TERMS AND CONDITIONS OF SALE

1. General

These Conditions apply to the sale of Goods by us to you, unless varied or excluded by written agreement. Kind Snacks UK Ltd does not agree to contract on any terms and conditions which may appear, or be referred to on, any purchase orders, invoices, forms or other documents or communications (whether printed or electronic) or on internet sites which purport to amend, vary, supersede or replace these Conditions and such terms shall not apply unless accepted in writing by Kind Snacks UK Ltd.

2. Definitions and interpretation

(a) "Contract" means the contract between Kind Snacks UK Ltd and you for the sale and purchase of the Goods, incorporating these Conditions.

(b) "Conditions" means these terms and conditions of sale, and "Condition" shall be construed accordingly.

(d) “EDI” means Electronic Data Interchanges.

(e) “Goods” means the products manufactured, sold, supplied or distributed by Kind Snacks UK Ltd or on behalf of Kind Snacks UK Ltd.

(f) “Kind Snacks UK Ltd”, “us”, “our”, “we” means either of (depending on which entity is supplying the Goods to you in accordance with the Contract): Kind Snacks UK Ltd incorporated in England and Wales with registered number 09402330 Registered office address 6th Floor, 100 Liverpool Street, London, England, EC2M 2AT.

(g) "Order" means any order you place for Goods (in accordance with any ordering process specified by Kind Snacks UK Ltd).

(h) “Pallet” means a re-useable pallet or other delivery unit or container on or in which Goods are supplied such as, but not exclusive to, a wooden pallet.

(i) “Purchase Price” means the price of the Goods quoted to you by Kind Snacks UK Ltd which excludes VAT and other taxes payable.

(j) “you” and “your” means the individual, firm or company placing an Order to buy Goods from Kind Snacks UK Ltd.

(k) Headings to these Conditions and any icons contained herein do not affect the meanings of the Conditions.

3. Warranty

Subject to Condition 8, we warrant that all Goods supplied by us will be of satisfactory quality (as defined in the Sale of Goods Act 1979). They will also comply with all statutory requirements and regulations applicable to such Goods for sale to the public in the United Kingdom.

4. Prices

(a) Prices quoted include our standard GB delivery and insurance costs, we reserve the right to charge extra for any unusual arrangements or non-GB locations.

(b) Unless otherwise agreed, the Purchase Price (which is exclusive of VAT and other applicable taxes or duties) will be the price as notified by us as applicable as at the date we Deliver the Goods to you in accordance with Condition 7(a) (whether or not any increase has been notified to you).

(c) Kind Snacks UK Ltd reserves the right to change the Purchase Price before the date of Delivery for whatever reason and without prior notification to you, including without limitation to take account of any increase in the cost to Kind Snacks UK Ltd of supplying the Goods to you which may include but is not limited to increases in raw material, labour, production, transport and distribution costs, foreign exchange fluctuations, increases in tariffs, taxes, customs and levies, including any Government levy or tax on the Goods.

(d) Any price list provided to you by way of EDI (the "EDI price list") shall be for information and guidance purposes only and may contain discrepancies. It does not represent an offer to sell at the stated price and the prices are not legally binding on us. The Purchase Price applicable to each sale shall be confirmed to you in accordance with Condition 4(b) above, and shall not be superseded by the EDI price list. You must treat the EDI price list as confidential information in accordance with clause 14.

5. Payment and Discount

(a) The date of invoice will be the date of despatch (the "Date of Invoice").

Payment in cleared funds shall be due as per payment terms shown on Invoice.

(b) If you default in making payment to us when due, all monies owed to Kind Snacks UK Ltd will become immediately payable and Kind Snacks UK Ltd reserves the right:

(i) to defer or cancel further deliveries of Goods to you;

(ii) to charge you interest on any money owed to Kind Snacks UK Ltd and remaining unpaid after the date payment was due. Interest will be calculated at 4% over the Bank of England base rate for the time being in force and shall accrue from day to day (both before and after any judgment) on any sum payable under these terms which is unpaid when due until payment is received in full;

(iii) to charge you a reasonable administration charge together with all Kind Snacks UK Ltd’s expenses (legal or otherwise) in recovering outstanding sums from you;

(iv) to recover Goods delivered to you which Kind Snacks UK Ltd still owns in accordance with Condition 9; and

(v) to withhold, forfeit and/or cease payment of all discounts, investments, rebates and allowances otherwise due to you.

(d) We may withdraw any credit terms at any time, if applicable. If we do, all unpaid amounts become due immediately and any future payments shall be due on demand on the Date of Invoice.

(e) All amounts due to Kind Snacks UK Ltd under the Contract shall be paid in full and may not be withheld or set off for any reason without our prior written consent from Kind Snacks UK Ltd. We may sue for the price of any Goods delivered even if property in them has not passed to you. Payment by credit transfer shall not be deemed to have been made until the amount is credited in cleared funds to our bank account. We may set off sums owed to you against sums owed to us from time to time.

5.1 Promotions

(a) Where, as a result of a promotion which we have agreed to fund, you are entitled to request a payment from us, such payment must be requested no later than 6 months from the end date of the relevant promotional activity We shall pay the requested payment only if: (i) you supply a valid invoice for the payment, (ii) the payment does not exceed the agreed amount, (iii) you have complied with the terms and conditions of the relevant promotion, and (iv) you supply us with the following information: a full description of the promotion including satisfactory (in Kind Snacks UK Ltd' sole opinion) supporting evidence of your compliance (which may include volume data), the start and closing date, and the person who authorised the promotion on our behalf.

(b) Failure to comply with Condition 5(a) will mean that the request for payment is invalid, no payment is due from us in respect of the relevant promotion and no further claim can be made in respect of such payments. Kind Snacks UK Ltd reserves its right to cancel a promotion at any time.

6. Orders

(a) An Order constitutes an offer by you to purchase the Goods. Any quotation or price list for the Goods provided by Kind Snacks UK Ltd shall not constitute an offer and may be amended as set out in Conditions 4(a) and 4(c).

(b) Subject to Condition 15 below, orders shall be made in writing, orally or by EDI.

(d) No purported orders or other request for supply of Goods is binding on us unless and until accepted by us in writing, by EDI or by us despatching the Goods to you.

(e) Any Order may be accepted in part or full, entirely at Kind Snacks UK Ltd’s discretion. Kind Snacks UK Ltd is not bound to deliver the Goods and your Order is not deemed accepted until the earlier of:

(i) Kind Snacks UK Ltd sending you written confirmation of acceptance of the Order (and any variations thereto); or

(ii) Kind Snacks UK Ltd discussing and providing you with verbal or written confirmation of the estimated date of (or lead time for) Delivery of the Goods you have Ordered; or

(iii) Kind Snacks UK Ltd delivering the Goods in accordance with Condition 7(a).

(f) Once accepted in accordance with this clause 6(f), each such Order shall become a binding Contract. All Orders incorporate and are accepted subject to these Conditions and are subject to, without limitation, the Goods being available for supply to you.

(g) Kind Snacks UK Ltd does not operate a ‘sale or return’ policy. If you Order Goods and the Order is accepted and the Goods are Delivered you must pay for them in accordance with Condition 5. You are responsible for ensuring that the information you provide in an Order is correct and are liable for any Orders placed by or on your behalf.

(h) Every Order must be for at least Kind Snacks UK Ltd’ standard minimum order quantity per delivery location or such other minimum order quantity that is agreed between you and Kind Snacks UK Ltd. If your Order is below the applicable minimum order quantity, Kind Snacks UK Ltd reseves the right to cancel the Order.

(i) From time to time Kind Snacks UK Ltd may discontinue Goods or alter the ingredients, preparation, packaging or presentation of Goods. Nothing in these Conditions shall oblige Kind Snacks UK Ltd to supply the Goods to you in any particular package, design or form other than those which are from time to time available.

7. Delivery

(a) Except where otherwise agreed in writing by us, delivery will take place when the Goods are unloaded at, or tendered for collection from, the premises stated in the Order ("Delivery", the terms "Delivered' and "Deliver" being construed accordingly). Any dates quoted for Delivery are approximate only, and the time of Delivery is not of the essence. We will use our reasonable efforts to Deliver or arrange Delivery of the Goods in the quantities ordered to the address requested, at the time specified for Delivery by us. We will not be liable for any late Delivery, non-Delivery or variation (more or less) in quantities Delivered and in particular shall be entitled to adjust quantities Delivered to you where, for whatever reason, insufficient stock is available to fulfil your Order.

(b) You shall use reasonable endeavours to take possession of the Goods within any agreed Delivery schedule. If you refuse to accept the Delivery of the Goods we shall have the right (in addition to any other claim against you we may have) to charge you with the cost of haulage both to and from the address requested, any storage costs and any other costs associated with such refusal.

(c) On Delivery you will (at your risk) assist in unloading each consignment and you will check the number of cases and type of each product Delivered and sign our Delivery note or other evidence of receipt acceptable to us which shall be conclusive as to the quantity and description of Goods Delivered. Where there is a delay in unloading the Goods caused by you, we shall have the right to charge you any costs incurred by us associated with such delay.

(d) You must check all Goods at the time of Delivery. You must sign Kind Snacks UK Ltd’s proof of delivery document, annotated where required, and return it to Kind Snacks UK Ltd’s delivery agent at the time of Delivery to enable Kind Snacks UK Ltd to address Delivery queries. If you reject any Goods at the time of Delivery full details identifying which Goods have been rejected and the reason(s) for rejection must be set out clearly on Kind Snacks UK Ltd’s proof of Delivery document.

(e) You obtain no right or title to any of the Pallets accompanying the Goods we sell you. You will not dispose of them, and will return them to us in substantially the same condition as when Delivered either as a one for one exchange at the time of Delivery or in strict accordance with any mutually agreed Pallet pool system in operation at the time.

(f) You will be responsible if any Pallet is lost, damaged or destroyed before it is collected from the Delivery premises. You agree on Kind Snacks UK Ltd’s demand to indemnify Kind Snacks UK Ltd against charges that are levied against Kind Snacks UK Ltd by the relevant Pallet owner by reason of your failure to comply with Condition 7(e) and you agree to settle any such invoices in the same way that you are required to pay the Purchase Price.

8. Quality and Limitation of Liability

(a) You will notify us immediately on Delivery of any clearly apparent defect in the Goods and by telephone within 24 hours of Delivery of any other defects becoming apparent, allow us to inspect such Goods and, where appropriate, comply with any product hold or retrieval procedures notified to you from time to time.

(b) Our responsibility (subject to Condition 8(e) below) in respect of defects will be limited to (i) replacing the Goods, or (at our discretion) (ii) crediting the price charged to you for the Goods. Subject to Condition 8(d) we will have no responsibility in respect of defects unless you notify them to us in accordance with Condition 8(a).

(c) In respect of defects notified to you by third parties and for which we are liable, our responsibility will be limited to that described in Condition 8(b) above and to indemnifying you against any Court award made against you for damages, or other financial settlement, in favour of a person dealing as a Consumer as defined in section 2 of the Consumer Rights Act 2015 in respect of personal injury, death or damage to property, provided that you notify us immediately of any such claim or complaint and that you provide the following information relating to the defective Goods;

(i) the manufacturer's code on the product;

(ii) the best before date code (if applicable);

(iii) description of the product and its size;

(iv) the Pallet number (if applicable);

(v) appropriate evidence to support the claim of the Goods being defective;

AND, if relevant, ensure:

(vi) you do not admit liability; and

(vii) you take such steps to defend, settle or otherwise deal with the claim or complaint as we reasonably direct.

(d) Nothing in these conditions shall limit our liability in respect of any claim for death or personal injury caused by our negligence, fraud or fraudulent misrepresentation, breach of the terms implied by section 12 of the Sale of Goods Act 1979 (in respect of consumers only), any defective products under the the Consumer Protection Act 1987, or any other liability to the extent that it may not be limited or excluded at law.

(e) Save as is expressly set out in these Conditions:-

(i) all warranties or conditions, whether express or implied by statute or otherwise, are excluded to the fullest extent permitted by law; and

(ii) in no circumstances shall we be liable for any loss or damage arising out of or relating to any Goods sold by us in any way whatsoever, whether direct or indirect (including loss of profit and goodwill) and whether arising through negligence, misrepresentation, breach of any statutory duty, or of any condition, warranty or other term (express or implied) of any contract or otherwise.

(f) Any samples, drawings, descriptions or advertising produced by us and relating to the Goods, including those contained on the EDI or in any of our catalogues or brochures, are produced for illustrative purposes only and shall not form part of these Conditions, nor create any contractual rights or obligations.

(g) We shall not be liable for Goods whose recommended date of sale or use has passed when you supply them or for any deterioration in Goods arising as a result of your act or default which occurs after Goods have been Delivered to you and you shall not sell such Goods. You will take all reasonable steps to reduce risks to health or safety caused in storage or exposure for sale of the Goods and observe any reasonable handling or storage instructions we may give from time to time.

(h) Any Goods which are the subject of a refund or replacement by us shall be returned to us or made available to us for collection or disposed of at our direction (and subject to any paperwork requirements we may have) and at our cost.

(i) Subject to Condition 8(d) we shall not be liable for any claim or defect arising in relation to Goods Delivered, or an invoice issued, more than 12 months before the date such claim is received by us.

(j) Except as provided in Condition 8(b),(d) and (e), any liability Kind Snacks UK Ltd has, whether in contract or otherwise, in relation to any Order is limited to the Purchase Price payable for that Order.

9. Property and Risk

(a) Risk in the Goods shall pass on Delivery.

(b) Ownership of the Goods remains with us and we reserve the right to dispose of them until you have made full payment in cleared funds of the corresponding Purchase Price and/or invoice and associated VAT and other applicable taxes and duties owed. If payment to us is overdue in whole or in part, we may (without prejudice to any of our other rights) enter premises occupied by you in which the Goods are kept and remove our Goods.

(c) Until you have paid us all the money you owe us in any regard and ownership of the Goods has passed to you, you must:

(i) hold the Goods on our behalf (as bailee) and must act in good faith to protect our interest in such Goods (in a fiduciary capacity for us);

(ii) subject to Condition 9(d) below, store all of our Goods separately from all other goods in your possession in such a way that they can be clearly identified as our property;

(iii) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and

(iv) maintain the Goods in satisfactory condition and keep them insured on our behalf to their full value against all risks to the reasonable satisfaction of us and free from any legal process and, whenever requested by us, produce a copy of the policy of insurance.

(d) You may sell and deliver the Goods to your customers within the normal course of your business before ownership has passed to you, in which case you shall sell the Goods as principal and not as our agent and title to the Goods shall pass to you immediately before resale by you occurs, but not before.

(e) You grant to us and to our employees and/or agents an irrevocable licence at any time to enter any premises in which any Goods in which ownership has not passed and which have not been sold or irrevocably incorporated into another product are or may be stored in order to inspect the Goods and/or recover the Goods if your right to possession of the Goods has ended, including as a result of termination in accordance with Condition 11. You will secure identical access rights to any third party premises where the Goods are or may be stored.

(f) On termination of these Conditions or any Orders, howsoever caused, our rights contained in this Condition 9 will remain in effect.

(g) Should you resell the Goods and Condition 9(d) comes into effect, should the buyer of the Goods raise any dispute with you in relation to the Goods, Kind Snacks UK Ltd will have no liability to you (other than as set out in these Conditions) or the buyer as a result of such a dispute.

(h) You are entitled to purchase Goods from other suppliers, but, if Kind Snacks UK Ltd tries to recover Goods under Condition 9(b), Kind Snacks UK Ltd will be entitled to assume that Kind Snacks UK Ltd is your sole supplier of the Goods unless you have informed Kind Snacks UK Ltd otherwise in writing, in which case you must specify (i) the Goods concerned, (ii) the date of purchase of the Goods, (iii) the quantity purchased, and (iv) the identification information from the Pallet code (if any).

(i) You agree not to pledge or in any way charge by way of security for indebtedness any of the Goods which are the property of Kind Snacks UK Ltd. Without prejudice to any of Kind Snacks UK Ltd’ other rights, if you do so all sums owed to Kind Snacks UK Ltd shall become immediately due and payable.

10. Anti-Corruption

You undertake that you will not, and will procure that your employees will not:

(i) Engage in any activity, practice or conduct which would constitute an offence under section 1, 2 or 6 of the Bribery Act 2010 if carried out in the UK; or

(ii) Violate any bribery, fraud, kickback, or other similar anticorruption law of any country including for the avoidance of doubt the US Foreign Corrupt Practices Act.

11. Termination

(a) Without affecting any other rights and remedies we may have, we will be entitled to terminate any or all Orders or a Contract if:

(i) You are in material breach of any terms of any Order or a Contract;

(ii) You breach clause 10 or clause 14;

(iii) You export or otherwise deal with the Goods in contravention of applicable laws;

(iv) You suspend, threaten to suspend, cease or threaten to cease to carry on all or a substantial part of your business;

(v) Your financial position deteriorates to such an extent that in our reasonable opinion your ability to comply with your obligations under these conditions is in doubt; or

(vi) You are unable to pay your debts, or steps are taken by you or by a creditor in respect of you under applicable insolvency laws, including (without limitation) making a voluntary arrangement, or entering liquidation, administration, receivership or bankruptcy.

(b) If we terminate any Order or Contract under this clause, then without affecting any other rights and remedies we may have, all sums outstanding shall be immediately due and payable and your right to resell the Goods or use them in the ordinary course of your business ceases immediately and you may at any time be required to deliver up the Goods in your possession in which ownership has not passed and that have not been resold, or irrevocably incorporated into another product.

12. Force Majeure

We shall not be liable in any way for loss, damage or expense arising directly or indirectly from any failure or delay in performing any obligation under these terms caused by any circumstances beyond our control, which shall be deemed to include without limitation vandalism, acts of terrorism, war, accident, break down or damage to machinery or equipment, pandemic, epidemic, fire, flood, acts of God, strike, lock-out or other industrial disputes (whether or not involving our employees) or shortage of materials or fuel at the market rates existing when the order is accepted or administrative interference. On the occurrence of any such event, we may at our discretion, perform, suspend performance of or terminate all or any order(s) delivery of which is outstanding.

13. Miscellaneous

(a) These Conditions supersede all previous statements or any previous terms and conditions relating to the supply of the Goods, exclude any of your terms and conditions that you seek to impose or incorporate or which are implied by trade, custom, practice or course of dealing and may only be supplemented or amended with our written consent.

(b) No waiver by us of any breach of your obligations shall constitute a waiver of any other prior or subsequent breach and our rights shall not be affected by any delay, failure or omission to enforce or express forbearance granted in respect of any of your obligations. Any such waiver will only be effective if given explicitly in writing.

(d) If the whole or any part of any Condition is invalid, that invalidity shall not affect the validity of any other provisions. Our rights and remedies under these Conditions are independent, cumulative and without prejudice to our rights under the general law.

(e) Kind Snacks UK Ltd reserves the right to amend these Conditions from time to time. Unless otherwise agreed with you, any such amendment will in no way affect existing Orders in place at the time the amendment is made but shall apply to any later purchases of Goods by you from Kind Snacks UK Ltd placed after such amendment has been made.

(f) You may not assign, transfer or sub-contract any benefit or burden you have under any Contract or Order to any other party without our prior written consent. We may assign or transfer the benefit or burden of any Contract or Order to any company whose ultimate parent is Kind Snacks UK Ltd Inc., without any further consent from you.

(g) These Conditions shall be governed by and construed in accordance with English Law, and the parties submit to the exclusive jurisdiction of the English courts to settle any dispute which may arise out of or in connection with these Conditions.

(h) Nothing in these Conditions, and no action taken by the parties pursuant to these Conditions, will be deemed to constitute a relationship between the parties of partnership, joint venture, principal and agent or employer and employee.

(i) Nothing in these Conditions shall be deemed to give you any licence or other right to use any of our intellectual property rights and you acknowledge that all intellectual property rights in the Goods belong to us.

14. Confidentiality

(a) You shall ensure that, without our written consent:

(i) any confidential information of ours of which you become aware (which information shall at all times remain our property) shall not be copied, used, or disclosed for any purpose other than as necessary to exercise your rights and perform your obligations under or in connection with these Conditions and that all materials containing such information shall be returned to us on demand. You shall ensure that your employees, officers, representatives or advisers to whom you disclose our confidential information to in accordance with these Conditions comply with this clause; and

(ii) any tradenames or marks that we use on or in connection with the Goods are not supplemented by any mark of yours, interfered with or obscured. For the purpose of this Condition 14, "confidential information" shall mean any information shared by Kind Snacks UK Ltd in any form which you should reasonably understand to be confidential, or which is marked as such.

15. Use of EDI

(a) Use of EDI for placing orders, accessing price files or accepting invoicing indicates acceptance of these Conditions. The procedures, protocols and other requirements for using EDI to trade with us are as set out in the Kind Snacks UK Ltd Trading Partner Guide, as amended from time to time. (The information in this Guide must be kept confidential, since disclosure to unauthorised parties could cause considerable damage to both parties.) Each party shall be responsible for its own costs when using EDI.

(b) These Conditions apply to all EDI communications concerning requests for Goods. An EDI request for Goods by you is an Order for the purposes of these terms. Acceptance of Orders shall occur on despatch of the relevant Goods to you. Any price list provided to you by way of EDI shall be for information purposes only.

(c) When we receive an Order via the EDI, we have the right to assume the Order is correct and accurate; no confirmation from you is necessary, or awaited by us. Each party shall be responsible for errors in its EDI messages, whether or not a third party intermediary is used to effect EDI messages. However neither of us shall be liable for those errors if the mistaken EDI has been corrected via EDI, prior to the relevant Goods being despatched. In any event, in the case of EDI system or a party's message errors, neither party shall be liable for any resulting losses or costs of a consequential nature that may be incurred, including loss of business, opportunity, goodwill, profits or similar losses.

16. Data Protection

In this Condition, "controller", "data subject", "personal data", "personal data breach", "process / processing", "processor" and "supervisory authority" shall have the meanings given to them in Regulation (EU) 2016/679, the General Data Protection Regulation, as implemented into English law and as amended or replaced from time to time ("GDPR").

(a) Both parties acknowledge that they will each act as a controller of any personal data they process in the course of fulfilling their obligations under these terms and conditions.

(b) You agree that you will comply with all laws related to privacy and the protection of personal data, including but not limited to the GDPR, Directive 2002/58/EC and any implementing, replacement or successor legislation (together "Applicable Data Protection Laws"), and will not take any action or make any omission that might reasonably be expected to put us in breach of our own obligations under Applicable Data Protection Laws.

(c) Both parties are each responsible for compliance with their own obligations under Applicable Data Protection Laws. In particular, you are responsible for ensuring that data subjects are provided with notice about your processing of their personal data, and will respond to all requests you receive from data subjects to exercise their rights under Applicable Data Protection Laws. You will, on request from us, promptly provide us with reasonable assistance in relation to our compliance with our own obligations under Applicable Data Protection Laws.

17. Exclusion of Third Party Rights

No person other than a party to a contract which incorporates these Conditions may enforce any of these terms by virtue of the Contract (Rights of Third Parties) Act 1999.

18. Incorporation of the Groceries Supply Code of Practice Where we sell Goods to a Designated Retailer as defined in the Grocery (Supply Chain Practices) Market Investigation Order 2009 (the "2009 Order"), these Conditions shall incorporate and comply with the Groceries Supply Code of Practice (as may be amended from time to time) as set out in Schedule I of the 2009 Order (the "Code"). To the extent there is any conflict between these Conditions and the Code, the provisions of the Code shall prevail.

Registered at the Companies Registration Office, London England as the following:
KIND SNACKS UK LIMITED
Company number 09402330
Registered office address: 6th Floor, 100 Liverpool Street, London, England, EC2M 2AT