Terms and Conditions of Sale

Terms and Conditions of Sale
The following are the conditions of sale of Synergy Flavours Limited of Hillbottom Road, High Wycombe, Buckinghamshire, England (hereinafter called “the Seller”). All goods sold by the Seller and services (including value added services) provided by the Seller are subject to these conditions of sale.
The Buyer’s attention is particularly drawn to the provisions of CLAUSE 3 (Value Added Services) and CLAUSE 7 (Liability).

1 INTERPRETATION

1.1 Definitions
In these Conditions, the following definitions apply:
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: 9.00 am to 5.00 pm on any Business Day.
Buyer: the person or firm who purchases the Goods or procures Services from the Seller.
Conditions: these terms and conditions as amended from time to time in accordance with Clause 18.6.
Contract: the contract between the Seller and the Buyer for the supply of Goods and/or Services in accordance with these Conditions.
Delivery Location: has the meaning given in Clause 6.2.
Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Buyer and the Seller.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets), recipes, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Losses: all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and reasonable professional costs and expenses).
Order: the Buyer’s order for the supply of Goods and/or Services, as set out in the Buyer’s purchase order form.
Seller: Synergy Flavours Limited, registered in England and Wales, of Hillbottom Road, High Wycombe, Buckinghamshire, England.
Services: the services supplied by the Seller to the Buyer as may be set out in any Service Specification.
Service Specification: the description or specification for the Services provided in writing by the Seller to the Buyer.
Value Added Services: services which the Seller may provide to the Buyer prior to or during the term of the Contract, including, where the Seller elects to do so, the development or provision of illustrative finished product recipes or formulae (for example, for a finished beverage) demonstrating the use of the Goods as ingredients or components in an end product. This service does not form part of the Seller’s contractual obligations, together with label design assistance, product specification drafting, sensory evaluation, market insight reports, trend analysis and any other ancillary services provided by the Seller to the Buyer in connection with the development or commercialisation of the Goods, whether provided before or after the date of the Contract.
VAS Materials: all materials, documents, recipes, labels, specifications, reports, and other outputs created or provided by the Seller in connection with the Value Added Services.
Warranty Period: has the meaning given in Clause 7.1.

1.2 Interpretation
In these Conditions:

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its successors and permitted assigns.
(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to “writing” or “written” includes email.

2 BASIS FOR CONTRACT

2.1 The Order constitutes an offer by the Buyer to purchase Goods or procure Services from the Seller in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Seller issues written acceptance of the Order, at which point and on which date the Contract shall come into existence.
2.3 Any samples, drawings, descriptive matter or advertising issued by the Seller and any illustrations or descriptions of the Goods or Services contained in the Seller’s catalogues, presentations, brochures or other materials are issued for the sole purpose of giving an approximate idea of the Goods described in them and how those Goods could be used. They shall not form part of the Contract nor have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or that are implied by law, trade custom, practice or course of dealing.
2.5 Any quotation given by the Seller shall not constitute an offer, and is typically valid for a period of 90 Business Days from its date of issue, unless and until revoked on notice. If there is a material fluctuation of our costs of 5% or more, we will notify you to the extent this alters the validity of any quotation given.
2.6 Each Order accepted by the Seller shall create a separate Contract between the Seller and the Buyer.
2.7 The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.
2.8 Cancellation of an order by the Buyer once placed will not be accepted. The order is contractually binding once accepted by the Seller.

3 VALUE ADDED SERVICES

3.1 The Seller may, at its discretion, provide Value Added Services to the Buyer on an ancillary and goodwill basis. The provision of Value Added Services by the Seller shall not oblige the Seller to continue to provide the same or any similar services, and the Seller may cease providing Value Added Services at any time without liability to the Buyer.
3.2 All Intellectual Property Rights in or arising out of or in connection with the VAS Materials shall be the exclusive property of the Seller. No licence, assignment, or other transfer of any Intellectual Property Rights in or to the VAS Materials is granted to the Buyer under or in connection with the Contract unless expressly agreed in a separate written agreement signed by the Seller. The Buyer shall not copy, reproduce, modify, reverse engineer, distribute, or make commercial use of any VAS Materials except to the extent expressly permitted in writing by the Seller.
3.3 THE BUYER’S ATTENTION IS DRAWN TO THIS CLAUSE 3.3. ALL VAS MATERIALS ARE PROVIDED ON AN “AS IS” BASIS. THE SELLER MAKES NO WARRANTY OR REPRESENTATION, WHETHER EXPRESS OR IMPLIED, AS TO THE ACCURACY, COMPLETENESS, QUALITY, RELIABILITY, CURRENTNESS, OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY VAS MATERIALS. WITHOUT LIMITING THE FOREGOING, THE SELLER DOES NOT WARRANT THAT ANY RECIPE, LABEL, SPECIFICATION, OR OTHER VAS MATERIAL WILL COMPLY WITH ANY APPLICABLE LAW OR REGULATION (INCLUDING, WITHOUT LIMITATION, ANY FOOD SAFETY, LABELLING, ALLERGEN, NUTRITIONAL, OR PRODUCT COMPLIANCE LEGISLATION). TO THE FULLEST EXTENT PERMITTED BY LAW, ALL IMPLIED WARRANTIES, CONDITIONS, AND OTHER TERMS (WHETHER IMPLIED BY STATUTE, COMMON LAW, OR OTHERWISE), INCLUDING THE TERMS IMPLIED BY SECTIONS 3 TO 5 OF THE SUPPLY OF GOODS AND SERVICES ACT 1982 AND SECTIONS 13 TO 15 OF THE SALE OF GOODS ACT 1979, ARE EXCLUDED IN RELATION TO THE VALUE ADDED SERVICES AND THE VAS MATERIALS.
3.4 The Buyer shall:

(a) conduct its own independent testing, verification, and rationalisation of any and all VAS Materials (including any recipes, labels, specifications, or other outputs) before relying on, incorporating, or making any commercial use of such VAS Materials;
(b) satisfy itself, by obtaining its own independent professional advice where appropriate, as to the compliance of any VAS Materials with all applicable laws and regulations, including (without limitation) all food safety, labelling, allergen, nutritional, and product compliance legislation in force in any jurisdiction in which the Buyer intends to use or market the Goods or VAS Materials; and
(c) not rely on any VAS Materials as a substitute for the Buyer’s own due diligence, quality assurance, regulatory compliance, or product safety processes.

3.5 The Buyer shall indemnify the Seller and keep the Seller indemnified against all Losses arising out of or in connection with the Buyer’s use of or reliance on any VAS Materials otherwise than in accordance with this Clause 3, including (without limitation) any claim by a third party arising from the Buyer’s failure to independently verify the compliance of any VAS Materials with applicable laws and regulations.
3.6 The limitations and exclusions of liability set out in Clause 7 shall apply to any liability of the Seller arising out of or in connection with the Value Added Services and the VAS Materials.
3.7 This Clause 3 shall survive termination of the Contract.

4 SUPPLY OF GOODS

4.1 The Goods are described in the Goods Specification.
4.2 The Seller reserves the right to amend the Goods Specification if required by any applicable law or regulatory requirement, and the Seller shall notify the Buyer in any such event.

5 TRANSFER OF OWNERSHIP

Risk
5.1 The risk in the Goods shall pass to the Buyer on commencement of delivery, meaning from the time when the goods are delivered to a carrier for transmission to the Buyer or the prior delivery of the goods to the stipulated place of delivery, either of which events shall constitute delivery to the Buyer.
Title and Retention of Title
5.2 Title to the Goods shall not pass to the Buyer until the earlier of:

(a) the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
(b) the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in Clause 5.4.

5.3 Until title to the Goods has passed to the Buyer, the Buyer shall:

(a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Seller’s behalf from the date of dispatch;
(d) hold upon trust for the Seller absolutely all proceeds of such insurance as required by Clause 5.3(c);
(e) indemnify and keep indemnified the Seller against all loss of and damage to the goods and against reduction in the re-sale value thereof below the price to be paid therefore by the Buyer;
(f) notify the Seller immediately if it becomes subject to any of the events listed in Clause 11.1(b) to Clause 11.1(d); and
(g) give the Seller such information as the Seller may reasonably require from time to time relating to:

(i) the Goods; and
(ii) the Buyer’s ongoing financial position.

5.4 Subject to Clause 5.5, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods. However, if the Buyer resells the Goods before that time:

(a) it does so as principal and not as the Seller’s agent; and
(b) title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs.

5.5 At any time before title to the Goods passes to the Buyer, the Seller may:

(a) by notice in writing to the Buyer, terminate the Buyer’s right under Clause 5.4 to resell the Goods or use them in the ordinary course of its business; and
(b) require the Buyer to deliver up all Goods in its possession and control that have not been resold, or irrevocably incorporated into another product, and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored, to recover them.

5.6 Nothing in this Clause 5 shall confer any right upon the Buyer to return the Goods.

6 DELIVERY

6.1 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Where the Buyer notifies the Seller of a failure to deliver, the Seller shall use reasonable endeavours to effect delivery within 14 days of receipt of such notification (the “Cure Period”). If the Seller fails to deliver within the Cure Period, the Buyer shall be entitled to cancel the relevant order by providing written notice to the Seller. For the avoidance of doubt, any cancellation pursuant to this provision shall apply solely to the order in respect of which the failure to deliver has occurred and shall not entitle the Buyer to cancel any other order placed under these terms and conditions]. Fees imposed by the buyer for non-compliance will not be accepted.
6.2 The Seller shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (the “Delivery Location”) at any time after the Seller notifies the Buyer that the Goods are ready.
6.3 If the goods are not received by the Buyer within six days from the date of the relevant invoice, the carrier and the Seller must at once be informed.
6.4 The Seller shall be entitled to make partial deliveries or deliveries by instalments and the terms and conditions herein contained shall apply to each partial delivery. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
6.5 Deviations in quantity of the goods (representing not more than 10 per cent by value) from that stated in the contract shall not give the Buyer any right to reject the goods or to claim for damages and the Buyer shall be obliged to accept and pay at the contract rate for the quantity of the goods delivered.
6.6 Fees imposed by the Buyer for non-compliance with delivery requirements will not be accepted.

7 QUALITY OF GOODS

7.1 The Seller warrants that on delivery, and for a period of 6 months (where feasible considering shelf life/perishability) from the date of delivery, or such other period notified in respect of a perishable product (the “Warranty Period”), the Goods shall:

(a) be free from material defects in design, material and workmanship; and
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

7.2 Subject to Clause 7.3, if:

(a) during the Warranty Period, the Buyer gives notice in writing to the Seller within seven days of discovery that some or all of the Goods do not comply with the warranty set out in Clause 7.1;
(b) the Seller is given a reasonable opportunity of examining such Goods; and
(c) the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at its own cost,
The Seller shall, at its option and to the extent that it agrees that such Goods do not comply with the warranty set out in Clause 7.1, repair or replace the defective Goods, or refund the price of the defective Goods in full. The Buyer shall pay to the Seller the cost (as stated by the Seller) of any examination of the goods as a result of which the Seller does not admit liability.

7.3 The Seller shall not be liable for the Goods’ failure to comply with the warranty set out in Clause 7.1 if:

(a) the Buyer makes any further use of such Goods after giving a notice in accordance with Clause 7.2;
(b) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Seller following any drawing, design or specification supplied by or on behalf of the Buyer;
(d) the Buyer alters or repairs such Goods without the written consent of the Seller;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

7.4 Except as provided in this Clause 7, the Seller shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in Clause 7.1.
7.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
7.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Seller.
7.7 Cancellation of an order once placed will not be accepted. The order is contractually binding once accepted by the Seller.
7.8 The Buyer shall not reject any Goods or cancel or purport to cancel an Order or any part of it because of an alleged default unless the Seller shall have failed to correct such alleged default within 30 days of written notice specifying the default.

8 LIABILITY

8.1 The limits and exclusions in this Clause 8 reflect the insurance cover the Seller has been able to arrange. The Buyer is responsible for making its own arrangements for the insurance of any excess liability.
8.2 References to liability in this Clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence) or otherwise.
8.3 Nothing in the Contract limits any liability for:

(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
(d) defective products under the Consumer Protection Act 1987; or
(e) any liability that legally cannot be limited.

8.4 Subject to Clause 8.3, the Seller’s total liability to the Buyer shall not exceed the price paid by the Buyer to the Seller for the Goods which give rise to the claim, plus expenses of customs, taxes, freight and insurance for carriage.
8.5 Subject to Clause 8.3, the following types of loss are wholly excluded:

(a) loss of profits (including loss of anticipated savings);
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of use or corruption of software, data or information;
(e) loss of or damage to goodwill;
(f) third party claims; and
(g) indirect or consequential loss (including interest charges).

8.6 The Seller has given commitments as to compliance of the Goods with relevant specifications in Clause 7. In view of these commitments, 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.
8.7 Any claim against the Seller arising out of or in connection with the Goods must be made within one year from the date of receipt of the goods in question by the Buyer.
8.8 This Clause 8 shall survive termination of the Contract.

9 DEFAULT BY BUYER

9.1 The Buyer shall:

(a) ensure that the terms of the Order and any information it provides in the Goods Specification are complete and accurate;
(b) co-operate with the Seller in all matters relating to the supply of the Goods;
(c) provide the Seller with such information and materials as the Seller may reasonably require in order to supply the Goods, and ensure that such information is complete and accurate in all material respects;
(d) obtain and at all times maintain all necessary licences, permissions and consents that may be required in connection with the Goods;
(e) ensure that its employees, officers, representatives, contractors and subcontractors comply with, and fully co-operate in relation to, all on-site instructions and all applicable health and safety policies notified to them; and
(f) comply with all applicable laws.

9.2 If the Seller’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Buyer or failure by the Buyer to perform any relevant obligation (a “Buyer Default”):

(a) the Seller may suspend performance of its obligations until the Buyer remedies the Buyer Default, and rely on the Buyer Default to relieve it from the performance of any of its obligations in each case to the extent the Buyer Default prevents or delays the Seller’s performance of any of its obligations;
(b) the Seller shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from the Seller’s failure or delay to perform any of its obligations as set out in this Clause 9.2; and
(c) the Buyer shall reimburse the Seller on written demand for any costs or losses sustained or incurred by the Seller arising directly or indirectly from the Buyer Default.

10 PAYMENT

10.1 The price for the Goods and/or Services shall be the price set out in the Order, or if no price is quoted, the agreed price set out by the Seller in alternate communication which is in force at the date of delivery.
10.2 The Seller may review its prices for any Goods and/or Services at any time, and will ordinarily do so no more than once in any 12-month period. Any annual price review may be made by reference to an appropriate published index, including the Consumer Prices Index (CPI) published by the Office for National Statistics, or any replacement index. The Seller may also carry out interim price reviews and adjust its prices where market conditions reasonably require this, including (but not limited to) where there is any increase in input or supply costs, any fluctuation in exchange rates, or any other material change in the Seller’s cost base.
10.3 The Seller shall give the Buyer not less than 30 days’ prior written notice of any price adjustment. Any revised prices shall apply from the date stated in that notice.
10.4 Unless expressly agreed and recorded in writing in an Order:

(a) the price excludes the costs of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer;
(b) the Seller shall invoice the Buyer on or at any time after completion of delivery;
(c) each submitted invoice shall be payable within 30 days of the end of the month in which the invoice is dated.

10.5 The Buyer shall pay each invoice submitted by the Seller in full and in cleared funds to a bank account nominated in writing by the Seller, and time for payment shall be of the essence of the Contract.
10.6 All amounts payable by the Buyer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Seller to the Buyer, the Buyer shall, on receipt of a valid VAT invoice from the Seller, pay to the Seller such additional amounts in respect of VAT as are chargeable on the supply of the Goods at the same time as payment is due for the supply of the Goods.
10.7 If the Buyer fails to make a payment due to the Seller under the Contract by the due date, then, without limiting the Seller’s remedies under Clause 11, the Buyer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 10.5 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
10.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

11 TERMINATION

11.1 Without affecting any other right or remedy available to it, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if:

(a) the Buyer commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the Buyers takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this Clause 11.1(b);
(c) the other party suspends or ceases, or threatens to suspend or cease, carrying on business; or
(d) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

11.2 Without affecting any other right or remedy available to it, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
11.3 Without affecting any other right or remedy available to it, the Seller may suspend all further deliveries of Goods under the Contract or any other contract between the Buyer and the Seller if the Buyer fails to pay any amount due under the Contract on the due date for payment, the Buyer becomes subject to any of the events listed in Clause 11.1(b) to Clause 11.1(d), or the Seller reasonably believes that the Buyer is about to become subject to any of them.
11.4 In the event the Seller exercises any rights it may have to stop goods in transit because of the Buyer’s financial condition, the Seller may at its option resell such goods at public or private sale without notice to the Buyer and without affecting the Seller’s rights to hold the Buyer liable for any loss or damage caused by breach of contract by the Buyer.

12 CONSEQUENCES OF TERMINATION

12.1 On termination of the Contract, the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer immediately on receipt.
12.2 Termination of the Contract shall not affect 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.
12.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

13 FORCE MAJEURE

13.1 Neither party shall be liable for any delay or failure in the performance of its obligations for so long as and to the extent that such delay or failure results from a Force Majeure Event.
13.2 If the period of delay or non-performance continues for 90 days, the party not affected may terminate the Contract by giving not less than 30 days’ written notice to the affected party.

14 INTELLECTUAL PROPERTY AND CONFIDENTIALITY

14.1 All Intellectual Property Rights in or arising in, out of or in connection with the Goods and/or Services (including any Value Added Services provided) shall remain the absolute property and be owned entirely by the Seller.
14.2 Any Intellectual Property Rights or materials passed to the Buyer shall be treated as confidential by the Buyer, its employees, agents and contractors. The Buyer shall not use the Seller’s Intellectual Property Rights in any manner except as expressly authorised in writing by the Seller.

15 CONFIDENTIALITY

15.1 Each party undertakes that it shall not at any time during the Contract and for a period of two years after termination of the Contract disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 15.2.
15.2 Each party may disclose the other party’s confidential information:

(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this Clause 15; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3 No party may use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

16 DATA PROTECTION

16.1 The following definitions apply in this Clause 16:

(a) Controller , Processor , Data Subject , Personal Data , Personal Data Breach , processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
(b) Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
(c) UK GDPR: has the meaning given in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

16.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 16 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
16.3 Where any Personal Data is processed by the Seller in connection with the performance of its obligations under the Contract, the parties acknowledge that the Buyer is the Controller and the Seller is the Processor.
16.4 Without prejudice to the generality of Clause 16.2, the Buyer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Seller for the duration and purposes of the Contract.
16.5 Without prejudice to the generality of Clause 16.2, the Seller shall, in relation to any Personal Data processed in connection with the performance by the Seller of its obligations under the Contract:

(a) process that Personal Data on the documented written instructions of the Buyer unless the Seller is required by law to otherwise process that Personal Data;
(b) ensure that it has in place appropriate technical and organisational measures designed to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data;
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
(d) assist the Buyer, at the Buyer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(e) notify the Buyer without undue delay on becoming aware of a Personal Data Breach; and
(f) at the written direction of the Buyer, delete or return Personal Data and copies thereof to the Buyer on termination of the Contract unless required by law to store the Personal Data.

17 SPECIFICATIONS

17.1 Where the Buyer provides samples or a specification for the Goods, the Seller shall use reasonable endeavours to ensure the Goods supplied correspond with such samples or specification. Such samples or specification do not constitute a warranty or guarantee of the properties or condition of the Goods or their suitability for the intended purpose beyond the warranties set out in Clause 7.1.
17.2 It is the responsibility of the Buyer to satisfy itself that the Goods meet its requirements. The Buyer shall examine the Goods upon receipt and prior to processing them to ascertain that the Goods correspond with any sample and comply with any specification provided by the Buyer. Where type samples have been submitted for general consideration by the Buyer they shall not be regarded as definitive.
17.3 To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Buyer, the Buyer shall indemnify the Seller against all Losses incurred by the Seller as a result of any claim made against the Seller for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Seller’s use of the Goods Specification. This Clause 17.3 shall survive termination of the Contract.

18 GENERAL

18.1 ASSIGNMENT
The Seller may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract, provided that it gives prior written notice of such dealing to the Buyer.
The Buyer shall not assign or transfer or purport to assign or transfer to any other person the contract or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Seller.
18.2 NOTICES

(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case), or sent by email to the address notified in writing by that party.
(b) Any notice shall be deemed to have been received:

(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

18.3 THIRD PARTY RIGHTS AND PARTNERSHIP OR AGENCY
(a) The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

18.4 SEVERANCE

(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part-provision of the Contract is deemed deleted under this clause, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.

18.5 WAIVER

(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.

18.6 VARIATION

(a) Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

18.7 ENTIRE AGREEMENT

(a) The Contract constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

 

19 GOVERNING LAW AND JURISDICTION

The construction and validity of these conditions of sale shall be governed by the law of England and Wales and the parties agree to submit any dispute to the jurisdiction of the courts of England and Wales. However, the Seller shall additionally be permitted to bring legal proceedings in any other court of competent jurisdiction including the jurisdiction where the Buyer is based.