A.
1.
1.1
1.2
2.
2.1
2.2
3.
3.1
3.2
4.
4.1
STANDARD TERMS AND CONDITIONS FOR THE PURCHASE OF GOODS AND SERVICES
4.4 Without prejudice to any other right or remedy, the Company
reserves the right to set off any amount owing at any time from the
INTERPRETATION
Seller to the Company against any amount payable by the Company
In these Conditions the following words shall have the following
to the Seller.
meanings:
5. INDEMNITY
a Change of Control: shall be deemed to occur if a person who
5.1 The Seller shall keep the Company indemnified in full against all
Controls any body corporate or undertaking ceases to do so, or if
liability, loss, damages, injury, costs and expenses (including legal
another person acquires Control of it;
and other professional fees and expenses) awarded against or incurred
Company: means Cargill PLC;
or paid by the Company (“Losses”) as a result of or in connection
Control: means the possession, directly or indirectly, of the power to
with:
direct or cause the direction of the management and policies of a
(a) defective workmanship, quality or materials;
person, whether through ownership of voting securities, by contract
(b) an infringement or alleged infringement of any intellectual
or otherwise, and “Controls” shall be interpreted accordingly;
property rights caused by the use, manufacture or supply of the
Contract: means the contract for the supply of Goods/Services
Goods/Services;
between the Company and the Seller, incorporating the Order, the
(c) a breach or negligent performance or failure or delay in
Specification and these Conditions;
performance of the terms of the Contract by the Seller;
Goods: means any goods agreed in the Contract to be purchased by
(d) any employment related claim by, or any tax, penalty or interest
the Company from the Seller (including any part or parts of them);
due in respect of, any personnel or subcontractor engaged by the
Order: means the purchase order issued by the Company to the
Seller in the manufacture or supply of the Goods/Services.
Seller for the supply of the Goods/Services;
6. INSURANCE
Seller: means any person, firm or company who supplies Goods or
6.1 The Seller shall take out and maintain adequate insurance with
Services to the Company pursuant to an Order;
respect to the risks arising pursuant to the Contract.
Specification: means the Company’s description of the
6.2 These insurances will include as a minimum, public liability and
Goods/Services, including, without limitation, any service levels or
employer’s liability insurance, plus product liability, insurance of
standards required, which is provided by the Company to the Seller;
goods in transit and such other insurances as are specified in the
and
Order.
Services: means any services agreed in the Contract to be provided
7. ASSIGNMENT
by the Seller to the Company.
7.1 The Seller shall not be entitled to assign or subcontract the Contract
In these Conditions references to any statute or statutory provision
or any part of it without the prior written consent of the Company.
shall, unless the context otherwise requires, be construed as a
7.2
The Company may assign the Contract or any part of it to any person,
reference to that statute or provision as from time to time amended,
firm or company.
consolidated, modified, extended, re-enacted or replaced.
8. CONFIDENTIALITY
APPLICATION OF TERMS
The Seller shall keep in strict confidence all technical or commercial
These Conditions are the only conditions upon which the Company is
know-how, specifications, inventions, processes or initiatives which
prepared to deal with the Seller and they shall govern the Contract to
are of a confidential nature and have been disclosed to the Seller by
the exclusion of all other terms or conditions other than those
the Company or its agents and any other confidential information
contained in the Order and the Specification.
concerning the Company’s business or its products which the Seller
No terms or conditions endorsed upon, delivered with or contained in
may obtain and the Seller shall restrict disclosure of such confidential
the Seller’s quotation, acknowledgement or acceptance of order or
material to such of its employees, agents or sub-contractors as need to
similar document will form part of the Contract and the Seller waives
know the same for the purpose of discharging the Seller’s obligations
any right which it otherwise might have to rely on such terms and
to the Company and shall ensure that such employees, agents or subconditions.
contractors are subject to like obligations of confidentiality as bind
PRICE
the Seller.
The price of the Goods/Services shall be stated in the Order and
9. TERMINATION
unless otherwise agreed in writing by the Company shall be exclusive
9.1 The Company shall have the right at any time without cause to
of value added tax but inclusive of all other charges.
terminate the Contract in whole or in part by giving the Seller written
No variation in the price nor extra charges will be accepted by the
notice whereupon all work on the Contract shall be discontinued and
Company, other than as expressly agreed pursuant to Condition 11.
on termination pursuant to this Condition 9.1 only the Company shall
PAYMENT
pay to the Seller fair and reasonable compensation for work-inThe Company shall pay the price of the Goods/Services in accordance
progress at the time of termination but such compensation shall not
with the payment terms set out in the Order.
include loss of anticipated profits or any consequential loss.
GENERAL
4.2 In the event that there are no specific payment terms set out in the
Order, the Company shall pay the price of the Goods within 30 days
of the date of the invoice for the same received from the Seller, but
time for payment shall not be of the essence of the Contract.
4.3 The Seller must promptly send its invoice to the Company for
payment, but in any event within 30 days of the date of delivery of
the Goods or completion of the Services.
Document Number: 290765
Version: 5
9.2 The Company shall also have the right at any time by giving notice in
writing to the Seller to terminate the Contract forthwith if:
(a)
the Seller commits a breach of any of the terms and conditions
of the Contract;
(b)
the Seller 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 a
resolution is passed or a petition presented to any court for the
winding up of the Seller or for the granting of an administration
order in respect of the Seller, or any proceedings are
commenced relating to the insolvency or possible insolvency of
the Seller;
(c)
the Seller ceases or threatens to cease to carry on its business;
(d)
the financial position of the Seller deteriorates to such an extent
that in the opinion of the Company the capability of the Seller
adequately to fulfil its obligations under the Contract has been
placed in jeopardy; or
(e)
the Seller suffers a Change of Control.
shall such Company Property be used otherwise than as necessary for
the Seller to perform the Contract. The Seller shall be liable for any
loss or damage to Company Property whilst in the Seller’s care or
control.
12.2 Any intellectual property rights created by the Seller in the
performance of the Contracts shall be and remain the property of the
Company.
13. SELLER’S DEFAULT AND COMPANY’S REMEDIES
13.1 Without prejudice to any other right or remedy which the Company
may have, if any Goods or Services are not supplied in accordance
with, or the Seller fails to comply with, any of the terms of the
Contract the Company shall be entitled to avail itself of any one or
more of the following remedies at its discretion, whether or not any
part of the Goods or Services have been accepted by the Company:
9.3 The termination of the Contract, however arising, will be without
prejudice to the rights and duties of the Company accrued prior to
termination. The conditions which expressly or impliedly have effect
after termination will continue to be enforceable notwithstanding
termination.
(a)
to terminate the Contract;
(b)
to reject the Goods/Services (in whole or in part) and, where
reasonably possible, return them to the Seller at the risk and cost
of the Seller, on the basis that a full refund for the
Goods/Services so returned shall be paid forthwith by the Seller;
10. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or
payment or to cancel the Contract or reduce the volume of the Goods
ordered if it is prevented from or delayed in the carrying on of its
business due to circumstances beyond the reasonable control of the
Company including, without limitation, acts of God, governmental
actions, war or national emergency, acts of terrorism, protests, riot,
civil commotion, fire, explosion, flood, epidemic, lock-outs, 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 supplies of adequate or suitable materials.
(c)
at the Company’s option to give the Seller the opportunity at the
Seller’s expense either to remedy any defect in the
Goods/Services or to supply replacement Goods/Services and
carry out any other necessary work to ensure that the terms of
the Contract are fulfilled;
(d)
to refuse to accept any further deliveries of the Goods/Services
but without any liability to the Seller;
(e)
to carry out, or employ a third party to carry out, at the Seller’s
expense any work necessary to make the Goods comply with
the Contract or complete the performance of the Services in
accordance with the Contract; and/or
(f)
to claim such damages as may have been sustained in
consequence of the Seller’s breach or breaches of the Contract.
11. CHANGES
11.1 The Company may at any time request a change in any of the
Goods/Services, including a request for additional work or a
reduction in the scope of the Order.
11.2 The Seller shall comply with all such requests unless it considers that
it is unable to do so, in which case it will immediately inform the
Company in writing with its reasons.
11.3 If, in the Seller’s opinion, the requested change will affect either the
amount payable under the Order, the date for delivery of any Goods
or the performance or completion of any Services, the Seller shall
within 7 days of receiving the request provide the Company with a
written statement showing all costs and time implications and the
effect upon delivery of any Goods performance or completion of the
Services.
11.4 The Company will notify the Seller whether it accepts the Seller’s
statement and it may require further information from the Seller
before making its decision. Any change to amounts payable or any
dates for delivery, performance or completion will take place in
accordance with the Company’s confirmation of acceptance of the
change.
12. THE COMPANY'S PROPERTY
12.1 Title to and ownership of, and all rights to any intellectual property
in, materials, equipment, tools, documentation or data supplied by the
Company to the Seller for use in the manufacture of the Goods or the
performance of the Services (“Company Property”) shall at all times
be and remain with the Company. Company Property shall be held by
the Seller in safe custody at its own risk and maintained and kept in
good condition by the Seller until returned to the Company on
demand by the Company. Company Property shall not be disposed of
other than in accordance with the Company’s written instructions, nor
Document Number: 290765
Version: 5
14. DATA PROTECTION
14.1 The Seller shall comply with all data protection legislation in relation
to any Personal Data (as defined in EU Directive 95/46/EC),
including maintaining (i) a valid and up to date
registration/notification; and (ii) adequate technical, organisational
and security measures. The Seller shall only use Personal Data to
fulfil its obligations under the Contract and in accordance with the
Company’s instructions. The Seller shall be responsible for any
failure of its personnel or sub-contractors to comply with the Seller’s
obligations in this Condition 14. Once the provision of the
Goods/Services is complete, the applicable Personal Data shall be
destroyed. If the Seller receives notification from any person affected
in relation to the Personal Data provided by the Company it shall
notify the Company and may not take any action without the express
written consent of the Company. The Seller shall process and store
all Personal Data in only (i) the jurisdiction in which the data subject
resides or (ii) the jurisdictions expressly agreed in writing by the
Company. For the avoidance of doubt, the Seller shall not transfer,
process, or maintain Personal Data originating in the European
Economic Area (“EEA”) outside of the EEA. If the Seller has
knowledge of any unauthorised disclosure of or access to Personal
Data, it shall expeditiously report it to the Company, mitigate any
harmful effects and cooperate with the Company in providing any
notices that the Company deems appropriate. If any unauthorised
disclosure of or access to Personal Data is attributable to a breach of
this clause, the Seller shall bear its costs and the costs incurred by the
Company in responding to such breach.
15. ANTI-BRIBERY AND CORRUPTION COMPLIANCE
B. CONDITIONS APPLICABLE TO PURCHASE OF GOODS
15.1 The Seller shall:
17. WARRANTIES
17.1 The Seller warrants to the Company that the Goods will:
(a)
comply with all applicable laws, statutes and regulations
relating to anti-bribery and anti-corruption including but not
limited to the United States Foreign Corrupt Practices Act
(“FCPA”) and the UK Bribery Act 2010;
(b)
not engage in any activity, practice or conduct which would
constitute an offence under the FCPA or the UK Bribery Act
2010 or any other applicable anti bribery laws;
(c)
have, maintain in place and enforce throughout the term of the
Contract its own policies and procedures, including adequate
procedures as referred to under the FCPA and the UK Bribery ct
2010;
(d)
promptly report to the Company any request or demand for any
undue financial or other advantage of any kind received by the
Seller in connection with the performance of the Contract.
15.2 The Seller shall ensure that any person associated with the Seller
(including but not limited to a subcontractor or agent) who is
performing any Services or providing any Goods in connection with
the Contract does so only on the same terms as imposed on the Seller
in this Condition 15. The Seller shall be responsible for the
observance and performance by such persons of the obligations set
out in this Condition 15; and shall be directly liable to the Company
for any breach by such persons of such Condition.
16. GENERAL
16.1 Each right or remedy of the Company under the Contract is without
prejudice to any other right or remedy of the Company whether under
the Contract or not.
16.2 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.
(a)
be of the best available design, of the best quality material and
workmanship;
(b)
be free from defects in design, materials and workmanship;
(c)
conform in all respects with the Order and the Specification;
and
(d)
comply with all applicable statutory, legal and other regulations
and requirements (including codes of practice) in force at the
date of delivery concerning, without limitation, the
manufacture, quality, packing, packaging, storage, carriage,
delivery and sale of the Goods.
17.2 The warranties provided for in this Condition 15 shall be in addition
to those implied by or available at law or in equity and shall continue
in force notwithstanding the acceptance by the Company of all or any
part of the Goods in respect of which such warranties are available.
18. DELIVERY
18.1 The Goods shall be delivered, carriage paid, to the Company’s place
of business or to such other place of delivery as is agreed by the
Company in writing prior to delivery of the Goods, all deliveries to
take place in normal business hours unless otherwise required by the
Company. The Seller shall off-load the Goods as directed by the
Company.
18.2 The date for delivery shall be specified in the Order or otherwise by
the Company. Time for delivery shall be of the essence.
18.3 The Seller shall ensure that each delivery is accompanied by a
delivery note which shows, inter alia, the order number, date of order,
number of packages and contents and, in the case of part delivery, the
outstanding balance remaining to be delivered.
18.4 Where it is agreed that delivery is to be by instalments failure by the
Seller to deliver any one instalment shall entitle the Company at its
option to treat the whole Contract as repudiated.
16.3 Failure or delay by the Company in enforcing or partially enforcing
any provision of the Contract will not be construed as a waiver of any
of its rights under the Contract.
18.5 If the Goods are delivered to the Company in excess of the quantities
ordered the Company shall not be bound to pay for the excess and
any excess will be and will remain at the Seller’s risk and will be
returnable at the Seller’s expense.
16.4 Any waiver by the Company of any breach of, or any default under,
any provision of the Contract by the Seller will not be deemed a
waiver of any subsequent breach or default and will in no way affect
the other terms of the Contract.
18.6 The Seller must deliver to the Company any manuals for operating
and maintaining the Goods requested by the Company or required to
properly utilise the Goods at least one week prior to delivery of the
Goods.
16.5 The parties to this Contract do not intend that any term of this
Contract will be enforceable by virtue of the Contracts (Rights of
Third Parties) Act 1999 by any person that is not a party to it,
provided that the Services may be intended to benefit not only the
Company, but also the other members of the Company’s group. Any
members of the Company’s group which receives Goods/Services
pursuant to the Contract shall therefore be entitled, for the purposes of
the Contracts (Rights of Third Parties Act) 1999, to enforce this
Agreement with all the rights and remedies that are available to the
Company.
19. TITLE AND RISK
19.1 Title to the Goods shall pass to the Company upon delivery.
16.6 The formation, existence, construction, performance, validity and all
aspects of the Contract shall be governed by English law and the
parties submit to the exclusive jurisdiction of the English courts.
16.7 Nothing in the Contract is intended to, or shall be deemed to,
establish any partnership or joint venture between the parties, nor
constitute either party the agent of the other for any purpose. Neither
party shall have authority to act as agent for, or to bind, the other
party in any way.
Document Number: 290765
Version: 5
19.2 The Goods shall remain at the risk of the Seller until delivery to the
Company is complete (including off-loading and stacking).
19.3 Where Goods are being delivered in several consignments,
Conditions 19.1 and 19.2 shall apply to each consignment.
C.
CONDITIONS APPLICABLE TO SUPPLY OF SERVICES
20. WARRANTIES
20.1 The Seller warrants to the Company that:
(a)
the Services will be performed in accordance with the terms of
the Order and the Specification;
(b)
the Services will be performed in accordance with best industry
practice and with all reasonable skill and care by properly
trained, qualified and experienced personnel;
(c)
in the performance of the Services it will comply with all
applicable statutory, legal and other regulations and
requirements (including codes of practice) which may be in
force at the date the Services are provided, including without
limitation, health and safety regulations. If there exist British
Standard Specifications, or codes or regulations of a like
authority, which cover any aspect of the execution of the
Services, the Services shall be carried out in accordance
therewith;
(d)
in relation to any Goods supplied as part of the Services the
Seller gives the warranties contained in Condition 15 above;
(e)
in the performance of the Services it will comply with all of the
Company’s policies and procedures, including, without
limitation, those related to plant and facility safety and security;
and
(f)
in the performance of the Services it will comply with all
reasonable directions given by the Company.
21. TIME OF PERFORMANCE
21.1 The Seller shall perform or complete the Services by the time stated
in the Contract or if none is stated then within a reasonable time.
This provision is of the essence of the Contract.
21.2 If any event occurs that is beyond the control of the Seller which may
prevent or delay completion of the Services (or any part) by the due
date, the Seller shall, within three days of becoming aware of that
event, give notice to the Company specifying the cause of delay.
21.3 Any delay in performance of or completion of the Services will
entitle the Company to recover liquidated damages from the Seller at
the rate (if any) stated in the Order or the Specification. The
Company may deduct any liquidated damages from amounts
becoming due to the Seller.
21.4 The Seller shall notify the Company when, in its opinion, the Services
have been completed.
22. SITE ACCESS AND OTHER CONTRACTORS
22.1 The Company will give the Seller access to such parts of its site as is
reasonably necessary for the performance of the Services and the
Seller acknowledges that it will not have an exclusive or
uninterrupted licence to use any part of the site.
22.2 The Seller will facilitate the execution of work by other contractors as
required by the Company and will cooperate with other contractors to
avoid any interruption or interference to itself and/or to others.
22.3 The Seller must satisfy itself as to the position, dimensions and
suitability of any other work that may affect the Services. It will not
Document Number: 290765
Version: 5
be entitled to any additional payment arising from changes required
as a result of its failure to do so.
23. TITLE
23.1 Title to goods or material appropriated or allocated to the Services or
provided as part of the Services shall vest in the Company, when they
are so appropriated, allocated or provided.
23.2 If, in the performance of the Services, the Seller or its employees
bring the Seller’s or its employees’ own property on to the
Company’s premises, such property shall be at the Seller’s (or its
employees’) risk whilst it remains there.
24. PERSONNEL
24.1 The Company shall have the right to require the Seller to remove any
person engaged in the performance of the Services at the Company’s
sole discretion and the Seller shall forthwith remove and shall not
again employ such employees or other person in the performance of
the Services. The Seller shall replace any person so removed
forthwith upon his removal. The Company shall have no liability to
the Seller in respect of such removal or replacement and the Seller
shall indemnify the Company for any loss it suffers in respect of the
same.
24.2 The Seller shall comply with all relevant immigration laws in respect
of its personnel.
24.3 The relationship of the Seller to the Company is that of independent
contractor.
24.4 In the event that the EU Acquired Rights Directive (2001/23/EC) (the
“Directive”) or equivalent legislation (the “Employment Legislation”)
applies, the Seller agrees to discharge all of its obligations thereunder
and keep the Company indemnified in full against all Losses arising
as a result of or in connection with (a) any act or omission of the
Seller in relation to obligations under the Employment Legislation;
(b) all and any claims in relation to any employee who transfers
pursuant to the Employment Legislation in respect of any period on
or before the date on which the employee’s employment transfers
from the Seller to the Company or any replacement service provider;
and (c) any claim made by or in respect of any person engaged or
formerly engaged by the Seller who is not a transferring employee.
24.5 The Seller shall provide to the Company any information the
Company may reasonably require relating to any individual employed
assigned or engaged in providing the Services (subject to data
protection legislation).