TERMS AND CONDITIONS OF PROCUREMENT

Sumitomo Chemical Agro Europe S.A.S.

May 2024

 

Sumitomo Chemical Agro Europe S.A.S. (“SCAE”) is registered in France, at Company’s register of Lyon under number 379 603 087. 10A rue de la voie lactée – 69370 Saint-Didier-Au-Mont-d’Or – FRANCE. General enquires: +33 4 78 64 32 60

 

  1. INTERPRETATION

In these Conditions, unless the context otherwise requires:

“Act” means any act for any purpose and in any field whatsoever including, but not limited to, use, storage, repair, manufacture, assembly, incorporation in other goods or products, development, sale, re-sale, disposal, supply, import, re-import, export, re-export and reproduction; “Background IPR” means any existing or future IPR (excluding Foreground IPR) owned by or licensed to Supplier (or its Representatives) and which are used in the performance of the Services; and/or are capable of being used in order to perform any Act in relation to the Goods and/or Deliverables; “Business Day” means a day other than a Saturday, Sunday or public holiday when banks in London are open for business; “SCAE Materials” means any materials, equipment, tools, drawings, specifications and/or data supplied to Supplier by SCAE; “Conditions” means these terms and conditions and any special conditions expressly set out in the PO; “Contract” means the contract between the Parties for the supply of Goods and/or Services which contract includes these Conditions; “Data Protection Legislation” means any applicable laws and regulations from time to time relating to privacy or the use or processing of Personal Data including, but not limited to, the Loi Informatique et Libertés of 1978 (“LIL”), the GDPR (and any legislation transposing the provision of the GDPR or broadly similar provisions into French law), the Privacy and Electronic Communications (EC Directive) Regulations 2003 and any guidance or codes of practice issued by the Information Commissioner from time to time (all as amended, extended, reenacted or replaced from time to time); “Deliverables” means all documents, products and materials developed by Supplier or its Representatives during the course of, for purposes of, as part of, and/or in relation to, the supply of Services or Goods (as applicable), in any form or media including, without limitation, drawings, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including, but not limited to, drafts); “Delivery Location” means the location set out in the PO or as instructed in writing by SCAE subsequent to the issue of the PO; “Economic Sanctions Program” means any program relating to economic sanctions; “Export Regulations” means all laws and regulations concerning the import, export, reimport or re-export of goods, software or technology (or their direct product); “Foreground IPR” means all and any IPR generated or arising directly out of, or in connection with, the Services undertaken by, or on behalf of, Supplier or otherwise during the course of the Contract, including, but not limited to, all IPR in Goods and/or Deliverables supplied by Supplier in pursuance of the Contract; “GDPR” means the General Data Protection Regulation (EU) 2016/679; “Goods” means the goods (or any part of them) to be supplied by Supplier as identified in the PO; “Group” means the relevant Party and any holding company or subsidiary company from time to time and any subsidiary of any such holding company from time to time where “holding company” and “subsidiary company” have the meanings set out in the French Code of Commerce; “IPR” means intellectual property rights including all patents, rights to inventions, utility models, copyright, neighbouring and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or getup, rights in goodwill and/or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets) and/or any other intellectual property rights, (whether registered or unregistered) and including all applications for and rights to apply for and be granted, renewals and/or extensions of such rights and rights to claim priority from such rights, and/or 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 or equivalent rights granted under licence from one or more third parties; “Parties” means together SCAE and Supplier and “Party » shall be construed accordingly; “Personal Data” shall have the same meaning as in the Data Protection Legislation; “PO” means SCAE’s purchase order for the purchase of Goods and/or Services; “Representative” means any member of the relevant Party’s Group, and any employee, consultant, subcontractor and/or any other third party acting on its, or their, behalf; “Services” means the services, including without limitation any Deliverables, to be provided by, or on behalf of, Supplier under the Contract as identified in the PO; “Specification” means any and all written description of, and specification for, the Goods and/or Services detailing its (or their) features, functionality and/or performance characteristics (including any related plans and drawings), as provided by, or on behalf of, Supplier together with any additional features, functionality and performance characteristics set out, or referenced, in the PO; and “Supplier” means the person from whom SCAE is purchasing the Goods and/or Services.

Headings are for convenience only and do not affect the construction of these Conditions. References to any statute, statutory provision or statutory instrument is a reference to such statute, statutory provision or statutory instrument as from time to time amended, extended, re-enacted or replaced and includes any subordinate legislation made under the same in each case as amended, extended, re-enacted or replaced. References to “written” or “in writing” include email except where expressly stated otherwise.

  1. BASIS OF CONTRACT
    • The PO constitutes an offer (or a counteroffer, as the case may be) by SCAE to purchase the Goods and/or Services from Supplier subject to these Conditions. These Conditions are the only conditions upon which SCAE deals with Supplier and shall govern the Contract to the exclusion of all other terms and conditions including, without limitation, any in any quotation, acknowledgement, offer by Supplier, invoice or other document issued by Supplier or which may be implied by custom, practice or course of dealing unless otherwise expressly agreed in writing by SCAE.
    • The PO shall be deemed accepted subject to these Conditions (and the Contract shall come into existence) on the earlier of (a) Supplier issuing written acceptance of the PO; and (b) any act of Supplier consistent with fulfilling the PO.
    • These Conditions apply to the supply of both Goods and Services.

 

  1. SUPPLY AND DELIVERY OF GOODS
    • Supplier shall properly pack and secure the Goods so as to reach SCAE in good condition. SCAE may reject Goods damaged in transit or that are inadequately packaged or labelled. Unless otherwise agreed in writing by SCAE, packaging is non-returnable. All Goods supplied shall, to the extent relevant, be accompanied by complete, accurate and up to date product safety data sheets.
    • Supplier shall ensure that each delivery is accompanied by a delivery note showing the date of the PO; the PO number; the type and quantity of Goods; any applicable storage instructions; and, where delivery is by instalments, the balance of Goods yet to be delivered.
    • Supplier shall deliver the Goods to, and unload them at, the Delivery Location during SCAE’s normal hours of business (or as otherwise instructed by SCAE in writing) on the date specified in the PO. Delivery shall be deemed completed on completion of such unloading. Time of delivery is of the essence.
    • If Supplier delivers (i) less than 95%; or (ii) more than 105% of the quantity of Goods ordered SCAE may reject the Goods or, in the case of excess quantity, the excess Goods. Rejected Goods shall be returnable at Supplier’s risk and expense. If SCAE accepts a delivery of more or less than the quantity of Goods ordered, a pro rata adjustment shall be made to the relevant invoice.
    • Supplier shall not deliver Goods in instalments without SCAE’s prior written consent. If SCAE agrees to delivery by instalments, the Goods may be invoiced and paid for separately. Failure by Supplier to deliver any instalment on time or at all or any defect in any instalment shall entitle SCAE to the remedies set out in Condition 6.1.
    • Title and risk in the Goods shall pass to SCAE on completion of delivery at the Delivery Location.
    • SCAE may (but is not obliged to) inspect/test the Goods prior to delivery. If, following any such inspection/testing, SCAE considers that the Goods do not conform, or are unlikely to conform, with the Contract, SCAE shall inform Supplier and Supplier shall immediately take such action as is necessary to ensure compliance. Notwithstanding any such inspection or testing, Supplier shall remain fully responsible for the Goods and the same shall not reduce or otherwise affect SCAE’s rights and Supplier’s obligations under the Contract and SCAE shall have the right to conduct further inspections/tests after delivery and/or after Supplier has carried out any remedial action.

 

  1. SUPPLY OF SERVICES
    • Supplier shall provide the Services to SCAE in accordance with the Contract and shall meet any performance dates specified in the PO or notified to it by SCAE.
    • In providing the Services, Supplier acknowledges that SCAE may rely or act on the Services and Supplier shall: a. co-operate with SCAE in all matters relating to the Services and comply with all SCAE’s instructions; b. provide all equipment, tools and vehicles and other items required; c. obtain, and at all times maintain, all necessary licences or consents, comply with all applicable laws and regulations, and observe all health and safety and security policies, rules, regulations and requirements applicable at SCAE’s premises; and d. not do, or omit to do, anything which may cause SCAE to lose any ownership, licence, authority, consent or permission required for its business or which may prejudice the value of any IPR that is the subject of the Contract.

 

  1. WARRANTIES ON GOODS AND SERVICES
    • In relation to the supply of Goods, Supplier warrants that: a. it has full, clear and unencumbered title to the Goods and that, as at the date of delivery, it will have full and unrestricted rights to sell and transfer the same to SCAE; b. the Goods shall correspond with the description and any applicable Specification; c. the Goods are of satisfactory quality (within the meaning of the French Codes of Commerce and Consumption) and fit for any purpose held out by Supplier or made known to Supplier by SCAE, expressly or by implication, and in this respect SCAE relies on Supplier’s skill and judgment; d. the Goods are free from defects in design, materials, workmanship and installation and will remain so for at least 12 months after delivery (or any longer period agreed); e. the Goods comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling (including labelling of hazardous substances), packaging, storage, handling, transportation and delivery of the Goods; f. at all times it has and maintains all licences, permissions, authorisations, consents and permits required to carry out its obligations; and g. it shall provide all necessary product safety data sheets, instructions and all necessary written instructions as to safety precautions relevant to the use, application and disposal of the Goods.
    • In relation to the supply of Services, Supplier warrants that: a. it has full, clear and unencumbered title to any goods transferred to SCAE as part of the Services and that, as at the date of delivery, it will have full and unrestricted rights to sell and transfer the same to SCAE; b. the Services shall correspond with the description and any applicable Specification; c. the Services are of satisfactory quality (within the meaning of the French Codes of Commerce and Consumption) and fit for any purpose held out by Supplier or made known to Supplier by SCAE, expressly or by implication, and in this respect SCAE relies on Supplier’s skill and judgment; d. the Deliverables and all goods and materials supplied, used or transferred to SCAE are free from defects in design, materials, workmanship and installation and will remain so for at least 12 months after supply (or any longer period agreed); e. it shall perform the Services with the best care, skill and diligence in accordance with best practice in Supplier’s industry, profession or trade using suitably skilled, competent and experienced personnel in sufficient number to ensure compliance with the Contract and using the best quality goods, materials, standards and techniques; f. at all times it has and maintains all licences, permissions, authorisations, consents and permits required to carry out its obligations; and g. it shall provide all necessary product safety data sheets, instructions and all necessary written instructions as to safety precautions relevant to the use, application and disposal of any goods and materials supplied, used or transferred to SCAE as part of the provision of the Services.
    • SCAE’s rights under the Contract (including, but not limited to, the warranties in this Condition 5) are cumulative and in addition to all other rights provided by law or equity, including the manufacturer’s warranty specified in Condition 5.5, and shall survive any delivery, inspection, acceptance or payment pursuant to the Contract. Notwithstanding Condition 17.4, it is agreed that all such warranties shall apply and extend to, and be enforceable by, any of SCAE’s Representatives, any customers of SCAE and/or SCAE’s Representatives and any third party with whom SCAE agrees to share the Goods and/or Deliverables.
    • Supplier shall give to SCAE not less than 12 months’ notice in writing of any intention to cease, or reduce, production and/or supply of goods of the description and specification of the Goods. Such notification shall not affect Supplier’s obligation to supply any Goods and/or Services pursuant to the Contract.
    • Without prejudice to the foregoing provisions of this Condition 5, Supplier shall procure that all Goods supplied carry the warranty of the original manufacturer and that SCAE is given the benefit of the same.

 

  1. SCAE’S REMEDIES
    • If Supplier fails to deliver the Goods and/or perform the Services by the applicable date(s), SCAE may, without prejudice to its other rights or remedies: a. terminate the Contract with immediate effect by notice in writing to Supplier; b. refuse to accept any subsequent delivery of the Goods and/or performance of the Services which Supplier may attempt; c. recover from Supplier any costs incurred by SCAE in obtaining substitute goods and/or services from a third party; d. require the refund of any sums already paid; and/or e. claim damages for any additional costs, losses or expenses suffered or incurred by SCAE which are in any way attributable to such failure.
    • If the Goods and/or Services do not comply with the Contract, SCAE may, without prejudice to its other rights or remedies, (regardless of any acceptance of the same): a. in the case of Goods, reject the Goods (in whole or part) whether or not title has passed and return them to Supplier at Supplier’s own risk and expense; b. in the case of Services, reject the Services (in whole or in part) and return any Deliverables to Supplier at Supplier’s own risk and expense; c. terminate the Contract with immediate effect by notice in writing to Supplier; d. in the case of Goods, require Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the same (if already paid); e. in the case of Services, require Supplier to reperform the nonconforming Services or to provide a full refund of the price of the same (if already paid); f. refuse to accept any subsequent delivery of the Goods or supply of the Services which Supplier attempts; g. recover from Supplier any costs incurred by SCAE in obtaining substitute goods and/or services from a third party; and/or h. claim damages for any additional costs, losses or expenses suffered or incurred by SCAE which are in any way attributable to such non-compliance.
    • The remedies set out above, together with all rights and obligations under the Contract, shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by Supplier.
    • SCAE’s rights under these Conditions are in addition to its rights and remedies implied by statute and common law.

 

  1. SCAE’S OBLIGATIONS.

SCAE shall provide Supplier with such access to SCAE’s premises as the Parties agree is required for the provision of the Services and shall provide such information as Supplier may reasonably request and which SCAE considers reasonably necessary for the provision of the Services.

  1. PRICE AND PAYMENT
    • The price for the Goods shall be as set out in the PO or as otherwise agreed in writing by the Parties. Unless otherwise stated in the PO, the price is Supplier’s total remuneration for the Goods and is inclusive of every cost/expense of Supplier directly or indirectly incurred in connection with the same including, but not limited to, packaging, insurance, and carriage costs but exclusive of value added tax.
    • The price for the Services shall be as set out in the PO or as otherwise agreed in writing by the Parties. Unless otherwise stated in the PO, the price is Supplier’s total remuneration for the Services and is inclusive of every cost/expense of Supplier directly or indirectly incurred in connection with the same but exclusive of value added tax.
    • Supplier shall submit a valid invoice (together with such supporting documentation as SCAE may reasonably require) on or after completion of delivery of the Goods and/or Services. In consideration for the supply of the Goods and/or Services and subject to Condition 8.7 SCAE shall pay each valid invoice by the end of the month following receipt of the invoice. Time of payment shall not be of the essence.
    • Payment by SCAE of any invoice shall not constitute an admission as to the performance by Supplier of any of its obligations; or constitute a waiver of any of its rights under the Contract; or terminate any of Supplier’s warranties.
    • If SCAE fails to pay when due any valid invoice, Supplier may charge interest on the overdue amount at the rate of 0.5 (a half of one) per cent per annum above the base rate for the time being of European Central Bank accruing on a daily basis from the due date up to the date of payment, whether before or after judgment. This shall not apply to payments disputed in good faith by SCAE.
    • SCAE may, at any time without notice to Supplier (and without prejudice to its other rights or remedies), set off any liability of Supplier to SCAE against any liability of SCAE to Supplier, whether either liability is present or future, liquidated or unliquidated, whether under the Contract or not and irrespective of its currency or denomination.
    • Where Supplier requires SCAE to change any of the Supplier’s banking details for receipt of payment, Supplier shall also provide to SCAE a bank certificate confirming the changes (or equivalent document as agreed by SCAE). SCAE shall not be obliged to make payments until, acting reasonably, SCAE has established to its satisfaction the bona fides of such change. SCAE shall impose a delay of 15 days prior to making any payment with the new banking details. Such delay shall not be deemed a late payment by SCAE.

 

  1. INTELLECTUAL PROPERTY RIGHTS
    • Supplier warrants that: a. it has not used, and will not use, the confidential information of any third party in connection with the supply of the Goods, the Services and/or any other item supplied by Supplier in connection with the PO; b. the development, creation, design, manufacture and/or supply of the Goods and/or Deliverables by or on behalf of Supplier will not in any way infringe the IPR of any third party; c. the Services and their performance by or on behalf of Supplier and/or their acceptance by SCAE will not in any way infringe the IPR of any third party; d. the performance by or on behalf of SCAE or any of its Representatives or customers of any Act in relation to any the Goods and/or Deliverables will not in any way infringe the IPR of any third party.
    • Supplier assigns to SCAE, with full title guarantee and free from all third party rights, all Foreground IPR in the Goods and/or Deliverables and shall procure the signature of any written assignment of any such Foreground IPR from any Representative as is necessary to vest in SCAE full and unencumbered ownership of all Foreground IPR.
    • Supplier:
  2. hereby grants to SCAE a perpetual, worldwide, irrevocable, royalty-free, non-exclusive licence to use and sublicense others to use, and sub-license the use of, the Background IPR for the purposes of performing any Act in relation to the Goods and/or Deliverables;
  3. shall promptly notify SCAE of any Background IPR (including without limitation patents and registered designs, and applications for the same) when (i) it is used in the performance of the Services; and/or (ii) it comes into existence; and/or (iii) Supplier becomes aware the use of which is or may be necessary in order to perform any Act in relation to the Goods and/or Deliverables;
  4. shall promptly provide SCAE with any information requested by SCAE from time to time in relation to any Background IPR;
  5. shall give to SCAE not less than 30 Business Days’ notice of any of the following:
  • any proposed assignment by Supplier to any third party of any Background IPR;
  • any proposed license by Supplier to any third party of any Background IPR, or termination or threatened or likely termination or amendment of any licence to Supplier of any Background IPR, which may restrict or otherwise adversely affect (A) Supplier’s ability to perform any of its obligations under the Contract (including, but not limited to, the supply of any of the Goods and/or Deliverables to SCAE and the performance of any of the Services); or (B) the exercise of any of the rights licensed under Condition 9.3a;
  1. shall promptly provide SCAE with any assistance reasonably requested by SCAE (including, without limitation, executing formal licences) in relation to recording in the relevant registries the licence granted under Condition 9.3a against any registered Background IPR;
  2. shall procure that any assignment or licence by Supplier to any third party of any Background IPR is expressly subject to the licence under Condition 9.3a; and
  3. shall promptly give SCAE written notice of any third party IPR (including, without limitation, patents and registered designs, and applications for the same) of which Supplier is aware, or becomes aware, which will or may be infringed by the performance of the Services or of any Act in relation to any Goods and/or Deliverables.
    • When using materials from any third-party, individual or employee of such third-party or of the Supplier, the Supplier shall obtain the transmission of IPR in any Deliverables to which any individual is now, or may in the future be, entitled under French Code of Intellectual Property or any similar provisions of law in any jurisdiction.
    • At SCAE’s request, Supplier shall promptly do (or procure to be done) all such further acts and things and execute all such documents as SCAE may from time to time require to secure for SCAE the full benefit of the Contract, including all right, title and interest in and to any IPR assigned or licensed to SCAE pursuant to Conditions 9.2 and/or 9.3a.
    • Supplier shall indemnify SCAE and keep SCAE fully and effectively indemnified against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other fees and expenses awarded against, or incurred or paid by, SCAE as a result of, or in connection with (a) any breach of any of the warranties set out in this Condition 9 or of any of Conditions 9.2 to 9.5 (inclusive); or (b) without limitation to Condition 9.3a any claim made against SCAE for actual or alleged infringement of a third party’s IPR arising out of, or in connection with, any Act in relation to any Goods and/or Deliverables; and/or the performance, acceptance, receipt or use of the Services.
    • This Condition 9 shall survive the expiry or termination of the Contract.

 

  1. SCAE MATERIALS/EQUIPMENT.

All SCAE Materials are and shall remain the exclusive property of SCAE, and Supplier shall hold them in safe custody at its own risk, maintain the same in good condition pending SCAE’s instructions and not dispose of or use the same other than in accordance with SCAE’s instructions or authorisation.

  1. INDEMNITY AND INSURANCE
    • Supplier shall indemnify SCAE and keep SCAE fully and effectively indemnified from and against all costs, expenses, damages and losses (including but not limited to any direct, indirect and consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses), suffered or incurred by SCAE as a result of, or in connection with (a) any defect in the Goods and/or Services (including but not limited to any claim made against SCAE by a third party arising out of or in connection with the same); (b) any claim made against SCAE by a third party arising out of or in connection with the supply of the Goods or the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by Supplier, its employees, agents or subcontractors; and (c) any breach by Supplier of any of these Conditions.
    • During the term of the Contract and for a period of twelve months thereafter, Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under, or in connection with, the Contract and shall, on SCAE’s request, produce the insurance certificate giving details of cover and the receipt for the current year’s premium for the same.
    • This Condition 11 shall survive the expiry or termination of the Contract.

 

Each Party shall keep confidential all information of a secret or confidential nature (including technical or commercial know-how, specifications, inventions or processes or information concerning the other Party’s business, products or services) disclosed to it by the other Party or its Representatives or of which it becomes aware and each Party shall restrict disclosure of such confidential information to those of its officers or employees who need to know it for the purpose of the Contract and shall ensure that each such officer or employee is bound by obligations of confidentiality at least as onerous as those which bind it. If the Parties enter a separate confidentiality agreement, the provisions of that agreement shall also apply to protect the Parties’ confidential information and shall supersede these Conditions in the case of any conflict. Notwithstanding the foregoing, each Party may disclose such of the other Party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction and SCAE may disclose confidential information of Supplier to any of SCAE’s Representatives at any time. This Condition 12 shall survive the expiry or termination of the Contract.

  1. TERMINATION
    • Without prejudice to its other rights or remedies, either Party may terminate the Contract with immediate effect by notice in writing to the other if:
    • the other Party commits a material breach of the Contract which is not remediable or, if remediable, fails to remedy the same within 30 days’ of receipt of notice in writing from the non-defaulting Party notifying it of the breach and requiring it to remedy it;
    • the other Party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
    • the other Party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or ceases, or threatens to cease, carrying on all or a substantial part of its business;
    • the other Party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts or makes a proposal for, or enters into, a compromise or arrangement with its creditors;
    • a petition is filed, notice given, resolution passed or order made for, or in connection with, the other Party’s winding up;
    • the other Party suffers a change of control (within the meaning of article L.223-3 of the French Code of Commerce);
    • the other Party (if an individual) is the subject of a bankruptcy petition order;
    • a creditor or encumbrancer of the other Party attaches or takes possession of, or a distress, execution, sequestration or other process is levied, enforced on or sued against, the whole or part of its assets and is not discharged within 14 days;
    • a court application or order is made for the appointment of an administrator or notice of intention to appoint an administrator is given or an administrator is appointed over the other Party or a person becomes entitled to appoint or appoints an administrative receiver/receiver in respect of the other Party; or
    • an event analogous to any of the foregoing occurs in any jurisdiction.
    • Without prejudice to its other rights or remedies, SCAE may terminate the Contract at any time with immediate effect by notice in writing to Supplier, in which case SCAE shall pay Supplier fair and reasonable compensation for work completed as at the date of termination (which shall not include loss of anticipated profits or any consequential loss) but shall otherwise have no liability to Supplier.
    • If the Contract is for the supply of both Goods and Services, SCAE may terminate the Contract in respect of the Goods or in respect of the Services and the Contract shall continue in respect of the remaining supply.
    • On the expiry or termination of the Contract (in whole or part) for any reason:
    • in the case of a Contract for Services, Supplier shall immediately deliver to SCAE all Deliverables, whether or not complete, and promptly return all SCAE Materials to SCAE. If Supplier fails to do so, SCAE may enter Supplier’s premises and take possession of them. Until they have been returned or delivered, Supplier shall be solely responsible for the safe keeping of all Deliverables and SCAE Materials in its possession and will not use them for any purpose not connected with this Contract;
    • the Parties’ accrued rights and remedies as at expiry or termination shall not be affected including the right to claim damages in respect of any breach of the Contract in existence at or before the date of expiry or termination; and
    • any Conditions which, expressly or by implication, have effect after expiry or termination shall continue in full force and effect.

 

  1. FORCE MAJEURE.

Neither Party shall be in breach of the Contract nor liable to the other for any delay in performing, or failure to perform, any of its obligations under it to the extent such delay or failure is caused by an event or circumstance beyond its reasonable control which was unforeseeable or, if foreseeable, unavoidable. Supplier shall use all reasonable endeavours to mitigate the effect of any such event or circumstance on the performance of its obligations. If such event or circumstance prevents Supplier from supplying the Goods and/or Services for a continuous period of more than 30 days, SCAE may, without prejudice to its other rights or remedies, terminate the Contract immediately by notice in writing to Supplier.

  1. ASSIGNMENT AND SUBCONTRACTING.

Supplier shall not assign or otherwise transfer any of its rights under these Conditions or any Contract nor subcontract or delegate in any manner any or all of its obligations to a third party.

Any notice or other communication given to a Party under or in connection with the Contract shall be in writing (excluding email) in English and delivered personally or by courier or sent by first class or recorded post to the other Party’s registered office (or principal place of business if not a company). Any notice shall be deemed served (i) if delivered personally or by courier, when left at the correct address; and (ii) if sent by recorded post at 9.00 am on the second Business Day after posting (for a French Supplier) or on the fifth Business Day after posting (for an overseas Supplier). In proving service it shall be sufficient to prove that the notice or communication was properly addressed and delivered or posted (as the case may be). Notices may not be sent by email.

  1. GENERAL
    • A waiver of any right under the Contract is only effective if in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a Party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
    • If any provision (or part provision) of these Conditions is found to be wholly or partly illegal, invalid or unenforceable, that provision (or part) shall, to the extent required, be deemed deleted and the validity and enforceability of the other provisions shall not be affected.
    • Nothing in these Conditions is intended, or shall be deemed, to constitute a partnership or joint venture between the Parties, nor constitute a Party as agent of the other. No Party has authority to act as agent for, or bind, the other
    • Except as stated otherwise in this Condition 17.4 and Condition 5.3, the application of the U.N. Convention on Contracts for the International Sale of Goods (CISG) shall be excluded from these Conditions or to any Contract. Notwithstanding the foregoing, any of SCAE’s Representatives may enforce any term of the Contract as though it were a party to the same including, but not limited to, the warranties contained in Condition 5.
    • Nothing in these Conditions is intended to exclude or limit either Party’s liability for (i) fraud or fraudulent misrepresentation; or (ii) death or personal injury caused by its negligence.
    • Any variation to the Contract (including additional terms and/or conditions) shall only be binding if expressly agreed in writing by both Parties and signed by SCAE.

 

  1. ETHICAL STANDARDS.
    • Each Party shall comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption. Each Party, in particular, shall not offer, pay, promise to pay, or authorise the giving of any financial or other benefit to any person for the purpose of obtaining an improper advantage, or otherwise conduct itself in a manner contrary to the Loi Sapin 2 or any other applicable anti-bribery law. Supplier shall promptly report to SCAE any request or demand for any undue or suspicious financial or other advantage of any kind received by Supplier in connection with the performance of the Order. Breach of this Condition 18 shall constitute an irremediable breach for the purposes of Condition 13.1.
    • Neither Party shall engage in any activity, practice or conduct which would constitute either a French tax evasion facilitation offence or a foreign tax evasion facilitation offence under French Criminal or Public Finance Code. Supplier shall promptly report to SCAE any request or demand from a third party to facilitate the evasion of tax within the meaning of French Criminal or Public Finance Code or any suspected tax evasion offences or facilitation of tax evasion offences, whether under French law or under the law of any foreign country, in connection with the performance of this Contract.
    • Each Party warrants that it and each of its own suppliers, and subcontractors comply with Articles 224-1 A to C of the French Criminal Code, the UK Modern Slavery Act 2015 and the California Transparency in Supply Chains Act of 2010, and warranties that, having carried out reasonable due diligence and enquires, there is no modern slavery or human trafficking in its or its subcontractors’ supply chains or in any part of their business.
    • Each Party warrants that it pays its own EU-based staff and EU based outsourced workers wage at least equal to the living wage guidance published by the Living Wage Foundation from time to time. Where the Party does not have workers based in the EU, it warrants that it pays fair and reasonable wage levels in line with similar best practice in the country of operation.
    • Each Party warrants that it complies with the relevant anti-money laundering laws and regulations, including, but not limited to, the UK Money Laundering Regulations 2017, the UK Proceeds of Crime Act 2002 (“POCA”), and the US Patriot Act of 2001, and that it complies with the laws, regulations and lists administered by HM Office of Financial Sanctions Implementation ( “OFSI ”) in the UK or the US Department of Treasury’s Office of Foreign Assets Control (“OFAC”), which prohibit dealings with certain countries, territories, entities and individuals named by them, and that it does not engage and will not engage in any transaction, investment, undertaking or activity that conceals or attempts to conceal the identity, source or destination of the proceeds that could affect its compliance with this Condition 18.5.
    • Each Party warrants that it complies with all applicable laws, statutes, regulations and codes relating to animal welfare, including (but not limited to) the UK Animal Welfare Act 2006, Animals (Scientific Procedures) Act 1986, and Directive 2010/63/EU on the protection of animals for scientific purposes (together, the ‘Animal Welfare Laws’). Each party shall not cause or permit to be caused any unnecessary harm, suffering or distress of any animal in a manner contrary to applicable Animal Welfare Laws. Each party warrants that no action, enforcement or proceeding by or before any court or government agency, authority or body involving that party with respect to the Animal Welfare Laws is pending or, to the best knowledge of the party, threatened.

 

  1. DATA PROTECTION.

When they process personal data, the parties undertake to comply with their obligations pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016, applicable from 25 May 2018 and the equivalent provision of the LIL. SCAE’s policy on third party personal data management is available on SCAE’s website: www.sumitomo-chem-agro.com

  1. IMPORT AND EXPORT CONTROLS.

 

  • Each Party shall comply with all applicable Export Regulations and Economic Sanctions Programmes.
  • Supplier is responsible for obtaining, at its own cost, such import and/or export licences and other consents in relation to the provision of the Goods and/or Services as are required from time to time and shall make the same available to SCAE immediately on request.
  • Supplier shall indemnify SCAE and keep SCAE fully and effectively indemnified against any liability, loss, damage, claims, costs or expense of any kind suffered or incurred by SCAE as a result of, or in connection with, any failure by Supplier, its employees, agents or subcontractors to comply with any applicable Export Regulations and Economic Sanctions Programmes and/or any part of this Condition 20.

 

  1. GOVERNING LAW AND JURISDICTION.

The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with French law and the Parties irrevocably submit to the exclusive jurisdiction of the French courts in relation to any matter or dispute arising out of or in connection with the Contract.