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SUPPLY OF GOODS AGREEMENT

Requirements Supplier Agreement

SUPPLY OF GOODS AGREEMENT | Document Parties: TRUETT-HURST, INC. | Birketts LLP | GREENBOTTLE LIMITED | Solicitors Regulation Authority You are currently viewing:
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TRUETT-HURST, INC. | Birketts LLP | GREENBOTTLE LIMITED | Solicitors Regulation Authority

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Title: SUPPLY OF GOODS AGREEMENT
Date: 3/11/2013

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EXHIBIT 10.18

 

DATED

26 February 2013

 

 

 

 

GREENBOTTLE LIMITED (1)

 

 

H.D.D., LLC (2)

 

 

 

 

 

 

SUPPLY OF GOODS AGREEMENT

 

 

 

 

 

 

 

Birketts LLP

24-26 Museum Street

Ipswich

Suffolk IP1 1HZ

 

T: +44 (0)1473 232300

F: +44 (0) 1473 230524

DX: 3206 Ipswich

E:mail@birketts.co.uk

 

 

 

 

www.birketts.co.uk

 

 

 

 

 

 

Offices also in : Cambridge, Chelmsford and Norwich

 

Birketts LLP is registered in England under no. OC317545 and authorised and regulated by the Solicitors Regulation Authority.

Registered office at: 24-26 Museum Street, Ipswich, Suffolk, IP1 1HZ.

A list of members may be inspected at any of our offices. The term ‘Partner’ is used to refer to a Member of Birketts LLP.

 

 

 

 


 

 

TABLE OF CONTENTS

 

1.

INTERPRETATION

1

 

 

 

2.

SUPPLY OF THE PRODUCTS

4

 

 

 

3.

FORECASTS

5

 

 

 

4.

ORDERS

5

 

 

 

5.

MANUFACTURE, QUALITY AND PACKING

6

 

 

 

6.

DELIVERY

7

 

 

 

7.

ACCEPTANCE AND DEFECTIVE PRODUCTS

8

 

 

 

8.

TITLE AND RISK

10

 

 

 

9.

PRODUCT PRICES

10

 

 

 

10.

TERMS OF PAYMENT

11

 

 

 

11.

ONGOING SUPPORT AND CO-OPERATION

11

 

 

 

12.

INDEMNITY

13

 

 

 

13.

LIMITATION OF LIABILITY

14

 

 

 

14.

ASSIGNMENT AND SUB-CONTRACTING

15

 

 

 

15.

CONFIDENTIALITY

16

 

 

 

16.

COMMENCEMENT AND TERM

17

 

 

 

17.

TERMINATION

17

 

 

 

18.

OBLIGATIONS ON TERMINATION

18

 

 

 

19.

SURVIVAL OF OBLIGATIONS

19

 

 

 

20.

FORCE MAJEURE

19

 

 

 

21.

COSTS

20

 

 

 

22.

SEVERANCE

20

 

 

 

23.

FURTHER ASSURANCE

20

 

 

 

24.

VARIATION AND WAIVER

20

 

 

 

25.

NOTICES

21

 

 

 

26.

ENTIRE AGREEMENT

22

 

 

 

27.

RIGHTS OF THIRD PARTIES

23

 

 

 

28.

COUNTERPARTS

23

 

 

 

29.

GOVERNING LAW AND JURISDICTION

23

 

 

 


 

 

SCHEDULE 1 THE PRODUCTS AND PRODUCT PRICES

24

 

 

SCHEDULE 2 LOGO AND SPECIFICATION

25

 

 

 

 

 

 

 

 


 

 

THIS AGREEMENT is made on the   26th day of February 2013

 

 

Parties:

 

(1)

GREENBOTTLE LIMITED , a company incorporated and registered in England and Wales with company number 5756226 whose registered office is at 3B Delph Court, Sherdley Business Park, Sullivan’s Way, St Helens, Merseyside, WA9 5GL, UK (the “Supplier” ); and

 

(2)

H.D.D., LLC , a California limited liability company, with company number 200729610091 and its principal office at 4035 Westside Road, Healdsburg, CA 95448, USA (the “Customer” ).

 

BACKGROUND

 

(A)

The Supplier carries on the business of manufacturing and selling the Products.

 

(B)

The Customer wishes to buy and the Supplier wishes to supply the Products on the terms and conditions set out in this Agreement.

 

AGREED TERMS:

 

1.

INTERPRETATION

 

1.1

The definitions and rules of interpretation in this clause apply in this Agreement.

 

                    

“Business Day”

a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;

 

 

“Commencement Date”

March, 1, 2013

 

 

“Confidential Information”

has the meaning given in clause 15.1;

 

 

“Delivery”

completion of delivery of an Order in accordance with clause 6.2 or clause 6.5.1;

 

 

“Delivery Date”

the date specified for delivery of an Order in accordance with clause 4.4;

 

 

“Delivery Location”

the location specified for collection of an Order in accordance with clause 6.1;

 

 

“Force Majeure Event”

has the meaning given in clause 20;

 

 

“Group”

in relation to a company, that company, its subsidiaries, its holding companies and their subsidiaries;

 

 

1


 

 

                    

“holding company” and “subsidiary:”  

mean a “holding company” and “subsidiary” as defined in section 1159 of the Companies Act 2006.  In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sub sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights;

 

 

“Intellectual Property

Rights”

all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world and “Intellectual Property Right” means any one of the Intellectual Property Rights;

 

 

"Logo"

the Supplier's logo set out in Schedule 2 or such other logo as may replace it from time to time;

 

 

“Minimum Purchase

Amount”

 

has the meaning given in clauses 2.2 and 11.4;

 

 

“month”

a calendar month;

 

 

“Order”

an order for Products submitted by the Customer in accordance with clause 4; 

 

 

2


 

 

                    

“Order Number”

the reference number to be applied to an Order by the Supplier in accordance with clause 4.5;

 

 

“Product Prices”

the prices of the Products as determined in accordance with clause 9.1 and “Product Price” means the price of an individual Product as determined in accordance with that clause;

 

 

"Production Start Date"

May 1, 2013;

 

 

“Products”

the products set out in Schedule 1 and, where the context requires, the Products ordered by and supplied to the Customer;

 

 

 "Representatives"

has the meaning given in clause 15.3;

 

 

"Sector"

bottling and selling of wine and still alcoholic beverages;

 

 

"Specification"

the specification of the Products set out in Schedule 2;

 

 

"Term"

the term of the agreement, as determined in accordance with clause 16;

 

 

"Territory"

the United States of America and Canada;

 

 

"VAT"

value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement or additional tax;

 

 

"year"

a calendar year.

 

1.2

Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

 

1.3

A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

 

1.4

The schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement and any reference to this Agreement includes the schedules.

 

1.5

A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

 

1.6

Unless the context otherwise requires, words in the singular shall include the plural and vice versa.

 

 

3


 

 

1.7

Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

 

1.8

A reference to a statute, statutory provision or any subordinate legislation made under a statute is to such statute, provision or subordinate legislation as amended or re-enacted whether before or after the date of this Agreement and, in the case of a statute, includes any subordinate legislation made under that statute from time to time.

 

1.9

A reference to writing or written includes faxes and e-mail.

 

1.10

Any obligation in this Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.

 

1.11

A reference to a document is a reference to that document as varied or novated (in each case, other than in breach of the provisions of this Agreement) at any time.

 

1.12

References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule.

 

1.13

Any phrase introduced by the terms including , include , in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

 

2.

SUPPLY OF THE PRODUCTS

 

2.1

During the Term, the Supplier shall supply and the Customer shall purchase such quantities of Products as the Customer may order under clause 4 in accordance with the terms and conditions of this Agreement.

 

2.2

The Customer shall during the first two years following the Production Start Date purchase no fewer than three million units of the Products ( "Minimum Purchase Amount" ) from the Supplier.   For the purposes of this section 2.2, a purchase occurs when the Customer submits a purchase order to the Supplier.  Future Minimum Purchase Amounts shall be agreed by the parties pursuant to clause 11.4.

 

2.3

It is intended that the date upon which the Customer shall commence selling wine contained in the Products shall be June 2013.

 

2.4

The Customer shall purchase the Products only from the Supplier, and shall not for the Term or for the Period of five years from the Commencement Date (whatever shall be the shorter) distribute or manufacture any goods which compete with the Products.  In the event the Supplier elects to declare the relationship as non-exclusive as provided in clause 11 below, the Customer's obligation under this clause 2.4 is terminated.

 

 

4


 

 

3.

FORECASTS

 

3.1

During the Term, the Customer shall give the Supplier:

 

 

 3.1.1

not less than three month's advance notice of the Products it expects to purchase during the three months following the end of that notice period; and

 

 

 3.1.2

not less than one month before the end of each year, a forecast of the Products it expects to purchase during the following year.

 

3.2

Forecasts shall be given in writing or, if given orally, shall be confirmed in writing within two Business Days. The Customer shall act in good faith when forecasting its requirements for Products.

 

3.3

Forecasts provided under this clause 3 shall not constitute Orders.

 

3.4

If the Supplier anticipates that it will be unable to meet the Customer's forecasted requirements provided in accordance with this clause 3:

 

 

 3.4.1

the Supplier shall inform the Customer as soon as practicable;

 

 

 3.4.2

the Customer may at its option agree alternative delivery dates for the relevant Products, or obtain from any other person substitute products for the Products which the Supplier anticipates it will be unable to supply; and

 

 

 3.4.3

substitute products purchased from a third party supplier as a result of the Supplier anticipating being unable to meet the Customer's forecasted requirements for Products shall for the purposes of clause 2.2 be deemed to have been purchased from the Supplier.

 

4.

ORDERS

 

4.1

Subject to clause 4.2, not less than three months before the beginning of each quarter during the Term (the first such quarter commencing on 1 April 2013), the Customer shall give the Supplier its Order for that quarter.

 

4.2

The First Order (for the period 1 April 2013 to 30 June 2013) is agreed as being for 240,000 units of Products (where one bottle is a unit) which the Supplier shall make available for collection by the Customer pursuant to this agreement not later than 90 days after payment of the advance payment in 10.1.

 

 

5


 

 

4.3

Each Order shall be deemed to be a separate offer by the Customer to purchase Products on the terms of this Agreement.

 

4.4

Each Order shall:

 

 

 4.4.1

be given in writing or, if given orally, shall be confirmed in writing within two Business Days; and

 

 

 4.4.2

specify the type and quantity of Products ordered.

 

4.5

The Supplier shall assign an Order Number to each Order it accepts and notify such Order Numbers to the Customer together with the date by which the Order will be ready for collection ( "Delivery Date" ). Each party shall use the relevant Order Number in all subsequent correspondence relating to the Order.

 

5.

MANUFACTURE, QUALITY AND PACKING

 

5.1

The Supplier agrees that during the Term it will develop and maintain sufficient manufacturing capacity to supply to the Customer approximately 600,000 units of Product per quarter. The Supplier shall manufacture, pack and supply the Products in accordance with all generally accepted industry standards and practices that are applicable.

 

5.2

The Products supplied to the Customer by the Supplier under this Agreement shall:

 

 

 5.2.1

conform to the Specification;

 

 

 5.2.2

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; and

 

 

 5.2.3

comply with all applicable statutory and regulatory requirements.

 

5.3

The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

 

5.4

The Supplier shall ensure that the Products are properly packed and secured so as to enable them to reach their destination in good and merchantable  condition in a manner agreed between the Supplier and the Customer.

 

5.5

The Supplier shall obtain and maintain in force for the Term all licences, permissions, authorisations, consents and permits needed to manufacture and supply the Products in accordance with the terms of this Agreement.

 

5.6

The Supplier shall comply with all applicable laws, enactments, orders, regulations and other instruments relating to the manufacture, packing, packaging, marking, storage and handling of the Products.

 

 

6


 

 

5.7

On the request of the Customer, the Supplier must document to the Customer, in a form reasonably acceptable to the Customer, that all relevant North American authority approvals related to the supply of packaging in the USA and Canada, as  required by law, have been met.

 

5.8

The Supplier warrants to the Customer the following:

 

 

 5.8.1

The Products are merchantable, fit for the intended purpose, and of good commercial quality, material and workmanship  including, without limitation, a clean, sanitary, air tight, leak-free container for wine and still alcoholic beverages that does not alter or affect the nature or quality of the wine or alcoholic beverage.

 

 

 5.8.2

All approvals, as  required by law, have been issued in each jurisdiction in the Territory to manufacture, package, market, distribute, sell and use the Products in the Territory.

 

 

 5.8.3

The Products are free of defects that would render the Products or other materials unsafe in normal usage or in foreseeable misuse, and the Products are fit for use in connection with wine and alcoholic beverages.

 

6.

DELIVERY

 

6.1

The Customer shall collect each Order from the Supplier's premises 3B Delph Court, Sullivan’s Way., Sherdley Business Park, St Helens WA9 5GL, UK ( "Delivery Location" ) within three Business Days of the Supplier notifying the Customer that the Order is ready for collection.

 

6.2

Orders are supplied on an ex works basis and delivery shall be completed when the Supplier places the Order on the Customer's carrier's vehicle at the Delivery Location.

 

6.3

The Supplier may deliver Orders by instalments, which may be invoiced and paid for separately; provided, however, that each instalment must be delivered in multiples of a full shipping container. References in this Agreement to Orders shall, where applicable, be read as references to instalments.

 

6.4

The Supplier shall have no liability for any failure or delay in delivering an Order to the extent that such failure or delay is caused by the Customer's failure to comply with its obligations under this Agreement.

 

6.5

If the Customer fails to take delivery of an Order within seven Business Days of the Supplier notifying the Customer that the Order is ready for collection, then, except where such failure or delay is caused by the Supplier's failure to comply with its obligations under this Agreement or a Force Majeure Event:

 

 

7


 

 

 

 6.5.1

delivery of the Order shall be deemed to have been completed on the eighth Business Day following the day on which the Supplier notified the Customer that the Order was ready for collection and the Supplier will have the right to issue an invoice as provided in clause 10.2 below; and

 

 

 6.5.2

the Supplier shall store the Order until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

 

6.6

If the Customer fails to take delivery of an Order within 3 months of the Supplier notifying the Customer that the Order is ready for collection then, except where such failure or delay is caused by the Supplier's failure to comply with its obligations under this Agreement or a Force Majeure Event, notwithstanding clause 6.5, the Supplier shall be entitled to dispose of or resell to third parties such Products without incurring any further liabilities to the Customer.

 

6.7

Each Order shall be accompanied by a delivery note from the Supplier showing the Order Number, the date of the Order, the type and quantity of Products included in the Order and, in the case of an Order being delivered by instalments, the outstanding balance of Products remaining to be delivered.

 

6.8

The parties agree that if, in respect of an Order, the Supplier delivers up to and including 2% more or less than the quantity of Products ordered, the Customer shall not be entitled to reject the Order, but a pro rata adjustment shall be made to the Order invoice.

 

6.9

The Supplier shall provide such reasonable support to the Customer (at the Customer's cost) as is required to enable the customer to ship the Products to Customer's destination (e.g. California) quickly and economically.

 

7.

ACCEPTANCE AND DEFECTIVE PRODUCTS

 

7.1

The Customer may reject any Products delivered to it that do not comply with clause 5, provided that:

 

 

 7.1.1

notice of rejection is given to the Supplier:

 

 

   7.1.1.1

in the case of a defect that is apparent on normal visual inspection, within five Business Days of receipt of the Products at the Customer's facility in California; and

 

 

   7.1.1.2

in the case of a latent defect, within a reasonable time of the latent defect having become apparent; and

 

 

 7.1.2

none of the events listed in clause 7.3 apply.

 

 

8


 

 

7.2

If the Customer fails to give notice of rejection in accordance with clause 7.1, it shall be deemed to have accepted such Products.

 

7.3

The Supplier shall not be liable for Products' failure to comply with the warranty set out in clause 5 in any of the following events:

 

 

 7.3.1

The defect is caused by the Customer's failure to follow the Supplier's commercially reasonable written instructions as to the storage, commissioning, installation, use and maintenance of the Products or (if there are none) good trade practice regarding the same; or

 

 

 7.3.2

The defect is caused by the fair wear and tear arising from use and foreseeable misuse by the consumer, wilful damage or Customer's gross negligence; or

 

 

 7.3.3

The defect is caused by the acts or omissions of the Customer's carrier.

 

7.4

If the Customer rejects Products under clause 7.1 then the Customer shall be entitled to:

 

 

 7.4.1

require the Supplier to repair or replace the rejected Products at the sole expense of the Supplier; or

 

 

 7.4.2

require the Supplier to repay the price of the rejected Products in full including, without limitation, purchase price and delivery costs.

 

Once the Supplier has complied with the Customer's request, it shall have no further liability to the Customer in respect of the rejected Products' failure to comply with clause 5.2.

 

7.5

The terms of this Agreement shall apply to any repaired or replacement Products supplied by the Supplier.

 

7.6

In the event the Customer (a) has been ordered or encouraged to conduct a recall of any of the filled Products by any relevant government authority, (b) reasonably determines that a recall of any of the filled Products is necessary or appropriate due to (i) reasons relating to the safety of the filled Products, (ii) any material non-conformance of the filled Products with the Specifications, or (iii) any material non-conformance or non-compliance of the filled Products with any applicable law, governmental rule or regulation, or (c) reasonably decides voluntarily to withdraw any of the filled Products from distribution or otherwise cease distribution of any of the filled Products due to a material failure of the filled Products to comply with the warranties contained in clause 5, the Customer has the right to conduct and implement such recall or voluntary withdrawal procedures developed by the Customer in connection with any such recall or withdrawal of the filled Products.  The Supplier agrees to bear all costs and expenses incurred by the Customer in connection with or arising out of any such recall or voluntary withdrawal provided it can be proven that the issue giving rise to the recall or voluntary withdrawal was inherent in the Products as originally supplied to the Customer, and not as a result of the beverages being put into the Products by the Customer, its agents or subcontractors.

 

 

9


 

 

8.

TITLE AND RISK

 

8.1

Risk in and title to the Products shall pass to the Customer when the Products are delivered to the Customer pursuant to Section 6.2.

 

9.

PRODUCT PRICES

 

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