The Whitbread Conditions of Purchase of Goods and Services
These Conditions are applicable to Orders placed by Whitbread Group PLC’s businesses where there is no pre-existing, unexpired, written and signed contractual agreement(s) between Whitbread and/or the relevant group company and the Supplier. They apply when goods are being delivered to or services are being supplied in the British Isles (Great Britain and Northern Ireland, the Republic of Ireland, Isle of Man and the Channel Islands).
1.1 In these Conditions of Purchase:-
‘Conditions of Purchase’ means the terms and conditions set out in this document
‘Contract’ means the contract to be formed in accordance with Condition 2.1 for the supply of the Goods and/or the Services subject to these Conditions of Purchase together with any other terms or conditions incorporated into the Contract provided these shall only be incorporated by express written agreement between Whitbread and the Company
‘Delivery Address’ means the delivery address as specified in the Order
‘Goods’ means the goods (or any part of them) set out in the Order
‘Order’ means Whitbread’s order for the Goods or Services as set out in Whitbread’s purchase order form or in Whitbread’s written acceptance of the Supplier’s quotation or as set out overleaf, as the case may be
‘Order Number’ means the order number set out in the Order
‘Services’ means the services (if any) as set out in the Order
‘Supplier’ means the person, firm or company from whom Whitbread purchases the Goods and/or Services
‘Specification’ means any specification for the Goods or Services, including any related plans, drawings or other images, (i) as agreed by the Supplier and Whitbread in the Order or (ii) as referenced in any other document agreed to be incorporated, or (iii) as described in the Supplier’s quotation or (iv) as described in any promotional or advertising material or public statement issued by the Supplier
‘Whitbread’ means Whitbread Group PLC
1.2 The headings in these Conditions of Purchase are for convenience only and shall not affect their construction.
2. AGREEMENT TO PURCHASE
2.1 The Order constitutes an offer by Whitbread to purchase the Goods and/or the Services subject to the Conditions of Purchase. Written acceptance of the Order or despatch or delivery of the Goods or the commencement of supply of the Services by the Supplier shall be deemed conclusive evidence of the Supplier’s acceptance of these Conditions of Purchase and the formation of the Contract.
2.2 These Conditions of Purchase shall apply to the Agreement to the exclusion of any other terms and conditions on which any quotation has been given to Whitbread or subject to which the Order is accepted or purported to be accepted by the Supplier.
2.3 No variation of the Conditions of Purchase, Order or Agreement shall be binding unless made by written agreement between Whitbread and the Supplier.
3. PRICE AND PAYMENT
3.1 The price of the Goods and Services shall be as stated in the Order and, unless otherwise so stated, shall be exclusive of value added tax (which shall be payable by Whitbread subject to receipt by Whitbread of a value added tax invoice) and inclusive of all charges for packaging, packing, carriage, insurance, and delivery of the Goods to the Delivery Address and any other duties or imposts other than value added tax.
3.2 The Supplier may submit invoices at the times set out in the Order or, where silent, once the Goods have been delivered and the Services have been completed. Providing the invoices reference the correct Order and the amounts are consistent with the prices and quantities agreed in the Order and these Conditions and have been addressed and delivered in accordance with the Order (or, where silent, in accordance with Whitbread’s requirements as notified from time to time), then Whitbread shall pay each invoice within 60 days from the date of receipt of the invoice.
3.3 Whitbread shall be entitled to set off against any sum due to the Supplier any sum owed to Whitbread by the Supplier.
4. QUALITY AND DESCRIPTION
4.1 The Goods and Services shall:
(a) correspond with their description and any applicable Specification;
(b) correspond in all respects with any samples or patterns provided by the Supplier to Whitbread or by Whitbread to the Supplier;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979 as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by Whitbread expressly or by implication;
(d) comply with all applicable regulations and other legal requirements concerning the manufacture, packaging, carriage, packing and delivery of the Goods and the performance of the Services.
5. INSPECTION AND TESTING
5.1 The Supplier shall permit Whitbread or Whitbread’s authorised representative to inspect and test the Goods at any time during manufacture, processing or storage and to inspect and test performance of the Services at the premises of the Supplier or any third party and the Supplier shall provide or procure the provision of all such facilities and accommodation as may reasonably be required by Whitbread for inspection and testing. The Supplier shall at the request of Whitbread , supply to Whitbread a copy of the Supplier’s test sheets certified by the Supplier to be a true copy.
5.2 If, as a result of such inspection or testing, Whitbread is of the opinion that the Goods do not comply with the Agreement or are unlikely on completion of manufacture or processing so to comply, upon Whitbread so informing the Supplier, the Supplier shall immediately take such steps as may be necessary to enable the Supplier to comply with the Agreement.
5.3 For the avoidance of doubt such inspection or right to inspect on the part of Whitbread shall not constitute acceptance or approval by Whitbread of the Goods or Services.
6.1 The Goods shall be delivered and the Services shall be performed at the Delivery Address or as may be directed by Whitbread on the date or within the period stated in the Order in either case during Whitbread’s usual business hours. Where the date of delivery of the Goods or of performance of the Services is not specified in the Order, the Supplier shall give Whitbread reasonable notice of the date therefor.
6.2 Whitbread shall be entitled to reject any Goods delivered which are not in accordance with the Agreement and shall not be deemed to have accepted any Goods until Whitbread has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the Goods has become apparent. In the event of any failure on the part of the Supplier to supply Goods or Services of the quality, in the quantity and to the time specified, Whitbread shall be entitled to:-
(a) obtain equivalent Goods or Services from an alternative source and the Supplier undertakes to reimburse Whitbread for any reasonable additional costs incurred in so doing;
(b) reject, and to require the Supplier to replace, at no charge, any such Goods.
6.3 Time of delivery of the Goods and of performance of the Services shall be of the essence of the Agreement.
6.4 Any extension of time for delivery or performance must be agreed in advance between Whitbread and the Supplier in writing. Any time so extended shall be of the essence of the Agreement.
6.5 If it has been agreed that the Goods are to be delivered or the Services are to be performed by instalments, they may be invoiced and paid for separately. However, the Agreement will still be treated as a single contract and not severable and any failure by the Supplier to deliver any one instalment on time or at all, or any defect in an instalment, shall entitle Whitbread to treat the Order as not being fulfilled and to obtain remedies as appropriate.
6.6 Delivery shall not be effected until the Goods have been unloaded and (if relevant) the Services have been performed and accepted in writing by an authorised officer, employee, or representative of Whitbread.
6.7 The Order Number must be quoted on all correspondence relating to the Order. A delivery or advice note must accompany all Goods despatched to the Delivery Address. Goods or Services not accompanied by a delivery or advice note may be refused.
6.8 The Supplier shall give Whitbread in good time any instruction or information required to enable Whitbread to take delivery of the Goods and performance of the Services.
7. TITLE AND RISK
7.1 Title and risk in the Goods shall pass to the Customer on completion of delivery.
8. WARRANTIES AND LIABILITIES
8.1 The Supplier warrants to Whitbread that the Goods will:-
(a) be of satisfactory quality and fit for any purpose held out by the Supplier or made known to the Supplier by Whitbread;
(b) be free from defects in design, material and workmanship, and that the Supplier, upon becoming aware of any defect whatsoever in the Goods, will immediately notify Whitbread of such defect and confirm the same in writing to Whitbread within three (3) days of such defect being identified;
(c) correspond with any specification or sample;
(d) comply with all statutory requirements and regulations relating to the sale of the Goods.
8.2 The Supplier warrants to Whitbread that the Services will be performed by appropriately qualified and trained personnel acting with due care and diligence and to the best industry standard.
8.3 The Supplier shall indemnify Whitbread in full against all liabilities, losses, costs, damages, expenses (including legal expenses) and claims made against, awarded against or incurred or paid by Whitbread as a result of or in connection with:-
(a) any breach of any warranty given by the Supplier in relation to the Goods or Services;
(b) any claim that the Goods or provision of the 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 except to the extent that any such claim arises from compliance with a specification or design supplied by Whitbread;
(c) any liability under the Consumer Rights Act 2015 or other applicable consumer protection legislation in respect of the Goods or Services;
(d) any act or omission of the Supplier or its employees, agents or subcontractors in supplying delivering and installing the Goods or in performing the Services; and
(e) the supply, delivery and installation of the Goods and the performance of the Services provided however that nothing in this sub-clause 8.3(e) shall render the Supplier liable to indemnify Whitbread insofar as the matter in respect of which Whitbread seeks indemnity has been caused by the negligence of Whitbread or its employees agents or subcontractors..
8.4 Without prejudice to any other remedy, if any Goods or Services are not supplied or performed in accordance with the Agreement, then Whitbread shall be entitled:-
8.4.1 to require the Supplier to repair the Goods or to supply replacement Goods or Services in accordance with the Agreement within 7 days; or
8.4.2 at Whitbread’s sole option, and whether or not Whitbread has previously required the Supplier to repair the Goods or to supply any replacement Goods or Services, to treat the Agreement as discharged by the Supplier’s breach and require the repayment of any money which has been paid.
9. FORCE MAJEURE
Whitbread shall not be liable for any failure to take or make use of the Goods or Services or for any delay in taking or making use of the same which is due wholly or partially to any strike, lock-out or other industrial action, or any other event beyond the reasonable control of Whitbread including without limitation, acts of God, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, fire, flood , storm.
10.1 Without prejudice to any other rights or remedies to which it may be entitled, Whitbread shall be entitled to terminate the Order without liability to the Supplier by giving written notice to the Supplier at any time if:
(a) the Supplier makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being a company) becomes subject to an administration order or goes into liquidation (other than for purpose of amalgamation or reconstruction); or
(b) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Supplier; or
(c) the Supplier ceases, or threatens to cease, to carry on business; or
(d) Whitbread reasonably apprehends that any of the events mentioned above is about to occur in relation to the Supplier and notifies the Supplier accordingly; or
(e) the Supplier is in breach of any of its obligations under the Conditions of Purchase;
(f) there is a change of control of Whitbread or the Supplier. For the purpose of this clause, “control” means the ability to direct the affairs of another whether by voting or contractual rights or otherwise and whether directly or indirectly.
10.2 Whitbread may cancel the Order in whole or in part at any time before delivery of the Goods or completion of the Services with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Order. If Whitbread cancels an Order under this Condition 10.2, its liability to the Supplier is limited to payment of the costs which the Supplier can demonstrate were reasonably incurred by the Supplier in fulfilling the Order up until the date of receipt of the notice of cancellation, provided that the Supplier must use its reasonable endeavours to minimise such costs (including, where reasonably possible, by selling the applicable Goods to a third party). For the avoidance of doubt, in no event must the reasonable costs payable by Whitbread under this Condition 10.2 exceed the price that would otherwise be payable in relation to the applicable Goods if they were delivered (and, where applicable, installed) in accordance with the Order.
11. DATA PROTECTION
11.1 The Supplier acknowledges and confirms that unless otherwise agreed it shall not receive from Whitbread any personal data or process any such data in the course of performing its obligations under the Order.
11.2 The Supplier acknowledges that in order to receive and/or process any personal data of which Whitbread is the data controller, it shall first have entered into an additional agreement and data security schedule setting out the parties’ rights and obligations in relation to the processing of such data.
11.3 The Supplier shall immediately notify Whitbread if it becomes aware of, or is accused of having committed, any breach of data protection legislation in relation to personal data received or alleged to have been received from Whitbread or which is otherwise relevant to the performance of the Order by the Supplier.
11.4 The Supplier shall abide by all applicable laws, regulatory guidance and codes of practice relating to the holding and processing of personal data and privacy that may exist in any relevant jurisdiction.
12. COMPLIANCE WITH WHITBREAD POLICIES
12.1 The Supplier shall comply with the Whitbread Code of Conduct (“Code of Conduct”) and all relevant policies of the Whitbread Group including (but not limited to)
(a) the Responsible Sourcing Policy;
(b) the commodity specific requirements,
(c) the Anti-Bribery Policy;
(d) the Modern Slavery Policy
in each case as updated from time to time and as found at:
12.2 The Supplier shall comply with all other relevant Whitbread policies and codes of conduct notified to the Supplier from time to time.
12.3 In the event of conflict between these Conditions and any Whitbread policy or code of practice these Conditions shall prevail.
13. COMPLIANCE WITH LEGAL OBLIGATIONS
The Supplier shall comply in the provision of the Goods and Services and its performance of the Order with all of the requirements of English law (including, without limitation, all laws relating to anti-discrimination and equal opportunity, modern slavery, bribery, health and safety, environmental protection, consumer protection, and human rights.
14.1. The Order is personal to the Supplier and the Supplier shall not without the written consent of Whitbread sub-contract or assign all or any of its rights or obligations under the Agreement or any part of the Agreement.
14.2 Any consent given by Whitbread to the Supplier under condition 12.1 shall not impose any duty on Whitbread to enquire as to competency of any sub-contractor and the Supplier shall ensure that any sub-contractor is competent and that performance of the Agreement is properly carried out. In the event that any sub-contractor is subsequently deemed in Whitbread’s reasonable opinion not to be suitable on technical or commercial grounds then the Supplier shall replace that sub-contractor with an alternative sub-contractor also approved in writing by Whitbread.
14.3 No waiver by Whitbread of any breach of the Agreement shall be considered as a waiver of any subsequent breach of the same or any other provision.
14.4 If any provision of these Conditions of Purchase is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions of Purchase and the remainder of the provision in question shall not be affected thereby.
14.5 Any notice required or permitted to be given by either party to the other shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
14.6 Notwithstanding the fact that the Supplier may have or have had business dealings with Whitbread Group PLC and/or its associated businesses Whitbread’s name and those of its associated businesses shall not be used by the Supplier for the purpose of advertisement or publicity without the prior written consent of Whitbread.
14.7 This Contract shall be governed by English law.
14.8 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 the Order or its subject matter or formation.
Issue January 2022