Terms + Conditions

PRODUCT FORMULATION AND DEVELOPMENT SERVICES TERMS AND CONDITIONS FOR NQ INNOVATIONS LTD

1. Interpretation

1.1 Definitions. In these Conditions the following terms apply:

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Charges: the charges payable by the Client for the supply of the Services by the Consultant, as set out in the Quotation.

Client: the organisation or person who commissions the Consultant to provide the Services.

Client IPRs: the trade marks and all Intellectual Property Rights of which the Client is the owner or licensee and which are disclosed, licensed or provided to the Consultant pursuant to the Contract.

Confidential Information: any commercial, financial, technical and/or other information of any kind and in whatever form or medium, including but not limited to information relating to any agents, contractors, subcontractors, consultants, suppliers, customers, professional treatment providers, retailers, existing or planned products, formulations, inventions, methodologies, processes, procedures, testing methods, clinical trials, know-how, designs, developments, trade secrets, Technology, Intellectual Property Rights, finances, strategies, plans or activities of either party and/or its associated companies and any other information relating to either party and/or its associated companies designated as confidential or which a reasonable person would reasonably believe to be confidential.

Consultant: NQ Innovations Ltd, a company registered in England and Wales with company number 10530007 and whose correspondence address is at Menzies, Ashcombe House, The Crescent, Leatherhead KT22 8DY.

Contract: the contract between the Consultant and the Client for the supply of the Services and Products in accordance with these Conditions, including the Quotation and any supply of samples.

Contract Manufacturer: the laboratory facility or company that manufactures the Products in bulk.

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 rights, topography rights, rights in Confidential Information (including know-how and trade secrets), rights in formulations, rights in Technology, 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.

Packaging Components: any Primary Packaging or Secondary Packaging.

Primary Packaging: the bottles, vessels, bags, dispensers, caps and/or lids that will contain the Products once they are manufactured, and any other objects or materials that may be required in order to contain the Products.

Products: the products to be developed and/or manufactured ex works as part of the Services. 

Quotation: the Consultant’s written quote, valid for 21 days from the date of issue to the Client, for the provision of the Services and development of the Products, detailing the Specification of the Products and Services, Charges, invoices due and estimated timeframes, which is subject to these Conditions.

Secondary Packaging: the labels, leaflets and boxes that will contain the Products in their Primary Packaging once they are manufactured, and any other materials that may be required in order to label the Products in their Primary Packaging.

Services: the services to be provided by the Consultant for the purposes of formulating, developing, sourcing, procuring and/or manufacturing the Products pursuant to the Contract.

Specification: the specification for the Products set out by the Supplier in the Quotation, or, in the case of any samples, orally or in writing.

Technology: all methods, techniques, discoveries, inventions (whether patentable or not), formulae, formulations, technical and product specifications, equipment descriptions, plans, layouts, drawings, computer programs, assembly, quality control, installation and operating procedures, operating manuals, technical and marketing information, designs, data, know-how and other information.

 

1.2 Construction. In these Conditions, the following rules apply:

A reference to a party includes its personal representatives, successors or permitted assigns. A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted. A reference to writing or written includes faxes and e-mails.

2. Supply of services

2.1 In supplying the Services, the Consultant shall (a) perform the Services with reasonable care and skill; and (b) use reasonable endeavours to perform the Services in accordance with the service description set out in the Quotation.

2.2 Timeframes provided are approximate only and time is not of the essence in providing the Products and Services.

2.3 The Consultant contracts on these Conditions only and acceptance by the Consultant of any order from a Client (including the supply of any samples) shall be upon such conditions and shall override any other terms and conditions stipulated or incorporated by the Client in its order or any negotiations (save as shall have been expressly agreed in writing by the Consultant). 

2.4 The Consultant reserves the right to make substitutions and modifications to the specification of the Products (including any samples supplied) provided that this does not materially affect their performance.

2.4 All Products and samples are sold on the basis that the Client is neither a consumer nor deals as a consumer within the meaning of the Unfair Contract Terms Act 1977 and that the Client has satisfied itself as the suitability of the Products and samples for use or resale in accordance with its own specialised knowledge and skill.


3. Client’s obligations

3.1 The Client shall co-operate with the Consultant in all matters relating to the Services and provide, in a timely manner, such information as the Consultant may require, and ensure that it is accurate in all material respects.

3.2 If the Consultant's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client or its suppliers, agents, subcontractors, consultants or employees, the Consultant shall (a) not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay; (b) be entitled to payment of the Charges despite any such prevention or delay; and (c) be entitled to recover any additional costs, charges or losses the Consultant sustains or incurs that arise directly or indirectly from such prevention or delay.

3.3 The Client may wish to use its own suppliers, agents, subcontractors or consultants to provide any raw materials, ingredients, Packaging Components, branding, design or any other services relating to the development and manufacture of the Products. The Consultant shall not be liable for any not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from the acts or omissions of the Client’s own suppliers, agents, subcontractors or consultants (including but not limited to delays, losses, errors or defective or poor quality raw materials).


4. Consultant’s supply chain

4.1 If the Consultant's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Contract Manufacturer or any of the Consultant’s suppliers, agents, contractors, subcontractors, consultants or employees, the Consultant shall not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such prevention or delay.

4.2 If the Contract Manufacturer or any of the Consultant’s contractors, subcontractors, agents or suppliers damage the Products, any ingredients or raw materials used in any of the Products or any of the Packaging Components in any way, including but not limited to ingredient or product wastage, contamination or breakage, the Consultant shall have no liability for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from such damage or loss.

4.3 The Consultant will not be liable for any for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from procuring raw materials (including but not limited to supplier delay, courier loss or delay, customs and import charges or price rises for scarce ingredients).

5. Non-solicitation

5.1 The Client acknowledges and agrees that any of the Consultant’s suppliers, agents, contractors, subcontractors and consultants (including the Contract Manufacturer and suppliers of any Packaging Components) used for the provision of the Services and in connection with developing and producing the Products under the Contract are Confidential Information. These include but are not limited to suppliers of raw materials, suppliers of Packaging Components, manufacturers of the Products and brand and label designers.

5.2 The Client agrees that it will not be involved with, either directly or indirectly, on its own behalf or on behalf of, or in conjunction with, any firm, company or person inrelation to the provision of goods or services from (or otherwise have any business dealings with) any of the Consultant’s suppliers, agents, contractors, subcontractors and consultants referred to in Condition 5.1 in the course of any business concern which is in competition with any aspect of the Consultant’s business of formulating, sourcing, developing and manufacturing skincare and cosmetic products.

5.3 This Condition 5 shall survive the termination of the Contract.

6. Samples, quotation and manufacturing

6.1 The Consultant shall submit to the Client for approval pre-production samples of the Products and each of the Packaging Components. The sample Packaging Components will be plain manufacturer samples without any printed information on them in relation to the Products, and it will not be possible to obtain samples of the final printed Packaging Components.

6.2 If the Client wishes to make changes to the samples of the Products the Consultant will produce a new batch of samples incorporating such changes. 

6.3 The Consultant will invoice the Client for the costs involved in producing each batch of samples and these will be payable in accordance with the terms of Condition 9. The Consultant will not provide any batches of samples to the Client until the fees for such batches of samples have been received.

6.4 The provision of any samples is subject to these Conditions.

6.5 Once the Client approves a batch of samples, the Consultant will provide the Client with the Quotation. The Client must sign the Quotation within 21 days of the date of the Quotation.

6.6 The Consultant shall not instruct its contractors or subcontractors to commence manufacture of the Products (or any bulk samples of the Products) and the Packaging Components until (a) the Client has communicated its express approval of the samples of the Products provided under Condition 6.5 and the Packaging Components (including the artwork for the Packaging Components) and authorises commencement of their manufacture to the Consultant in writing, such approval not to be unreasonably withheld or delayed; and (b) the Client has paid all invoices due before any manufacturing can commence as detailed in the Quotation and in accordance with Condition 9.5.

6.7 The Client's approval of the samples constitutes irrevocable confirmation that (a) the Products manufactured in conformity with the samples approved of under Condition 6.6(a) (or differing only within normal industrial limits) will comply with the Specification; and (b) the Packaging Components will comply with the Specification; and (c) the Products and the Packaging Components will meet the requirements of quality specified in Condition 7.

6.8 The Client may not cancel or terminate the Contract or make any amendments or alternations to the composition, formulation, designs or quantities of Products or Packaging Components after it has authorised manufacturing to commence under Condition 6.6(a).

6.9 The Client acknowledges and agrees that there is a risk that during the manufacturing process (including the process of producing bulk samples), Products produced under the formulations approved of under Condition 6.6 may differ from the samples provided or may not pass stability, safety and regulatory testing due to being produced in larger quantities. In such cases the mixture may be unusable or additional ingredients may be required, which the Client will be responsible for purchasing and for which Consultant will invoice the Client for in accordance with Condition 9. The Consultant will not be liable for any costs, charges or losses sustained or incurred by the Client that arise directly or indirectly from any delays that may be caused from any of these risks materialising or for the cost of additional or replacement ingredients and Packaging Components that may be required due to any of these risks materialising.

6.10 The Consultant may, by giving notice to the Client at any time during the Contract, increase the Charges or amend the timeframes set out in the Quotation to reflect any increase in the cost of the Products that is due to any factor beyond the Consultant’s control, including but not limited to increases in prices for or shortages of raw materials or any of the circumstances in Condition 6.9 arising.

6.11Where additional Charges arise after manufacturing of Products has already commenced, manufacturing will be suspended until the additional Charges have been paid by the Client.

6.11 The Consultant may also assist the Client with preparing drafts of Product labels and information to be printed on the Packaging Components. The Client’s oral or written approval of such drafts constitutes irrevocable confirmation that such labels, information for printing and the Products comply with all applicable rules and regulations in the territories where they will be sold or distributed and that the Consultant shall not be liable for any errors or omissions in such labels and information.

7. Delivery and quality

7.1 The quantity, quality and description of and any Specification for the Products shall be those set out in the Consultant’s Quotation (or, in the case of samples, those described by the Consultant orally or in writing prior to providing them).


7.2 The Consultant reserves the right to make any changes in the Specification of the Products (including any samples) which are required to conform with any applicable safety or other requirements or, where the Products (including any samples) are supplied to the Consultant’s Specification, which do not materially affect their quality or performance.

7.3 Any Products and samples are supplied to the Client ex works.

7.4 The Client agrees that its remedies for any samples, Products or Packaging Components that are defective or not of satisfactory quality are limited to those available to the Consultant under the respective terms and conditions of the Primary Packaging manufacturer, the Secondary Packaging manufacturer and the Contract Manufacturer, including any limitations of liability specified therein. A redacted copy of each of these terms and conditions can be provided to the Client on request.


8. Intellectual property

8.1 The Consultant acknowledges that the Client IPRs are and remain the exclusive property of the Client or, where applicable, the third party licensor from whom the Client derives the right to use them.

8.2 All Intellectual Property Rights used and developed in the provision of the Services and in any Technology relating to the development and manufacture of the Products (including, but not limited to manufacturing methods, the final versions of all Product formulations, all earlier versions of all Product formulations,  know how, methods and techniques) shall remain the exclusive property of the Consultant.

8.3 The Client has the option to purchase the Intellectual Property Rights in Condition 8.2 from the Consultant.

8.3 Formulations developed under the Services are not developed exclusively for the Client, unless the Client requests exclusivity prior to the issue of the Quotation and pays an exclusivity fee which will be included in the Quotation.

8.4 The Technology (including but not limited to manufacturing, know how, methods and techniques) and Intellectual Property Rights referred to in this Condition 8 are subject to the confidentiality obligations in Condition 10.

8.5 The Client shall keep the Consultant indemnified in full against any sums awarded by a court against the Consultant as a result of or in connection with any claim brought against the Consultant for infringement of a third party's rights (including any Intellectual Property Rights) arising out of, or in connection with, the provision of the Services by the Consultant.

8.6 This Condition 8 shall survive the termination of the Contract.

9. Payment

9.1 In consideration for the provision of the Services, the Client shall pay the Consultant the Charges in accordance with this Condition 9.

9.2 All amounts payable by the Client exclude amounts in respect of value added tax (VAT), which the Client shall additionally be liable to pay to the Consultant at the prevailing rate (if applicable).

9.3 The Client shall pay each invoice due and submitted to it by the Consultant, within 7 days of receipt, to a bank account nominated in writing by the Consultant.

9.4 The Consultant will not commence work on the Services until 100% of the formulation and development fees (as detailed in the Quotation) have been received.

9.5 The Consultant shall not instruct its suppliers, contractors or subcontractors to commence manufacture of the Products and the Packaging Components until the following payments have been received: 50% of the Product manufacturing fees, 100% of the Primary Packaging fees and 50% of the Secondary Packaging fees. Each of these fees will be detailed in the Quotation.

9.6 The balance of all amounts due for the Services, Packaging Components and Products shall be paid at the times specified in the Quotation.

9.7 The Client agrees that no refunds can be given for any payments made under the Contract.

9.8 If the Client fails to make any payment due to the Consultant under the Contract by the due date for payment, then, without limiting the Consultant's remedies under Condition 13, the Client shall pay interest on the overdue amount at the rate of 5% per annum above HSBC’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Client shall pay the interest together with the overdue amount and the Consultant may suspend all Services until payment has been made in full.

9.9 All amounts due under the Contract shall be paid by the Client to the Consultant in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

10. Confidentiality

10.1 Each party undertakes to, in relation to Confidential Information relating to the other party: (a) keep the Confidential Information confidential and not use or exploit the Confidential Information in any way except for the purposes of carrying out its obligations under the Contract; (b) not disclose to any person any Confidential Information concerning the other party without the other party’s prior written consent, except as permitted by Condition 10.2; (c) not copy, reduce to writing or otherwise record the Confidential Information except as strictly necessary for the purposes of carrying out its obligations under the Contract (and any such copies, reductions to writing and records shall be the property of the disclosing party); and (d) not use, reproduce, transform, or store any of the Confidential Information in an externally accessible computer or electronic information retrieval system or transmit it in any form or by any means whatsoever outside the the receiving party’s usual place of business.

10.2 Each party may disclose Confidential Information relating to the other party: (a) to its employees, officers, representatives, suppliers, contractors, subcontractors, agents, consultants or advisers who need to know such information for the purposes of carrying out its obligations under the Contract. The disclosing party shall ensure that its employees, officers, representatives, supplier, contractors, subcontractors or advisers to whom it discloses the other party’s Confidential Information comply with this Condition 10; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

10.3 The Consultant reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in the Contract are granted to the other party or to be implied from the Contract. In particular, no licence is hereby granted directly or indirectly under any patent, invention, discovery, trade mark, copyright or other intellectual property right held, made, obtained or licensable by either party now or in the future.

10.4 This Condition 10 shall survive the termination of the Contract.

11. Product liability, recalls and insurance

11.1 The Client agrees and acknowledges that it is responsible for the Products’ compliance with all applicable laws and regulations in all countries where they are sold and that it is the responsible person for the purposes of the EU Cosmetics Regulation ((EC) No. 1223/2009)). The Client agrees that the Consultant shall have no liability in respect of any of these matters.

11.2 The Client agrees that the Consultant shall have no liability in respect of any claim that is made against the Client arising out of or in connection with the manufacture of or any defect in the Products.

11.3 The Client agrees that the Consultant shall have no liability for the Products’ failure to comply with any regulatory changes that come into effect in any country where the Products will be sold after the Client has communicated its approval of the manufacture of the samples under Condition 6.6(a).

11.4 The Client acknowledges and agrees that Products may develop defects, may not meet the requirements set out in the Specification or may not be safe for use as a result of the Consultant following any drawing, design, instruction or Specification supplied by the Client, or where the Client has ignored the Consultant’s advice on suitable Packaging Components, ingredients or ingredient concentrations to include (or not to include) while making such Specification.

11.5 The Client acknowledges and agrees that defects can arise in the Products because the Client failed to follow the Consultant's oral or written instructions for the storage, handling, commissioning, installation, use and maintenance of the Products.

11.6 The Client agrees that the Consultant shall have no liability for any claim that is made against the Client arising out of or in connection with any of the circumstances listed in Conditions 11.3, 11.4 and 11.5.

11.7 The Client will be responsible for obtaining and maintaining in force product liability insurance and all other relevant insurance policies in respect of the sale and distribution of the Products in each country where they are sold.

11.8 The Client agrees that if it is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any Products from the market(Recall Notice) then the Client will be solely responsible for doing so and the Consultant shall have no liability (financial or otherwise) in respect of any such Recall Notice.

11.9 This Condition 11 shall survive the termination of the Contract.

 

12. Limitation of liability

12.1 Nothing in the Contract shall limit or exclude the Consultant's liability for (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; and (c) any other liability which cannot be limited or excluded by applicable law.

12.2 Subject to Condition 12.1, the Consultant shall not be liable to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for any loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill and any indirect or consequential loss.

12.3 Subject to Conditions 12.1 and 12.2, the Consultant's total liability to the Client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to £800.

12.4 This Condition 12 shall survive the termination of the Contract.

 

13. Termination

13.1 Without affecting any other right or remedy available to it, the Consultant may terminate the Contract with immediate effect by giving written notice to the Client if: (a) the Client commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so; (b) the Client takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business (or, where the Client is an individual, shall have a petition in bankruptcy presented against it); the Client suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business or,; or (c) the Client's financial position deteriorates to such an extent that in the Consultant's opinion the Client’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

13.2 Without affecting any other right or remedy available to it, the Consultant may terminate the Contract with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.

13.3 Without prejudice to any other rights to which the Consultant may be entitled, in the event that the Client unlawfully terminates or cancels the Contract, the Client shall be required to pay to the Consultant as agreed damages and not as a penalty the full amount of any third party costs to which the Consultant has committed and the formulation and development fee set out in the Quotation, and the Client agrees this is a genuine pre-estimate of the Consultant’s losses in such a case.

13.4 On termination of the Contract for whatever reason: the Client shall immediately pay to the Consultant all of the Consultant's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Consultant may submit an invoice, which shall be payable immediately on receipt/

13.5 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination; and any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.

 

14. Title: Title in the Products shall not pass to the Client until the Consultant has been paid in full for all invoices detailed in the Quotation.

 

15. General:

15.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

15.2 The Client shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the Consultant’s prior written consent. The Consultant may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under the Contract.

15.3 The Contract represents the entire agreement between the parties and supersedes any prior arrangements or understandings relating to its subject matter.

15.4 These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

15.5 Any alteration to or modification of the Contract must be in writing and signed by both parties. The Contract may only be varied by the written agreement of the Client and the Consultant.

15.6 No waiver of any rights arising under the Contract is valid unless in writing and signed by the party making the waiver. No failure by either party to enforce any of its rights under the Contract shall subsequently prevent it from enforcing the same.

15.7 If any provision of the Contract (or part of any provision) is found to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the Contract, and the validity and enforceability of the other provisions of the Contract shall not be affected.

15.8 Any notice to be served under the Contract shall be in writing and sent by registered post or recorded delivery to the registered address of the other party (or where the Client is an individual, the Client’s last known address), which shall be deemed to be received on the third Business Day after posting.

15.9 A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Contract are not subject to the consent of any other person.

15.10 The Contract and any dispute or claim arising out of or in connection with it shall be subject to English law and the parties agree to the jurisdiction of the English courts.