Terms & Conditions
This page contains the following:
- T&L SUGARS LIMITED STANDARD TERMS & CONDITIONS OF SALE
- T&L SUGARS LIMITED STANDARD TERMS & CONDITIONS OF PURCHASE
- T&L SUGARS LIMITED SERVICE CONDITIONS
- T&L SUGARS LIMITED REGULATIONS FOR CONTRACTORS
- PERSONAL DATA PRIVACY AND PROTECTION CLAUSES FOR VENDOR CONTRACTS
T&L SUGARS LIMITED STANDARD TERMS & CONDITIONS OF SALE
Effective 21 June 2021
“Aggregate Quantity” means an aggregate volume of Products as detailed in, and in such quantity as set out in the Contract Confirmation.
“Affiliates” refers to any Person that controls, is controlled by or is under common control with Buyer or Seller. The term “control” means the ownership, directly or indirectly, of fifty percent or more of the voting stock or equity interest of the subject Person.
“Agent” means company or persons appointed by Seller to act on its behalf.
“Buyer” means the person who places the order for the supply of Products.
“Contract Term” means the duration of the Contract or the Delivery Period as set out in the Contract Confirmation.
“Incoterms” such as Free On Board (“FOB”), Cost Insurance Freight (“CIF”), Ex Works (“EXW”) etc. are reference to the ICC’s Incoterms® 2020 unless otherwise agreed to in Writing.
“Order” means an order by you with us in Writing for the supply of Products.
“Person” means any natural person, corporation, unincorporated organization, partnership, association, joint stock company, joint venture, trust or government, or any agency or political subdivision of any government, or any other entity.
“Products” means the products specified in the Contract Confirmation.
“Rules” means the Rules of the Refined Sugar Association, London (“RSA”) as updated from time to time and available here.
“Contract Confirmation” means the document issued by Seller confirming the terms of purchase of Product, including price, quantity, delivery periods and delivery locations.
“Seller“ means T&L Sugars Limited.
“Working With Us Policy” means the policy which forms part of this Contract and was provided to Buyer by Seller with the Contract Confirmation or can be provided on request.
“Writing” means email, facsimile transmission, electronic data interchange (“EDI”) or a telephone message promptly confirmed by email, facsimile or EDI.
Seller’s offer to sell the Products or, as the case may be, Seller’s acceptance of Buyer’s offer to purchase the Product, is strictly subject to the terms and conditions contained herein, in the Contract Confirmation, in the Working With Us Policy and in the Rules, whether or not both parties are members of the RSA (collectively, “Contract”). In the event of any inconsistency among these terms and conditions, the Contract Confirmation, the Working With Us Policy or the Rules, the order of precedence shall be the Contract Confirmation, the Working With Us Policy, these terms and conditions, and then the Rules.
3. QUANTITY AND ORDERS
a. Buyer shall purchase and Seller shall sell the Aggregate Quantity. This Contract shall be implemented by Buyer's issuance of individual Orders for the Aggregate Quantity. Seller reserves the right to accept or refuse any Order at its sole discretion. Once confirmed by Seller, Orders may not be cancelled by Buyer unless agreed to in Writing by Seller. Notwithstanding Seller’s acceptance of any Order, no provision of any Order may alter the terms of this Contract, and except for the type, quantity, desired shipment date, and delivery location of Product, no terms or conditions set forth in any Orders shall be enforceable against either party.
b. Buyer shall be obligated to place Orders for and purchase 100% of the Aggregate Quantity. Where the Contract provides for delivery by instalments, or part deliveries, each such instalment or part delivery shall be governed by the Contract and the cancellation of one of the instalments or part delivery (if so permitted by Seller) shall not vitiate or affect the Contract with respect to the remaining instalments or part deliveries.
a. Prices for Product are per metric ton (“MT”), per wet ton (“WT”), or, for certain food service and grocery Products, per unit (the “Price”) as further detailed in the Contract Confirmation. Charges for drums and pallets are in addition to the Price, unless otherwise indicated on the invoices. Price is exclusive of any sales, processing, excise, value added or other taxes, duties or levies (including those imposed on the sugar, freight or shipping by the country of destination of Products being delivered outside the UK) (collectively, “Taxes”). Taxes shall be for Buyer’s account and shall be added to the invoice and paid by Buyer.
b. Fixed Prices may be altered with or without notice to the Buyer as a result of the effects of changes to international trade or supply agreements or trading conditions, or similar external influences and the method or manner of applying any such variations shall be at the Seller’s sole discretion.
c. Where Buyer fails to meet the Aggregate Quantity requirements, it shall reimburse Seller in full for any rebates or other pricing discounts which were provided on the basis of meeting the agreed volume levels, in addition to any other rights or remedies Seller may have.
c. All prices include delivery unless delivery terms are EXW. Buyer acknowledges that delivered pricing is made available to Buyer as a convenience to Buyer and if actual freight and insurance costs exceed that estimated in delivered pricing, Buyer remains responsible for all freight and insurance costs incurred in shipping Product to Buyer, including fuel surcharges, demurrage, delivery surcharges where Orders are less than load or other minimum delivery amounts, and increased costs arising from the use of an alternative delivery mechanism or haulage contractor for reasons outside Seller’s control. Further, Seller shall not be responsible for delivery errors attributable to the freight carrier, including penalties, late charges or fees (collectively, “Delivery Claims”); however, Seller may submit Buyer’s Delivery Claims to Carrier and make reasonable attempts to seek reimbursement of Delivery Claims.
a. Invoices will be dispatched to the Buyer on the date (i) of delivery of the Products where Products are to be delivered within the UK and (ii) of shipment of the Products where Products are to be delivered outside of the UK. Unless otherwise indicated on the invoice, Buyer shall pay Seller for Product purchased within 14 days of the invoice date by bank transfer of immediately available funds to an account designated by Seller.
b. Payment of the amount shown on the invoice shall be made without deduction of any monies including, without limitation, bank charges or set-off, in accordance with the payment instructions and in the currency specified on the invoice. Buyer agrees that any statement on a remittance advice indicating that it is “payment in full” or other statements to that effect is a nullity unless acknowledged and accepted by Seller in Writing.
c. Interest may be charged by the Seller on any invoiced sum outstanding beyond the due date for payment thereof as set out in the payment instructions at a rate of 2% above the then prevailing base rate at ABN Amro Plc. Notwithstanding anything herein to the contrary, or any other rights or remedies it may have, Seller reserves the right to (i) withhold future deliveries if any payment is not timely made in full and/or (ii) directly or through its agent, enter upon any land, premises or vehicles where the Products or part of them may be and recover possession of them, as far as may be possible.
d. If deliveries of Product have been dispatched by the Seller against Orders, any change in demand for the Products once dispatched will not change the obligation for payment on time and any demurrage charges and other reasonable expenses incurred by the Seller shall be for the Buyer’s account. In the event Seller agrees in Writing to a call off or otherwise adjust deliveries of accepted Orders, then the payment terms shall be strictly from the date of dispatch from the Seller’s premises.
e. Claims regarding discounts not made within 12 months from the date of invoice shall be deemed waived and released by Buyer.
a. The delivery terms for Product are set forth in the Contract Confirmation. Seller shall use all reasonable endeavours to meet the delivery dates specified by Buyer in its delivery instructions. If delivery is EXW, collection must be effected by Buyer in accordance with Seller’s reasonable instructions.
b. Buyer will take delivery of the Product during the Delivery Period and physical delivery will take place on the agreed date or booking timeslot. If Buyer is unable to accept timely delivery of Product, then Seller, at is discretion and in addition to any other rights it may have or accrue, may cancel the delivery or shall be entitled to charge the Buyer for all its reasonable expenses arising from storing the Products in question or attempting to make delivery thereof, as the case may be, including any demurrage, increased duties, fees, taxes or other charges or tariffs resulting from any delivery delay or return.
c. On delivery the Buyer or nominated consignee shall sign the Seller’s proof of delivery.
7. TITLE AND RISK OF LOSS
a. Title to Products shall not pass until the Seller has received payment for the Products in full in cash or cleared funds.
b. Buyer’s right to possession of the Products shall terminate immediately if any kind of action in relation to liquidation, insolvency or any commensurate or similar situation is taken against it.
c. Seller shall be entitled to recover payment for the Products notwithstanding that title to the Products has not passed from the Seller
d. The risk of loss in the Products shall pass to the Buyer upon the Point of Delivery. The “Point of Delivery” is as follows;
i. where the Products are sold EXW and are collected by the Buyer, the point in time when the Products are placed on the vehicle collecting such Products;
ii. where the Products are delivered by the Seller or the Seller’s hauliers in vehicles other than bulk tankers, ISO containers or bulk containers, the point in time when the Products are removed from the transporting vehicle at the premises designated for delivery;
iii. where the Products are delivered by the Seller or the Seller’s hauliers in bulk tankers, ISO containers or bulk containers, the point in time when the Products pass the final flange of the bulk tanker, ISO container or bulk container.
Where applicable, subject to the agreed Incoterms, the Buyer undertakes at its own expense to effect Marine and War and Risk Insurance in accordance with Rule 16 of the Rules relating to Contracts.
Buyer shall be responsible for obtaining any necessary import licence. The failure to obtain such a licence shall not be sufficient grounds for a claim of force majeure.
10. BUYER’S WARRANTY
As to purchases of Products to be delivered to destinations outside of the UK, Buyer warrants and undertakes that the Products sold under the Contract are for exclusive distribution and consumption within the country to which the Products have been consigned.
11. FORCE MAJEURE
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract (excluding the obligation of payment) if such delay or failure results from events, circumstances or causes beyond its control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 6 months, the party not affected may terminate this agreement by giving 7 days’ written notice to the affected party. This clause shall apply notwithstanding the force majeure provisions in the Rules.
12. SELLER’S WARRANTIES
a. The Seller warrants that upon delivery the Products shall (i) be in accordance with Seller’s specifications for the Products and (ii) if intended as food Products or ingredients for food that their manufacture, treatment, processing and packaging shall comply with the provisions of the Food Safety Act 1990 and all regulations made thereunder and the Seller shall carry out such reasonable checks as are necessary to ensure compliance with such provisions. The foregoing warranty is limited and all other warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
b. If Buyer rejects Product as non-conforming to this warranty, Buyer shall hold such Product until Seller removes the Product or provides Buyer with other instructions. Seller’s liability under this warranty is limited to either replacing the non-conforming Product or refunding to Buyer its purchase price paid for such Product. Buyer is prohibited from destroying or selling rejected Product in a secondary market without Seller’s prior written consent.
13. CLAIMS AND LIMITATION OF LIABILITY
a. All claims under the Contract must be made in accordance with Rule 6 of the Rules Relating to Contracts. The Buyer shall give notice in Writing to the Seller of any claim not later than 7 days after delivery of the Products in accordance with Clause 7.
b. In the event of any claim, the Seller‘s liability shall be limited to the replacement of the Products in question or, at Seller’s option, to the refund of any purchase price or part of thereof received in respect of such Products.
c. This Clause 13 sets out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of (i) any breach of the Contract, (ii) any use made or resale by the Buyer of any of the Products, or any Product incorporating the Products, and (iii) any representation, statement or tortious act or omission including negligence arising under the Contract.
d. Notwithstanding anything in the Contract to the contrary, Seller shall not be liable, in any event, for any loss of profit, loss of business or any indirect or consequential loss, costs or damages arising from any claim. Further, Seller shall be under no liability to the Buyer whatsoever once the Buyer has taken delivery of the Products at the Point of Delivery and the Products have been combined with or added to any other Product or substance and/or subjected to any process.
The supply of Products to the Buyer hereunder shall not give the Buyer any rights whatsoever over or in connection with any trademark or other intellectual property rights owned or used by the Seller.
The Seller shall be entitled, without liability, to cancel the Contract or part thereof or cancel or withhold further deliveries of Products or refuse to accept further Orders from the Buyer if, in its reasonable opinion, the Buyer will fail to make payment in accordance with the Seller’s payment instructions or fail to perform any other obligation undertaken by it hereunder.
Except to the extent provided herein, none of the parties shall have any right to assign the Contract, or any rights or obligations hereunder, without the written consent of the other party; provided, however, that upon the sale of all or substantially all of the assets, business and goodwill of the Buyer to another company, or upon the merger or consolidation of the Buyer with another company, the Contract shall be binding upon both Buyer and the company purchasing such assets, business and goodwill, or surviving such merger or consolidation, as the case may be, in the same manner and to the same extent as though such other company were the Buyer. Further, and notwithstanding anything herein to the contrary, Buyer consents to the assignment from time to time of any part of Seller’s rights to payment hereunder in respect of invoices addressed to Buyer or its Affiliates (“Receivables”), and in connection with such assignments, and notwithstanding any confidentiality agreements to the contrary, Seller may disclose the terms of the contractual arrangements between Buyer and Seller solely for the purpose of assigning any Receivables and in order for assignee to collect such payments to which it may become entitled. Subject to the foregoing, the Contract shall inure to the benefit of, and be binding upon, the parties hereto and their legal representatives, successors, and permitted assignees.
All disputes out of or in connection with this contract shall be referred to the Council of The Refined Sugar Association in London for settlement in accordance with the Rules Relating to Arbitration.
18. THIRD PARTY RIGHTS
Subject to Clause 16, 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.
19. GOVERNING LAW
This Contract shall be governed by and constructed in accordance with English law.
20. FINAL AGREEMENT
The Contract represents the final agreement of the parties with respect to its subject matter and all prior oral or written undertakings or agreements are superseded. Unless specifically agreed upon in Writing by Seller, no different or additional terms and conditions, including those contained in any document or acceptance tendered by Buyer, shall in any way become binding on Seller or become part of the Contract and are hereby specifically rejected.
Any term, condition or covenant of the Contract which may legally be waived, may be waived, or the time of performance thereof extended, at any time by the party hereto entitled to the benefit thereof, and any term, condition or covenant may be amended by the parties hereto at any time. Any such waiver, extension or amendment shall be evidenced by an instrument in Writing executed by an officer authorized to execute waivers, extensions or amendments.
22. EXPORT CONTROLS
a. Buyer acknowledges that US export control laws apply to the sales contemplated in this Contract. Buyer warrants that it will not knowingly sell or permit the resale of products to any person located in, or any person who will resell to a person located in, any country which is subject to an embargo under the US Department of Commerce Bureau of Industry and Security, the US Department of Treasury Office of Foreign Assets Control Regulations, or similar laws and regulations. Additionally, Buyer understands and acknowledges that the US maintains lists of persons and entities prohibited from participating in any US export or re-export transaction, which may be viewed here. Whenever Seller believes that a violation of the US export control laws may occur or has occurred, Seller reserves the right to request additional information regarding the end-user and/or destination of the products and Buyer agrees to provide such information. Seller reserves the right to refuse to proceed with any transaction where Seller determines that the transaction may violate the US export controls laws and to terminate and discontinue doing business with any Buyer that Seller determines has engaged in transactions placing Seller at risk of violation of such laws.
b. Buyer hereby acknowledges and agrees that the Products may be subject to applicable export control and trade sanctions laws, regulations, rules and licences (“Export Control and Sanctions Rules”). Buyer shall comply with the Export Control and Sanctions Rules and agrees that it alone is responsible for ensuring its compliance with Export Control and Sanctions Rules. In particular, but without limit, Buyer will not, and will procure that none of its Affiliates will, use, sell, resell, export, re-export, dispose of, disclose or otherwise deal with the Products directly or indirectly, to any country, destination or person without first obtaining any required export licence or other governmental approval, and completing such formalities as may be required by Export Control and Sanctions Rules. Buyer shall not put the Products, in their entirety or in part, to any use in connection with chemical, biological or nuclear weapons or missiles capable of delivering such weapons; to any military end-use; or in connection with any nuclear explosive activity, unsafeguarded nuclear fuel cycle activity or any civilian or nuclear installation or facility. Buyer shall not make available directly or indirectly, the Products to or for the benefit of any restricted third party that has been designated pursuant to trade sanctions legislation in force in the UK or the EU.
c. Buyer shall not do anything that would cause Seller to be in breach of the obligations set out in this Clause 22 and shall protect, indemnify and hold Seller harmless from any fines, losses and liabilities incurred by Seller as a result of Buyer’s failure to comply with this Clause 22. Buyer’s failure to comply with any part of this Clause 22 shall constitute a material breach of this Contract.
T&L SUGARS LIMITED STANDARD TERMS & CONDITIONS OF PURCHASE
1.1. In these conditions the following words shall have the following meanings:
T&L Purchase Conditions: Tate & Lyle Sugars conditions contained in this agreement;
Contract: the Purchase Order accepted or executed by the Seller;
Goods: any goods and/or services agreed in the Contract to be purchased by or supplied to the Purchaser from the Seller (including any part or parts of them);
Purchaser: any Member or Members of the Tate & Lyle Sugars Group being the contracting party
Member: any person or entity that controls, is controlled by or is under common control with T&L Sugars Limited. Members are intended third party beneficiaries of this agreement.
Purchase Order: the Purchaser’s standard order form for the supply of the Goods, of which these Conditions are automatically part;
Seller: the person, firm or company who accepts and/or executes the Purchase Order;
Specification: the specification for the Goods provided by the Purchaser to the Seller or by the Seller to the Purchaser as shall be agreed between the parties.
2. APPLICATION OF TERMS
2.1. T&L Purchase Conditions are the only conditions upon which the Purchaser is prepared to contract with the Seller, they shall govern the Contract to the entire exclusion of all other terms or conditions and any variation of the Seller to these conditions shall have no effect unless expressly agreed in writing by the Purchaser.
2.2. Only a written Purchase Order shall be deemed to be an offer by the Purchaser to purchase Goods subject to these conditions. Oral purchase orders shall be valid offers only if confirmed in writing by the Purchaser. Purchase Orders shall be deemed to be accepted by the Seller expressly by giving notice of acceptance, or impliedly by fulfilling the Purchase Order in whole or in part. The acceptance, implied or express, of a Purchase Order shall constitute acceptance of these T&L Purchase Conditions and the specific conditions set out in the Purchase Order.
3. VARIATIONS TO THE GOODS
3.1. Subject to condition 3.2., the Purchaser may at any time by notice make changes to the quantity, design or Specification, method of packing or delivery, the place or date of delivery or the performance of the Contract .
3.2. If any change proposed in accordance with Condition 3.1. increases or decreases the cost of or time required for the performance of the Contract, the price shall be rateably adjusted and a reasonable adjustment shall be made to the time of delivery or date for performance provided that no increase in the price or extension of time for delivery or performance shall be made unless agreed in writing by the Purchaser.
3.3. The Seller shall promptly give to the Purchaser written notice of actual or intended material changes in its raw materials or manufacturing methods since the Purchaser last purchased or approved like Goods. As the Purchaser needs to inform its customers and its employees of changes in processes or materials, the Seller agrees to furnish in advance of making changes the following items: (a) a list of all ingredients in the Goods that may be purchased by the Purchaser from time to time; (b) the varying amount of one or more ingredients; and (c) information concerning any changes in or additions to such ingredients or changes in Seller's processes.
4. QUALITY AND DEFECTS
4.1. The Seller warrants that the Goods shall be of the best available design, quality, material and workmanship, be without fault and conform in all respects with the Purchase Order and the Specification and fit for the purpose as intended by the Purchaser. The Purchaser’s rights under these conditions are in addition to the statutory conditions and to any warranties of additional scope given to the Purchaser by the Seller. Without prejudice to the provisions contained in the T&L Service Conditions, where the Goods to be supplied are or include services, such services shall be performed with all reasonable skill and care and in accordance with industry best practice.
4.2. The Seller shall comply with food industry hygiene standards, with applicable safety regulations and quality assurance systems requested and approved by the Purchaser. In addition, the Seller shall apply all necessary measures to guarantee the full traceability of the Goods and any ingredients or parts thereof.
4.3. At any time prior to delivery under Clause 9, the Purchaser shall have the right to inspect and test the Goods, the Seller’s plant, process and procedures. If the results of such inspection or testing cause the Purchaser to be of the opinion that the Goods, the plant and/or the process and/or procedures do not or are unlikely to conform with the Purchase Order or the Specification, the Purchaser shall inform the Seller and the Seller shall immediately take such action as is necessary to ensure conformity and in addition the Purchaser shall have the right to require and witness further testing and inspection.
4.4. Notwithstanding any such inspection, or testing, the Seller shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect the Seller’s obligations and Purchaser’s rights under the Contract.
5.1. For a period of 24 months from the date of delivery or from the completion of performance of the Contract, Seller shall keep the Purchaser indemnified in full against all loss, damages, injury, costs and expenses (including reasonable legal and other professional fees and expenses) awarded against or incurred or paid by the Purchaser as a result of or in connection with such actions as described below by the Seller, its agent’s or subcontractors:
1. defective workmanship, quality or materials, including, but not limited to, faulty design and latent defects;
2. non conforming goods, or services;
3. improper performance of service under this Contract;
4. any claim made against the Purchaser in respect of any liability, loss, damage, injury, cost or expense (together “Loss”) sustained by its employees or agents or by any customer or third party to the extent that such Loss was caused by, relates to or arises from the Goods as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of the Contract by the Seller.
5.2. The replacement parts supplied by the Seller under the warranty above mentioned shall be subject to the same indemnity. No time limit shall apply to the above indemnity in relation to latent defects.
6.1. Without prejudice to any other right or remedy which the Purchaser may have, if any Goods are not supplied in accordance with, or the Seller fails to comply with any of the terms of this Contract, the Purchaser shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by the Purchaser:
1. to rescind the Order;
2. to reject the Goods (in whole or in part) and return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Goods so returned shall be paid forthwith by the Seller;
3. at the Purchaser’s option to give the Seller the opportunity at the Seller’s expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
4. to refuse to accept any further deliveries of the Goods;
5. to carry out at the Seller’s expense any work necessary to make the Goods comply with the Contract; and
6. to claim such damages as may have been sustained in consequence of the Seller’s breach or breaches of the Contract.
7. PATENT WARRANTY AND INDEMNITY
7.1. The Seller warrants that the Goods delivered or the services rendered under this Contract, and the sale and the use of the Goods in their normal or intended manner, shall not infringe, or contribute to infringe, any patent or copyright and shall not violate the trade secret rights of another.
7.2. The Seller shall defend, indemnify and hold harmless Purchaser, its successors, assigns and customers, and users of Purchaser's products, from and against all claims, suits, losses and damages, including reasonable attorneys' fees and costs and expenses awarded, based upon a claim of infringement, or contributory infringement of any patent or copyright, or violation of another's trade secret rights, by reason of the use or sale of the Goods or the rendering of the services.
8.1. Seller shall maintain a comprehensive liability insurance policy, including Third party and contractual liability coverage (bodily injury and property damage) and product liability coverage, naming the Purchaser as an additional insured and shall upon request provide the Purchaser with a certificate of insurance. The Seller shall maintain the coverage for a minimum amount of £2 (two) million any one occurrence.
9.1. Shipping and delivery arrangements shall be as defined by INCOTERMS, latest version, in the Purchase Orders. Unless otherwise stipulated in the Purchase Orders, deliveries shall only be accepted by the Purchaser in normal business hours. Unloading shall only take place under the direction and in the presence of the Purchaser
9.2. The Seller shall ensure that each delivery is accompanied by a delivery note which shows, inter alia, the order number, date of order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
9.3. Time for delivery shall be of the essence. Without prejudice to any remedy listed in clause 6, if the Goods are not delivered on the due date then, without prejudice to any other rights which it may have, the Purchaser reserves the right to:
1. cancel the Contract in whole or in part;
2. refuse to accept and to pay for the Goods, as well as any subsequent delivery of the Goods;
3. recover from the Seller any expenditure reasonably incurred by the Purchaser in obtaining the Goods in substitution from another supplier; and
claim damages for any additional costs, loss or expenses incurred by the Purchaser which are attributable to the Seller's failure to deliver the Goods on the due date, with a minimum of 3% of the value of the Purchase Order per week of delay.
9.4. Where the Purchaser agrees in writing to accept delivery by instalments the Contract shall be construed as a single contract in respect of each instalment. Nevertheless failure by the Seller to deliver any one instalment shall entitle the Purchaser at its option to treat the whole Contract as repudiated.
9.5. If the Goods are delivered to the Purchaser in excess of the quantities ordered, the Purchaser shall not be bound to pay for the excess and any excess shall be and shall remain at the Seller’s risk and shall be returnable at the Seller’s expense.
9.6. The Purchaser shall not be deemed to have accepted the Goods until it has had 7 days following delivery to inspect them. In addition to any other remedy available, the Purchaser shall have the right to ask for return and replacement of any defective Goods after inspection or within a reasonable time after it becomes aware of a latent defect.
10. TITLE AND RISK
10.1. Notwithstanding the INCOTERMS provisions, (a) all Goods supplied by the Seller shall become the property of T&L, upon payment therefore or upon delivery, whichever occurs earlier; (b) the Seller shall be responsible for and shall bear any and all risk of loss or damage to the Goods until delivery thereof in accordance with 9. Upon delivery, the Seller shall cease to bear the risk of loss or damage; provided however, that any loss or damage, whenever occurring, which results from the Seller's non-conforming packaging shall be for the Seller's account.
11. PACKING INSTRUCTIONS
11.1. The Goods shall be properly prepared, labelled, packed, and tagged in accordance with instructions contained in the order, secured and protected by the Seller to ensure that they reach the destination specified in the Purchase Order in good condition and that Goods can be properly handled and identified.
11.2. All dangerous or hazardous Goods shall be packed separately from those of a non-hazardous nature and in accordance with clause 12 below.
11.3. Where this Contract involves multiple shipments and/or different destination, the Seller shall not make any shipment until released in accordance with separate purchase orders or releases issued by the Purchaser using location.
11.4. Where returnable containers are used in the shipment, the containers shall be returned to the Seller at the Seller’s expense.
12. HAZARDOUS GOODS
12.1. Hazardous goods must be marked by the Seller with International Danger Symbol(s) and display the names of the ingredient materials. Transportation and other relevant documents must include a declaration of the hazard(s) and name(s) of the material(s).
12.2. Goods must be accompanied by emergency information in the form of written instructions, labels and markings.
12.3. All the previous information shall be written in English and in the local language of the country of delivery.
12.4. The Seller shall observe the legal requirements of the country of delivery and the international agreements relating to the packing, labelling and carriage of hazardous goods in consideration.
12.5. All information held by, or reasonably available to the Seller regarding the potential hazards known or believed to exist in the transport, handling or use of the Goods supplied shall be promptly communicated to the Purchaser.
13. COMPLIANCE WITH LAWS & REGULATIONS
13.1. The Goods supplied shall comply in all respects with the relevant requirements of applicable statutes and any orders or regulations made thereunder, including the necessary permits.
14.1. The price of the Goods shall be stated in the Purchase Order and unless otherwise agreed in writing by the Purchaser shall be exclusive of any taxes which are required by law to be collected and remitted by Seller, and shall be inclusive of all other charges.
14.2. No variation in the price nor extra charges shall be accepted by the Purchaser.
14.3. The Seller shall invoice the Purchaser or the T&L company specified by the Purchaser upon, but separately from, dispatch of the Goods to the Purchaser. The invoice shall include the Purchaser’s Purchase Order number.
15.1. The Purchaser shall pay the price of the Goods within 60 days end of month following the month of receipt of the invoice unless otherwise agreed in writing.
15.2. Without prejudice to any other right or remedy, the Purchaser reserves the right to set-off any amount owing at any time from the Seller to the Purchaser against any amount payable by the Purchaser to the Seller under the Contract.
16. THE PURCHASER'S PROPERTY
16.1. Materials, equipment, tools, dies, moulds, copyright, design rights or any other forms of intellectual property rights in all drawings, specifications and data supplied by the Purchaser to the Seller or not so supplied but used by the Seller specifically in the manufacture of the Goods shall at all times be and remain the exclusive property of the Purchaser (the “Purchaser Property”). The Purchaser Property shall be held by the Seller in safe custody at its own risk and maintained and kept in good condition by the Seller until returned to the Purchaser and shall not be disposed of other than in accordance with the Purchaser’s written instructions, nor shall such items be used otherwise than as authorised by the Purchaser in writing. Such information can only be used for the purpose of the Contract.
16.2. Any invention, discovery or technical process, or application made, conceived or applied by the Seller or its employees, agents, subcontractors, whether solely or jointly with others, in the performance of the Contract , shall be disclosed and documented to T&L, and shall be the sole and exclusive property of T&L and considered as Confidential Information.
17. SPARE PARTS AND DISCONTINUANCE OF MANUFACTURE OF GOODS
17.1. The Seller undertakes that:-
1. unless and until it gives notice in accordance with (b) below it shall make Goods of the same type as those described in the Purchase Order and spare parts for the repair or part replacement of such Goods throughout the period of the normal duration of life of the Goods in accordance with the Purchaser’s requirements and at a fair and reasonable price;
2. if it proposes to cease to be a supplier of the Goods or spare parts for the Goods it shall give the Purchaser not less than 180 days written before so ceasing; and
3. in the circumstances described in (b) above it shall make available to the Purchaser on a “one time buy” basis such quantities of Goods and of spare parts for the Goods as the Purchaser shall reasonably require for the purposes of future renewal, repair or replacement of the Goods at a fair and reasonable price.
18.1. The Seller shall not take photographs of any of the Purchaser’s equipment, installations or property without the Purchaser’s prior consent in writing. The Seller shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Seller by the Purchaser or its agents and any other confidential information concerning the Purchaser’s business or its products which the Seller may obtain and the Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Seller’s obligations to the Purchaser and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Seller.
18.2. Seller shall not advertise or publish the fact that Seller has contracted to furnish the Purchaser the Goods ordered by Purchaser from time to time, or use any trademarks or trade names of Purchaser in Seller’s advertising or promotional materials, unless Purchaser has first consented in writing.
19.1. The Purchaser is entitled to suspend the Contract in whole or in part at any time. In the event of the exercise of such right the Purchaser shall thereafter extend the time for performance of the Contract by such period as is reasonable and it shall also pay the Seller any amounts which are due and payable to the Seller at the date of the suspension and thereafter shall reimburse the Seller for such reasonable direct costs as the Seller has had to incur in making an orderly suspension in accordance with the Purchaser’s instructions.
20.1. The Purchaser shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Seller written notice whereupon all work on the Contract shall be discontinued and the Purchaser shall pay to the Seller fair and reasonable compensation for work-in-progress at the time of termination but such compensation shall not include loss of anticipated profits or any consequential loss.
20.2. The Purchaser shall have the right at any time by giving notice in writing to the Seller to terminate the Contract forthwith if:
1. the Seller commits a material breach of any of the terms and conditions of the Contract which is not remedied within 14 days after notification thereof;
2. any distress, execution or other process is levied upon any of the assets of the Seller;
3. the Seller has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise take the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or convenes a meeting of creditors, or enters into liquidation except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or any proceedings are commenced relating to the insolvency or possible insolvency of the Seller;
4. the Seller ceases or threatens to cease to carry on its business; or
5. the financial position of the Seller deteriorates to such an extent that in the reasonable opinion of the Purchaser the capability of the Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy.
20.3. The termination of the Contract, however arising, shall be without prejudice to the rights and duties of the Purchaser accrued prior to termination. The following conditions 1, 16, 18 and 24.5. shall continue to be enforceable notwithstanding termination.
21. ASSIGNMENTAND SUB-CONTRACTING
21.1. This Contract shall not be transferred, assigned or sub-contracted by the Seller, in whole or in part, except with the prior written consent of Purchaser. In any event the Seller shall remain jointly and/or severally liable with the assignee or sub-contractor.
22. FORCE MAJEURE
22.1. Each party reserves the right to defer the date of delivery or payment or to cancel the Contract or reduce the volume of the Goods ordered if it is prevented from or delayed in the carrying on of its business due to a force majeure event, on condition that the force majeure event is immediately notified in writing to the other party.
22.2. Force majeureshall mean any cause preventing either party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented including act of God, war, riot, civil commotion, flood and storm.
22.3. If either party is prevented from performance of its obligations for a continuous period in excess of 60 days, the other party may terminate this agreement forthwith on service of written notice upon the party so prevented, in which case neither party shall have any liability to the other except that rights and liabilities which accrued prior to such termination shall continue to subsist.
23. RELATIONSHIP OF PARTIES
23.1. The Purchaser and the Seller are independent contracting parties and nothing in this contract, or any Purchase Order issued pursuant hereto, shall make either party the agent or legal representative of the other party for any purpose whatsoever. Furthermore, neither party shall have any authority to assume or to create any obligation on behalf of or in the name of the other party.
24.1 Seller agrees that it shall (a) comply with all applicable laws, rules, codes and regulations in its country or countries in which it does business as are applicable to the Goods being sold or Services rendered (collectively, the “Laws”), including, but not limited to, those concerning the environment, anti-bribery or corruption laws, employee rights to freedom of association, wages, benefits and work hours;(b) provide employees with a safe and sanitary workplace that includes appropriate controls and protective equipment; (c) follow non-discrimination practices in regard to gender, race, age, national origin, disability, citizenship, veteran status, marital status, sexual orientation, or religious beliefs and provide a workplace free from harassment; (d) refrain from paying or accepting bribes or kickbacks and agrees that it has not engaged, and undertakes that it will not engage, in the following conduct (or conduct giving rise to a suspicion of): giving or receiving, whether to a public or a private sector individual or entity, either directly or indirectly, a bribe, facilitation payment or other unlawful or improper payment or advantage; (e) minimize operational impact to air, water, soil, and surrounding areas; and (f) require its sellers to adhere to the same requirements as set forth above. Seller further agrees to comply, and certifies that it does comply, with all laws regarding forced labour, child labour, slavery and human trafficking. Seller agrees to require, and certifies that it does require, its sellers to adhere to the same requirements.
24.2. If any provision of the Contract is found to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
24.3. Failure or delay in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver by either party of any of its rights under the Contract.
24.4. Any waiver by the Purchaser of any breach of, or any default under, any provision of the Contract by the Seller shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
24.5. The parties to this Contract do not intend that any term of this Contract shall be enforceable by any person that is not a party to it.
24.6. The Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
25. Personal Data Privacy and Protection
The “Personal Data Privacy and Protection Clauses for Vendor Contracts” are incorporated herein to the extent applicable to Services of Goods.
T&L SUGARS LIMITED SERVICE CONDITIONS
1.1 The definitions used in the TATE & LYLE SUGARS Purchase Conditions shall apply to these TATE & LYLE SUGARS Service Conditions and, in addition, the following words shall have the following meanings:
Contractor: the Seller, (as defined by the TATE & LYLE SUGARS Purchase Conditions) or the Tenderer, as defined below, including, but not limited to, the Contractor’s legal personal representatives, successors and assigns;
Contract Work: the service to be performed by the Contractor under the Purchase Order;
Loaned plant: the plant or equipment owned, rented or leased by the Purchaser and used by or on behalf of the Contractor for the Contract Work by agreement.
Regulations: the Regulations and Special Safety Conditions for Contractors: issued by the Purchaser for any Site or Sites.
Site: the Purchaser’s site as defined in the Purchase Order or in the tender documents;
TATE & LYLE SUGARS Engineer: the engineer nominated by the Purchaser or, if none is nominated, the Purchasing Manager;
TATE & LYLE SUGARS Service Conditions: the Tate & Lyle Sugars Conditions and Regulations of Service contained hereinits;
Tenderer: the tenderer whose tender has been accepted by the Purchaser;
2.1 These TATE & LYLE SUGARS Service Conditions together with the Regulations are supplementary to TATE & LYLE SUGARS Purchase Conditions and shall govern, where not provided for under the TATE & LYLE SUGARS Purchaser Conditions, the Contract Work performed by the Contractor.
2.2 The Contractor upon entering or working on the Site shall comply with these TATE & LYLE SUGARS Service Conditions and the Regulations, together with all other relevant Site rules, health and safety regulations and environmental and quality assurance policies as may be issued from time to time by the Purchaser.
2.3 The Contractor shall undertake the Contract Work in accordance with all relevant legislation, standards and codes of practice. The Contractor shall obtain all necessary licences, permits and approvals in connection therewith, and shall use suitable and proper equipment.
3. WORKING ARRANGEMENTS
3.1 The Contractor is deemed to have understood the nature and extent of the Contract Work and to have made all the necessary surveys, analyses and inspections of the Site and relevant business, and shall make no claim founded in its failure to do so. The Purchaser shall, on request of the Contractor, grant such access and provide such information as may be reasonable for tits purpose.
3.2 During the Contract Work, the Purchaser shall allow the Contractor and its employees, agents and sub-contractors, duly listed to the Purchaser, such access to the Site as is reasonable required for the purpose of the Contract Work and concurrently with the execution of work by others.
3.3 When requested, the Contractor shall nominate one or more competent representatives, whose name or names shall have previously been communicated in writing to the Purchaser by the Contractor, to superintend the carrying out of the Contract Work on Site. The said representative, or if more than one shall be nominated, then one of such representatives, shall be present on the Site during working hours, and any orders or instructions which the Purchaser may give to such representative shall be deemed to have been given to the Contractor.
3.4 The Contractor shall provide labour returns to the TATE & LYLE SUGARS Engineer or designee in accordance with Site specific procedures.
4. CONTRACTOR’S EMPLOYEES, AGENTS & SUB-CONTRACTORS
4.1 The Contractor shall only use on Site such workmen or agents or sub-contractors as are suitable trained, skilled and experienced. The Purchaser shall have the right to require the Contractor to remove from the Site any person who is incompetent, unproductive, negligent or guilty of misconduct relating to its employment or who in the opinion of the Purchaser should otherwise not be employed on the Site.
4.2 The Contractor shall not sub-let whole or part of the Contract Work to a sub-contractor without the previous written consent of the Purchaser. The Contractor shall be responsible for instructing its employees, agents and any sub-contractors approved by the Purchaser and making known to them the contents of these TATE & LYLE SUGARS Service Conditions and the Regulations
4.3 The Purchaser reserves the right to request any of the Contractors or sub-contractors to undergo a test of skills on the Site and if they fail such a test then they may be removed from the Site at the request of the Purchaser.
5. VARIATION OF CONTRACT WORK
5.1 The Contractor shall not vary any of the Contract Work, except as directed in writing by the Purchaser.
6. USE OF THE PURCHASER’S SERVICES
6.1 The Purchaser does not have any obligation to provide ‘Loaned Plant’ to the Contractor, unless specifically agreed.
6.2 The Purchaser shall have the right to withdraw Loaned Plant at any time with no liability being incurred by the Purchaser.
6.3 The Contractor shall diligently apply all reasonable professional skills in using or in directing Purchaser’s personnel or its employees or sub-contractors in the use of the Loaned Plant.
6.4 The Contractor shall be liable for all damage to the Loaned Plant, including but not limited to, loss by theft, due to negligence on the part of the Contractor, its personnel or agents or subcontractors.
6.5 The Purchaser shall be liable for any damage to the Loaned Plant caused by a defect in the Loaned Plant that the Contractor demonstrates as already existing at the commencement of the loan.
6.6 Where Loaned Plant is operated by the personnel of the Purchaser, the operator shall not become part of the Contractor’s personnel but shall carry out with the Loaned Plant such work as he may be directed to do by the Contractor. The Contractor shall be the solely responsible for all damage caused by its misdirection or negligence.
7. FREE ISSUE MATERIALS
7.1 The Contractor shall be responsible and account for all materials issued free to him by the Purchaser for the Contract Work and shall properly declare the use thereof in accordance with the Purchaser’s instructions.
7.2 The Contractor shall replace at its own cost all such materials which are lost, inefficiently used or become damaged for any reason.
7.3 The Contractor shall return to the Purchaser all such materials which are not used by the Contractor in the execution of the Contract Work.
8. WORKMANSHIP & MATERIALS
8.1 All workmanship and materials for the Contract Work shall be in accordance with the Specification. Where no standards are specified, the Contract Work shall comply with relevant legislation, national standards and codes of practice and the recommendations of relevant trade associations.
8.2 Where the Contract Work includes the Contractor’s designs and/or materials selection, the Contractor warrants to the Purchaser that such designs and/or materials shall be fit and sufficient for the purpose intended.
8.3 The Contractor shall at all times comply with the quality assurance procedures instructed by the Purchaser.
8.4 Where so required by the Purchaser, drawings and other relevant data shall be issued to the TATE & LYLE SUGARS Engineer and will become the property of TATE & LYLE SUGARS.
8.5 The Contractor shall at its own expense, if so requested, submit samples of materials proposed to be used and those approved shall be kept by the Purchaser as the standard of quality for use in the works. Materials delivered to the Site shall not be inferior in any respect to the samples approved by the Purchaser and shall be in accordance with the Specification.
8.6 The Contractor shall be responsible for setting out the Contract Work accurately and for the correctness of all connections and alignment of all parts of the Contract Work. Upon completion of the Contract Work he shall remove all equipment and temporary works not forming part of the Contract Work and shall leave the Site in a condition satisfactory to the Purchaser.
8.7 The Contractor shall do everything necessary for the complete execution of the Contract Work and for the proper operation of the installation, whether or not these actions are mentioned in detail in the Specification or in the Purchase Order.
8.8 The Contract Work shall be subject to such tests as the Purchaser may direct at the place of manufacture or on the Site. The Contractor shall at its own expense provide such assistance, instruments, machines, labour and materials as may be required for such testing.
8.9 The Contractor shall not fill, cover, or in any way hide any part of the Contract Work until inspected and approved by the TATE & LYLE SUGARS Engineer. Such inspection or approval shall not be considered as final acceptance.
8.10 The Purchaser shall have the power to instruct the Contractor at the Contractor’s expense to:
1. remove from site any materials which in the opinion of the Purchaser are not in accordance with the Contract;
2. substitute proper and suitable material;
3. remove and properly re-execute any such work which in respect of materials or workmanship is not in the opinion of the Purchaser in accordance with the Contract;
8.11 The Purchaser shall be entitled to employ and pay other persons to carry out such instructions if the Contractor does not do so within seven days (or a shorter period, if so requested for safety or emergency reasons) after the request of the Purchaser and the Contractor shall be required to pay the cost thereof.
8.12 The indemnification period stated in the TATE & LYLE SUGARS Purchase Conditions shall be applicable to all of the Contract Work.
9. CONTRACTOR’S DEFAULT
9.1 The Purchaser may give the Contractor seven days written notice (or shorter period if requested for safety or emergency reasons) to make good the following default or breach, if the Contractor:
1. is not executing the Contract Work in accordance with or as specified in the TATE & LYLE SUGARS Service Conditions and/or the Purchase Order or,
2. is not proceeding fast enough to ensure the completion of the Contract Work by the time stipulated in the Contract or that such time has already expired, or
3. has refused to carry out a reasonable instruction of the Purchaser for the execution of the Contract Work.
9.2 Should the Contractor fail to comply with a notice given in accordance with sub-Clause 9.1, the Purchaser may, at the expense of the Contractor and without prejudice to any of its other rights:
1. terminate the Contract, and perform itself such of the Contract Work as the Contractor has failed to, or
2. take the Contract Work wholly or in part out of the Contractor’s hands and re-contract it to any other person, or
3. make such modifications, substitutions or addition to the Contract Work as he considers necessary to ensure the satisfactory execution thereof.
9.3 In the event of repeated breaches of these TATE & LYLE SUGARS Service Conditions, or general misconduct by any employee, agent or sub-contractor of the Contractor, the Purchaser shall reserve the right to terminate the engagement of the Contractor and to cancel the Purchase Order.
10. TIME FOR COMPLETION
10.1 The Contractor shall make no delivery nor commence the Contract Work on Site before obtaining a valid Purchase Order Number issued by the TATE & LYLE SUGARS Purchasing Department.
10.2 The Contractor shall within 7 days of a request to do so, submit to the Purchaser for its approval, a detailed and binding plan showing how it proposes to carry out the Contract Work. The Contractor shall also give written details of its arrangements for carrying out the Contract Work and of any temporary works in particular, a description of erection methods and erection equipment and the numbers and qualification of its erection labour. The submission of such program for the approval of the Purchaser or the giving of such details shall not relieve the Contractor of any of its duties or responsibilities under the Contract.
10.3 Without prejudice to any other right of the Purchaser, should the Contractor fail to complete the Contract Work by the date stated in the Purchase Order (or by extension thereto confirmed in an amendment order), the Purchaser shall be entitled to recover liquidated damages from the Contractor at the rate of 3% percent of the Contract Price for each week of delay
10.4 The Purchaser may give written notice to the Contractor to suspend the Contract Work or any part thereof and the Contractor shall during such suspension properly protect and secure the Contract Work. The extra cost (if any) to the Contractor in respect of the Purchaser’s instructions under this condition shall be paid by the Purchaser unless such suspension is:
1. otherwise provided for in the Contract, or
2. necessary for the proper execution of the Contract Work due to weather conditions or by the Contractor’s default, or
3. necessary for the safety of the Contract Work or any part thereof.
10.5 The Purchaser shall be liable for such extra costs in so far as they are reasonable, provided that the Contractor shall not be entitled to recover any such extra cost unless it makes a written claim within 28 days of the Purchaser’s notice, or they result from breach or negligence by the Contractor.
11. LIABILITY FOR DAMAGE OR INJURY
11.1 The Contractor shall take every practicable precaution not to damage or injure any property or persons. The Contractor shall satisfy all claims founded in any such damage or injury which arise out of or in consequence of any operations under the Contract whether carried out by the Contractor or any of its sub-contractors and whether such claims are made by the Purchaser or by a third party against the Purchaser or directly to the Contractor (“Claim”).
11.2 The Contractor shall indemnify the Purchaser in accordance with clause 5 of the TATE & LYLE SUGARS Conditions of Purchase.
11.3 The Contractor shall give immediate notice to the Purchaser in the event of any accident or damage whether or not likely to form the subject of a Claim and shall give all the information and assistance in respect thereof that the Purchaser or the Purchaser’s insurers may require. The Contractor shall not negotiate, pay, settle, admit or repudiate any claim without their written consent, and shall permit the Purchaser or the Purchase’s insurers to take proceedings in the name of the Contractor to recover compensation or secure an indemnity from any third party in respect of any such matters.
11.4 The Contractor shall at its own expense and in its own name arrange for all insurances set out in clause 8 of the TATE & LYLE SUGARS Conditions of Purchase and as otherwise necessary for the Contract Work including Professional Indemnity. The Contractor’s price shall be deemed to include the cost of all such insurances.
11.5 The Contractor shall produce to the Purchaser, when requested, the current valid policies of insurance as required by these conditions together with satisfactory evidence of payment of premiums.
12. Personal Data Privacy and Protection
The “Personal Data Privacy and Protection Clauses for Vendor Contracts” are incorporated herein to the extent applicable to Services of Goods.
T&L SUGARS LIMITED REGULATIONS FOR CONTRACTORS
(Effective April 2011)
1.1 These Regulations shall form part of the conditions of contract for all contracts and purchase orders for work executed and services provided by Contractors to the Purchaser, Tate & Lyle Sugars. The Regulations shall apply to all of the Purchaser’s London Refinery Sites.
1.2 Contractors shall sign the acceptance relating to these Regulations and shall complete and sign the insurance questionnaire and return both to the Purchasing Department before commencement of the Contract Work.
1.3 The Contractor shall carry a minimum of two million pounds sterling insurance cover for third party and public liability whilst on site.
1.4 The Contractor shall submit the details of his CIS4, CIS5 or CIS65 certificate in accordance with the Construction Industry Tax Regulations before commencement of the Contract Work.
The Purchaser shall recover from the Contractor any liability to the Purchaser resulting from non- compliance with the Regulations by the Contractor.
Correspondence relating to CIS certificates must be addressed to the Tate & Lyle Sugars Finance Department.
1.5 The Contractor upon entering or working on the Purchaser’s Site shall comply with these Regulations, together with all other relevant site rules, health and safety regulations and environmental and quality policies as may be issued from time to time by the Purchaser.
The Contract Works shall be undertaken in accordance with all relevant legislation (including and statutory regulations), bylaws and standard codes of practice.
The Contractor is responsible for instructing his employees and agents (including his sub-contractors) and making known to them the contents of these Regulations and of any related matters brought to his attention by the Purchaser.
1.6 The Purchaser may object to and require the Contractor to remove from the Contract Work any person who, in the sole opinion of the Purchaser, misconducts himself or does not comply with these Regulations and such person shall not again be employed upon the Contract Work without the written permission of the Purchaser.
In the event of repeated breaches of these Regulations, or general misconduct by any employee, agent or sub-contractor of the Contractor, the Purchaser shall reserve the right to terminate the engagement of the Contractor and to cancel the purchase order. Such termination shall be final and binding and without further obligation to the Purchaser.
1.7 Unless specified differently within the contract documents, all notices and / or queries shall be addressed to the Purchaser’s nominated Representative or, if none is nominated, to the Purchasing Manager.
1.8 The Contractor shall notify his normal hours of working to the Purchaser’s Representative and shall advise the name and number of personnel to be engaged on the site in advance of arrival on site.
1.9 The Contractor shall not display any advertisement on the Site, or take photographs of it, or make reference to it in any publicity material without the prior written approval of the Purchaser.
1.10 The Contractor shall not offer or give or agree to give to any of the Purchaser’s personnel any gift or consideration of any kind. The exchange of Christmas cards and/or calendars is, however, acceptable.
2. ENTRY TO SITE / SECURITY REQUIREMENTS
2.1 Entry and exit for the Contractor’s personnel and vehicles to the site, when authorised, shall be by way of the Contractors’ Gate only. Access is controlled electronically. All individuals must swipe in/out for entry/exit.
2.2 The Contractor’s personnel shall report initially at the Contractors’ Gate for instructions and the issue of personal access control cards. The Contractor shall be responsible for the safekeeping of access cards issued and shall be liable for the cost of replacement of lost or damaged cards.
Access cards are issued on a personal basis and must not be used by any person other than the person to whom the card was issued.
2.3 All Contractor’s personnel shall be required to attend a Site Induction Course prior to commencement of any works. The Induction Course is conducted in English and requires a formal written test upon completion. Personnel will not be allowed to work on site without successful completion of this induction process.
The Contractor’s service vehicles shall be allowed onto the Site only when essential and then solely at the discretion of the Purchaser. The drivers of the Contractor’s vehicles whilst on Site shall comply with the Purchaser’s traffic regulations at all times.
2.4 The Contractor shall not be provided with parking facilities by the Purchaser unless agreed in writing.
2.5 The Contractor’s craftsmen may leave their toolkits, at the Contractor’s risk, with the Purchaser’s security staff for the short time it takes to park or collect their cars outside the Site.
2.6 The use of cycles within the Site is prohibited.
2.8 Children under 16 years of age shall not be admitted to the site without prior permission.
2.9 The Contractor shall be responsible for the security of his own tools, materials, equipment, vehicles and the private possessions of his personnel and shall arrange insurance in respect of loss or damage.
2.10 The Purchaser reserves the right to search persons and vehicles entering or leaving the Site and to examine any package or parcel.
2.11 No materials shall be taken from the Site without authorisation in the form of a ‘Security Pass out’.
3.1 The Contractor shall provide a copy of his Safety, Health and Environmental Policy as defined in the current Health & Safety at Work Act before commencement of the Contract Work.
3.2 Where the works are subject to the Construction (Design & Management) Regulations 1994, the Contractor shall be required to demonstrate his procedures for the application of the Regulations and to provide the necessary time and resources for this purpose.
3.3 The Contractor shall provide a Task Based Risk Assessment for review by the Purchaser’s Representative prior to any work commencing
3.4 The Contractor shall operate at all times in a responsible manner, safe to his personnel, to the Purchaser’s personnel and to all other persons and property. The Purchaser reserves the right to request verification of training and qualification of Contractor’s operatives
3.5 The Contractor shall abide by the Tate & Lyle Sugars safety systems and policies, which are available on request from the Purchaser’s Representative.
The Contractor shall attend safety meetings and respond to any safety initiatives as requested by the Purchaser.
3.6 The minimum standard requirement for Personal Safety Protective Equipment which must be worn when working on site is:
• Head Protection
• Light Eye Protection
• Hand protection
• Foot protection
• Coveralls bearing the name of the Contracting Company
• Hearing protection in designated areas
Additional protection may be required for particular tasks and this must be determined by risk assessment, and agreed with the Purchaser’s Representative.
Workwear garments shall not have external top pockets.
3.7 Standard PPE is not required when using the Pedestrian Walkways marked in YELLOW.
3.8 All work must be covered by the relevant ‘Permit to Work’ (e.g. Confined Space, Hot Work, Electrical Isolation) as defined by the Purchaser. The Contractor’s personnel shall obtain an authorised ‘Permit to Work’ from the Purchaser’s Representative prior to commencement. “Hot Work” is defined as the introduction of any possible form of ignition including the storage/handling of any flammable materials, liquids or gases. In no other circumstances shall the Contractor be permitted to operate, shut down or in any way interfere with Refinery plant and equipment.
3.9 The Contractor shall ensure that all his plant, equipment and materials are safe and used in compliance with any statutory requirements and applicable codes of practice, and that they are suitably certificated to this effect. The Contractor shall be liable for all loss or damage arising from their use.
Without lessening the absolute responsibility of the Contractor in regard to such equipment the Purchaser shall have the right to inspect such equipment and if in the Purchaser’s opinion it is considered unsuitable or unsafe it shall not be used on the Site, no extra time or payment being allowed to the Contractor for replacement.
3.10 Portable electric tools must be designed for 110 volt, 50 cycle, AC supply.
3.11 Electrical equipment of a personal nature (radios, cassette players etc) are not permitted within the Refinery. There are also restrictions on the use of mobile telephones.
3.12 The Contractor shall under no circumstances use paraffin on the Site.
3.13 The Contractor shall not bring to Site substances subject to the Control of Substances Hazardous to Health Regulations (COSHH Regulations) without prior written consent of the Purchasers Representative.
The Contractor shall supply the Purchaser with full details (data sheets) of such materials as required by the current COSHH Regulations. All such materials shall be clearly marked, stored and handled in compliance with statutory regulations.
3.14 The Contractor shall not bring radioactive materials to the Site without prior written consent of the Purchaser’s Representative. The Contractor shall clearly mark and register such radioactive materials or substances in accordance with the current Ionising Radiation Regulations.
3.15 The Contractor shall comply with the current Regulations associated with the collection, disposal and segregation of waste. All waste removal from site shall be directed through the Purchaser’s Waste Management company. Details of this arrangement are available upon application to the Purchaser’s Representative.
3.16 The Contractor shall install all scaffolding in accordance with the Purchaser’s Scaffolding Procedure, available from the Purchaser’s Representative, All completed scaffolds shall be certified and shall meet with the approval of a competent scaffold inspector prior to use. Such approval shall not release the Contractor’s responsibility in respect of such scaffolding.
3.17 The Contractor shall at all times protect any construction works which may be a source of danger to any person or property and shall ensure that they are fenced off and lit during the hours of darkness with warning lamps and signs.
3.18 The Contractor shall ensure that all his personnel are aware of the relevant fire assembly areas and all emergency escape routes from their place of work. Means of escape from buildings and access for emergency services shall not be obstructed.
In case of fire the Contractor’s personnel shall
• operate the nearest alarm call system
• telephone 8888 on the internal telephone system stating fire location i.e. building, floor level and area on floor
• promptly evacuate the building
3.19 Smoking is not permitted on the Purchaser’s Sites except in designated smoking areas. Any person found contravening this Regulation may be required to leave the Site.
3.20 In the event of the Contractor’s involvement in any incident involving injury, incident, damage, loss or “near miss”, the Contractor shall:
• Immediately notify the Purchaser’s Representative and complete an “Incident/Near Miss” form
• Copy the Purchaser’s Representative with any report to the Health and Safety Executive in compliance with the current RIDDOR Regulations (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations)
• Notify the Purchaser immediately upon receipt of any writ, summons or other proceedings arising out of such incident, injury or damage which may be commenced against the Contractor.
• Permit the Purchaser’s insurers to take proceedings in the name of the Contractor to recover compensation or secure an indemnity from any third party.
4.1 The Contractor’s personnel may be allocated welfare facilities on Site. It shall be their responsibility to keep them clean and tidy at all times. They shall use only such facilities as are agreed and specified at the start of the Contract.
4.2 The Contractor’s personnel shall report all wounds or injuries, however slight, to the Occupational Health Department or first aid post where medical facilities for treatment are available.
4.3 The Contractor shall ensure that his personnel keep any open cut or abrasion on any exposed part of their persons covered with a suitable waterproof dressing. All such wound dressings must be of the “blue strip” metal detachable type. If bandage type materials are used, they must include a waterproof covering and a metallic strip.
4.4 The Contractor’s personnel may use the Purchaser’s restaurant and canteen facilities This shall be subject to strict conditions and may be revoked at any time.
4.5 The Contractor’s personnel shall not consume any food or drink outside designated areas.
4.6 All alcohol and drugs (except prescribed medication) are totally banned from the Site. The Purchaser reserves the right to conduct random testing for alcohol and drug use in accordance with Company Policy.
5. USE OF THE PURCHASER’S SERVICES
5.1 The Contractor’s personnel shall not use fire protection equipment for purposes other than fire fighting.
5.2 The Contractor shall obtain permission from the Purchaser’s Representative for the siting of temporary buildings or containers within the Site and shall remove them immediately on completion of the Contract Work or when instructed to do so by the Purchaser’s Representative.
5.3 Any area required for storage of materials shall be agreed with the Purchaser’s Representative before commencement of the Contract Work.
5.4 Any requirements in respect of temporary electrical power supplies, water supplies and other services shall be advised by the Contractor and arrangements agreed with the Purchaser’s Representative before commencement of the Contract Work.
5.5 The Contractor shall not make use of the Purchaser’s electric or other sources of power, mechanical equipment, lifting gear, scaffolding, ladders and other equipment on site without the express permission of the Purchaser’s Representative and subject to any conditions he may impose.
5.6 The Contractor shall be responsible for ascertaining that all plant and equipment loaned to the Contractor by the Purchaser are safe for the purpose of use and that the operator is qualified or instructed in the safe use of same.
6. PRODUCT QUALITY AND HYGIENE
6.1 The Contractor shall maintain the areas where he is working in a clean and tidy state at all times. Any waste or surplus material shall not be allowed to accumulate and shall be removed and disposed of regularly and at least once a week. Waste skips shall be clearly identified with the associated Contractor or works. The Purchaser’s product bags must not be used for waste disposal.
The Contractor shall ensure that all litter is deposited in the waste receptacles provided for this purpose.
6.2 Reading material other than that pertinent to the plant or work in hand is not permitted in Refinery operating areas
6.3 The Contractor shall employ all necessary measures to control noise, vibration, dust, spillage or any other form of pollution.
Category A Areas
In line with the Purchasers Quality and Hygiene Policy, Category ‘A’ areas are defined as, ”those areas where unsatisfactory standards of hygiene and housekeeping present a significant risk to final product quality and safety.” This includes the following high risk areas:- All product packing areas including FIBC and container filling; bulk loading and filling points; B20; B23; B220; milling house; cube packets and the process areas Gran House and Refinery.
Finished product storage and handling areas such as warehousing in B20 and West Ham Depot, New warehouse, Packaging warehouse , bulk liquor tank farm and weighbridge reception areas are also Category ‘A’ areas but for practical purposes the wearing of hairnets and hand washing on entry are not required.
Any personnel at work suffering from diarrhoea, vomiting or food- borne infection must report to the Tate and Lyle Sugars Representative, who must refer the person to the Occupational Health Department before they are permitted to start or re-commence work in Category “A” areas.
All sores, cuts, grazes, infected areas and other wounds must be covered by a suitably coloured waterproof dressing incorporating a metal strip. Personnel must report the loss of such dressings to the Purchaser’s Representative in circumstances where there is a risk of product contamination. Personnel arriving at work with a domestic wound dressing must have it checked and, if necessary, replaced by an approved food industry dressing.
6.4 Protective Clothing
Personnel must wear clean, approved, protective clothing at all times within Category ‘A’ areas.
Footwear must be of a suitable approved type, and must be maintained in a clean and sound condition.
All hair must be completely covered by the use of hair-nets and hats. Long hair must be neatly contained with no grips or clips outside the head covering. Beard snoods must be worn and must completely cover the beard and / or moustache.
Protective clothing must not be worn off-site or left in working areas. Provision shall be made for the storing of clothing and personal effects by arrangement with the Purchaser’s Representative.
6.5 Personal Hygiene
Hands must be kept clean at all times. All personnel must wash their hands on entering a Category ‘A’ area, and regularly throughout the working day or shift, particularly after visiting the toilet or handling waste materials.
No perfume or aftershave may be worn.
Fingernails must be kept short, neat and clean. Nail varnish or false nails must not worn.
Spitting is not allowed anywhere within site working areas.
6.6 Personal Items
Jewellery, except one plain wedding ring, must not be worn. Watches are also not permitted.
Prescription spectacles and contact lenses are permitted. Any loss or breakage must be reported to the Purchaser’s Representative.
Approved ear defenders containing detectable metal must be worn
One-piece pens of a shatterproof material only are permitted.
Pieces of scrap paper must not be used. Notebooks and approved record sheets must be used. The use of rubber bands and staples are not permitted.
Smoking materials and any other personal possessions must not be carried within Category ‘A’ work areas.
6.7 Eating and Drinking
Food purchased in the restaurant or brought into the Refinery for consumption elsewhere on the site shall be securely packed and opened only at the point of consumption. It is the responsibility of the individual, who takes items of packed food from the restaurant, to ensure that it is securely packed.
Food includes all snack products, confectionery, crisps, chewing gum, fruit, etc. Drink covers every form of drink other than water from drinking fountains.
Food brought onto the site must be kept in a designated area and consumed within the individual’s working day. The storage of perishable foods of any description for longer periods than the working shift is strictly forbidden.
6.8 Use of Glass or Hard Plastic Materials
No person may take glass, glass-containing, or hard plastic equipment or utensils into Category ’A’ areas unless the Purchaser’s Representative is informed and strict precautions taken to prevent product contamination.
Any glass breakage must be reported immediately to the purchaser’s Representative who will ensure if appropriate, that all pieces are accounted for and are collected and disposed of in a designated waste bin away from high risk areas.
Report immediately any cracked or broken windowpanes and light fittings.
6.9 Pest Control
All doors and windows in Category ‘A’ areas must be kept closed unless the aperture is totally enclosed in fine mesh screening. Temporary openings shall be similarly enclosed.
Waste and materials which may harbour pests such as discarded scaffold boards and tubes, Engineering debris, discarded lagging etc. must be removed as soon as possible
Any sighting of pests (insects, rodents, birds, cats etc), or any evidence of pests, must be immediately reported to the Purchaser’s Representative.
No animals are allowed on site.
PERSONAL DATA PRIVACY AND PROTECTION CLAUSES
FOR VENDOR CONTRACTS
PART A – GLOBAL EXCLUDING EUROPE
To the extent Vendor will be provided with or have access to Personal Information (as defined below), the following data privacy clauses of this Part A (referred to in this Part A as the “Clauses”) shall be incorporated into and form a part of the Contract by and between Vendor and Company for the purchase of goods and/or services by Company from Vendor. The term “Company”, as used herein, shall also mean “Buyer”.
“Data Privacy Standards” means all relevant and applicable federal, state and provincial data privacy standards, including, but not limited to, Florida Information Protection Act, SB 1524, the Massachusetts Office of Consumer Affairs and Business Regulation Standards for the Protection of Personal Information, 201 CMR 17.00, California Consumer Protection Act, Illinois Biometric Information Privacy Act, HIPAA and HITECH.
“Individual” means Company, Company’s employees and Company’s business partners wherever located, except Europe.
“Personal Information” means the following:
(a) Personally identifiable information (PII) of an Individual, which includes:
First name and last name or first initial and last name in combination with any one or more of the data elements listed below that relate to such Individual;
Social Security Number (or country specific equivalent);
Driver’s license number or state-issued identification card number;
Financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an Individual’s financial account;
Medical history, mental or physical condition, or medical treatment or diagnosis by a healthcare professional or health insurance information;
Username or email address coupled with a password or security question and answer that would permit access to an online account; and/or
Any information contained in Company’s information systems; and/or
(b) Protected health information (PHI), which includes information related to an Individual’s health care or payment related to health care that directly or indirectly identifies the Individual.
“Subcontractor” means a third party, agent, other contractor, or subcontractor of Vendor.
2. COMPLIANCE WITH DATA PRIVACY STANDARDS.
To the extent Vendor maintains, acquires, discloses, uses, or has access to any Personal Information, Vendor shall comply with all Data Privacy Standards. Vendor shall notify Company in writing immediately if Vendor is no longer in compliance with Data Privacy Standards with respect to any Personal Information.
3. RETURN OR DESTRUCTION OF PERSONAL INFORMATION.
If at any time during the term of the Contract any part of Personal Information, in any form, that Vendor obtains from Company ceases to be required by Vendor for the performance of its obligations under the Contract, or upon termination of the Contract, whichever occurs first, Vendor shall, within fourteen (14) days thereafter, promptly notify Company and securely return such Personal Information to Company, or, at Company’s written request destroy, un-install and/or remove all copies of such Personal Information in Vendor’s possession or control, or such part of the Personal Information which relates to the part of the Contract which is terminated, or the part no longer required, as appropriate, and certify to Company that the same has been completed.
4. USE OF SUBCONTRACTORS WITH ACCESS TO PERSONAL INFORMATION.
When Vendor utilizes a Subcontractor in connection with its performance of its obligations under the Contract and Vendor provides such Subcontractor with access to Personal Information, Vendor shall provide Company with prompt notice of the identity of such Subcontractor and the extent of the role that such Subcontractor will play in connection with the sale of goods or performance of services under the Contract. Moreover, all such Subcontractors given access to any Personal Information must agree to: (a) abide by the Clauses set forth herein, including, without limitation, its provisions relating to compliance with Data Privacy Standards for the protection of Personal Information and Notice of Security and/or Privacy Incident; (b) restrict use of Personal Information only for Subcontractor’s internal business purposes and only as necessary for the sale of goods or to render services to Vendor in connection with Vendor’s performance of its obligations under the Contract, and (iii) certify in writing, upon completion of any sale of goods or performance of services by a Subcontractor, that the Subcontractor has immediately un-installed, removed, and/or destroyed all copies of Personal Information within 30 days of Subcontractor’s completion of the sale of goods or performance of services to Vendor.
5. NOTICE OF SECURITY AND/OR PRIVACY INCIDENT.
If Vendor, or its Subcontractor, suspect, discover or are notified of a data security incident or potential breach of security and/or privacy relating to Personal Information, Vendor shall immediately, but in no event later than forty-eight (48) hours from suspicion, discovery or notification of the incident or potential breach, notify Company of such incident or potential breach. Vendor shall, upon Company’s request, investigate such incident or potential breach, inform Company of the results of any such investigation, and assist Company in maintaining the confidentiality of such information. In addition to the foregoing, Vendor shall provide Company with any assistance necessary to comply with any federal, state and / or provincial laws requiring the provision of notice of any privacy incident or security breach with respect to any Personal Information to the affected or impacted individuals and / or organizations, in addition to any notification to applicable federal, state and provincial agencies. Vendor shall reimburse Company for all expenses, costs, attorneys’ fees, and resulting fines, penalties, and damages associated with such notification if due to Vendor’s, or its Subcontractor’s, negligence, unauthorized use or disclosure of Personal Information, or breach of its obligations under the Contract.
Vendor shall purchase and maintain at all times, during the term of the Contract, a professional liability insurance policy and a cyber liability insurance policy with coverage limits of at least $2,000.000. In some instances, Vendor may be required to provide cyber liability insurance policy with higher coverage limits.
7. REMEDIES, DAMAGES AND INDEMNIFICATION.
Vendor shall bear all costs, losses and damages to the extent resulting from Vendor’s breach of these Clauses. Vendor agrees to release, defend, indemnify, and hold harmless Company and its Affiliates for claims, losses, penalties and damages and reasonable attorneys’ fees and costs to the extent arising out of Vendor’s, or its Subcontractor’s, negligence, unauthorized use or disclosure of Personal Information and/or Vendor’s, or its Subcontractor’s, breach of its obligations under these Clauses. Vendor shall inform all of its principals, officers, employees, agents and Subcontractors assigned to consummate the sale of goods or perform services under the Contract of the obligations contained in these Clauses. To the extent necessary and/or required by law, Vendor shall provide training to such employees, agents and Subcontractors to promote compliance with these Clauses. Vendor assumes all liability for any breach of these Clauses by Vendor or any of its principals, officers, employees, agents and Subcontractors.
PART B – EUROPE
To the extent Vendor (“Contracted Processor” “Controller” or “Subprocessor”) will be provided with or have access to Personal Data as defined in the EU’s General Data Protection Regulation, this Part B shall be incorporated into and form a part of the Contract by and between Vendor and Company for the purchase of goods and/or services from Vendor. The term “Company”, as used herein, shall also mean “Buyer”
The terms used in this Part B shall have the meanings set forth below. Capitalized terms not otherwise defined herein shall have the meaning given to them in the Principal Agreement. Except as modified below, the terms of the Principal Agreement shall remain in full force and effect.
In consideration of the mutual obligations set out herein, the parties hereby agree that the terms and conditions set out below shall be added to the Principal Agreement. Except where the context requires otherwise, references herein to the Principal Agreement are to the Principal Agreement as amended by, and including, this Part B.
1.1 The following terms shall have the meanings set out below and cognate terms shall be construed accordingly:
1.1.1 “Affiliates” means any Person that controls, is controlled by or is under common control with Company, Processor or Subprocessor, respectively. The term “control” means the ownership, directly or indirectly, of fifty percent or more of the voting stock or equity interest of the subject Person. “Person” means any natural person, corporation, unincorporated organization, partnership, association, joint stock buyer, joint venture, trust or government, or any agency or political subdivision of any government, or any other entity. Affiliates are intended third party beneficiaries of this Amendment.
1.1.2 “Applicable Laws” means (a) European Union or Member State laws with respect to any Company Personal Data in respect of which the Company is subject to EU Data Protection Laws; and (b) any other applicable law with respect to any Company Personal Data in respect of which the Company is subject to any other Data Protection Laws;
1.1.3 “Company Personal Data” means any Personal Data Processed by a Contracted Processor on behalf of the Company pursuant to or in connection with the Principal Agreement;
1.1.4 “Contracted Processor” means the natural or legal person, public authority, agency or other body which processes Company Personal Data on behalf of the Controller;
1.1.5 “Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Company Personal Data; where the purposes and means of such processing are determined by Union or Member State law, the Controller or the specific criteria for its nomination may be provided for by Union or Member State law;
1.1.6 “Data Protection Laws” means EU Data Protection Laws and, to the extent applicable, the data protection or privacy laws of any other country;
1.1.7 “EEA” means the European Economic Area;
1.1.8 “EU Data Protection Laws” means EU Directive 95/46/EC, as transposed into domestic legislation of each Member State and as amended, replaced or superseded from time to time, including the GDPR and laws implementing or supplementing the GDPR;
1.1.9 “GDPR” means EU General Data Protection Regulation 2016/679;
1.1.10 “Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
1.1.11 “Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;
1.1.12 “Services” means the services and other activities to be supplied to or carried out by or on behalf of Contracted Processor for Company pursuant to the Principal Agreement; and,
1.1.13 “Standard Contractual Clauses” means the contractual clauses adopted by the European Commission pursuant to Commission Decision 2010/87/EUand set out in Annex 2 of this Part B.
1.1.14 “Subprocessor” means any person (including any third party, but excluding an employee of Contracted Processor or any of its subcontractors) appointed by or on behalf of Contracted Processor to Process Personal Data on behalf of the Company in connection with the Principal Agreement
1.2 Any term not defined herein shall have the same meaning as in the GDPR, and their cognate terms shall be construed accordingly.
Processing of Company Personal Data
2.1 Contracted Processor shall not Process Company Personal Data other than on the Company’s documented written instructions, unless Processing is required by Applicable Laws to which the relevant Contracted Processor is subject, in which case Contracted Processor shall to the extent permitted by Applicable Laws, inform the Company of that legal requirement before the relevant Processing of that Personal Data.
2.2 Annex 1 to this Addendum sets out certain information regarding the Contracted Processors' Processing of Company Personal Data as required by Article 28(3) of the GDPR (and, possibly, equivalent requirements of other Data Protection Laws). Company may make amendments to Annex 1 by written notice to Contracted Processor from time to time as Company reasonably considers necessary to meet those requirements. Nothing in Annex 1 (including as amended pursuant to this section 2.2) confers any right or imposes any obligation on any party to this Addendum.
Contracted Processor shall take reasonable steps to ensure the reliability of any of its employees, agents or contractors who may have access to Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, for the purposes of the Principal Agreement, to comply with Applicable Laws in the context of that individual's duties to the Contracted Processor, and ensure that all such individuals are subject to a strict duty of confidentiality.
4.1 Taking into account the state of the art, the costs of implementation, nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Contracted Processor shall in relation to Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, but not limited to, the measures referred to in Article 32(1) of the GDPR.
4.2 In assessing the appropriate level of security, Contracted Processor shall take into account the risks that are presented by Processing, in relation to a Personal Data Breach.
5.1 Company authorises Contracted Processor and Subprocessor to appoint Subprocessors in accordance with this section 5 and any restrictions in the Principal Agreement.
5.2 Contracted Processor shall give Company prior written notice of the proposed appointment of any new Subprocessor, including full details of the Processing to be undertaken by the Subprocessor.
5.3 Contracted Processor shall not appoint (nor disclose any Company Personal Data to) the proposed Subprocessor except with the prior written consent of Company.
5.4 With respect to each Subprocessor, Contracted Processor shall:
5.4.1 Before the Subprocessor first Processes Company Personal Data, carry out adequate due diligence to ensure that the Subprocessor is capable of providing the level of protection for Company Personal Data required by the Principal Agreement;
5.4.2 Ensure that the arrangements between (a) Contracted Processor and its relevant intermediate Subprocessor or any other Subprocessor; and (b) the intermediate Subprocessor and any other Subprocessor, are governed by a written contract including terms which offer at least the same level of protection for Company Personal Data as those set out in this Part B and meet the requirements of Article 28(3) of the GDPR; and,
5.4.3 Provide to Company for review such copies of the Contracted Processors' agreements with Subprocessors (which may be redacted to remove confidential commercial information not relevant to the requirements of this Part B) as Company may request from time to time.
Data Subject Rights
6.1 Contracted Processor shall provide reasonable assistance to Company in the preparation of any data protection impact assessments or consultations with relevant data privacy authorities, which Company considers to be required by Article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law. Such assistance shall be in relation to Contracted Processor’s Processing of Company Personal Data, taking into account the nature of the Processing and information available to the Contracted Processor.
6.2 Taking into account the nature of the Processing, Contracted Processor shall assist the Company by implementing appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Company’s obligations, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
6.3 Contracted Processor shall:
6.3.1 promptly notify Company if it or any of its Subprocessors receives a request from a Data Subject under any Data Protection Law in respect of Company Personal Data; and,
6.3.2 ensure that the it and any of its Subprocessors does not respond to that request except on the documented instructions of Company or as required by Applicable Laws to which the Contracted Processor is subject, in which case Contracted Processor shall to the extent permitted by Applicable Laws inform Company of that legal requirement before the Contracted Processor responds to the request.
Personal Data Breach
7.1 Contracted Processor shall notify Company without undue delay, and in any event, at least 24 hours prior to providing notice to any governmental authorities under subsection 7.2 below, upon Contracted Processor or any Subprocessor becoming aware of a Personal Data Breach affecting Company Personal Data, and provide Company with sufficient information to allow Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
7.2 Contracted Processor and its Subprocessors shall provide notice to the appropriate authorities pursuant to the timeliness requirements under EU Data Protection Laws and GDPR.
7.3 Contracted Processor shall cooperate with Company and take such reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
Deletion of Company Personal Data
8.1 Subject to section 8.2, Contracted Processor shall promptly and in any event within 30 days of the date of cessation of any Services involving the Processing of Company Personal Data (the “Cessation Date”), delete, so as not to be recovered or reconstructed, and procure the deletion of all copies of Company Personal Data. Contracted Processor shall provide written certification to Company that it has fully complied with the deletion requirements of this section within thirty (30) days of the Cessation Date.
8.2 Each Contracted Processor may retain Company Personal Data only to the extent and for such period as required by Applicable Laws and always provided that Contracted Processor shall ensure the confidentiality of all such Company Personal Data and shall ensure that such Company Personal Data is only Processed as necessary for the purpose(s) specified in the Applicable Laws requiring its storage and for no other purpose.
8.3 Any Contracted Processor retaining Company Personal Data pursuant to section 8.2 shall inform the Company of said retention of Company Personal Data within 15 days of the Cessation Date.
International Data Transfers
9.1 If Company Personal Data is transferred from the EEA, United Kingdom or Switzerland by the Contract Processor to a jurisdiction with respect to which the European Commission has not made a full finding of adequacy or, where the European Commission has made a partial finding of adequacy and the Personal Data being transferred is not covered by such partial adequacy finding, the Standard Contractual Clauses shall apply.
9.2 The parties hereby agree that if a new version of the Standard Contractual Clauses is officially and formally adopted by the EU Commission pursuant to Article 28(7) of the GDPR, such new version shall automatically, without further action of the parties, replace the current version of the Standard Contractual Clauses in Annex 2.
9.3 The Parties hereby agree that if the United Kingdom, as a result of, or in connection with, the United Kingdom leaving the EU, officially and formally adopts its own version of the Standard Contractual Clauses (“UK Standard Contractual Clauses”), the UK Standard Contractual Clauses shall be incorporated herein and shall apply to all transfers of Company Personal Data from the UK to any jurisdiction that is not covered by a UK adequacy finding or relevant partial adequacy finding. For the avoidance of doubt, the Standard Contractual Clauses shall continue to apply with respect to transfers of Company Personal Data from the EEA and Switzerland in accordance with clause 9.1.
10.1 Contracted Processor shall make available to Company on request all information necessary to demonstrate compliance with this Part B, and shall allow for and contribute to audits, including inspections, by Company or an auditor mandated by Company in relation to the Processing of Company Personal Data by the Contracted Processors or any of its Subprocessors.
11.1 Contracted Processor shall take all necessary actions, and provide Company with all information needed, to ensure that both Company and Contracted Processor are in compliance with Data Protection Laws, including Article 28 of the GDPR.
11.2 Contracted Processor shall immediately notify Company if it, or any Contracted Processor, is asked to take any action which may infringe on Data Protection Laws.
11.3 Contracted Processor shall purchase and maintain at all times, during the term of the Principal Agreement, a professional liability insurance policy and a cyber liability insurance policy with coverage limits of at least $2,000,000 per breach or incident.
Remedies, Damages and Indemnification
12.1 Contracted Processor shall bear all costs, losses and damages to the extent resulting from Contracted Processor’s breach of this Part B. Contracted Processor shall reimburse Company for all expenses, costs, attorneys’ fees, and resulting fines, penalties, and damages associated with any Personal Data Breach, if due to Contracted Processor’s or its Subprocessor’s negligence, unauthorized use or disclosure of Personal Data, or beach of its obligations under the Principal Agreement. Contracted Processor agrees to release, defend, indemnify, and hold harmless Company and its officers, directors, and Affiliates for claims, losses, penalties and damages and reasonable attorneys’ fees and costs to the extent arising out of Contracted Processor’s, or its Subprocessor’s, negligence, unauthorized use or disclosure of Personal Data and/or Contracted Processor’s, or its Subprocessor’s, breach of its obligations under this Part B. Contracted Processor shall inform all of its principals, officers, employees, agents and Subprocessors assigned to consummate the sale of goods or perform services under the Principal Agreement of the obligations contained in this Part B. To the extent necessary and/or required by law, Contracted Processor shall provide training to employees, agents and Subprocessors to promote compliance with this Part B. Contracted Processor assumes all liability for any breach of this Part B by Contracted Processor or any of its principals, officers, employees, agents and Subprocessors.
13.1 Nothing in this Part B relieves the Contracted Processors of their own direct responsibilities and liabilities under Applicable Laws, including the GDPR.
DETAILS OF PROCESSING OF COMPANY PERSONAL DATA
This Annex 1 includes certain details of the Processing of Company Personal Data as required by Article 28(3) GDPR.
1. Subject matter and duration of the Processing of Company Personal Data
The subject matter and duration of the Processing of the Company Personal Data are set out in the Principal Agreement and this Addendum.
2. The nature and purpose of the Processing of Company Personal Data
[Include description here (for example, for business purpose, to comply with legal obligation, etc.)]
3. The types of Company Personal Data to be Processed
[Include list of data types here (for example, Date of Birth, Social Service Number, any information that can be used to identify an EU Resident)]
4. The categories of Data Subject to whom the Company Personal Data relates
[Include categories of data subjects here, (for example, Employee, Former Employee, Beneficiary, Customer, etc.)]
5. The obligations and rights of Company
The obligations and rights of Company are set out in the Principal Agreement and this Addendum.
STANDARD CONTRACTUAL CLAUSES (PROCESSORS)
Company (also referred to herein as “data exporter”) and Contracted Processor (also referred to herein as “data importer”) (each a “party”, together the “parties”) have entered into the Principal Agreement pursuant to the terms of which the Contracted Processor may process or store certain Company Personal Data, together with a Data Protection Addendum (“DPA”) which incorporates the following Standard Contractual Clauses (also referred to herein as the “Clauses”) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by data exporter to the data importer of the personal data specified in Appendix I.
For the purposes of the Clauses:
(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) 'the data exporter' means the controller who transfers the personal data;
(c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the sub-processor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any sub-processor agreement it concludes under the Clauses to the data exporter.
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered
. 2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity. The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established, namely […].
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clauses. Where the sub-processor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the sub-processor's obligations under such agreement.
2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established, namely […].
4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the sub-processor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
Appendix I to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed and signed by the parties
The data exporter is: […please specify briefly your activities relevant to the transfer]
The data importer is: […please specify briefly your activities relevant to the transfer]
The personal data transferred concern the following categories of data subjects: […]
Categories of data
The personal data transferred concern the following categories of data: […]
Special categories of data (if appropriate) The personal data transferred concern the following special categories of data: […]
The personal data transferred will be subject to the following basic processing activities: […]
Signed for and on behalf of the data importer:
Signed for and on behalf of the data exporter:
Appendix II to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed and signed by the parties
Description of the technical and organisational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached)