(Effective April 21, 2011)
“Affiliates” refers to any Person that controls, is controlled by or is under common control with Buyer or Seller. The term “control” means the ownership, directly or indirectly, of fifty percent or more of the voting stock or equity interest of the subject Person.
“Agent” means company or persons appointed by Seller to act on its behalf
“Buyer” means the person who places the order for the supply of Products.
“Incoterms” such as FOB, CIF, EXW, etc. are reference to the ICC’s Incoterms® 2010 unless otherwise agreed to in Writing.
“Order” means an order in Writing for the supply of Products.
“Person” means any natural person, corporation, unincorporated organization, partnership, association, joint stock company, joint venture, trust or government, or any agency or political subdivision of any government, or any other entity.
“Products” means the Products specified in the Contract Confirmation.
“Rules” means the Rules of the Refined Sugar Association, London (“RSA”).
“Contract Confirmation” means the document issued by Seller confirming the terms of purchase of Product, including price, quantity, delivery periods and delivery locations.
“Seller“ means T&L Sugars Limited.
“Writing” means email, facsimile transmission, EDI or a telephone message promptly confirmed by email, facsimile or EDI.
Seller’s offer to sell the Products or, as the case may be, Seller’s acceptance of Buyer’s offer to purchase the Product, is strictly subject to the terms and conditions contained herƒein, in the Contract Confirmation and in the Rules, whether or not both parties to it are members of the RSA (collectively, “Contract”). In the event of any inconsistency among these terms and conditions, the Contract Confirmation or the Rules, the order of precedence shall be the Contract Confirmation, these terms and conditions, then the Rules.
a. Buyer shall purchase and Seller shall sell the Aggregate Quantity of Products set forth in the Purchase Order. This Contract shall be implemented by Buyer's issuance of individual Orders for the Aggregate Quantity set forth in the Contract Confirmation. Seller reserves the right to accept or refuse any Order at its sole discretion. Orders will be accepted by the Seller by the issuance of a Contract Confirmation. Once confirmed, orders may not be cancelled by Buyer unless agreed to in Writing by Seller. Notwithstanding Seller’s acceptance of any Order, no provision of any Order may alter the terms of this Contract, and except for the type, quantity, desired shipment date, and delivery location of Product, no terms or conditions set forth in any Orders shall be enforceable against either party. Orders shall be placed at least 5 days before the requested delivery date, and subject to availability, Seller shall use diligent efforts to timely fill all of Buyer's Orders.
b. Buyer shall be obligated to place Orders for and purchase 100% of the aggregate quantity of Product set forth in the Contract Confirmation, unless otherwise agreed by Seller in Writing. In all cases where the Contract provides for delivery by instalments, or part deliveries, each such instalment or part delivery shall be governed by the Contract and the cancellation of one of the instalments or part delivery (if so permitted by Seller) shall not vitiate or affect the Contract with respect to the remaining instalments or part deliveries.
a. Prices for Product are per metric tonne (“MT”)]; excluding certain food service and grocery Products which are priced per unit (the “Price”). Charges for drums and pallets are in addition to the Price, unless otherwise indicated on the invoices. Price is exclusive of any sales, processing, excise, value added or other taxes, duties or levies (including those imposed on the sugar, freight or shipping by the country of destination of Products being delivered outside the UK) (collectively, “Taxes”), and shall be for Buyer’s account and such Taxes shall be added to the Price of the Product on the related invoice and paid by Buyer.
b. Fixed Prices may be altered with or without notice to the Buyer as a result of the effects of changes to international trade or supply agreements or trading conditions, or similar external influences and the method or manner of applying any such variations shall be at the Seller’s sole discretion.
c. Where Buyer fails to meet the Aggregate Quantity requirements, it shall reimburse Seller in full for pricing discounts, if any, which were provided on the basis of meeting the agreed volume levels, in addition to any other rights or remedies Seller may have.
c. All prices include delivery unless delivery terms are Ex-Works. Buyer acknowledges that delivered pricing is made available to Buyer as a convenience to Buyer and in the event actual freight and insurance costs exceed that estimated in delivered pricing, Buyer remains responsible for all actual freight and insurance costs incurred in shipping Product to Buyer, including fuel surcharges, delivery surcharges where Orders are less than load or other minimum delivery amounts, and increased costs arising from the use of an alternative delivery mechanism or haulage contractor for reasons outside Seller’s control. Further, Seller shall not be responsible for delivery errors attributable to the freight carrier, including penalties, late charges or fees (collectively, “Delivery Claims”); however, Seller will submit Buyer’s Delivery Claims to Carrier and make reasonable attempts to seek reimbursement the Delivery Claims.
a. Invoices will be dispatched to the Buyer on the date (i) of delivery of the Products where Products are to be delivered within the UK and (ii) of shipment of the Products where Products are to be delivered outside of the UK. Unless otherwise indicated on the invoice, Buyer shall pay Seller for Product purchased within 14 days of the invoice date in the currency set forth in the Contract Confirmation at Seller's address set forth in the invoice or, if requested by Seller, by wire transfer of immediately available funds to an account designated by Seller.
b. Payment of the amount shown on the invoice shall be made without deduction of any monies including, without limitation, bank charges or set-off, in accordance with the payment instructions and in the currency specified on the invoice. Buyer agrees that any statement on a check indicating that it is “payment in full” or other statements to that effect is a nullity unless acknowledged and accepted by Seller in Writing and that cashing such check does not constitute acceptance.
c. Interest may be charged by the Seller on any invoiced sum outstanding beyond the due date for payment thereof as set out in the payment instructions at a rate of 2% above the then prevailing base rate at ABN Amro Plc. Notwithstanding anything herein to the contrary, or any other rights or remedies it may have, Seller reserves the right to (i) withhold future deliveries if any payment is not timely made in full and/or (ii) directly or through its agent, enter upon any land, premises or vehicles where the Products or part of them may be and recover possession of them, as far as may be possible.
d. If deliveries of Product have been dispatched by the Seller against Orders, any change in demand for the Products once dispatched will not change the obligation for payment on time and any demurrage charges and other reasonable expenses incurred by the Seller shall be for the Buyer’s account. In the event Seller agrees in Writing to a call off or otherwise adjust deliveries of accepted Orders, then the payment terms shall be strictly from the date of dispatch from the Seller’s premises.
e. Claims regarding discounts or Product not made within 12 months from the date of invoice shall be deemed waived and released by Buyer.
a. The delivery terms for Product are set forth in the Contract Confirmation. Seller shall use all reasonable endeavours to meet the delivery dates specified by Buyer in its delivery instructions. In the event the parties agree to delivery Ex-Works, such collection must be effected by the Buyer in accordance with the Seller’s reasonable instructions.
b. Buyer will take delivery of the Product during the delivery period reflected on the Contract Confirmation. If Buyer is unable to accept timely delivery of Product, then Seller, at is discretion and in addition to any other rights it may have or accrue, may cancel the delivery or shall be entitled to charge the Buyer for all its reasonable expenses arising from storing the Products in question or attempting to make delivery thereof, as the case may be, including any increased duties, fees, taxes or other charges or tariffs resulting from any delivery delay. On time deliveries should start unloading within 20 minutes of the arrival time; if this is not possible for reasons attributable to Buyer, then Buyer shall reimburse Seller for any demurrage charges Seller incurs.
c. On delivery the Buyer or nominated consignee shall provide a signature on the Seller’ receipt notice.
a. Title to Products shall not pass until the Seller has received payment for the Products in full in cash or cleared funds. Further, Buyer’s right to possession of the Products shall terminate immediately if any kind of action in relation to liquidation, insolvency or any commensurate or similar situation is taken against it. The Seller shall be entitled to recover payment for the Products notwithstanding that title to the Products has not passed from the Seller
b. The risk of loss in the Products shall pass to the Buyer upon the Point of Delivery. The “Point of Delivery” is as follows;
i. where the Products are sold Ex Works and are collected by the Buyer, the point in time when the Products are placed on the vehicle collecting such Products;
ii. where the Products are delivered by the Seller or the Seller’s hauliers in vehicles other than bulk tankers, ISO containers or bulk containers, the point in time when the Products are removed from the transporting vehicle at the premises designated for delivery;
iii. where the Products are delivered by the Seller or the Seller’s hauliers in bulk tankers, ISO containers or bulk containers, the point in time when the Products pass the final flange of the bulk tanker, ISO container or bulk container.
Where applicable, subject to the agreed contractual Incoterms, the Buyer undertakes at its own expense to effect Marine and War and Risk Insurance in accordance with Rule 16 of the Rules relating to Contracts (or) Rule 18 of the Rules relating to Contracts EU as the case may be.
Buyer shall be responsible for obtaining any necessary import licence. The failure to obtain such a licence shall not be sufficient grounds for a claim of force majeure.
As to purchases of Products to be delivered to destinations outside of the UK, Buyer warrants and undertakes that the Products sold under the Contract are for exclusive distribution and consumption within the country to which the Products have been consigned.
a. A party shall not be liable for the inability of that party to commence or complete its obligations (excluding the obligation of payment) hereunder by the dates herein required resulting from delays which are beyond its control and caused by strikes, insurrection, acts of God, war, emergencies, shortages or unavailability of raw materials, weather, change in law or other similar causes (“Force Majeure”), which shall have been timely communicated to the other party. The occurrence of the Force Majeure shall extend the period for the performance of the obligation (excluding the obligation of payment), for the period equal to the period of any such delays; provided that such party shall continue to perform to the extent feasible in view of such Force Majeure; and provided further, that if such Force Majeure shall continue for a period of six months, either party shall have the right to terminate this Contract upon written notice to the other. In the event of the occurrence of a Force Majeure event, Seller shall have the right, but not the obligation, to allocate product among its customers.
b. Neither party will be liable to the other for any delay or failure to perform fully where such delay or failure is caused by events beyond the reasonable control of the affected party and renders performance or the manufacture, shipment, acceptance or use of the Products commercially impracticable. The foregoing will be subject to the affected party giving reasonable notice to the other party. Both parties will use reasonable efforts to mitigate the effects of such events.
a. The Seller warrants that upon delivery the Products shall (i) be in accordance with Seller’s specifications for the Products and (ii) if intended as food Products or ingredients for food that their manufacture, treatment, processing and packaging shall comply with the provisions of the Food Safety Act 1990 and all regulations made thereunder and the Seller shall carry out such reasonable checks as are necessary to ensure compliance with such provisions. The foregoing warranty is limited and all other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
b. In the event Buyer rejects Product as non-conforming to this warranty, Buyer shall hold such Product until Seller removes the Product or provides Buyer with other reasonable instructions. Seller’s liability under this warranty is limited to either replacing the non-conforming Product or refunding to Buyer its purchase price paid for such Product. Buyer is prohibited from selling rejected Product in a secondary market without Seller’s written consent.
a. All claims under the Contract must be made in accordance with Rule 6 of the Rules Relating to Contracts. The Buyer shall give notice in Writing to the Seller of any claim no later than seven (7) working days after delivery of the Products in accordance with Clause 7.
b. In the event of any claim, the Seller‘s liability shall be limited to the replacement of the Products in question or, at Seller’s option, to the refund of any purchase price or part of thereof received in respect of such Products.
c. This Clause 13 sets out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of (i) any breach of the Contract; (ii) any use made or resale by the Buyer of any of the Products, or any Product incorporating the Products; and (iii) any representation, statement or tortious act or omission including negligence arising under the Contract.
d. Notwithstanding anything in the Contract to the contrary, Seller shall not be liable, in any event, for any loss of profit, loss of business or any indirect or consequential loss, costs or damages arising from any claim. Further, Seller shall be under no liability to the Buyer whatsoever once the Buyer has taken delivery of the Products at the Point of Delivery and the Products have been combined with or added to any other Product or substance and/or subjected to any process.
The supply of Products to the Buyer hereunder shall not give the Buyer any rights whatsoever over or in connection with any trademark owned or used by the Seller.
The Seller shall be entitled, without liability, to cancel the Contract or part thereof or cancel or withhold further deliveries of Products or refuse to accept further Orders from the Buyer if, in its reasonable opinion, the Buyer will fail to make payment in accordance with the Seller’s payment instructions or fail to perform any other obligation undertaken by it hereunder.
Except to the extent provided herein, none of the parties shall have any right to assign the Contract, or any rights or obligations hereunder, without the written consent of the other party; provided, however, that upon the sale of all or substantially all of the assets, business and goodwill of the Buyer to another company, or upon the merger or consolidation of the Buyer with another company, the Contract shall be binding upon both Buyer and the company purchasing such assets, business and goodwill, or surviving such merger or consolidation, as the case may be, in the same manner and to the same extent as though such other company were the Buyer. Further, and notwithstanding anything herein to the contrary, Buyer consents to the assignment from time to time of any part of Seller’s rights to payment hereunder in respect of invoices addressed to Buyer or its Affiliates (a “Receivable”), and in connection with such assignments, and notwithstanding any confidentiality agreements to the contrary, Sellermay disclose the terms of the contractual arrangements between Buyer and Seller solely for the purpose of assigning any Receivables and in order for assignee to collect such payments to which it may become entitled. Subject to the foregoing, the Contract shall inure to the benefit of, and be binding upon, the parties hereto and their legal representatives, successors, and permitted assigns.
All disputes out of or in connection with this contract shall be referred to the Council of The Refined Sugar Association in London for settlement in accordance with the Rules Relating to Arbitration.
The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third parties) Act 1999 by any person that is not a party to it.
This shall be governed by and constructed in accordance with English Law. If either party commences an action against the other to interpret or enforce the Contract or as a result of a breach by the other party of the Contract, the prevailing party shall be entitled to recover from the nonprevailing party reasonable attorneys' fees, costs and expenses incurred by the prevailing party in connection with such action.
The Contract represents the final agreement of the parties with respect to its subject matter and all prior oral or written undertakings or agreements are superseded and merged therein. Unless specifically agreed upon in Writing by Seller, no different or additional terms and conditions, including those contained in any document or acceptance tendered by Buyer, shall in any way become binding on Seller or become part of the Contract and are hereby specifically rejected.
Any term, condition or covenant of the Contract which may legally be waived, may be waived, or the time of performance thereof extended, at any time by the party hereto entitled to the benefit thereof, and any term, condition or covenant may be amended by the parties hereto at any time. Any such waiver, extension or amendment shall be evidenced by an instrument in Writing executed by an officer authorized to execute waivers, extensions or amendments.
a. Buyer acknowledges that U.S. export control laws apply to the sales contemplated in this Contract. Buyer warrants that it will not knowingly sell or permit the resale of products to any person located in, or any person who will resell to a person located in, any country which is subject to an embargo under the U.S. Department of Commerce Bureau of Industry and Security, the U.S. Department of Treasury Office of Foreign Assets Control Regulations, or similar laws and regulations. Additionally, Buyer understands and acknowledges that the United States maintains lists of persons and entities prohibited from participating in any U.S. export or re-export transaction (http://www.export.gov/ecr/eg_main_023148.asp.). Whenever Seller believes that a violation of the U.S. export control laws may occur or has occurred, Seller reserves the right to request additional information regarding the end-user and/or destination of the products and Buyer agrees to provide such information. Seller reserves the right to refuse to proceed with any transaction where Seller determines that the transaction may violate the U.S. export controls laws and to terminate and discontinue doing business with any Buyer that Seller determines has engaged in transactions placing Seller at risk of violation of such laws.
b. Buyer hereby acknowledges and agrees that the Products may be subject to applicable export control and trade sanctions laws, regulations, rules and licences, including without limit those of the E.U. and the U.K. (“Export Control and Sanctions Rules”). Buyer shall comply with the Export Control and Sanctions Rules and agrees that it alone is responsible for ensuring its compliance with Export Control and Sanctions Rules. In particular, but without limit, Buyer will not, and will procure that none of its Affiliates will, use, sell, resell, export, re-export, dispose of, disclose or otherwise deal with the Products directly or indirectly, to any country, destination or person without first obtaining any required export licence or other governmental approval, and completing such formalities as may be required by Export Control and Sanctions Rules. Buyer shall not put the Products, in their entirety or in part, to any use in connection with chemical, biological or nuclear weapons or missiles capable of delivering such weapons; to any military end-use; or in connection with any nuclear explosive activity, unsafeguarded nuclear fuel cycle activity or any civilian or nuclear installation or facility. Buyer shall not make available directly or indirectly, the Products to or for the benefit of any restricted third party that has been designated pursuant to trade sanctions legislation in force in the E.U. and its Member States.
c. Buyer shall not do anything that would cause Seller to be in breach of the obligations set out in this Clause 22 and shall protect, indemnify and hold Seller harmless from any fines, losses and liabilities incurred by Seller as a result of Buyer’s failure to comply with this Clause 22. Buyer’s failure to comply with any part of this Clause 22 shall constitute a material breach of this Contract.
1.1. In these conditions the following words shall have the following meanings:
T&L Purchase Conditions: Tate & Lyle Sugars conditions contained in this agreement;
Contract: the Purchase Order accepted or executed by the Seller;
Goods: any goods and/or services agreed in the Contract to be purchased by or supplied to the Purchaser from the Seller (including any part or parts of them);
Purchaser: any Member or Members of the Tate & Lyle Sugars Group being the contracting party
Member: any person or entity that controls, is controlled by or is under common control with T&L Sugars Limited. Members are intended third party beneficiaries of this agreement.
Purchase Order: the Purchaser’s standard order form for the supply of the Goods, of which these Conditions are automatically part;
Seller: the person, firm or company who accepts and/or executes the Purchase Order;
Specification: the specification for the Goods provided by the Purchaser to the Seller or by the Seller to the Purchaser as shall be agreed between the parties.
2.1. T&L Purchase Conditions are the only conditions upon which the Purchaser is prepared to contract with the Seller, they shall govern the Contract to the entire exclusion of all other terms or conditions and any variation of the Seller to these conditions shall have no effect unless expressly agreed in writing by the Purchaser.
2.2. Only a written Purchase Order shall be deemed to be an offer by the Purchaser to purchase Goods subject to these conditions. Oral purchase orders shall be valid offers only if confirmed in writing by the Purchaser. Purchase Orders shall be deemed to be accepted by the Seller expressly by giving notice of acceptance, or impliedly by fulfilling the Purchase Order in whole or in part. The acceptance, implied or express, of a Purchase Order shall constitute acceptance of these T&L Purchase Conditions and the specific conditions set out in the Purchase Order.
3.1. Subject to condition 3.2., the Purchaser may at any time by notice make changes to the quantity, design or Specification, method of packing or delivery, the place or date of delivery or the performance of the Contract .
3.2. If any change proposed in accordance with Condition 3.1. increases or decreases the cost of or time required for the performance of the Contract, the price shall be rateably adjusted and a reasonable adjustment shall be made to the time of delivery or date for performance provided that no increase in the price or extension of time for delivery or performance shall be made unless agreed in writing by the Purchaser.
3.3. The Seller shall promptly give to the Purchaser written notice of actual or intended material changes in its raw materials or manufacturing methods since the Purchaser last purchased or approved like Goods. As the Purchaser needs to inform its customers and its employees of changes in processes or materials, the Seller agrees to furnish in advance of making changes the following items: (a) a list of all ingredients in the Goods that may be purchased by the Purchaser from time to time; (b) the varying amount of one or more ingredients; and (c) information concerning any changes in or additions to such ingredients or changes in Seller's processes.
4.1. The Seller warrants that the Goods shall be of the best available design, quality, material and workmanship, be without fault and conform in all respects with the Purchase Order and the Specification and fit for the purpose as intended by the Purchaser. The Purchaser’s rights under these conditions are in addition to the statutory conditions and to any warranties of additional scope given to the Purchaser by the Seller. Without prejudice to the provisions contained in the T&L Service Conditions, where the Goods to be supplied are or include services, such services shall be performed with all reasonable skill and care and in accordance with industry best practice.
4.2. The Seller shall comply with food industry hygiene standards, with applicable safety regulations and quality assurance systems requested and approved by the Purchaser. In addition, the Seller shall apply all necessary measures to guarantee the full traceability of the Goods and any ingredients or parts thereof.
4.3. At any time prior to delivery under Clause 9, the Purchaser shall have the right to inspect and test the Goods, the Seller’s plant, process and procedures. If the results of such inspection or testing cause the Purchaser to be of the opinion that the Goods, the plant and/or the process and/or procedures do not or are unlikely to conform with the Purchase Order or the Specification, the Purchaser shall inform the Seller and the Seller shall immediately take such action as is necessary to ensure conformity and in addition the Purchaser shall have the right to require and witness further testing and inspection.
4.4. Notwithstanding any such inspection, or testing, the Seller shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect the Seller’s obligations and Purchaser’s rights under the Contract.
5.1. For a period of 24 months from the date of delivery or from the completion of performance of the Contract, Seller shall keep the Purchaser indemnified in full against all loss, damages, injury, costs and expenses (including reasonable legal and other professional fees and expenses) awarded against or incurred or paid by the Purchaser as a result of or in connection with such actions as described below by the Seller, its agent’s or subcontractors:
defective workmanship, quality or materials, including, but not limited to, faulty design and latent defects;
non conforming goods, or services;
improper performance of service under this Contract;
any claim made against the Purchaser in respect of any liability, loss, damage, injury, cost or expense (together “Loss”) sustained by its employees or agents or by any customer or third party to the extent that such Loss was caused by, relates to or arises from the Goods as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of the Contract by the Seller.
5.2. The replacement parts supplied by the Seller under the warranty above mentioned shall be subject to the same indemnity. No time limit shall apply to the above indemnity in relation to latent defects.
6.1. Without prejudice to any other right or remedy which the Purchaser may have, if any Goods are not supplied in accordance with, or the Seller fails to comply with any of the terms of this Contract, the Purchaser shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by the Purchaser:
7.1. The Seller warrants that the Goods delivered or the services rendered under this Contract, and the sale and the use of the Goods in their normal or intended manner, shall not infringe, or contribute to infringe, any patent or copyright and shall not violate the trade secret rights of another.
7.2. The Seller shall defend, indemnify and hold harmless Purchaser, its successors, assigns and customers, and users of Purchaser's products, from and against all claims, suits, losses and damages, including reasonable attorneys' fees and costs and expenses awarded, based upon a claim of infringement, or contributory infringement of any patent or copyright, or violation of another's trade secret rights, by reason of the use or sale of the Goods or the rendering of the services.
8.1. Seller shall maintain a comprehensive liability insurance policy, including Third party and contractual liability coverage (bodily injury and property damage) and product liability coverage, naming the Purchaser as an additional insured and shall upon request provide the Purchaser with a certificate of insurance. The Seller shall maintain the coverage for a minimum amount of £2 (two) million any one occurrence.
9.1. Shipping and delivery arrangements shall be as defined by INCOTERMS, latest version, in the Purchase Orders. Unless otherwise stipulated in the Purchase Orders, deliveries shall only be accepted by the Purchaser in normal business hours. Unloading shall only take place under the direction and in the presence of the Purchaser
9.2. The Seller shall ensure that each delivery is accompanied by a delivery note which shows, inter alia, the order number, date of order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
9.3. Time for delivery shall be of the essence. Without prejudice to any remedy listed in clause 6, if the Goods are not delivered on the due date then, without prejudice to any other rights which it may have, the Purchaser reserves the right to:
9.4. Where the Purchaser agrees in writing to accept delivery by instalments the Contract shall be construed as a single contract in respect of each instalment. Nevertheless failure by the Seller to deliver any one instalment shall entitle the Purchaser at its option to treat the whole Contract as repudiated.
9.5. If the Goods are delivered to the Purchaser in excess of the quantities ordered, the Purchaser shall not be bound to pay for the excess and any excess shall be and shall remain at the Seller’s risk and shall be returnable at the Seller’s expense.
9.6. The Purchaser shall not be deemed to have accepted the Goods until it has had 7 days following delivery to inspect them. In addition to any other remedy available, the Purchaser shall have the right to ask for return and replacement of any defective Goods after inspection or within a reasonable time after it becomes aware of a latent defect.
10.1. Notwithstanding the INCOTERMS provisions, (a) all Goods supplied by the Seller shall become the property of T&L, upon payment therefore or upon delivery, whichever occurs earlier; (b) the Seller shall be responsible for and shall bear any and all risk of loss or damage to the Goods until delivery thereof in accordance with 9. Upon delivery, the Seller shall cease to bear the risk of loss or damage; provided however, that any loss or damage, whenever occurring, which results from the Seller's non-conforming packaging shall be for the Seller's account.
11.1. The Goods shall be properly prepared, labelled, packed, and tagged in accordance with instructions contained in the order, secured and protected by the Seller to ensure that they reach the destination specified in the Purchase Order in good condition and that Goods can be properly handled and identified.
11.2. All dangerous or hazardous Goods shall be packed separately from those of a non-hazardous nature and in accordance with clause 12 below.
11.3. Where this Contract involves multiple shipments and/or different destination, the Seller shall not make any shipment until released in accordance with separate purchase orders or releases issued by the Purchaser using location.
11.4. Where returnable containers are used in the shipment, the containers shall be returned to the Seller at the Seller’s expense.
12.1. Hazardous goods must be marked by the Seller with International Danger Symbol(s) and display the names of the ingredient materials. Transportation and other relevant documents must include a declaration of the hazard(s) and name(s) of the material(s).
12.2. Goods must be accompanied by emergency information in the form of written instructions, labels and markings.
12.3. All the previous information shall be written in English and in the local language of the country of delivery.
12.4. The Seller shall observe the legal requirements of the country of delivery and the international agreements relating to the packing, labelling and carriage of hazardous goods in consideration.
12.5. All information held by, or reasonably available to the Seller regarding the potential hazards known or believed to exist in the transport, handling or use of the Goods supplied shall be promptly communicated to the Purchaser.
13.1. The Goods supplied shall comply in all respects with the relevant requirements of applicable statutes and any orders or regulations made thereunder, including the necessary permits.
14.1. The price of the Goods shall be stated in the Purchase Order and unless otherwise agreed in writing by the Purchaser shall be exclusive of any taxes which are required by law to be collected and remitted by Seller, and shall be inclusive of all other charges.
14.2. No variation in the price nor extra charges shall be accepted by the Purchaser.
14.3. The Seller shall invoice the Purchaser or the T&L company specified by the Purchaser upon, but separately from, despatch of the Goods to the Purchaser. The invoice shall include the Purchaser’s Purchase Order number.
15.1. The Purchaser shall pay the price of the Goods within 60 days end of month following the month of receipt of the invoice unless otherwise agreed in writing.
15.2. Without prejudice to any other right or remedy, the Purchaser reserves the right to set-off any amount owing at any time from the Seller to the Purchaser against any amount payable by the Purchaser to the Seller under the Contract.
16.1. Materials, equipment, tools, dies, moulds, copyright, design rights or any other forms of intellectual property rights in all drawings, specifications and data supplied by the Purchaser to the Seller or not so supplied but used by the Seller specifically in the manufacture of the Goods shall at all times be and remain the exclusive property of the Purchaser (the “Purchaser Property”). The Purchaser Property shall be held by the Seller in safe custody at its own risk and maintained and kept in good condition by the Seller until returned to the Purchaser and shall not be disposed of other than in accordance with the Purchaser’s written instructions, nor shall such items be used otherwise than as authorised by the Purchaser in writing. Such information can only be used for the purpose of the Contract.
16.2. Any invention, discovery or technical process, or application made, conceived or applied by the Seller or its employees, agents, subcontractors, whether solely or jointly with others, in the performance of the Contract , shall be disclosed and documented to T&L, and shall be the sole and exclusive property of T&L and considered as Confidential Information.
17.1. The Seller undertakes that:-
unless and until it gives notice in accordance with (b) below it shall make Goods of the same type as those described in the Purchase Order and spare parts for the repair or part replacement of such Goods throughout the period of the normal duration of life of the Goods in accordance with the Purchaser’s requirements and at a fair and reasonable price;
if it proposes to cease to be a supplier of the Goods or spare parts for the Goods it shall give the Purchaser not less than 180 days written before so ceasing; and
in the circumstances described in (b) above it shall make available to the Purchaser on a “one time buy” basis such quantities of Goods and of spare parts for the Goods as the Purchaser shall reasonably require for the purposes of future renewal, repair or replacement of the Goods at a fair and reasonable price.
18.1. The Seller shall not take photographs of any of the Purchaser’s equipment, installations or property without the Purchaser’s prior consent in writing. The Seller shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Seller by the Purchaser or its agents and any other confidential information concerning the Purchaser’s business or its products which the Seller may obtain and the Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Seller’s obligations to the Purchaser and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Seller.
18.2. Seller shall not advertise or publish the fact that Seller has contracted to furnish the Purchaser the Goods ordered by Purchaser from time to time, or use any trademarks or trade names of Purchaser in Seller’s advertising or promotional materials, unless Purchaser has first consented in writing.
19.1. The Purchaser is entitled to suspend the Contract in whole or in part at any time. In the event of the exercise of such right the Purchaser shall thereafter extend the time for performance of the Contract by such period as is reasonable and it shall also pay the Seller any amounts which are due and payable to the Seller at the date of the suspension and thereafter shall reimburse the Seller for such reasonable direct costs as the Seller has had to incur in making an orderly suspension in accordance with the Purchaser’s instructions.
20.1. The Purchaser shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Seller written notice whereupon all work on the Contract shall be discontinued and the Purchaser shall pay to the Seller fair and reasonable compensation for work-in-progress at the time of termination but such compensation shall not include loss of anticipated profits or any consequential loss.
20.2. The Purchaser shall have the right at any time by giving notice in writing to the Seller to terminate the Contract forthwith if:
the Seller commits a material breach of any of the terms and conditions of the Contract which is not remedied within 14 days after notification thereof;
any distress, execution or other process is levied upon any of the assets of the Seller;
the Seller has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise take the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or convenes a meeting of creditors, or enters into liquidation except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or any proceedings are commenced relating to the insolvency or possible insolvency of the Seller;
the Seller ceases or threatens to cease to carry on its business; or
the financial position of the Seller deteriorates to such an extent that in the reasonable opinion of the Purchaser the capability of the Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy.
20.3. The termination of the Contract, however arising, shall be without prejudice to the rights and duties of the Purchaser accrued prior to termination. The following conditions 1, 16, 18 and 24.5. shall continue to be enforceable notwithstanding termination.
21.1. This Contract shall not be transferred, assigned or sub-contracted by the Seller, in whole or in part, except with the prior written consent of Purchaser. In any event the Seller shall remain jointly and/or severally liable with the assignee or sub-contractor.
22.1. Each party reserves the right to defer the date of delivery or payment or to cancel the Contract or reduce the volume of the Goods ordered if it is prevented from or delayed in the carrying on of its business due to a force majeure event, on condition that the force majeure event is immediately notified in writing to the other party.
22.2. Force majeureshall mean any cause preventing either party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented including act of God, war, riot, civil commotion, flood and storm.
22.3. If either party is prevented from performance of its obligations for a continuous period in excess of 60 days, the other party may terminate this agreement forthwith on service of written notice upon the party so prevented, in which case neither party shall have any liability to the other except that rights and liabilities which accrued prior to such termination shall continue to subsist.
23.1. The Purchaser and the Seller are independent contracting parties and nothing in this contract, or any Purchase Order issued pursuant hereto, shall make either party the agent or legal representative of the other party for any purpose whatsoever. Furthermore, neither party shall have any authority to assume or to create any obligation on behalf of or in the name of the other party.
24.1 Seller agrees that it shall (a) comply with all applicable laws, rules, codes and regulations in its country or countries in which it does business as are applicable to the Goods being sold or Services rendered (collectively, the “Laws”), including, but not limited to, thoseconcerning the environment, anti-bribery or corruption laws, employee rights to freedom of association, wages, benefits and work hours;(b) provide employees with a safe and sanitary workplace that includes appropriate controls and protective equipment; (c) follow non-discrimination practices in regard to gender, race, age, national origin, disability, citizenship, veteran status, marital status, sexual orientation, or religious beliefs and provide a workplace free from harassment; (d) refrain from paying or accepting bribes or kickbacks and agrees that ithas not engaged, and undertakes that it will not engage, in the following conduct (or conduct giving rise to a suspicion of): giving or receiving, whether to a public or a private sector individual or entity, either directly or indirectly, a bribe, facilitation payment or other unlawful or improper payment or advantage; (e) minimize operational impact to air, water, soil, and surrounding areas; and (f) require its sellers to adhere to the same requirements as set forth above. Seller further agrees to comply, and certifies that it does comply, with all laws regarding forced labour, child labour, slavery and human trafficking. Seller agrees to require, and certifies that it does require, its sellers to adhere to the same requirements.
24.2. If any provision of the Contract is found to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
24.3. Failure or delay in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver by either party of any of its rights under the Contract.
24.4. Any waiver by the Purchaser of any breach of, or any default under, any provision of the Contract by the Seller shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
24.5. The parties to this Contract do not intend that any term of this Contract shall be enforceable by any person that is not a party to it.
24.6. The Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.