in these Terms, Double Dutch shall not be liable for any further costs or charges as a consequence of the Product Recall.
   5. Except to the extent required by law, the Customer shall not publish any notices or press releases in connection with a Product Recall without receiving Double Dutch’s prior written consent.
   6. In these Terms Product Recall means any corrective action in relation to Goods that are no longer within Double Dutch’s control and which Double Dutch knows or has reason to believe may be un-safe, unfit for purpose or otherwise non-compliance with any applicable law or its own product quality standards.
7. Exports
   
   1. The Customer shall not export the Goods outside the agreed jurisdiction or sell them online without Double Dutch’s prior written consent. If this condition is breached, Double Dutch reserves the right to suspect deliveries and to obtain an injunction and/or sue for damages.
   2. If Double Dutch provides its written consent in accordance with clause 7.1, the Customer must specify the quantities, the country of destination and the consignees name in any Order.
8. Price and payment
   
   1. The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Double Dutch’s published price list in force as at the date of delivery.
   2. Double Dutch may, by giving notice to the Customer at any time up to five Business Days before delivery, change the price of the Goods.
   3. The price of the Goods:
      
      1. excludes amounts in respect of value added tax or other applicable sales tax (VAT), which the Customer shall additionally be liable to pay to Double Dutch at the prevailing rate, subject to the receipt of a valid VAT invoice; and
      2. excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
   4. Double Dutch may invoice the Customer for the Goods on or at any time after the completion of delivery.
   5. The Customer shall pay each valid invoice submitted by Double Dutch:
      1. in respect of the first three orders made, prior to delivery;
      2. in respect of subsequent Orders and provided that the Customer’s credit rating to Double Dutch’s satisfaction, within 30 days of the date of the invoice; or
      3. otherwise in accordance with any credit terms agreed by Double Dutch and confirmed in writing to the Customer, note that for exports outside the United Kingdom, Double Dutch usually requires 50% payment on placing any order; and
      4. in full and in cleared funds to a bank account nominated in writing by Double Dutch, and time for payment shall be of the essence of this agreement.
      5. If the Customer fails to make a payment due to Double Dutch by the due date, then, without limiting Double Dutch’s remedies under clause 10 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
      6. All amounts due to Double Dutch shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9. Limitation of liability
   
   1. The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the agreement between the parties including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
   2. Nothing in this agreement limits any liability which cannot legally be limited, including liability for:
      1. death or personal injury caused by negligence;
      2. fraud or fraudulent misrepresentation;
      3. breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
      4. defective products under the Consumer Protection Act 1987.
   3. Subject to clause 9.2, Double Dutch’s total liability in respect of any Order to the Customer shall not exceed the cost of the Order.
   4. Subject to clause 9.2, the following types of loss are wholly excluded:
      1. loss of profits;
      2. loss of sales or business;
      3. loss of agreements or contracts;
      4. loss of anticipated savings;
      5. loss of use or corruption of software, data or information;
      6. loss of or damage to goodwill; and
      7. indirect or consequential loss.
   5. This clause 9 shall survive termination of any agreement between the parties.
   6. Subject to clause 9.2, Double Dutch shall not be liable whether in contract, tort (including negligence), breach of statutory duty, under any indemnity or otherwise, for any loss, damage, expense or liability incurred or sustained as a result of:
      1. the use of any Goods except for their normal intended purpose;
      2. any adaptation, modification or repair of any Goods, or integration or combination with any other product or material not supplied by Double Dutch, in each case carried out by anyone other than Double Dutch or without Double Dutch’s express written consent
      3. any defect arising in any Goods as a result of fair wear and tear, or misuse, wilful damage, negligence on the part of anyone other than Double Dutch, or abnormal storage or working conditions;
      4. the compliance by Double Dutch with any design, specification or instructions provided by or on behalf of Customer; and/or
      5. any materials provided by on behalf of the Customer.
   7. Subject to clause 9.2, Double Dutch shall have no liability to any purchaser of Goods from the Customer in any way whatsoever.
10. Termination
    
    1. Without limiting its other rights or remedies, Double Dutch may terminate this agreement with immediate effect by giving written notice to the Customer if:
       1. the Customer commits a material breach of any term of this agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
       2. to continue with the terms of this agreement or to fulfil any order would, in the absolute discretion of Double Dutch, cause damage to the brand or reputation of Double Dutch or its shareholders;
       3. the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
       4. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
       5. the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
    2. Without limiting its other rights or remedies, Double Dutch may suspend provision of the Goods under the Order or any other contract between the Customer and Double Dutch if the Customer becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(e), or Double Dutch reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due to Double Dutch on the due date for payment.
    3. Without limiting its other rights or remedies, Double Dutch may terminate this agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this agreement or for any Orders whatsoever on the due date for payment.
    4. On termination of this agreement for any reason the Customer shall immediately pay to Double Dutch all of Double Dutch’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Double Dutch shall submit an invoice, which shall be payable by the Customer immediately on receipt. All other agreements between Double Dutch and the Customer shall also terminate automatically.
    5. Termination or expiry of this agreement, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of any agreement between the parties which existed at or before the date of termination or expiry.
    6. Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.
11. Force majeure
    Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for four weeks, the party not affected may terminate this agreement by giving 14 days’ written notice to the affected party.
12. General
    
    1. Assignment and other dealings.
       1. Double Dutch may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under this agreement.
       2. The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under this agreement without the prior written consent of the Double Dutch.
    2. Confidentiality.
       
       1. Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2(b).
       2. Each party may disclose the other party’s confidential information:
          1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12.2; and
          2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
       3. Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
    3. Entire agreement.
       
       1. This agreement, together with any Framework Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
       2. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement or elsewhere.
    4. Waiver. No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
    5. Severance. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision of this agreement is deemed deleted under this clause 12.5 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
    6. Notices.
       1. Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
          1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
          2. sent by email to the address specified by the parties in writing, or if no address for notices has been specified, the usual email address used for communication with that party.
       2. Any notice or communication shall be deemed to have been received:
          1. if delivered by hand, on signature of a delivery receipt; and
          2. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the third Business Day after posting or at the time recorded by the delivery service; and
          3. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume provided that no delivery failure has been received by the sending party. In this clause 12.6(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
       3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
    7. Third party rights.
       1. Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
    8. Governing law. This agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
    9. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.