CF FERTILISERS UK LIMITED STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS

Transcription

1 CF FERTILISERS UK LIMITED STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS The Customer s attention is particularly drawn to the exclusions and limitations of liability at Condition DEFINITIONS AND INTERPRETATION In these Conditions: 1.1 the following words and expressions have the following meanings unless the context otherwise requires: Ammonium Nitrate Safety Regulations the Ammonium Nitrate Materials (High Nitrogen Content) Safety Regulations 2003 Applicable Law any: (a) (a) (b) statute, statutory instrument, bye-law, order, directive, treaty, decree or law; rule, policy, guidance or recommendation issued by any governmental, statutory or regulatory body; and/or industry code of conduct or guideline which relates to the Contract and/or the Goods a day that is not a Saturday, Sunday or public or bank holiday in England and/or Wales Bagged Goods Bulk Goods Business Day means Goods transported via bags to the Customer or End User means Goods transported in bulk, non-bagged form to the Customer or End User means a day that is not a Saturday, Sunday or public or bank holiday in England and/or Wales CF CF Fertilisers UK Limited (registered number ) whose registered office is at Ince, Chester, United Kingdom, CH2 4LB Code of Ethics & Standards of Business Conduct Policy" Conditions Contract CF's Code of Ethics & Standards of Business Conduct Policy as set out in Appendix 1, as may be amended by CF from time to time these standard terms and conditions of supply, as varied from time to time in accordance with Condition 21.4 the contract between CF and the Customer for the supply of the Goods formed in accordance with Condition 2.1 1

2 Customer Delivery the person named as the customer in the Order the time at which delivery of the Goods is deemed to occur in accordance with Condition 5.1 or Condition 5.2 (as applicable) Force Majeure Event (a) act of God; (b) (c) (d) (e) (f) (g) (h) (i) war, insurrection, riot, civil commotion, act or threat of terrorism; lightning, earthquake, fire, flood, storm, or extreme weather condition; theft or malicious damage; strike, lockout or industrial dispute (whether affecting the workforce of a Party and/or any other person) beyond the reasonable control of CF; breakdown or failure of plant or machinery beyond the reasonable control of CF; inability to obtain essential supplies or materials beyond the reasonable control of CF; change in Applicable Law; or any event or circumstance to the extent it is beyond the reasonable control of CF Goods Insolvent the goods set out in the Order comprising Bagged Goods and/or Bulk Goods a Party is Insolvent where it: (a) (b) gives notice under section 84 Insolvency Act 1986 of, or proposes or passes a resolution for, its winding up or in the case of a limited liability partnership proposes or determines that it will be wound up (save for the purpose of a solvent reconstruction or amalgamation); has a winding-up order made or a notice of striking off filed in respect of it; (c) has an administration order or an application for an administration order made in respect of it; or (a) has a notice of appointment of an administrator or a notice of intention to appoint an administrator filed in respect of it at any court; (e) proposes, makes or is subject to: (i) a company voluntary arrangement; 2

3 (ii) a composition with its creditors generally; (iii) an application to a court of competent jurisdiction for protection from its creditors generally; or (iv) a scheme of arrangement under Part 26 Companies Act 2006 (save for the purpose of a solvent reconstruction or amalgamation); (f) (g) (h) (i) (j) (k) has a receiver or a provisional liquidator appointed over any of its assets, undertaking or income; ceases to trade or appears, in the reasonable opinion of the other Party, to be likely to cease to trade; is unable to pay its debts as they fall due; has a value of its assets which are less than its liabilities, including its contingent and prospective liabilities; has any distraint, execution or other process levied or enforced on any of its property; or is the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction Intellectual Property Rights Liability Order all intellectual and industrial property rights of any kind whatsoever including patents, supplementary protection certificates, rights in know-how, registered trade marks, registered designs, models, unregistered design rights, unregistered trade marks, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise), database rights, topography rights, any rights in any invention, discovery or process, and applications for and rights to apply for any of the foregoing, in each case in the United Kingdom and all other countries in the world and together with all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions liability arising out of or in connection with the Contract, whether in contract, tort, misrepresentation, restitution, under statute or otherwise, including any liability arising from a breach of, or a failure to perform or defect or delay in performance of, any of a Party s obligations under the Contract and/or any defect in any of the Goods, in each case howsoever caused including if caused by negligence the Customer s order for the supply of Goods by CF, set out: 3

4 (a) in a written order form; or (b) through CF s business portal Order Acknowledgement Prices CF s written acceptance of the Order or generated via the CF s business portal (as applicable) the prices for the Goods set out in CF s price list in force on the date on which the Order is received by CF or such other prices as agreed by the Parties in writing, in each case as those prices may be varied from time to time in accordance with Condition 8.4 REACH Regulations Regulation 1907/2006 On The Registration, Evaluation, Authorisation And Restriction Of Chemicals VAT Warranty Period value added tax the period starting on Delivery and ending on the earlier of (a) (b) the time at which the relevant Goods are incorporated into another product or used in an agricultural process; or expiry of a period of 12 months from and including the date of Delivery 1.2 references to Conditions are to the clauses and paragraphs of these Conditions; 1.3 all headings are for ease of reference only and will not affect the construction or interpretation of these Conditions; 1.4 references to a Party or to the Parties will mean CF and/or the Customer as the context requires and references to a third party will mean any person other than the Parties; 1.5 unless the context otherwise requires references to a person include any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having separate legal personality); 1.6 references to any statute or statutory provision will include any subordinate legislation made under it and will be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time; 1.7 any words following the words include, includes, including, in particular or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them; 1.8 the rule known as the ejusdem generis rule will not apply and accordingly the meaning of general words introduced by the word other or a similar word or expression will not be restricted by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things; 1.9 an obligation on a Party to procure or ensure the performance or standing of another person will be construed as a primary obligation of that Party; and 1.10 any obligation on a Party not to do or omit to do anything includes an obligation not to allow (whether expressly or by a failure to take reasonable steps to prevent) that thing to be done or omitted to be done by any other person. 4

5 2. CONTRACT FORMATION 2.1 The Order constitutes an offer by the Customer to purchase Goods from CF on these Conditions. A contract for the supply of Goods by CF to the Customer on these Conditions will be formed when CF accepts the Order by issuing an Order Acknowledgement to the Customer. For the avoidance of doubt, CF is under no obligation to accept the Order. 2.2 These Conditions are the only terms and conditions on which CF will supply goods to the Customer and will apply to the exclusion of all other terms and conditions including any terms and conditions which the Customer purports to apply under any purchase order, confirmation of order or similar document (whether or not such document is referred to in the Contract) and any terms and conditions which may otherwise be implied by trade, custom, practice or course of dealing. 2.3 Delivery will be deemed conclusive evidence of the Customer s acceptance of these Conditions. 2.4 CF will be entitled, at its discretion, to deliver Goods by separate instalments. CF will be entitled to invoice the Price for each instalment separately in accordance with Condition 8.5. Each instalment will be deemed to be a separate contract and no cancellation or termination of any one contract relating to an instalment will give the Customer the right to cancel or terminate any other contract. 3. THE GOODS 3.1 CF will be entitled at any time to: vary the design, finish or specification of Goods and/or their packaging; and/or substitute any Goods which are unavailable for any reason with alternative Goods to the extent that: this does not materially affect their quality or performance; or this is necessary to comply with Applicable Law. 3.2 All samples, drawings, descriptive and illustrative matter and advertising issued or published by CF (or the manufacturer of the Goods) whether in catalogues, brochures, websites, other promotional material or otherwise are for the sole purpose of giving an approximate idea of the relevant Goods. 3.3 The Contract is not a sale by sample. 4. INSTRUCTIONS AND ADVICE 4.1 Any recommendation or suggestion relating to the use of the Goods made by CF either in technical literature or in response to a specific enquiry or otherwise shall be given in good faith but it is for the Customer to satisfy itself of the suitability of the Goods for its own particular purpose. 4.2 Subject to Condition 4.1, CF accepts no responsibility for any advice given to the Customer by its employees, servants or agents and accepts no liability (whether in contract, tort, misrepresentation, restitution, under statute or otherwise, in each case howsoever caused including if caused by negligence) resulting directly and/or indirectly from any such advice. Without prejudice to the foregoing, CF accepts no liability (whether in contract, tort, misrepresentation, restitution, under statute or otherwise, in each case howsoever caused including if caused by negligence) whatsoever for any injury, damage and/or loss suffered by the Customer who has failed to follow the manufacturer's recommendations or any statutory requirements and/or the requirements of any relevant industry codes of practice. 5

6 4.3 If the Customer requires delivery of the Goods to a destination outside mainland United Kingdom, the parties shall discuss and agree delivery terms at the point of formation of the relevant Contract, subject always to the provisions set out in this clause. 5. DELIVERY 5.1 Except where the parties agree in writing that the Customer will collect the Goods (in which case Condition 5.2 will apply), CF will deliver the Goods to the address specified in the Order (or such other address as agreed by the Parties in writing). The Customer will be responsible for: ensuring that the Customer or End User takes delivery of the Goods (including providing suitable access, instructions, documents, licences and authorisations to enable the Goods to be delivered) on the delivery date; and for Bagged Goods, off-loading the Goods from the delivery vehicle (whether performed by the Customer, the End User or by a third party acting on the Customer s or the End User s behalf); and for Bulk Goods, for signing delivery documents to ensure reception facility (storage tank) is ready to receive full load before discharge commences and documents to confirm full load has been received satisfactorily.. CF will inform the Customer in advance of the date on which the Goods will be delivered. Delivery of the Goods will be deemed to occur when they arrive at the delivery address. 5.2 Where the parties agree in writing that the Customer will collect the Goods, the Customer will collect the Goods from CF s premises as notified to it by CF and CF will load them onto the collecting vehicle. CF will inform the Customer in advance of the date on which the Goods will be available for collection. The Customer will collect the Goods during CF s standard trading hours within a period of five Business Days from and including the day on which CF informs the Customer that the Goods are available for collection. Delivery of the Goods will be deemed to occur: at the time of collection (at the point that the relevant Goods have been loaded onto the collecting vehicle); or if earlier, on expiry of the period for collection specified in this Condition Bagged Goods will be supplied and delivered as either tonnage in full ("TIF") or by full loads only ("FLO") as set out in the Contract (or, if not specified in the Contract, as determined by CF) and: where the Goods are to be supplied and delivered TIF, delivery of the Goods shall be complete when the total tonnage of Goods specified in the relevant Contract has been delivered; and where the Goods are to be supplied and delivered FLO, delivery of the Goods shall be complete when the number of full loads which most closely approximates to the total tonnage specified in the Contract have been delivered. Where the Prices are specified in the Contract as being calculated by reference to the actual volume of Goods delivered to the Customer, the sum invoiced by CF will be adjusted on a pro rata basis to take account of any over or under delivery associated with FLO. In all other cases, there will be no adjustment in the Prices and/or sums invoiced to reflect the over or under delivery of the Goods associated with FLO. CF shall have no Liability directly or indirectly by any deficit in tonnage delivered FLO compared to the tonnage requested provided that it has delivered the number of full loads that most closely approximates to the total tonnage specified in the Contract. 5.4 For Bulk Goods, the following rules apply: The Goods will be delivered to the destination specified in the Order. Delivery will be deemed to occur when CF completes its discharge of the Goods at the Customer s storage facility. 6

7 5.5 If: The Customer shall ensure that CF has access to its site in order that CF can effect delivery by the delivery date. The delivery date shall be as set out in the order. Any delivery or despatch date given by CF is approximate only and CF shall not be liable to the Buyer for failure to deliver on any particular date or dates. Time for delivery is not of the essence and shall not be made so by the service of any notice The cost of delivery of the Goods to a delivery address nominated by the Customer is included in the price (save that if the nominated delivery address is outside mainland Great Britain, the all-inclusive price shall include any additional incremental delivery costs as CF may incur in delivering to that delivery address) If the Customer refuses or fails to take delivery of Goods tendered in accordance with the Contract or refuses to or is unable for some other reason to give the Seller access to its premises, the Seller may: terminate the Contract with immediate effect; and/or dispose of the Goods as it sees fit; and and recover from the Customer any loss and additional costs (including demurrage) incurred as a result of such refusal or failure (including, without limitation, storage costs from the due date of delivery) the Goods have not been delivered under Condition 5.1 or made available for collection under Condition 5.2 within sixty (60) days from and including the estimated delivery or collection date set out in the Order Acknowledgement (which, in cases where a month for delivery or collection has been specified, shall be calculated from and including the last day in the relevant month); and CF fails to deliver or make available for collection those Goods under Condition 5.1 within fourteen (14) days of a written notice referring to this Condition 5.4 and setting out the Customer s rights under it being given by the Customer, the Customer will be entitled to cancel the Contract by giving written notice to that effect to CF. If the Customer exercises its right of cancellation CF will refund to the Customer any monies which the Customer has already paid to CF under the Contract and the Customer will not be required to pay any further monies to CF under the Contract. Subject to Condition 10.4, CF s sole Liability for its failure to deliver the Goods will be limited to the price (exclusive of VAT) paid by the Customer in obtaining replacement goods of equivalent description and quality in the cheapest market available, less the Price of the Goods. 5.6 Save as provided in Condition 5.4, the Customer will not be entitled to cancel the Contract or to reject any Goods by reason of a delay in delivery or failure to deliver. 5.7 If the Customer fails to collect or accept delivery of the Goods in accordance with the Contract, CF will be entitled to: store or arrange for storage of the Goods until the Customer collects or accepts delivery of them or they are disposed of under Condition (as applicable) and to take such action as it considers necessary to attempt to re-deliver the Goods to the address specified in the Order (or such other address as agreed by the Parties in writing); following written notice to the Customer, treat the Contract as repudiated by the Customer and dispose of the Goods in any way it sees fit, including by sale to another person. If CF sells any of the Goods under this Condition at a price which is less than the relevant Price plus any relevant packaging, insurance, carriage and delivery costs, CF will be entitled to charge the Customer for the shortfall; and 7

8 5.7.3 charge the Customer for all costs and expenses which CF incurs under Conditions and The quantity of any consignment of Goods as recorded by CF upon despatch from CF's place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary. 5.9 The Customer hereby indemnifies CF against all losses, liabilities, costs, damages and expenses (whether arising under statute or common law and including, without limitation, any personal injury to or death of any of CF's employees, agents or sub-contractors or any third party and any damage to or loss of any property of CF, its employees, agents or sub-contractors or any third party) that CF does or will incur or suffer in each case arising out of or in connection with the Customer's or the End User's: failure to provide appropriate access, equipment, facilities and/or manual labour for off-loading the Goods at the delivery address; breach of any provision of this Contract relating to the collection, delivery or unloading of the Goods; and/or negligent act or omission whilst collecting, taking delivery or unloading the Goods. 6. INSPECTION AND ACCEPTANCE BAGGED GOODS 6.1 Due to the risk of damage to the Bagged Goods occurring during the unloading of the Bagged Goods by the End User following Delivery, the Customer or End User (as appropriate) will inspect the Bagged Goods on Delivery and the Customer will within two business days from the date of Delivery give written notice to CF of any breach of the warranty in Condition 9.1 in relation to those Bagged Goods. 6.2 Bulk Goods are not subject to inspection and are deemed accepted once delivered. 6.3 Conditions 9.2.2, 9.2.3, 9.3, 9.4 and 9.5 will apply to any breach of warranty notified to CF under Condition The Customer will be deemed to have accepted such Bagged Goods on the earlier of: CF receiving confirmation in writing from the Customer or End User that the Bagged Goods are of satisfactory quality and/or conform with the Contract; if CF has not received any written confirmation in accordance with Condition and the Customer does not give notice to CF under Condition 6.1, in respect of any Bagged Goods, the expiry of the two Business Day period from the date of Delivery. 7. PASSING OF RISK AND RETENTION OF TITLE 7.1 Risk of damage to or loss of the Goods will pass to the Customer on Delivery. 7.2 In relation to Bulk Goods (save for those ex works): while the Goods are in transit (from the point of despatch from CF s premises to arrival at the Customer s storage or reception facility) responsibility for dealing with any incident involving the transit vehicle or the Goods shall rest with CF; and from the point at which the Goods are fully discharged from the transit vehicle into the Customer s storage or reception facility, responsibility for dealing with any incident involving the transit vehicle or the Goods shall rest with the Customer. 8

9 7.3 In relation to Bulk Goods (ex works), responsibility for dealing with any incident involving the transit vehicle or the Goods shall rest with the Customer once the Goods have been loaded to the Customer s transit vehicle at CF s site. If requested by CF, the Customer will provide technical assistance in respect of any incident involving the Goods once risk has passed to the Customer, including attendance at the scene of the incident. 7.4 Subject to Conditions 7.5 and 7.6, legal and beneficial ownership of the Goods will not pass to the Customer until CF has received in full in cleared funds: all sums due to it in respect of the Goods; and all other sums which are or which become due to CF from the Customer on any account whatsoever. 7.5 The Customer may resell the Goods in the ordinary course of its business and, if it does so, legal and beneficial ownership of Goods will pass to the Customer immediately prior to the Customer entering into a binding contract for the sale of those Goods. 7.6 CF may, by giving written notice to the Customer, pass legal and beneficial ownership of the Goods (or any of them) to the Customer at any time before such ownership would otherwise have passed to the Customer. 7.7 Until ownership of the Goods has passed to the Customer, the Customer will: hold the Goods on a fiduciary basis as CF s bailee; store Bagged Goods (at no cost to CF) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as CF s property; not destroy, deface or obscure any identifying mark or packaging on or relating to the Bagged Goods; maintain the Bagged Goods in satisfactory condition; and keep the Goods insured with a reputable insurer for their full price against damage or loss on an all risks basis and whenever requested by CF produce a copy of the policy of insurance in respect of the Goods to CF, do nothing and not omit to do anything which in consequence permits any insurer to refuse to indemnify the Customer in full in accordance with the terms of any insurance policy maintained in respect of the Goods in respect of any claim made under any such insurance policy and procure that any insurance proceeds received in respect of lost or damaged Goods are paid to CF, to the extent required to satisfy the indebtedness of the Customer to CF. 7.8 The Customer may use the Goods in the ordinary course of its business before ownership has passed to it. 7.9 The Customer s right to possession, use and resale of the Goods will terminate immediately if, before ownership of the Goods passes to the Customer: the Customer becomes Insolvent; CF gives the Customer written notice that it has any concerns regarding the financial standing of the Customer; the Customer is in breach of any of its obligations under the Contract or any other contract between CF and the Customer; or the Customer encumbers or in any way charges any of the Goods CF will be entitled to recover payment for the Goods (including by way of an action for the price) notwithstanding that ownership of any of the Goods has not passed from CF. 9

10 7.11 The Customer grants, and will procure that the owner of any third party premises grants, CF, its agents, employees and sub-contractors an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer s right to possession, use and resale has terminated, to recover them If the Customer s right to possession, use and resale of the Goods terminates in accordance with Condition 7.8, CF will be entitled to issue the Customer with a credit note for all or any part of the price of the Goods together with value added tax thereon CF s rights contained in this Condition 7 will survive expiry or termination of the Contract however arising. 8. PRICE AND PAYMENT 8.1 The Customer will pay the Prices to CF in accordance with this Condition Unless otherwise agreed in the Contract, the Prices are inclusive of insurance, carriage and delivery costs. 8.3 Any sum payable under the Contract is exclusive of VAT (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority) which will be payable in addition to that sum in the manner and at the rate prescribed by law from time to time. 8.4 CF will be entitled to vary the Prices at any time by giving written notice to the Customer to reflect any variation in the cost of supplying the Goods which arises as a consequence of any change in Applicable Law, any variation in the Customer s requirements for the Goods and/or any information provided by the Customer being inaccurate, incomplete or delayed. The variation will be effective from the date following the date on which the notice was given and will apply to all Goods delivered on or after the date from which the variation is effective (whether ordered before, on or after that date). 8.5 CF will be entitled to invoice the Customer for the Prices for the Goods and any applicable insurance, carriage and delivery costs payable by the Customer in addition to the Prices following the Goods being dispatched for delivery or made available for collection (as applicable). 8.6 Except as otherwise agreed in writing in the Contract, each invoice will be payable by the Customer by the twenty-eighth day of the month following the month in which the invoice is issued. All payments will be made in pounds sterling in cleared funds. No payment shall be deemed to have been received by CF until CF has received such payment in cleared funds. 8.7 Time will be of the essence in respect of the timescales for payment of invoices set out in Condition 8.6 and any timescales which may be substituted for them in accordance with Condition The Customer shall not exceed any credit limit specified from time to time by CF and, without prejudice to the foregoing, if any such limit is exceeded, then the Customer shall be liable immediately, on demand, to pay the amount by which the credit limited is exceeded. 8.9 Notwithstanding any purported contrary appropriation by the Customer, CF will be entitled, by giving written notice to the Customer, to appropriate any payment by the Customer to any invoice issued by CF If any sum payable under the Contract is not paid on or before the due date for payment CF will be entitled to charge the Customer interest on that sum at 4% per annum above the base lending rate from time to time of Bank of England from the due date until the date of payment (whether before or after judgment), such interest to accrue on a daily basis and be compounded monthly If the Customer fails to make any payment due to CF under the Contract or any other contract between the Customer and CF on or before the due date CF will be entitled to withhold further deliveries of Goods until payment of all overdue sums has been made. 10

11 8.12 If the Customer fails to make any payment due to CF under the Contract on or before the due date or if CF has any concerns regarding the Customer s financial standing CF will be entitled, by giving written notice to that effect to the Customer, to vary the invoicing and/or payment terms set out in the Contract If the Customer fails to make any payment due to CF under the Contract on or before the due date or if the Customer becomes Insolvent or if CF has any concerns regarding the Customer s financial standing all invoices issued will immediately become due and payable Save as otherwise expressly provided in these Conditions or required by law, all payments to be made by the Customer to CF under the Contract will be made in full and without any set-off or any deduction or withholding including on account of any counter-claim Following expiry or termination of the Contract: CF will be entitled to invoice all Prices and any insurance, carriage and delivery costs incurred which have not yet been invoiced; and all invoices (including any invoices issued under Condition ) will become immediately due and payable by the Customer. 9. WARRANTY 9.1 CF warrants to the Customer that during the Warranty Period the Goods will be of satisfactory quality within the meaning of the Sale of Goods Act 1979 (it being acknowledged by each Party that, due to their nature, the Goods may be subject to a reasonable level of deterioration in quality through the passage of time). 9.2 If, at any time during the Warranty Period, the Customer becomes aware of a breach of the warranty at Condition 9.1, the Customer will: give written notice of the breach to CF, such notice to be given: within 30 days after the Customer or End User becomes aware of, or ought reasonably to have become aware of, the breach; and prior to expiry of the Warranty Period; at CF s option either return to CF (at the CF s cost) the relevant Goods or permit CF or its agent or sub-contractor to inspect the relevant Goods at the Customer s premises; and provide to CF all information and assistance which CF may reasonably require to investigate the alleged breach. 9.3 Subject to Condition 10.4, CF s only Liability for breach of the warranty at Condition 9.1 will be, at CF s option, to replace the relevant Goods or to reduce the Price of the relevant Goods by a sum which is equitable in the circumstances where CF is satisfied that it is responsible. 9.4 Subject to Condition 10.4, CF will not have any Liability for a breach of the warranty at Condition 9.1 if: the Customer does not comply with its obligations at Condition 9.2 in respect of the breach; notice of the breach should have been but was not given to CF under Condition 6.1; the relevant defect was caused after Delivery; the relevant defect was caused by a reasonable level of deterioration through the passage of time, the wilful damage or negligence by the Customer or End User, 11

12 abnormal working conditions or misuse of the Goods without CF s prior written approval; the relevant defect was drawn to the Customer s attention before formation of the Contract or the Good was examined by the Customer before formation of the Contract and the examination ought to have revealed the defect; the Customer or End User failed to (i) follow CF's oral or written instructions as to the storage, transportation, use or maintenance of the Goods; or (ii) use the degree of skill, care, prudence, diligence and foresight using what the Customer s or End User s industry would (at the relevant time) regard as the best generally accepted processes, techniques and facilities in relation to such Goods; the relevant defect was caused or exacerbated by improper use, handling, alteration, installation, repair, maintenance, storage or failure to comply with instructions provided by CF (including the Customer s failure to comply at all times with Condition ); or the Customer and/or any End User makes further use of the relevant Goods after discovering the relevant breach. The warranty under Condition 9.1 will apply to any Goods which are replaced under Condition 9.3 for the remainder of the original Warranty Period. 9.5 Subject to Condition 10.4, all warranties, conditions and other terms implied by law (whether by statute, common law or otherwise) are excluded from the Contract. 10. EXCLUSIONS AND LIMITATIONS OF LIABILITY The Customer s attention is particularly drawn to this Condition Subject to Condition 10.4, CF s entire Liability for any non-delivery of Goods or failure to deliver the Goods in accordance with the timescales set out or referred to in the Contract will be as set out in Condition 5.4 and CF will have no other Liability for any such non-delivery or failure to deliver. For the avoidance of doubt such Liability will be subject to Condition 10.2 and will be taken into account in calculating whether the financial limit in Condition 10.2 has been reached Subject to Conditions 10.3 and 10.4, CF s maximum aggregate Liability will be limited to a sum equal to one hundred and ten percent (110%) the aggregate Price paid and/or payable for the Goods under the Contract CF will have no Liability to the Customer for any: loss of profit (whether direct, indirect or consequential); loss of revenue, loss of production, loss of operations, loss of contracts or loss of business (in each case whether direct, indirect or consequential); loss of goodwill, loss of reputation or loss of opportunity (in each case whether direct, indirect or consequential); loss of anticipated savings or loss of margin (in each case whether direct, indirect or consequential); loss of bargain (whether direct, indirect or consequential); wasted management, operational or other time (whether direct, indirect or consequential); liability of the Customer to third parties (whether direct, indirect or consequential); or 12

13 indirect, consequential or special loss, subject always to Condition Nothing in the Contract will operate to exclude or restrict one Party s liability (if any) to the other: for death or personal injury resulting from its negligence or the negligence of a person for whom it is vicariously liable (negligence being as defined in Section 1(1) Unfair Contract Terms Act 1977); for its fraud or fraudulent misrepresentation or fraud or fraudulent misrepresentation by a person for whom it is vicariously liable; for breach of its obligations arising under section 12 Sale of Goods Act 1979; for breach of its obligations arising under Section 2 Supply of Goods and Services Act 1982; for breach of its obligations arising under Section 8 Supply of Goods (Implied Terms) Act 1973; arising under Section 2(3) Consumer Protection Act 1987; or for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability Any liability of CF which falls within Condition 10.4 will not be taken into account in assessing whether the financial limit in Condition 10.2 has been reached Nothing in this Condition 10 will prevent or restrict the right of a Party to seek injunctive relief or specific performance or other discretionary remedies of the court The exclusions from, and limitations of, liability set out in this Condition 10 will be considered severally. The invalidity or unenforceability of any one sub-clause or clause will not affect the validity or enforceability of any other sub-clause or clause and will be considered severable from each other. 11. INTELLECTUAL PROPERTY Nothing in the Contract will operate to transfer to the Customer or to grant to the Customer any licence or other right to use any of CF s Intellectual Property Rights, save that the Customer may use the Goods solely for the purpose for which they were supplied. 12. CUSTOMER OBLIGATIONS 12.1 The Customer will and will procure that each End User will: at all times store the Goods in a dry, secure and adequately ventilated location which is appropriate in all other respects to ensure that, to the greatest extent possible, the Goods remain in the same condition as when they were originally delivered to the Customer or End User (as applicable); provide CF with all such information and assistance as CF may require from time to time to perform its obligations under the Contract; and not remove or alter any trade marks, serial numbers, bag codes or other identifying marks on the Bagged Goods or their packaging This clause applies only where the Customer is buying the Goods for resale purposes to third parties. To protect the traceability of the Goods and enable CF to comply with its own 13

14 commitments to third parties, the Customer shall at all times remain a registered member of the Fertiliser Industry Assurance Scheme. The Customer shall indemnify CF against all losses, liabilities, costs, damages and expenses that CF does or will incur or suffer, all claims or proceedings made, brought or threatened against CF by any person and all losses, liabilities, costs (on a full indemnity basis), damages and expenses CF does or will incur or suffer as a result of defending or settling any such actual or threatened claim or proceeding, in each case arising out of or in connection with the any breach of this Condition 12.2 by the Customer The Customer will comply with CF s instructions in connection with any product recall initiated by CF involving the Goods (or any of them) The Customer will at all times ensure that: it has not and will not, make, promise or offer (or accept, request, receive or agree to receive) any improper gift, payment, reward, rebate, commission, influence, incentive, inducement or advantage of any kind ("Improper Payment") which might contravene: (i) any laws, rules or regulations applicable to the Customer or CF's business operations, including without limitation the UK Bribery Act 2010; or (ii) best industry practice; and without prejudice to its obligations under the UK Bribery Act 2010, the Customer will comply with the requirements and principles of the Code of Ethics & Standards of Business Conduct Policy and shall conduct itself with the highest standards of honesty and integrity; if reasonably requested to do so by CF, the Customer shall use best endeavours to attend training in respect of the ethics and standards of business conduct to which CF requires the Customer to adhere. A breach of this Condition 12.4 shall, in all cases, constitute a material breach of the Contract The Customer agrees to comply with the Ammonium Nitrate Safety Regulations at all times. In particular: where required by the Ammonium Nitrate Safety Regulations, CF will provide the Customer with the necessary Detonation Resistance Test Certificate(s) (as defined in the Ammonium Nitrate Safety Regulations) in relation to the Goods; where the Customer is not the End User of the Goods, the Customer must give notice to CF stating the identity of the End User prior to dispatch of the Goods or the Goods being made available for collection (as applicable) The Customer will comply (and, where it is not the End User, will procure the compliance by the End User and all other third parties who receive and/or resell the Goods) with any and all: obligations arising under the REACH Regulations, whether as a downstream user or otherwise, in connection with the safe use of the Goods; relevant information received from CF in relation to such matters, including with respect to the intended use of the Goods as specified in any safety data sheet or exposure scenario Notwithstanding any other term of the Contract CF will not be in breach of the Contract to the extent its failure to perform or delay or defect in performance of its obligations under the Contract arises as a result of: any breach by the Customer of its obligations contained in the Contract; CF relying on any incomplete or inaccurate data provided by the Customer or a third party; or CF complying with any instruction or request by the Customer or one of its employees. 14

15 13. INFRINGEMENT OF THIRD PARTY RIGHTS 13.1 The Buyer shall indemnify CF against each loss, liability and cost which CF incurs as a result of complying with any requirements or specifications of the Customer which involve any infringement or alleged infringement of the rights of any third party If at any time it is alleged or, in CF s reasonable opinion, likely to be alleged that the Goods infringe the rights of any third party (other than as a result of CF complying with any requirements or specifications of the Customer), the Seller may at its option and at its own expense: modify or replace the Goods in such a way which does not detract from their overall performance so as to avoid the infringement; or procure for the Customer the right to continue to use the Goods; or repurchase the Goods at the price paid by the Customer less depreciation The Customer shall notify CF immediately of any actual or threatened claim or action alleging infringement of the rights of any third party. CF shall have control over and shall conduct any such proceedings in such manner as it shall determine. The Customer shall provide all reasonable assistance as CF may request. The cost of such proceedings shall be borne by CF. 14. HEALTH AND SAFETY 14.1 The Customer will and will procure that each End User will: comply with all health and safety requirements concerning the Goods and take all reasonable steps to ensure the safe storage, handling, transportation and use of the Goods having regard to the nature of the Goods; comply with all product literature supplied by CF concerning health and safety, storage, handling, transportation, use and security matters; and inform all third parties who could come into contact with the Goods (including any subsequent purchasers of the Goods) of all appropriate and relevant information in respect of health and safety, storage and the security as relates to the Goods Should the Customer require any further information or advice in connection with this Condition 14 and/or its implications for the Customer and/or End Users, the Customer should contact CF. 15. LICENCES, CONSENTS AND REGULATION 15.1 If a licence or consent of any governmental or other authority is required in connection with the Customer's purchase or use of the Goods, the Customer shall obtain the licence or consent at its own expense and produce evidence of it to the Supplier on demand. Failure to obtain any licence or consent does not entitle the Customer to withhold or delay payment of the price. Any additional expenses or charges incurred by CF resulting from such failure shall be paid by the Customer In relation to any Contract for Goods to which the REACH Regulation applies, the Customer shall use such Goods only in accordance with the use(s) for the substance(s) comprising the Goods for which C F has registered such substance(s) with the European Chemicals Agency The Customer shall comply with the instructions, advice and recommendations set out in any safety data sheet which may be provided by CF to the Customer in relation to Goods purchased by the Customer pursuant to any Contract The Customer shall comply with its obligations under the REACH Regulation as a downstream user of the Goods. 15

16 15.5 The Customer shall, unless otherwise agreed, be solely responsible for the disposal of all packaging in accordance with all regulations, whether statutory or otherwise, relating to protection over the environment. 16. TERMINATION 16.1 If the Customer: commits a material breach of the Contract which cannot be remedied; or commits a material breach of the Contract which can be remedied but fails to remedy that breach within 14 days of a written notice setting out the breach and requiring it to be remedied being given by CF, CF may terminate the Contract immediately and/or suspend any further deliveries by giving written notice to that effect to the Customer On or at any time after the occurrence of any of the termination events listed herein, CF may stop any Goods in transit, suspend further deliveries to the Customer, exercise its rights below, and/or terminate any Contract with the Customer with immediate effect by written notice to the Customer A material breach can be remedied if the Customer can comply with the relevant obligation in all respects other than as to time of performance unless time of performance of such obligation is of the essence Condition 16.1 will not apply to any failure by the Customer to make any payment due to CF under the Contract on or before the due date. Condition 16.5 will apply instead to any such failure CF may terminate the Contract and/or suspend any further deliveries of the Goods immediately by giving written notice to that effect to the Customer if the Customer fails to make any payment due to CF under the Contract on or before the due date CF may terminate the Contract immediately by giving written notice to that effect to the Customer if the Customer becomes Insolvent The Customer will notify CF immediately upon becoming Insolvent Following expiry or termination of the Contract: Conditions 1, 4, 5.7, 5.9, 7, 8, 9, 10, 12.1, 12.5, 12.6, 12.7, 14, 16.8, 19, 20, 22 and 23 will continue in force, together with any other Conditions which expressly or impliedly continue to have effect after expiry or termination of the Contract; and all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the date of expiry or termination. 17. FORCE MAJEURE 17.1 CF will not be in breach of the Contract or otherwise liable to the Customer for any failure to perform or delay in performing its obligations under the Contract to the extent that such failure or delay is due to a Force Majeure Event If a Force Majeure Event occurs CF will as soon as reasonably practicable after becoming aware of the Force Majeure Event give written notice to the Customer that the Force Majeure Event has occurred Subject to Condition 17.4, the Customer will not be in breach of the Contract or otherwise liable to CF for any failure to perform or delay in performing its obligations under the Contract to the extent that this is due to a Force Majeure Event affecting CF. 16

17 17.4 If a Force Majeure Event occurs the Customer will continue to pay CF s invoices in accordance with Condition 8.6 in respect of any Goods which CF continues to supply notwithstanding the occurrence of the Force Majeure Event If a Force Majeure Event which gives rise to relief from liability under Condition 17.1 continues for a period of more than thirty (30) days, either Party will be entitled to terminate the Contract immediately by giving written notice to that effect to the other Party. 18. ASSIGNMENT AND SUB-CONTRACTING 18.1 CF will be entitled to assign, transfer, charge, hold on trust for any person and deal in any other manner with any of its rights under the Contract The Customer will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of its rights under the Contract CF will be entitled to sub-contract any of its obligations under the Contract The Customer will not be entitled to sub-contract any of its obligations under the Contract. 19. NOTICE 19.1 Subject to Condition 19.4, any notice or other communication given under or in connection with the Contract will be in writing and: sent to the relevant Party s address by pre-paid first class post or mail delivery service providing guaranteed next working day delivery; delivered to or left at the relevant Party s address (but not, in either case, by one of the methods set out in clause ); or sent by to that Party s address, and, in the case of any notice or other communication to be given to CF, marked for the attention of the specified representative of CF. The postal address, address and representative for CF are set out below and the postal address and address for the Customer are those detailed in the Order, and may be changed by the relevant Party giving at least 30 days notice in accordance with this Condition 19. Postal address: CF Fertilisers UK Limited, Admin Building, Ince, Chester, United Kingdom, CH2 4LB address: companysecretary@cffertilisers.co.uk For the attention of: Commercial Director 19.2 Any notice or communication given in accordance with Condition 19.1 will be deemed to have been served: if given as set out in Condition , at 9.00 a.m. on the second Business Day after the date of posting; and if given as set out in Condition , at the time the notice or communication is delivered to or left at that Party s address, if given as set out in Condition , at the time of sending the (except that if an automatic electronic notification is received by the sender within 24 hours after sending the informing the sender that the has not been delivered to the recipient, that will be deemed not to have been served), 17