ED&F MAN LIQUID PRODUCTS UK LTD

STANDARD TERMS & CONDITIONS FOR SALE OF GOODS

  1. INTERPRETATION

    1. The definitions and rules of interpretation in this condition apply in these conditions.
      Affiliate: means any company, partnership or other entity that directly or indirectly controls, is controlled by or is under common control of the Seller.
      Buyer: means the person, firm or company who purchases the Goods from the Seller.
      AIC Standard Terms: the terms of the standard Agricultural Industries Confederation Limited Contract for Moist and Liquid Feed Materials (currently Feed No. 15/21), as modified and updated from time to time, which the parties acknowledge and accept.
      Consignee: (where different from the Buyer) means the farmer or other retail client of the Buyer or any other person, firm or company to whom the Goods are to be delivered as agreed between the Seller and the Buyer. For the avoidance of doubt, the Consignee is not a party to the Contract and the Buyer shall remain liable to the Seller for the failure of any Consignee to, amongst other things, comply with the Terms.
      Contract: means the binding agreement between the Seller and the Buyer for the sale and purchase of the Goods, which shall incorporate these Terms and any Sales Confirmation of the Seller entered into between the Seller and the Buyer for the sale and purchase of the Goods. Together, the Sales Confirmation and these Terms shall form the entire agreement between the Buyer and the Seller, to the exclusion of any terms, whether standard or otherwise, that the Buyer may purport to apply.
      Goods: means any goods agreed in the Sales Confirmation to be supplied to the Buyer by the Seller (including any part or parts of them). Sales Confirmation: means the confirmed details of the business transaction as agreed between the Seller and the Buyer in the document produced by the Seller, pursuant to which the Goods shall be sold by the Seller and purchased by the Buyer.
      Seller: ED&F Man Liquid Products UK Ltd, incorporated and registered in England with its registered office at 15 Hatfields, London, SE1 8DJ (or such other entity within the ED&F Man group, as may be set out in the Contract).
      Terms: means these terms and conditions of the Seller for the sale to the Buyer of Goods, as may be amended from time to time as published on the Seller’s website.
    2. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment which is in force or which may come into force in the future and includes any subordinate legislation made under that law for the time being in force or which may come into force in the future.
    3. Headings are for the purposes of convenience only and are not intended to affect the interpretation of these Terms nor to define or limit the contents of these Terms.

  2. APPLICATION OF TERMS

    1. All Contracts for the supply of Goods by the Seller are formed in accordance with these Terms, and by entering into a Contract for the purchase of Goods with the Seller, the Buyer agrees to the incorporation of these Terms and the Sales Confirmation terms in full, without modification, and to the exclusion of any terms and conditions that the Buyer purports to apply. The Sales Confirmation, these Terms, and any variation of either (which variation must be agreed in writing between the Buyer and Seller in accordance with Clause 2.3(c) below), shall be deemed an integral part of the Contract.
    2. The Sales Confirmation and these Terms, as issued in response to a purchase order submitted by the Buyer or following verbal communication between the Seller and the Buyer (which communication is always subject to the issuing of the Sales Confirmation incorporating these Terms), will be the entire agreement between the parties and will supersede any purported Buyer’s terms which the Buyer may seek to incorporate or rely upon.
    3. It is agreed that the correct interpretation of the Contract is that:
      1. To the extent of any conflict or inconsistency between these Terms and the Sales Confirmation, the terms of the Sales Confirmation shall take precedence;
      2. Subject to the terms of the Sales Confirmation, these Terms shall apply to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification, terms and conditions, or any other document sent by the Buyer to the Seller, electronically or otherwise prior to or during contractual negotiations). Without prejudice to the foregoing, should the Buyer’s terms and conditions (or such other document as sent by the Buyer to the Seller) be found to apply or be in any way incorporated into the Contract, the Seller’s Terms as set out herein shall at all times be deemed to take precedence in the event of any conflict;
      3. Any variation(s) to the Sales Confirmation terms or these Terms, and any representation(s) (whether pre- or post-contract) about the Goods, shall have no legal effect unless the said variation(s) and/or representation(s) are set out in writing and signed by an authorised representative of the Seller;
      4. The Buyer may not rely on any statement, promise or representation made or given by or on behalf of the Seller, whether pre- or post-contract, unless it is set out in writing as part of the Contract.

  3. DESCRIPTION

    1. The quantity, description and/or specification of the Goods shall be as set out in the Sales Confirmation.
    2. All samples, drawings, descriptive matter, specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract.
    3. The Seller reserves the right to make any changes to the specification of the Goods, where:
      1. this is required under applicable safety standards, laws, regulations, and / or statutes; or
      2. the changes to the specification of the Goods would not materially affect their quality and/or use.

  4. ANALYSIS

    1. Sugar and moisture content of the Goods shall be determined in accordance with clause 12 (Analysis) of the AIC Standard Terms.

  5. DELIVERY

    1. Unless otherwise agreed in the Sales Confirmation, the Goods shall be delivered when the Buyer has collected the Goods from the Seller’s premises.
    2. The Goods shall be deemed to have been collected by the Buyer once they are loaded on to the Buyer’s or Consignee’s transport, as appropriate.
    3. The Buyer shall take delivery of the Goods within the period of delivery specified by the Seller in the Sales Confirmation. If no date(s) has been agreed for delivery, then the Buyer shall take delivery of the Goods when the Goods have been made available to the Buyer and that has been communicated by the Seller to the Buyer, and time shall be of the essence.
    4. Any dates specified by the Seller for delivery of the Goods are provided without guarantee, are intended to be an estimate only, and time for delivery shall not be made of the essence by any notice of the Buyer to the Seller.
    5. The Goods may be delivered by the Seller in advance of any agreed delivery date or period (depending on what is set out in the Sales Confirmation) if reasonable notice is given to the Buyer of the Seller’s intention to do so.
    6. The Seller may deliver a quantity of Goods that is up to 5% more or less than the contractually specified sum and the Buyer shall pay for the Goods by reference to the delivered quantity (as calculated in accordance with Clause 7.1) at the pro rata Contract rate.
    7. If the delivery of the Goods is delayed by the Buyer’s failure to (i) accept delivery on time; or (ii) provide what is necessary for the Seller to complete delivery on time (such as vehicles, storage capacity, instructions, documents, licences, authorisations and / or other essential provisions), then from the commencement of the delay:
      1. risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Seller’s negligence);
      2. the Goods shall be deemed to have been delivered;
      3. the Seller may store the Goods until delivery, and the Buyer shall be liable for all related costs and expenses for such storage and / or delay (including, without limitation, storage, transport costs, and insurance); and
      4. the Buyer shall indemnify the Seller for all damages, claims, liability, costs and expenses that are incurred as a result of the delay.
    8. Where the specified delivery location for the Goods is not the Seller’s premises, then any damage due to inadequate site access shall be at the Buyer’s risk. Further, the Seller will use its reasonable endeavours to deliver the Goods as close as possible to the specified place of delivery. If the Buyer’s requested location cannot be reached through reasonable efforts, delivery shall validly occur at the location considered most suitable for delivery by the Seller, and the Buyer shall be liable for all risk and costs, including transport, in relation to the Goods thereafter.
    9. If the Parties agree to deliver the Goods in separate instalments, each instalment shall be paid as if it were a separate Contract and no cancellation or termination of any one instalment shall entitle the Buyer to repudiate or cancel any other instalment.
    10. If the Buyer’s Consignee, or any other third-party contractor of the Buyer, has agreed to take delivery of the Goods, then this shall have no effect on the Buyer’s warranties, obligations, indemnities, limitations, exclusions, time-bars and undertakings under the Contract, for which the Buyer remains fully responsible.

  6. NON-DELIVERY

    1. TIME BAR. All claims by the Buyer for shortage or any other form of total or partial non-delivery shall be time barred and excluded unless the Buyer gives written notice to the Seller of the claim within 7 days of delivery of the Goods to the Buyer. If the Buyer fails to give notice within this timeframe, then the Seller shall not be liable for any shortage or other form of total or partial non-delivery of the Goods (even if caused by the Seller’s negligence).
    2. LIMITATION. Subject to Clause 6.1, any liability of the Seller, of any nature, for total or partial non-delivery of the Goods shall be capped and strictly limited, at the discretion of the Seller, solely to (i) replacing the Goods within a reasonable time, or (ii) issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.

  7. QUANTITY VOLUME AND WEIGHTS

    1. The method for determining the quantity, volume and/or weight of any consignment of Goods to be invoiced shall be as specified in the Sales Confirmation as either “Loaded Weight Final” or “Customer Weight Final”.
    2. In any other event, the quantity, volume and/or weight of any consignment of Goods as recorded by the Seller on weighbridge certificates on despatch from the Seller’s place of business shall be deemed final and conclusive evidence of the quantity volume and/or weight (as the case may be) received by the Buyer on delivery, and payment shall be made against such quantities and/or weights (as the case may be).

  8. RISK/TITLE

    1. Subject to Clause 5.7, the Goods shall be at the risk of the Buyer from the time of delivery.
    2. The Seller shall retain title in and ownership of the Goods until the Seller has received the full payment of all sums due (in cash or cleared funds) for the Goods, including interest, charges and all other sums which are or may become due to the Seller under the Contract.
    3. The Buyer’s right to possession of the Goods shall terminate immediately if:
      1. the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) 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 documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the
        winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
      2. the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
      3. the Buyer encumbers or in any way charges any of the Goods.
    4. The Buyer grants the Seller, its agents and employees an irrevocable licence (where the Seller is yet to receive full payment of all sums due for the Goods, as per Clause 8.2 above) to enter any premises to inspect the Goods, or, where the Buyer’s right to possession has terminated, to recover the Goods. If the Seller is unable to determine whether the Goods remain in the Buyer’s possession during the inspection, then the Seller shall be entitled to payment from the Buyer for the Goods, which shall be calculated by reference to the price agreed between the Seller and the Buyer under the Contract.
    5. The Seller’s rights contained in this Clause, and in these Terms and the Sale Contract more generally, shall survive the termination of this Contract, howsoever caused.

  9. PRICE

    1. The Buyer shall pay the Seller the full price of the Goods as agreed in the Contract, and time for payment (as set out in Clause 10 below) shall be of the essence.
    2. If a price has not been agreed between the parties in the Contract, the price for the Goods shall be the market value at the time of delivery.
    3. The Seller reserves the right to increase the price of the Goods prior to the date of scheduled delivery to reflect any increase in the Seller’s costs that is caused by a factor beyond the Seller’s reasonable control. Such factors shall include, but not be limited to: increases in the cost of transporting the Goods; change(s) of delivery locations, date(s), quantities or specifications under the Contract or relating to the Goods; currency or commodity price fluctuations; and / or any other factor that affects the Seller’s costs of supplying the Goods.
    4. The price for the Goods shall be exclusive of any value added tax (and any similar taxes) and all costs or charges in relation to the packaging, loading, unloading, carriage and insurance of the Goods, all of which the Buyer shall pay in addition to the price of the Goods, when paying for the Goods.
    5. All taxes and charges that are levied on the Goods in any jurisdiction shall be for the Buyer’s account.
    6. The price of the Goods is subject to alteration by reason of the imposition or alteration by the European Union or by the United Kingdom Government of the rates, and/or manner of collection, of any tax, duty, levy or any other statutory charge upon the Goods of that description, whether at the time of or if the change is retrospective at any time after the date of the Contract provided that the change is applicable to the date of delivery.

  10. PAYMENT

    1. Unless agreed otherwise in the Sales Confirmation, the Seller may invoice the Buyer for payment of all sums due under the Contract at any time that the Seller considers appropriate.
    2. The Buyer shall pay the Seller’s invoice, in full, as per the terms of the Contract and relevant invoice.
    3. The Buyer’s payment obligation shall only be satisfied when the invoiced amount has been received in full by the Seller in cleared funds.
    4. The Buyer shall make all payments to the Seller, without any deduction, whether by way of set-off, counterclaim, discount, abatement or otherwise, and the Buyer shall be liable to pay all bank charges on payment transactions.
    5. If the Buyer fails to pay the Seller any sum due under the Contract before the contractually specified date for payment has elapsed:
      1. In addition to the Seller’s usual remedies (including the retention of title remedy set out in Clause 8.2 above), the Seller shall be entitled to: (i) require an advance payment of the price before any further deliveries are made; (ii) withhold or suspend deliveries under the Contract until all outstanding payments under the Contract (or any other contract with the Buyer) have been received in full; (iii) exercise a lien upon the Goods in respect of any outstanding payments under the Contract (or any other contract with the Buyer); (iv) terminate the Contract; (v) sell the Goods to an alternative buyer and/or dispose of the Goods at its own discretion; and further, the Seller shall be able to exercise any of the above options without liability to the Buyer and claim any expenses incurred in taking any of the above steps from the Buyer on an indemnity basis.
      2. the Buyer shall be liable to pay interest to the Seller from the date when payment became due, until payment has been made in full (inclusive of any interest). Such interest shall accrue at an annual rate of 5% above the base lending rate from time to time of Barclays Bank plc and shall accrue on a daily basis until payment is received.
    6. Notwithstanding Clause 10.2, all payments owed to the Seller under the Contract shall become due immediately upon the termination of the Contract.

  11. QUALITY

    1. The Seller warrants that (subject to the other provisions of these Terms) on delivery the Goods shall be in accordance with the specifications as agreed in the Sales Confirmation between the Buyer and the Seller.
    2. Subject to Clause 4.1 above, the quality of any consignment of Goods as recorded in the Seller’s feed tag shall be conclusive evidence of the quality of the Goods received by the Buyer on delivery and the said feed tag shall be final, conclusive and binding evidence of the quality of the Goods delivered to the Buyer.
    3. TIME BAR. If the Buyer considers the Goods to be in breach of Clause 11.1, then the onus of proof for establishing that breach shall be on the Buyer, and the Buyer must notify the Seller of the breach, with supporting evidence, within 7 days of the date of delivery, or else all alleged liability on the part of the Seller for any breach shall cease immediately.
    4. EXCLUSION. The Seller shall not be liable for a breach of the warranties in Clause 11.1 if:
      1. the Seller is not given an opportunity to examine a sample of the Goods, upon request, within 48 hours of the Buyer submitting written notice of the breach in accordance with Clause 11.3;
      2. the Seller’s reasonable examination thereafter does not prove a breach of Clause 11.1;
      3. the Buyer makes any further use of the Goods after giving notice under 11.3; or
      4. the breach arose due to the Buyer’s (or any Consignee’s or third party’s) delay or failure to take delivery, fault, negligence, breach of contract or failure to follow the Seller’s oral or written instructions or guidance as to the correct storage or use of the Goods.
    5. LIMITATION. Subject to Clauses 11.3 and 11.4, if the Goods are in breach of the warranties in Clause 11.1, then the Seller’s liability for such breach shall be limited, at the discretion of the Seller, solely to (i) replacing the Goods or (ii) refunding the price of the Goods at the pro rata Contract rate. This Clause 11.5 shall be the Buyer’s sole remedy for all losses caused due to the Seller’s breach of warranty, as aforesaid, as to the specification and/or quality of the Goods. Other than as provided for in this Clause 11.5, the Seller shall have no further liability in contract, tort or otherwise in respect of such breach.
    6. The Seller reserves the right to require the return of the Goods from the Buyer after remitting a refund. Otherwise, the Seller will not accept the return of any Goods unless this is agreed to in writing by a Divisional Director or Manager of the Seller.

  12. GOODS TO BE USED FOR STOCK FEEDING PURPOSES ONLY

    1. It is a condition of the Contract that any Goods supplied by the Seller, are sold by the Seller exclusively, and are intended by the Buyer to be used solely, for the purposes of animal feed. No warranty is given or is to be implied as to their use for any other purpose, which use is at the Buyer’s sole risk.
    2. It is a further condition of the Contract that in the event of HM Revenue and Customs (HMRC) calling upon the Seller to produce evidence to their satisfaction that the said Goods or any portion thereof has been used solely for the purpose of food for stock or in the preparation of articles capable of being used solely for that purpose, the Buyer will supply such evidence. In the event that the Buyer fails to do so, the Buyer agrees to pay the Seller on demand any duty which is demanded by HMRC in respect of the quantity of which evidence to the satisfaction of HMRC is not forthcoming.

  13. LIMITATION OF LIABILITY

    1. These Terms set out the entire financial liability of the Seller (including any liability for the acts or omissions of the Seller’s directors, employees, Affiliates, agents and/or sub-contractors) to the Buyer in respect of, but not limited to, the following:
      1. the Seller’s breach or non-performance of any of its contractual obligations, whether express or implied, to the Buyer, including but not limited to claims resulting from the quality or description/specification of the Goods or the Buyer’s use of the Goods;
      2. claims asserted by the Buyer, a Consignee or third party due to the Seller’s negligent acts or omissions in connection with the performance of the Contract;
      3. claims resulting from violations of any applicable laws;
      4. any representation, statement or tortious act or omission, including negligence, arising out of, under or in connection with the Contract and/or the Goods that are the subject of the Contract; and
      5. any other claim made by the Buyer or any third party against the Seller in connection with the Contract and/or the Goods that are the subject of the Contract.
    2. LIMITATION. The Seller’s total liability to the Buyer or any other party, whether in contract, tort (including, but not limited to, negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with the performance or contemplated performance of the Contract and/or the Goods that are the subject of the Contract shall be limited to whichever is the lower of:
      1. The stated limitations in Clauses 6.2 and 11.5 as applicable; or
      2. The pro-rata price of the Goods as specified in the Contract. Without prejudice to the foregoing, the Seller’s maximum liability arising out of or in any way connected with the relevant Goods, and whether that liability arises out of or under the Contract, in tort or otherwise, shall not in any circumstances exceed the total price of the relevant Goods sold to the Buyer under the relevant Contract.
    3. EXCLUSION. Save where otherwise provided in these Terms, the Seller excludes all liability to the Buyer for damages, sums, compensation or any other form of relief, and whether that liability is in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising out of or in connection with the performance or contemplated performance of the Contract and/or the Goods that are the subject of the Contract, including (but not limited to) the following:
      1. Claims which would otherwise have been valid, save for the Buyer’s failure to comply with the time bar provisions in Clause 6.1 and/or 11.3;
      2. All of the excluded circumstances listed in Clause 11.4;
      3. (To the fullest extent permitted by law) all warranties, conditions and other terms implied by statute or common law, including but not limited to sections 13, 14 and 15 of the Sale of Goods Act 1979;
      4. All direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, and similar loss), costs, damages, charges or expenses caused directly or indirectly by any breach of contract (whether involving express or implied terms), misrepresentation or tortious act or omission (including negligence or breach of statutory duty) or otherwise by the Seller, including but not limited to delay in the delivery of the Goods or any defect in the quality of the Goods or their compliance with description or specification (even if caused by the Seller’s negligence); and
      5. depletion or diminution of goodwill.
    4. The limitations, time bars and exclusions set out in these Terms shall apply equally to any of the Buyer’s Consignees or third-party contractors that have any interest in this Contract or the Goods, and the Buyer hereby agrees to indemnify the Seller against any claims from such parties should they arise.
    5. Nothing in these conditions excludes or limits the liability of the Seller for personal injury, death, fraud or fraudulent misrepresentation in connection with the Goods that are the subject of the Contract, to the extent that such exclusion or limitation is not permitted by law.

  14. INDEMNITY

    1. The Buyer shall indemnify, defend and hold harmless the Seller and its Affiliates from and against any and all claims:
      1. asserted by any Consignee of the Buyer, or by any of the Buyer’s (or their Consignee’s) third-party contractors or customers, for any act or omission of the Seller in connection with this Contract or the Goods;
      2. asserted due to the Buyer’s, or the Buyer’s Consignee’s, or the Buyer’s (or their Consignee’s) third party contractors, negligent acts or omissions in connection to the Goods or the Contract;
      3. resulting from any violation of applicable laws by the Buyer;
      4. resulting from the Buyer’s negligence, or breach or non-performance of the obligations under the Contract, or arising from any acts or omissions by the  Buyer’s or the Buyer’s Consignee’s subcontractors or any subcontractor’s employee(s) or agent(s) in the performance of the Contract; and / or
      5. involving any liens, encumbrances, or security interests on the Goods that resulted from acts or omissions of the Buyer or the Buyer’s Consignee, or their sub-contractors.

  15. CONFIDENTIALITY

    1. The Buyer agrees that it will not, unless with the prior written consent of the Seller, disclose the terms of the Contract to any third party and that it will keep any and all information (written or oral) concerning the business and affairs of the Seller, its clients or Affiliates that it shall have obtained or received during or in contemplation of the Contract (together, Confidential Information) in strict confidence and will not disclose Confidential Information to any third party or use Confidential Information for any purpose whatsoever other than for the purpose of the Contract.
    2. The Buyer shall advise any third party who may be exposed to Confidential Information of the obligations to keep such information confidential and shall be responsible for ensuring that they comply with the provisions of this Clause.

  16. SALMONELLA

    1. In the event of an Order being issued by DEFRA preventing or restricting the movement of the Goods before the expiry of the delivery period (or equivalent action being taken by another government department or agency), the respective rights and obligations of the parties shall be governed by clause 26 (Salmonella) of the AIC Standard Terms.

  17. ASSIGNMENT

    1. The Buyer shall not be entitled to assign or novate the Contract or any part of it without the prior written consent of the Seller.
    2. The Seller shall be entitled to assign or novate the Contract to any of its Affiliates and/or to assign any proceeds due to the Seller under the Contract to any one of its banks or financial institutions, at the Seller’s discretion. The Buyer will provide all reasonable assistance to the Seller in facilitating any such assignment or novation.

  18. FORCE MAJEURE

    1. Force Majeure means circumstances that are beyond the reasonable control of the Seller, even if they were foreseeable, including, without limitation, acts of God, governmental actions (including dock and/or shipping strikes), war or threat of war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, power failure or breakdown in machinery, inclement weather, import or export restrictions or embargoes, lock-outs, port delays, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining adequate or suitable supplies or any other cause whatsoever that is beyond the Seller’s reasonable control.
    2. The Seller reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in performing the Contract due to the occurrence of a Force Majeure event. In the event of a Force Majeure, the Seller shall send written notice to the Buyer within 10 business days of the occurrence. If the Force Majeure continues for 30 consecutive days, the Buyer shall have the option of cancelling the Contract. If the Force Majeure continues for a further 30 consecutive days, the Seller shall have the option of cancelling the Contract. Neither party shall have a claim against the other for delays or non-fulfilment under this Clause.
    3. In the case of shortage of Goods due to any of the Force Majeure causes (or similar causes) set out above, the Seller may, without being in breach of the Contract, apportion the supply of Goods available to the Seller among its customers (including the Buyer) entirely at the Seller’s own discretion and without any liability to the Seller.
    4. Should the Seller, in case of war or threat of war, necessitating war risk insurance, ask the Buyer to pay war risk premiums, the Buyer will have the option of doing so or of cancelling the Contract. This option shall be exercised within seven days after receipt of the Seller’s written notice that there will be war risk premium to be paid.

  19. DEFAULT OF COLLECTION OR ACCEPTANCE OF DELIVERY

    1. Without prejudice, and in addition, to Clause 5.7 above, in the event of default of collection or delivery acceptance obligations under the Contract by the Buyer or its Consignee or third party contractor, the Seller at its discretion shall, after giving notice by letter or electronic communication, have the right to sell the relevant Goods and the Buyer shall make good the loss, if any, on such sale on demand. If the Buyer be dissatisfied with the price of such sale or if the above right of sale is not exercised and damages cannot be mutually agreed, any damages payable by the Buyer as the party in default shall be settled by arbitration.
    2. In the event of default by the Buyer or its Consignee or third party contractor as aforesaid entitling the Seller to damages, such damages shall be based upon, but not limited to, the difference between the Contract price and (at the sole discretion of the Seller) either (a) the sale price established at 19.1 above or (b) the actual or estimated value of the Goods on the date of default, to be mutually agreed or settled by arbitration.
    3. In the event of default as above, damages if any shall be computed upon the mean Sales Confirmation quantity. The date of default shall be the first business day following the expiry of the delivery period or the date on which collection, or acceptance of delivery, by the Buyer was otherwise due, if earlier. When an extension of that period has been either claimed under the Force Majeure clause or agreed otherwise, the date of default shall be the first business day following the expiry of the extension period or the date on which collection, or acceptance of delivery, by the Buyer in that extended context was otherwise due, if earlier.

  20. CANCELLATION

    1. The Seller shall be entitled, without notice or further liability, to terminate or cancel the Contract or part of it or to cancel or withhold further deliveries of Goods or refuse to accept further Orders from the Buyer if, in its reasonable opinion, the Buyer is likely to fail to make payment in accordance with the Seller’s payment instructions or fail to perform any other obligation undertaken by it under the Contract.
    2. No Sales Confirmation which has been accepted by the Seller may be cancelled by the Buyer without the Seller’s agreement in writing and on terms that the Buyer shall indemnify the Seller in full against all direct and indirect production and other overhead costs together with any loss, including profit, damages, charges and expenses incurred by the Seller as a result of cancellation.

  21. SANCTIONS

    1. The Buyer hereby represents and warrants that (i) neither it nor any person or entity that owns or controls it is a designated target of economic trade sanctions promulgated by either the United States and/or the European Union and/or the United Kingdom and/or the United Nations and/or Switzerland and/or the country of origin of the Goods (together, Sanctions Laws); and (ii) the Goods sold under the Contract shall not be resold or in any other way disposed of to any entity or person which directly or indirectly would cause the Seller to be in breach of the Sanctions Laws; and (iii) the Goods bought by it under the Contract shall not be transported on a vessel or by other means of transport owned, flagged, chartered or operated by any entity or person which directly or indirectly may cause Seller in its opinion to be in breach of the Sanctions Laws.
    2. The Seller shall not be required by the Buyer to comply with any terms or requests, including documentary requests, which the Seller reasonably considers would result in the Seller being in breach of the Sanctions Laws.
    3. If either prior to or during performance of this Contract the Buyer becomes a designated target as set out above, or the Seller becomes aware that the Buyer is in breach of the above representation and warranty, then the Seller reserves the right to immediately terminate the Contract with all costs and consequences arising being for the Buyer’s account.
    4. The Buyer shall on demand indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller arising out of or in connection with any breach of the Buyer’s above representation and warranty. In this Clause, reference to “Seller” shall include Seller’s Affiliates, and shall be enforceable by each such Affiliate, in addition to Seller.

  22. ANTI-TAX EVASION

    1. The Buyer further represents and warrants to the Seller that any payment made in connection with the Contract shall not contravene any applicable tax or anti-money laundering laws or regulations, or otherwise give rise to an offence of tax evasion or money laundering. The Buyer accordingly undertakes to indemnify the Seller for any losses suffered as a result of a breach of the representation and warranty herein.

  23. ESG COMPLIANCE

    1. The Buyer shall comply with all Applicable Laws pertaining to (i) the environment, including but not limited to deforestation, waste and hazardous substances (ii) human rights, (iii) employment including but not limited to prohibition of modern slavery, child labour, abuse of labour, discrimination, wages and benefits, working hours and overtime, (iv) health and safety, (v) anti-corruption and anti-money laundering, (vi) business integrity, and (vii) data protection and privacy.
      For the purposes of this Clause 23, Applicable Laws shall mean any international and/or federal, state, national, regional, local and domestic laws, common laws and custom, administrative laws, regulations, statutory guidance, rules, zoning laws, orders, interpretations, permits, standards, bye-laws, codes, judgments, decrees, injunctions, writs and orders of any court, governmental body or arbitrator that apply to the Contract and/or to the Buyer or the Seller.
    2. The Buyer shall immediately notify the Seller of any instance of or grounds to suspect non-compliance with Clause 23.1 above.
    3. Notwithstanding Clause 23.2 above, the Buyer shall, upon request, be able to sufficiently demonstrate, and shall in fact demonstrate, compliance with Clause 23.1 above.
    4. In the event that the Buyer is unable to provide satisfactory proof of compliance with Clause 23.1 above and/or the Seller has reasonable grounds to suspect the Buyer has failed to meet its compliance obligations under this Clause, the Seller shall be entitled to terminate the Contract without any liability to the Buyer.
    5. The Buyer shall on demand indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller arising out of or in connection with Buyer’s failure to comply with any of its compliance and regulatory obligations as set out in this Clause.

  24. GENERAL

    1. Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
    2. If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction 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.
    3. Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
    4. Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Buyer shall not be construed as a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
    5. Save for Clause 21.4, 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.
    6. The Sales Confirmation may be executed in counterparts and may be entered into by the Seller and the Buyer executing a separate counterpart, each of which, taken together, shall constitute one and the same Contract.
    7. The Contract shall be governed by, and construed in accordance with, English law.
    8. Any dispute on the Contract shall be settled by arbitration in London in accordance with clause 22 (Arbitration) of the AIC Standard Terms.

  25. COMMUNICATIONS

    1. All communications between the parties about the Contract shall be in writing and delivered by hand, or sent by pre-paid first class post, or by courier or by e-mail.
    2. Communications shall be deemed to have been received:
      1. if sent by pre-paid first class post, at 9.00am on the second business day (in the country of delivery) after posting (exclusive of the day of posting); or
      2. if delivered by hand, when left at the registered address of the relevant party; or
      3. if delivered by commercial courier, on the date and at the time that the commercial courier’s delivery receipt is signed; or
      4. if sent by e-mail, within two hours of the same being sent provided the two hours are within normal business hours in the country of the addressee of the e-mail. In the event the e-mail is sent outside of business hours, or less than two hours before the end of the relevant working day in the country of the addressee of the e-mail, the e-mail shall not be deemed received until business resumes the next working day.