Manufacturer Services Terms & Conditions

Last updated: 22 July 2020

Introduction:

These terms and conditions constitute a legally binding agreement (Agreement) between SupplyCompass Ltd, a company incorporated in England and Wales with company number 09887681 whose registered office is at 31-35 Kirby Street, London, England, EC1N 8TE (SupplyCompass), the Manufacturer (as defined below) and the Brand (as defined below) (together, the parties and each a party (excluding SupplyCompass) or you) and govern the provision of the Services (as defined below) provided by or through SupplyCompass (including for the avoidance of doubt, any Service provided by the Manufacturer to the Brand through the Platform).

SupplyCompass provides design development and supply chain management software for brands and manufacturers. The Brand and the Manufacturer are carefully matched together and work together via the platform to produce goods. By registering to receive the Services, or otherwise use the Platform, you agree to be bound by this Agreement. Please read these terms and conditions carefully.

The Agreement applies in addition to any other terms of use or other terms and conditions, policies or guidelines agreed between you and SupplyCompass from time to time, including the SaaS Terms and Conditions, the Privacy and Cookie Policy, Manufacturer Terms and Conditions and the Code of Conduct (together the Other Terms).

If, when interpreting the rights or obligations of SupplyCompass, the Brand or the Manufacturer, there is any conflict or inconsistency between the provisions of this Agreement and those set out in the Purchase Order, the terms and conditions of this Agreement shall take priority as between them to the extent that is necessary to resolve the conflict or inconsistency.

 

DEFINITIONS

Brand(s) – the company or individual who has submitted their details to SupplyCompass and who uses the Platform in their capacity as a brand to seek introducing to, and hearing from, Manufacturer(s);

Confidential Information – any information of a confidential nature concerning the business, affairs, customers, clients or suppliers of SupplyCompass, the Manufacturer or the Brand, including but not limited to information concerning the Platform or found in the Product Specification or relating to operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers;

Delivery Location – the delivery location for the Products once they have been manufactured, as set out in the Purchase Order;

Fee – means the fee owed by the Brand to the Manufacturer as set out in the Purchase Order and paid in accordance with clause 5;

Improvement – any improvement, development, enhancement, modification or derivative of the Product, or its design or manufacturing process, which would make the Product cheaper, more effective, more useful or more valuable, or would in any other way render the Product more commercially viable or competitive;

Intellectual Property Rights or IPRs – patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world;

Interest Rate – 8.0% per annum above the Bank of England base rate from time to time, which interest shall accrue on a daily basis;

Mandatory Policies

a) the SupplyCompass Production Guidelines; and

b) the Privacy and Cookie Policy,

each as amended from time to time.

Manufacturer – means a company in the business of manufacturing [and selling] and has the facilities and resources to manufacture the Products;
Online Profile the webpage or webpages created on the Platform, containing information on you, your products, services or brand;

Platform – the online platform provided by SupplyCompass;

Purchase Order – any purchase order agreed between the Manufacturer and the Brand from time to time through the Platform;

Products – the products manufactured in accordance with the Product Specification pursuant to or in connection with a Purchase Order;

Product Specification – means the description of the Products included in the Purchase Order containing the following information:

a) latest finalised version of Product Specification;

b) agreed pre-production samples; and

c) agreed materials booklet,

and any other items which define the Product, in each case, as designed and provided by the Brand; and

Services – means the services provided by SupplyCompass to you from time to time.

 

1 Services

1.1 SupplyCompass shall provide the Services to you in accordance with the terms and conditions of this Agreement and, as applicable, the Other Terms. If a Manufacturer enters into a Purchase Order with a Brand in relation to the manufacturing and/or supply of Products in connection with this Agreement, the Purchase Order shall constitute a separate and direct contractual arrangement between them, with SupplyCompass being the introducer of the relationship, provided that SupplyCompass shall have certain intervening rights as set out in this Agreement.

1.2 SupplyCompass shall provide the Services with reasonable care, skill and diligence.

 

2 Project management

2.1 The Manufacturer shall supply and the Brand shall purchase such quantities of the Products as may be agreed between them in each Purchase Order and in accordance with the terms and conditions of this Agreement.

2.2 The Manufacturer, the Brand and SupplyCompass each undertake to co-operate with each other, and to provide on reasonable notice such information as any party may reasonably request for the proper performance of its obligations under this Agreement or a Purchase Order.

2.3 For the avoidance of doubt, should a conflict relating to this Agreement, the Services, the use of the Platform or the provision of manufacturing services by the Manufacturer to the Brand, SupplyCompass shall have the ability to intervene and assist with resolving any such conflict.

2.4 SupplyCompass shall nominate one or more senior managers who shall be responsible for liaising in connection with the manufacture and development of the Products, and who shall be responsible for the co-ordination of all matters relating to this Agreement (Project Manager).

2.5 All communications, documentation and materials relating to the Agreement and sent to the parties shall be sent to the Project Managers.

2.6 No variation of any Purchase Order (including any alteration to the fees, delivery date or Product Specification) shall be effective unless it is agreed by both the relevant Brand and Manufacturer through the Platform.

2.7 The Brand and the Manufacturer must respond to all SupplyCompass requests within 24 hours from receiving such a request from SupplyCompass. Any delays in responding to a SupplyCompass request may impact the project schedule and remove your ability to claim for late delivery.

 

3 Manufacturer and Brand Obligations

3.1 You shall:

3.1.1 co-operate with SupplyCompass following any reasonable requests from SupplyCompass in order that SupplyCompass is able to carry out and effectively provide the Services;

3.1.2 provide to SupplyCompass all documents, information, items and materials required in order for SupplyCompass to provide the Services (including any information required for SupplyCompass to verify your identity and carry out any checks required to provide the Services);

3.1.3 be responsible for your obligations with regards to import licenses, product import codes, import duty, customs declarations, VAT (these may vary depending on the Product);

3.1.4 be responsible for reviewing the information in your Online Profile and give prompt notice to SupplyCompass if any information contained in the Online Profile is not an accurate representation of your current capabilities and standards;

3.1.5 respond to SupplyCompass requests in a timely manner and give prompt notice to SupplyCompass of any problems arising with any order; and

3.1.6 pay all fees promptly as they fall due.

 

4 Products

4.1 The Manufacturer warrants to the Brand and SupplyCompass that the Products shall:

4.1.1 conform in all respects with any particulars or Product Specification specified in the Purchase Order (including any agreed variations);

4.1.2 be in accordance with the requirements of any other terms and conditions, policies or guidelines agreed with you from time to time and any specification, guidance, notes and comments and/or patterns supplied by the Brand to the Manufacturer; and formally agreed.

4.1.3 to the extent specified in the Purchase Order conform in all respects with the requirements of any applicable statutes, orders, regulations or bye-laws from time to time in force;]

4.1.4 be appropriately and securely packaged, marked, labelled and sorted in accordance with this Agreement, the Purchase Order, the provisions of the [The Supplier Manual] and any applicable laws;

4.1.5 be of agreed quality and free from material defects in materials and workmanship; and

4.1.6 be fit and sufficient for the purpose for which such Products are ordinarily used and for any other purpose made expressly known in the Purchase Order.

 

5 Price and Payment

5.1 All costs are estimates and subject to change until the Purchase Order is raised.

5.2 Quoted FOB production prices include standard packaging and labels. The Project Manager shall confirm further details in relation to ‘standard labels and packaging’.

5.3 Initial development of standard labels and packaging is included in the unit price, unless otherwise agreed in the Purchase Order. Any subsequent changes or additional developments may be charged at actual price.

5.4 For the avoidance of doubt, the Brand will be responsible for ensuring the design of the care labels comply with all applicable laws.

5.5 Any changes to the order (such as quantities, materials, size split, dimensions or components) may impact costs and critical path. Unit costs may be affected by fluctuation in currency exchange rates and cost of raw materials.

5.6 The Brand is responsible and liable for the creation of Purchase Orders via the Platform. Once the Purchase Order has been raised, no changes to quantities can be made. Any major changes to the order after receiving initial quotes will impact unit costs and timelines.

5.7 No variation in the price and no extra charges will be accepted by the Brand unless previously agreed in writing and signed off by a director of the Brand.

5.8 The price of the Products shall be stated in the Purchase Order and unless otherwise agreed in writing by the Brand, shall be exclusive of VAT but inclusive of all other charges incurred by the Manufacturer, including without limitation any Manufacturer’s local tax or levies of any kind.

5.9 Unless otherwise agreed by the parties in writing, payment terms are 100% ex-factory and submission of invoice.

5.10 If a valid invoice is not also submitted to SupplyCompass at the same time, payment may be delayed.

5.11 The Brand is liable for the payment of the relevant invoice once a new Purchase Order is issued.

5.12 The currency for payment shall be stated in the Purchase Order unless otherwise agreed in writing by a director of the Brand.

5.13 Payment will only be made on valid invoices that are sent to the Brand.

5.14 For the purposes of this Agreement, a valid invoice is one that:

5.14.1 is delivered in accordance with this Agreement and/or the Purchase  Order;

5.14.2 is for the correct sum;

5.14.3 is in respect of the Products supplied or delivered to the required   quality (or are expected to be at the required quality);

5.14.4 contains the relevant Purchase Order / Contract reference; and

5.14.5 has been delivered to the nominated address.

5.15 The Brand specifically reserves the right to withhold or deduct by way of set-off or otherwise, from any monies due or to become due to the Manufacturer any monies due to the Brand from the Manufacturer.

5.16 No payment of or on account of any quoted fee shall constitute any admission by the Brand as to proper performance by the Manufacturer of its obligations under this Agreement.

5.17 All orders placed with a Manufacturer must be made through SupplyCompass until otherwise agreed. All payments between the Brand and the Manufacturer must be made through SupplyCompass.

5.18 Manufacturer payment terms are fixed at the start of each order.

5.19 Please make payments according to the due date on the invoice, late payment of invoices will impact our ability to negotiate more favourable payments terms in the future.

5.20 SupplyCompass strive to give as accurate costs as early as possible, however all prices given are estimates until Purchase Order is raised and order is placed.

 

6 Samples and Courier Charge

6.1 All samples will be charged at 3 x FOB unless otherwise agreed. Payment for samples is due 5days after receipt. All obligations in relation to the provision of samples and details of the courier charges are set out in the relevant terms and conditions.

 

7 Delivery

7.1 Delivery, insurance of the products and the passing of title and risk of the Products should be addressed in the relevant Purchase Order.

7.2 The Products shall be delivered to the time, date and place named on, and in accordance with the Purchase Order.

7.3 Delivery shall be completed when the Products have been unloaded (including off-loading and stacking) at the point of delivery specified in the Purchase Order and delivery has been accepted by the Brand or its authorised representative.

7.4 The time of delivery shall be of the essence for the purposes of this Agreement and failure to deliver by the Delivery Date (as agreed in the Purchase Order) shall enable the Brand (at its option) to release itself from any obligation to accept and pay for the Products and/or to cancel all or part of the Products under the Purchase Order, in either case without prejudice to its other rights and remedies.

7.5 As an additional service, SupplyCompass can (subject to agreement) manage freight forwarding on behalf of the Brand with their trusted network of logistics partners.

7.6 Products that are the subject of a Purchase Order shall be delivered together as a whole and as an entire order unless otherwise specified in the Purchase Order.

7.7 The Manufacturer’s failure to effect delivery on the Delivery Date specified shall entitle the Brand to purchase substitute Products and to hold the Manufacturer accountable for any and all loss and/or additional costs incurred as a result of such failure subject to SupplyCompass’ prior written consent. It will also allow (but not oblige) SupplyCompass to arrange for the Products to be supplied by alternative manufacturers at the Manufacturer’s cost

7.8 Failure by the Brand to exercise its options under this clause 7 in respect of any part of a Purchase Order shall not be deemed to constitute a waiver with respect to any subsequent part of that Purchase Order.

7.9 If the Products are delivered before the Delivery Date (as defined in the Purchase Order), the Brand shall be entitled to its sole discretion to refuse to take delivery or to charge for insurance and storage of the Products until the Delivery Date.

7.10 The Manufacturer shall ensure that each delivery is labelled and packaged in accordance with the packaging specifications and requirements in The Supplier Manual.

7.11 The Manufacturer shall invoice the Brand upon, but separately from, dispatch of the Products to the Brand.

7.12 The Manufacturer shall ensure that each delivery is labelled and packaged in accordance with the packaging specifications and requirements in [The Supplier Manual] or Purchase Order.

7.13 If the Products are delivered to the Brand in excess of the agreed tolerance of the quantities ordered, the Brand shall not be bound to pay for the excess and any excess will be and will remain at the Manufacturer’s risk and will be returnable at the Manufacturer’s expense.

7.14 If the Brand has opted to receive logistics services from (or arranged by) SupplyCompass, such logistics services shall be subject to any additional terms and conditions of the relevant freight carrier.

7.15 SupplyCompass shall only be responsible to the Brand for any loss or damage to the Products which have allegedly been caused by the relevant freight carrier to the extent such losses have been recovered in full from the relevant freight carrier and the Brand waive any and all claims or right to claim against SupplyCompass in respect of any losses which are not recovered from the freight carrier.

7.16 If any conflicts arise in relations to this clause 7, SupplyCompass shall have the ability to intervene and assist in resolving any such conflict.

 

8 Late Deliveries

8.1 In the event of late delivery, without prior notice and written consent from SupplyCompass, SupplyCompass reserves the right to cancel the order at no liability cost.

8.2 If notice is given, SupplyCompass may, at its sole discretion, apply the following late delivery charges:

8.2.1 Delayed shipments are subject to charges of:

8.2.1.1 Week 1: 2% of FOB value;

8.2.1.2 Week 2: 3% of FOB value;

8.2.1.3 Week 3: 4% of FOB value;

8.2.1.4 Week 4: 5% of FOB value; and

8.2.1.5 If air freight due to production delays, the Manufacturer has to contribute to the planting of tree(s) (through our partner: https://onetreeplanted.org) to help offset the difference in carbon emissions.

8.3 We will plant one (1) tree per carton that the Manufacturer are shipping – each tree is $1.00.

8.4 Delays over four (4) weeks may be subject to cancellation/charged for loss of sales and full transport cost by air to Delivery Location.

8.5 This will be actioned via deduction from the Manufacturer payment.

8.6 Delays caused by changes to the order made by the Brand after raising of the Purchase Order that resulted in late delivery will not be covered by the Manufacturer.

8.7 Delays greater than 21 days caused by the Manufacturer (or any of its employees, agents and/or subcontractors) will entitle SupplyCompass to claim a full refund from the Manufacturer (including any upfront payment made to the Manufacturer).

8.8 The Manufacturer will not be liable for delays that occur during the importing and transportation of goods within the supply chain. By way of example, samples or brand labels getting stuck at customs will also not make the Manufacturer liable.

 

9 Shortages and Overages

9.1 Any shortages or overages that aren’t communicated to SupplyCompass or reflected by a change in the Purchase Order will be accepted up to a value of £100.00. For example:

9.1.1 when the quantity shortage is 4 units, at a cost price of £5.00 per unit and the total is £20.00, then it would be accepted; but

9.1.2 when the quantity shortage is 25 units, at a cost price of £5.00 per unit and the total is £125.00, then it would not be accepted

9.2 Anything above £100.00 in shortages or overages should be reflected by a credit or debit note respectively, which SupplyCompass reserves the right to request at any point.

9.3 Persistent shortages below the £100.00 limit will be monitored and could result in an accumulative credit note being requested or payment deduction.

 

10 Ownership and Risk

10.1 Orders will be completed on an FOB (Incoterms 2020) basis and the Products shall remain at the risk of the Manufacturer until the shipment of the Products leaves the Manufacturer’s warehouse (as set out in the Purchase Order) to the Brand, when ownership and risk of the Products shall pass to the Brand or its authorised representative.

10.2 The risk of damage to or loss of the Products shall pass to the Brand on completion of delivery.

10.3 Delivery is completed on the completion of loading of the Products at the Delivery Location.

 

11 Damage in Transit

11.1 The Brand shall be responsible for the Products that may either be damaged in transit or having been placed in transit fail to be delivered to the Brand.

 

12 Inspection, Rejection and Guarantee

12.1 Nothing contained in this Agreement shall in any way detract from the Brand’s obligations under common law or statute or any express warranty or condition contained in the Purchase Order.

12.2 The Manufacturer shall permit SupplyCompass or its authorized representatives to make any inspections or tests it may reasonably require in relation to the Products to verify the Manufacturers’ and the Products’ compliance with this Agreement and the Purchase Order.

12.3 If the results of such inspection or testing cause the SupplyCompass to be of the opinion that the Products do not conform or are unlikely to conform with this Agreement and the Purchase Order, SupplyCompass shall inform the Manufacturer and the Manufacturer shall promptly take such action as is necessary to ensure conformity.

12.4 Acceptance Quality Limit:

12.4.1 In accordance with the industry, ISO 2859-1 Single Sampling Plan: Level II standard, normal severity, single sampling plans only. the AQL is:

12.4.1.1 0% Critical Defects;

12.4.1.2 2.5% Major Defects;

12.4.1.3 4% Minor Defects,

12.4.2 Critical Defects: Any condition found which poses the possibility of causing injury or harm to, or otherwise endangering the life or safety of the end user of the product or others in the immediate vicinity of its use.

12.4.3 Major Defects: Any condition found adversely affecting the product’s marketability and sale-ability or adversely affecting its required form, fit, or function, and which is likely to result in the end user returning it to the source from which it was purchased for replacement or refund.

12.4.4 Minor Defects: Any condition found which while possibly less than desirable to the end user of the product, does not adversely affect its required marketability, sale-ability, form, fit, or function and is unlikely to result in its return to the source from which it was purchased.

12.5 Any Products rejected or returned by the Brand pursuant to this clause 12 shall be returned to the Manufacturer at its own risk and expense.

12.6 SupplyCompass will be entitled (but not obliged) to carry out final inspection or these may be carried out by a nominated 3rd party (as per Brand requirements). For any rejections that are outside SupplyCompass production tolerances or do not meet the PO requirements, SupplyCompass reserves the right to request its partners to:

12.6.1 Repair any rejected goods;

12.6.2 If fault is deemed critical defect then a discount of 30% is expected;

12.6.3 If fault is deemed a minor defect then a discount of 15% is expected; and

12.6.4 We reserve the right to a 100% refund for rejected goods.

12.7 Any shortages or overages that aren’t communicated to SupplyCompass or reflected by a change in invoice quantity will be accepted up to a value of £100 at unit price.

12.7.1 E.g. Cost price is £5, quantity shortage is 4 units. Total is £20 which would be accepted.

12.7.2 E.g. Cost price is £5, quantity shortage is 25 units. Total is £125 which would not be accepted.

12.8 Anything above £100 in shortages or overages should be reflected by a credit or debit note respectively, which SupplyCompass reserves the right to request at any point.

12.9 Persistent shortages below the £100 limit will be monitored and could result in an accumulative credit note being requested or payment deduction.

12.10 Should any dispute arise between the Brand and Manufacturer in relation to the provisions of this clause 12, SupplyCompass shall have the right to intervene and assist with resolving any such conflict.

 

13 Ownership of Intellectual Property

13.1 Nothing in this Agreement shall operate to assign or otherwise transfer any Intellectual Property Rights.

13.2 All Intellectual Property Rights in any of the Brands’ materials (including the designs of any Products and the Product Specification) and any intellectual property provided by the Brand through the Service (Brand Materials) shall remain vested in the Brand or, where applicable, the third party licensor from whom the Brand derives the right to use them.

13.3 The Brand represents and warrants that Brand Materials do not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights.

13.4 The Brand shall indemnify the Manufacturer against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all and other reasonable professional costs and expenses) suffered or incurred by the Manufacturer arising out of or in connection with any claim made against the Manufacturer for actual or alleged infringement of a third party’s Intellectual Property Rights or moral rights arising out of or in connection with the use of the Brand Materials in accordance with the terms of this agreement.

13.5 The Manufacturer represents and warrants that any materials used in the manufacturer of the Products (other than the Brand Materials) does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights.

13.6 All Intellectual Property Rights in any SupplyCompass materials (including the Platform and its Confidential Information) shall remain vested in SupplyCompass. SupplyCompass materials (including the Platform software) are provided on an “as-is” basis, without warranty of any kind, express or implied.

13.7 The Brand acknowledges that all Intellectual Property Rights used for the manufacture of the Product that originate from the Manufacturer shall remain the exclusive property of the Manufacturer (or, where applicable, the third party licensor from whom the Manufacturer derives the right to use them).

13.8 All Intellectual Property Rights in respect of any Improvement shall belong to the party who made, developed or acquired it.

13.9 The Brand hereby grants to the Manufacturer and SupplyCompass a non-exclusive, non-transferable, royalty-free licence (including the right to grant sub-licences to permitted subcontractors) to use the Brand Materials solely for the purpose of performing its obligations under this Agreement and Purchase Order.

 

14 Confidential Information

14.1 Each of SupplyCompass, the Brand and the Manufacturer shall:

14.1.1 not communicate, disclose or make available all or any part of the Confidential Information to any third party without prior written permission;

14.1.2 not directly or indirectly use, or permit others to use, the Confidential Information;

14.1.3 not make any announcement or disclosure in connection with the Confidential Information, without the prior written consent of the relevant party.

14.2 The obligations of confidentiality and non-use will not apply with respect to any of the following:

14.2.1 information which is generally available to the public at the time of the disclosure;

14.2.2 information already known to you at the time of the disclosure;

14.2.3 information which is subsequently disclosed by third parties having no obligations of confidentiality;

14.2.4 information which is or becomes generally available to the public in printed publications in general circulation through no act or fault of yours, your agents, employees or professional advisers;

14.2.5 requirement by any law enforcement agency to disclose the information if required to do so by a court of law.

14.3 Without prejudice to the generality of clause 14.2, information shall not be deemed to be generally available to the public by reason only that it is known to only a few of those people to whom it may be of a commercial interest and a combination of two or more parts of the Confidential Information shall not be deemed to be generally available to the public by reason only of each separate part being so available.

14.4 Each party shall ensure that all measures necessary are taken to secure the confidentiality of the Confidential Information including but not limited to:

14.4.1 keeping separate all Confidential Information and all information generated based on the Confidential Information from all other documents and records;

14.4.2 keeping all documents and any other material bearing or incorporating any of the Confidential Information at your usual place of business;

14.4.3 not using, reproducing, transforming or storing any of the Confidential Information in an externally accessible computer or electronic information retrieval system, not transmitting it in any form or by any means whatsoever outside your usual place of business and not copying all or any part of the Confidential Information without the prior written consent of the Brand and then only to the extent that the same is required for carrying out your obligations as set out in clause 14.2;

14.4.4 allowing access to the Confidential Information only to those employees and/or to the professional advisers who have reasonable need to see or use it and informing each of the said employees, directors and professional advisers of the confidential nature of the Confidential Information and of the obligations in respect of the Confidential Information and ensuring such employees, directors and professional advisers comply with the confidentiality and non-disclosure obligations contained in this Agreement; and

14.4.5 obtaining from employees and directors having access to the Confidential Information their undertakings to maintain the same as confidential and taking such steps as may be reasonably desirable to enforce such obligations.

 

15 Liability and Indemnification

15.1 Nothing in this Agreement excludes the liability of none of SupplyCompass, the Manufacturer or the Brand for (i) death or personal injury caused by its negligence; (ii) fraud or fraudulent misrepresentation; (iii) any indemnity provided under this Agreement or (iv) any liability which cannot be excluded or limited by law.

15.2 In performing your obligations under the agreement, you shall comply with all laws and industry regulations as applicable in your country and the Mandatory Policies. You warrant and represent to SupplyCompass that you have the right to lawfully use the Platform.

15.3 Except as expressly and specifically provided in this Agreement, SupplyCompass expressly excludes all warranties, conditions and other terms implied by statute, common law or otherwise, including without limitation any implied warranties of merchantability, fitness for purpose or non-infringement, to the fullest extent permitted by law.

15.4 SupplyCompass shall not in any circumstances be liable, whether in tort (including for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for any loss of profits, loss of business, depletion of goodwill or similar losses, loss of anticipated savings, loss or corruption of data or information, or any special, indirect or consequential loss, costs, damages, charges or expenses.

15.5 SupplyCompass is not liable for any payment from the Brand to the Manufacturer or viceversa unless expressly agree otherwise. All such payment obligations are addressed directly by and to such parties under the relevant Purchase Order.

15.6 If any claim is made against SupplyCompass arising out of or in connection with the manufacture of or any defect in the Products, the Manufacturer shall indemnify SupplyCompass against all damages or other compensation awarded against SupplyCompass in connection with the claim or paid or agreed to be paid by SupplyCompass in settlement of the claim and all legal or other expenses incurred by SupplyCompass in or about the defence or settlement of the claim.

15.7 SupplyCompass’ total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall in all circumstances be limited to the total SupplyCompass Fees paid by you to SupplyCompass under this Agreement in the twelve (12) months preceding the date on which the claim arose.

15.8 Any information provided by SupplyCompass to assist with the development of the Product Specification and/or the design or manufacture of the Product shall be provided as a recommendation only on an “as-is” basis and you shall be solely responsible for the creation of the Product and the technical design of the Product to be in line with the product specification and ensuring such designs do not infringe any third party rights.

15.9 Whilst SupplyCompass carries out certain compliance checks and its specifications  on Brands and Manufacturers, SupplyCompass is not responsible for ensuring the Brands and Manufacturers put forward are compliant with any applicable laws, regulations or standards and is not responsible for the acts and/or omissions of the Brands. SupplyCompass provides no commitments that the information about the Brand or Manufacturer shall be correct, complete or accurate and takes no responsibility in respect of any information supplied by the Brands or the Manufacturer.

15.10 To the extent permitted by law, you indemnify and hold SupplyCompass harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable legal fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities on the Service or those conducted on your behalf): (i) Brand Materials or your access to or use of the Service; (ii) your breach or alleged breach of this Agreement and Purchase Order; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation of any applicable laws; or (v) any misrepresentation made by you. You will cooperate as fully required by SupplyCompass in the defence of any claim. SupplyCompass reserves the right to assume the exclusive defence and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of SupplyCompass.

15.11 The Manufacturer shall take out and maintain with a reputable insurance company a policy or policies of insurance that are normal for agreements of this nature and covering all the matters which are the subject of indemnities under this Agreement.

15.12 The Manufacturer shall at the request of SupplyCompass produce the relevant policy or policies together with receipts or other evidence of payment of the latest premium.

15.13 The Manufacturer shall be liable under the provisions of this Agreement whether or not it complies with the insurance provisions in this clause 15.

 

16 Termination

16.1 Without affecting any other right or remedy available to it, any party may terminate this Agreement with immediate effect by giving written notice to the relevant party or parties if:

16.1.1 the Manufacturer or Brand fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 10 business days after being notified in writing to make such payment;

16.1.2 any party commits a material breach of any terms of this Agreement, which breach is irremediable or (if such breach is remediable) fails to remedy that breach within ten (10) business days after being notified in writing to do so;

16.1.3 any party repeatedly breaches any of the terms of this Agreement in such a manner to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;

16.1.4 the Manufacturer or Brand suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) of 123(2) of the Insolvency Act 1986; or

16.1.5 an application is made to court, or an order is made, for the appointment of an administrator or a notice of intention to appoint an administrator is given or if an administrator is appointed over any party.

16.2 Upon termination or expiry of this Agreement for any reason:

16.1.6 the terms of this Agreement shall continue to apply to any outstanding orders;

16.1.7 clause 21 and any provision of this Agreement which expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect;

16.1.8 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry, shall not be affected;

16.1.9 return to the relevant party all equipment, materials and property belonging to the relevant party that such party had supplied to it in connection with the supply and purchase of the Products under this Agreement; and

16.1.10 all parties shall as soon as reasonably practicable return, destroy or permanently erase any of the other parties’ Confidential Information.

 

17 Non-Solicitation of Employees or Contractors

17.1 In order to protect the legitimate business interests of SupplyCompass, each the Brand and the Manufacturer agree that it shall not:

17.1.1 attempt to solicit or entice away; or

17.1.2 solicit or entice away,

17.1.3 from the employment or service of SupplyCompass the services of any principal, agent, employee, independent contractor or in any other form of employment or engagement of SupplyCompass.

17.2 The Brand and/or the Manufacturer shall be bound by the above clause 17.1 for as long as they are using the Platform, and for a period of 12 months after it ceases to use the Platform.

 

18 Notice

18.1 All notices, requests, demands or other communications required or permitted by the terms of this Agreement will be given in writing by post or by email using the information you provided at the point of registration as set out in the Purchase Order.

 

18.2 Any notice given to any of the parties under or in connection with this contract shall be deemed to have been received: (i) if delivered by hand at the time the notice is left at the proper address; (ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting; and (iii) if sent by email, at 9.00 am on the next business day after transmission.

 

19 Modification of Agreement

19.1 SupplyCompass reserves the right to modify the terms and conditions of this Agreement at any time. If we make any changes to this terms, we will email you with revised terms, with reasonable notice. If you disagree with the revised terms, you may terminate this Agreement with immediate effect. But this shall not affect any Purchase Order already in effect. If you do not terminate your Agreement before the date the revised terms become effective, your continued use of the Services will constitute acceptance of the revised terms.

 

20 Assignment and Sub-Contracting

20.1 The Manufacturer shall not without the prior written consent of the Brand or SupplyCompass assign or transfer the benefit or burden of this Agreement.

20.2 The Manufacturer must agree with the Brand in advance of all production, sites to be used for each Purchase Order. No subcontracting of Products from these agreed sites is permitted.

20.3 The Manufacturer must ensure that there is a suitable contract in place between themselves and any company being employed to produce Products for the Brand, and that the standards expected of the Supplier by the Brand are upheld in any subcontractors.

20.4 If outsourced to a subcontractor (without the written permission), the Manufacturer holds the obligations of this Agreement.

20.5 The Manufacturer must give full  visibility and transparency to SupplyCompass of any third-parties they may use during the process, including but not limited to mills and fabric units, printers, embroiderers, tanneries and provide access to visit these facilities upon request or  as required to ensure production is occurring to the agreed schedule

20.6 No sub-contracting by the Manufacturer shall in any way relieve the Manufacturer of any of its responsibilities under this Agreement.

 

21 Anti-Slavery and Human Trafficking

21.1The Manufacturer shall:

21.1.1 abide by the SupplyCompass [Manufacturer T&C’s and Code of Conduct];

21.1.2 ensure that slavery and human trafficking is not taking place in any part of its business or in any part of its supply chain;

21.1.3 implement due diligence procedures for its own suppliers, subcontractors and other participants in its supply chains, to ensure that there is no slavery or human trafficking in its supply chains and shall obtain a signed copy of the Code of Conduct;

21.1.4 respond promptly to all slavery and human trafficking due diligence questionnaires or information requests issued to it by the Brand from time to time and ensure that its responses to all such questionnaires are complete and accurate; and

21.1.5 notify the Brand as soon as it becomes aware of any actual or suspected slavery or human trafficking in any part of its business or in a supply chain which has a connection with this Agreement.

21.2 If the Manufacturer fails to comply with any of its obligations under clause 21.1, without prejudice to any other rights or remedies which the Brand may have, the Brand shall be entitled to:

21.2.1 terminate this Agreement without liability to the Manufacturer immediately on giving notice to the Manufacturer; and/or

21.2.2 reduce, withhold or claim a repayment (in full or in part) of the charges payable under this Agreement; and/or

21.2.3 share with third parties information about such non-compliance.

 

22 Capacity

22.1 The relationship between SupplyCompass, the Manufacturer and any of the Brands is that of independent contractors and nothing herein shall be construed to create a partnership, joint venture, or agency relationship between the parties hereto nor authorise any party to make or enter into any commitments for or on behalf of any other party. All parties confirms it is acting on its own behalf and not for the benefit of any other person.

22.2 In the course of providing the Services, SupplyCompass shall act as an intermediary between the Manufacturer and the Brands who want to produce Products. This will include conducting discussions with the Brands around the manufacture of any Products, including the Brands’ requirements and specifications. However, SupplyCompass shall not have the power to bind you and you shall enter into an agreement directly with the relevant Brand for the manufacture of any Products and any terms negotiated by SupplyCompass for and on behalf of you shall be subject to such further agreement and agreed by you at your own risk.

22.3 If either Brand or Manufacturer choose to engage in a direct relationship, the Brand shall be liable for a fee of £25,000 (Buy-Out Fee) representing the reasonable estimate of SupplyCompass’s expenses incurred to source, vet, recruit, screen and replace the Manufacturing partner on the platform.

22.4 The Buy-Out Fee shall be paid within 30 days of when it is issued.

 

23 Entire Agreement

23.1 This Agreement (together with the applicable Other Terms or Mandatory Policies) and the Purchase Order together constitute the entire Agreement between you and SupplyCompass with respect to the subject matter hereof and supersedes and extinguishes all prior and contemporaneous agreements, negotiations, promises, assurances, warranties, understandings, representations and proposals, written or oral, relating to its subject matter.  Each party acknowledges that in entering into this Agreement it does not rely on, and 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.

 

24 Variation

24.1 Subject to clause 19.1 no variation of this Agreement shall be effective unless it is in writing and signed by SupplyCompass (or their authorised representative).

 

25 Severability

25.1 In the event that any provision of this Agreement becomes or is held invalid, illegal, or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted and the remaining provisions shall be enforced to the maximum extent permitted by applicable law.

26 Waiver

26.1 A waiver by any party of any of its rights hereunder shall not be binding unless in a writing signed by an authorised representative of the party expressly waiving such rights.  The non-enforcement or waiver of any provision on any occasion shall not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing.  It is agreed that no usage of trade or other regular practice or method of dealing between or among the parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement.

 

27 Third Party Rights

27.1 No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.

 

28 Dispute Resolution

28.1 In the event a dispute arises between the Manufacturer and a Brand, The Manufacturer will attempt to resolve the dispute through friendly consultation between the Manufacturer and the Brand via SupplyCompass. Any dispute relating to the Products or actions or omissions of the Brand should be raised directly with the Brand, whilst ensuring to inform SupplyCompass.

28.2 The party raising the dispute shall write to info@supplycompass.com outlining the nature of the dispute including any supporting documentation, such as images, photos or excerpts from production specifications.

28.3 If the dispute is not resolved within a reasonable period, being not more than 30 days, then the you agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of notice of the dispute, the mediator will be nominated by CEDR.

28.4 If the dispute resolution is unavailable, not chosen by the parties, or not successful in resolving the entire dispute, the dispute shall be subject to settlement in the courts of England and Wales.

 

29 Governing Law and Jurisdiction

This Agreement and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales, and the courts of England shall have exclusive jurisdiction to settle the same.