GENERAL TERMS AND CONDITIONS OF SALE OF AB Agri trading as Aunir (“the Supplier”)

In these terms and conditions:

Business Day – means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business

Contract –means an individual contract between the Supplier and the Customer for the supply of Services on these terms and conditions.

Customer –means the company, partnership or person placing an order for Services. In these terms and conditions, a person includes a natural person, corporate or unincorporated body (whether or not a separate legal entity).

Deliverables – means any reports, results or other deliverables, if any, to be produced by the Supplier for the Customer as part of the Services.

Event of Force Majeure –means (i) any circumstances beyond the control of the Supplier (including, but not limited to, acts of God, governmental actions, strikes or other labour disputes (whether or not relating to the Supplier’s workforce), lock-outs, accidents, war or national emergency, acts of terrorism, protests, riot, civil commotion, explosion, flood, adverse weather conditions, epidemic, fire, reduction in or unavailability of power at manufacturing plant, breakdown, stoppage, slow working or reduced efficiency of plant or machinery, restraints or delays affecting carriers), unexpected cost increases (including in the cost of labour) caused by unexpected events such as, or (ii) the amendment or coming into force of any legal provision adversely affecting the Supplier in relation to the performance of the Services.

Services –means the analytical testing, consultancy or other services the Supplier agrees to perform and the Customer agrees to purchase under the Contract, including any Deliverables.

Loss(es) –means any loss, claim, liability, expenses or damages suffered or payable whether arising directly or indirectly.

Sample – means the Customer’s sample in respect of which the Customer would like testing or analysis services to be provided bv the Supplier.

1      Application of these terms and conditions

1.1   Unless otherwise agreed in writing these terms and conditions are the only terms and conditions upon which the Supplier is prepared to deal with the Customer and           they shall govern and are incorporated into every contract for the supply of Services made by or on behalf of the Supplier. They apply to the entire exclusion of all and prevail over other terms or conditions (whether or not in conflict or inconsistent with these terms and conditions), including those of the Customer or which are implied by trade custom, practice or course of dealing, unless specifically excluded or varied in writing by an authorised representative of the Supplier and any purported provisions to the contrary are hereby excluded or extinguished.

1.2   If, subsequent to any Contract, a contract of sale is made between the Supplier and the Customer without reference to any conditions of sale or purchase, such contract however made is deemed to be subject to these terms and conditions.

1.3   The Supplier reserves the right to replace or amend these terms and conditions and any such replacement or amendment shall apply to the exclusion of these terms and conditions with effect from 30 days following written notice by the Supplier of its revised terms and conditions. For these purposes it shall be sufficient for the Supplier to notify the Customer that it has revised its terms and conditions and that such revised terms and conditions are accessible on the Supplier’s website or via any other medium accessible to the Customer.

2      Orders and Contract

2.1   Each order or acceptance of a quotation for Services by the Customer from the Supplier shall be deemed to be an offer by the Customer to procure those Services subject to these terms and conditions and is subject to acceptance by the Supplier. Each acceptance of an order by the Supplier shall give rise to a separate Contract. The Customer is responsible to the Supplier for ensuring the accuracy and completeness of the terms of any order and any applicable specification submitted by the Customer.

2.2   Any quotation by the Supplier does not constitute an offer and the Supplier reserves the right to withdraw or revise a quotation at any time prior to the Supplier’s acceptance of the Customer’s offer.

2.3   No order shall be binding on the Supplier unless and until it has been accepted inwriting or performed by the Supplier. Subject to Condition 4.3, once the Supplier has accepted an order, the Customer may not cancel the order except with the prior written agreement of the Supplier and on terms that the Customer must indemnify the Supplier in full against all Losses to the extent such Losses cannot reasonably be mitigated by the Supplier, (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses reasonably and properly incurred by the Supplier as a result of the cancellation.

2.4   The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.

2.5Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

3      Supply of Services

3.1   The Supplier shall supply the Services to the Customer using all reasonable care and skill and in accordance with good industry practice.

3.2 Except as set out in Condition 3.1, the Supplier does not give any warranty in respect of the Services (including without limitation, in respect of any results or information provided by the Supplier in connection with the Services whether in the Deliverables or otherwise) and the Customer accepts that all use of and reliance on such results and/or information shall be at the Customer’s sole risk. Any conditions or warranties (whether express or implied by statute or common law or arising from conduct or a previous course of dealing or trade custom or usage or otherwise) are hereby expressly excluded to the fullest extent permitted by law.

3.3   The Customer shallprovide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and shall ensure that such information is accurate in all material respects

3.4   In respect of Services consisting of analysis of Samples, the Customer acknowledges and accepts that the Supplier’s analysis is limited to analysis of the Samples and the bulk from which the Samples were taken may generate different results or be of a different composition or quality.

3.5   The Customer accepts that not all the tests undertaken by the Supplier as part of its performance of the Services are accredited by the UK Accreditation Services (UKAS) and the Supplier shall indicate in the test results whether or not such test carries UKAS accreditation.

3.6   The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

3.7   All times, dates or periods given for performance of the Services (including, without limitation, delivery of any Deliverables) are estimates given in good faith but without any responsibility on the Supplier's part.

4      Fees

4.1   Unless otherwise agreed by the Supplier in writing, and subject to these terms and conditions:

1. the fees payable for the Services shall be as set out in the Supplier’s schedule of fees as at the date on which the Services are provided and for Services not covered by this schedule of fees, shall be calculated by reference to the number of days or hours required for the performance of the Services at the Supplier’s daily rates (calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days) or hourly rates in Pounds Sterling at the date of the Contract in which case the Supplier shall provide a non-binding estimate of the amount of time required to perform the Services;
2. the Supplier shall be entitled to charge an overtime rate of 150 per cent of the standard daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in Clause 4.1(a);
3. if the Customer operates or has its seat, or if the Contract is performed (in whole or part), in a Eurozone country (as constituted at the date of this Contract) (“Affected Country”), or the Contract specifies payment be made in EUR, then the Supplier may direct the Customer to satisfy its payment obligations by means of payment in GBP or USD (at the Customer’s discretion) into a UK bank account in the name of the Supplier, only if (i) the Affected Country exits the Eurozone; or (ii) the EUR as a currency ceases to exist; or
4. if the provisions of clause 4.1(d) are triggered and the Customer makes payment to the Supplier in GBP/USD to a UK bank account, the applicable conversion rate shall be the average EUR to GBP/USD (as relevant) exchange rate reported in the Financial Times over the six (6) months ending on the date on which the events set out in clause 4.1(c)(i) or clause 4.1(c)(ii) occurred.

4.2   All prices are exclusive of any applicable value added tax (or any similar or equivalent sales taxes or duties), which the Customer is additionally liable to pay to the Supplier where applicable.

4.3   Notwithstanding Condition 4.1, the Supplier reserves the right at its sole election, at any time before commencing performance of the relevant Services in any order, to increase the price of the Services and to pass on to the Customer any increase in the costs to the Supplier of  performing the Services including any such increases which are due to any factor beyond the control of the Supplier (such as, without limitation, a significant increase in the costs of, or shortages or the unavailability of, labour, the increase or imposition of any tax, duty or other levy, any variation in exchange rates, any change of delivery dates or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information and instructions). The Supplier shall notify the Customer of any such price increases and the Customer shall have the right to refuse to pay such additional costs by notice in writing to the Supplier, within two (2) business days of receipt of notice from the Supplier of the relevant price increase under this Condition 4.3, in which case the Customer shall be deemed to have cancelled its order for such Services, without liability to either party. The rights of the Supplier under this Condition 4.3 are in addition to any other rights the Supplier may have.

4.4   The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.

5      Additional costs

The Customer shall indemnify the Supplier on demand in respect of any Losses incurred by the Supplier caused as a result of the Customer's specifications or instructions or lack thereof, or through any failure or delay by the Customer in taking delivery or through any other act, neglect or default on the part of the Customer, its servants, agents or employees.

6      Intellectual property

6.1   All Intellectual Property Rights in or arising out of or in connection with the Services (including, without limitation, in the Deliverables) shall be owned exclusively by the Supplier unless otherwise agreed in writing.

6.2   The Customer shall ensure that neither it nor any agent, contractor or other person authorised by it shall at any time make any unauthorised use of the Supplier’s Intellectual Property Rights and the Customer agrees to do such things (including, executing any contracts, assignments or registrations if required) as the Supplier may require to ensure that it is fully able to benefit from the Intellectual Property Rights specified in Condition 6.1.

7      Terms of payment

7.1   Unless otherwise agreed in writing, the Supplier shall be entitled to invoice the Customer for the Services on or at any time after it has started performing the Services or, in respect of Services consisting of the analysis of Samples, upon delivering the results to the Customer.  If an order is performed in agreed phases the Supplier shall be entitled to invoice each phase as and when the Supplier has commenced its performance of the relevant phase.

7.2   Unless otherwise agreed in advance in writing, signed by a director of the Supplier, the Customer shall pay for the Services in Pounds Sterling not later than 30 days from the date of invoice. Time for payment shall be of the essence. Payment shall become due immediately upon the occurrence of any of the events referred to in Condition 9.

7.3   If pursuant to the terms of the Contract the price is payable in instalments, any default by the Customer in the payment of any due instalment shall cause the whole of the balance of the price to become due immediately.

7.4   The Customer shall make all payments due under the Contract in full to the Supplier to the bank account in the UK of the Supplier as notified to the Customer and without any deduction whether by way of set-off, counterclaim, discount, or abatement.

7.5   Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, the Supplier shall have the right to charge interest on the overdue amount at the rate equal to the higher of the interest rate payable on court judgments or 4% above the base rate from time to time of Barclay’s Bank plc accruing on a daily basis from the due date until payment is made. 

8      Customer’s Responsibilities in respect of Samples

8.1   The Customer shall be responsible for arranging the delivery of Samples to Aunir’s premises. The Customer bears all risk of loss of, damage to or deterioration of the Samples while in transit.

8.2   If Aunir agrees to arrange the collection or delivery of Samples, it shall be deemed to be acting as the agent of the Customer.

8.3 The Customer warrants and undertakes that: (i) it is the owner of any Samples it provides to Aunir or where it is not the owner, that it has the consent of the owner to pass the Samples to Aunir; and (ii) the Samples are safe for handling and are not of a nature that is likely to cause injury or harm to persons handling them or damage to the equipment or vehicles used to handle them.

8.4   The Customer shall ensure that all Samples are supplied in appropriate packaging and that such packaging and the Samples contained in it are labelled with and accompanied by appropriate safety labelling and handling precautions and shall inform Aunir in writing before despatching Samples to Aunir of any special precautions to be taken by Aunir in the handling or care of the Samples.

8.5 Aunir reserves the right to refuse to provide the Services, without liability to the Customer, in relation to any Samples which Aunir reasonably considers may pose a threat to the health and safety of its staff or contractors.

8.6 If any Samples require special precautions to be taken in their handling, treatment or disposal, Aunir shall be entitled to charge for any resulting additional work or costs.

8.7The Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer’s breach of its obligations.

9      Default of Customer

If the Customer shall be in breach of any of its obligations under the Contract then the Supplier may by notice in writing suspend performance or further performance (as the case may be) of the Services until any default by the Customer is remedied and if the Services have been performed but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

10    Termination

10.1 The Supplier shall have the right, in any circumstances in which it is entitled to delay or suspend a delivery or any further deliveries, or to cancel any order or Contract, or suspend performance of its obligations under any Contract, to terminate by notice in writing (and without liability) to the Customer any other order or any other contract between the Supplier and the Customer.

10.2 Save to the extent set out in Conditions 2.3 and 4.3, or as provided by the mandatory operation of law, the Customer shall not be entitled to cancel any order or Contract, whether by reason of any act, omission or default on the part of the Supplier or otherwise. Without prejudice to the foregoing, where the Customer is entitled to cancel any order or Contract, the exercise of such right of cancellation by the Customer shall not affect any other order or contract between the Supplier and the Customer.

10.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Conditions which expressly or by implication survive the termination of the Contract shall continue in full force and effect.

11    Liability

11.1The following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of: (a) any breach of a Contract; including wilful breach; (b) any claim in connection with the Services or their supply by the Supplier; or (c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

11.2 In the event of a valid claim that the Supplier has provided defective Services, the Supplier undertakes at its option to either repeat its performance of the Services concerned at its expense or issue a credit note or refund but shall not be under any further or other liability in connection with such defect.

11.3 Nothing in these terms and conditions excludes or limits the liability of the Supplier: (a) for death or personal injury caused by the Supplier's negligence; or (b) for any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability; or (c) for fraud or fraudulent misrepresentation.

11.4 Subject to Condition 11.3, the Supplier's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price paid or payable under the Contract for the Services which are the subject matter of any valid claim by the Customer.

11.5 Subject to Condition 11.3, the Supplier shall not be liable to the Customer for any pure economic loss, loss of profit, loss of anticipated savings or cost reductions, loss of business, depletion of goodwill (in each case whether direct or indirect) or for any indirect or consequential loss whatsoever and howsoever caused which arise out of or in connection with the Contract.

12    Force Majeure

12.1   If by reason of an Event of Force Majeure the Supplier is prevented from or hindered in or delayed in its performance of the Services, the Supplier shall: (a) not be liable to the Customer or deemed to be in breach of the Contract by reason of any resulting delay in performing, or any failure to perform, any of the Supplier’s obligations under the Contract; and (b) be entitled (without liability to the Customer) to cancel any order or to delay performance of the Services. Where any such Event of Force Majeure continues for a period of more than 14 days, the Supplier shall be entitled to terminate the Contract on notice in writing to the Customer.

13    General

13.1   In accordance with the Supplier’s commitment to sustainable and ethical business practices the Customer warrants and represents that in connection with any matter arising under or pursuant to any Contract it shall (i) protect its workers' rights, including by ensuring: safe and hygienic working conditions, freedom of association, living wages are paid, working hours are not excessive, no discrimination is practised, no harsh or inhumane treatment is allowed and no child labour is used; (ii) ensure environmental management programmes are in place (iii) (without prejudice to Condition 16.2) not offer, promise, give or receive any improper financial payment and/or other improper advantage to or from any person, customer or supplier; and (iv) not make or offer, directly or indirectly, any payment, gift or other advantage to a public official with the intention of influencing them and obtaining or retaining an advantage in the conduct of business

13.2 In addition, the Customer shall:

(a)      comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (all of the aforesaid being “Relevant Requirements”);

(b)      have and shall maintain in place throughout the term of this agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate; and

(c)      on request by the Supplier certify to the Supplier in writing signed by an officer of the Customer, compliance with this Condition 13.2 by the Customer and all persons associated with it. The Customer shall provide such supporting evidence of compliance as the Supplier may reasonably request; and

(d)      hereby warrant that neither it nor any of its group companies (being subsidiaries or affiliates) is, or is owned or controlled by, a Sanctioned Person, and that no officer, director or holder of more than 10% of the Equity Interests in the Customer is a Sanctioned Person.  For the purposes of this clause, “Sanctioned Person” means any person, organisation or vessel (i) designated on the Office of Foreign Assets Control list of Specially Designated Nationals and Blocked Persons, or an any list of targeted persons issued under the Economic Sanctions Law of any other country (including the European Union); (ii) that is, or is part of, a government of a Sanctioned Territory; (iii) owned or controlled by, or acting on behalf of, any of the foregoing; (iv) located within or operating from a Sanctioned Territory; or (v) otherwise targeted under any Economic Sanctions Law.  “Economic Sanctions Law” means any economic or financial sanctions administered by OFAC, the US State Department, the United Nations, the European Union or any member state thereof; or any other national economic sanctions authority.  “Sanctioned Territory” means any country or other territory subject to a general export, import, financial or investment embargo under Economic Sanctions Law, including without limitation Burma (Myanmar), Iran, Sudan and Syria as at the date of this Agreement.

13.3 A waiver of any right or remedy under the Contract is only effective if given in writing. Any waiver by the Supplier of any breach, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall not affect the other terms of the Contract.

13.4 Subject to Condition 1.3, the Contract may only be varied by the written agreement of both parties (and in the case of the Supplier) must be signed by a duly authorised representative of the Supplier.

13.5 If, in any particular case, any provision of these terms and conditions (or any part of any provision) shall be held to be invalid, illegal or unenforceable by any court or competent authority, or shall not apply to the Contract, that provision or part-provision shall, to the extent required, be deemed to be deleted and the other terms and conditions shall continue in full force and effect and will not in any way be impaired. If any provision of these terms and conditions is held to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question will apply with the minimum modifications necessary to make it valid and enforceable.

13.6   The Supplier may assign the Contract or sub-contract the whole or any part thereof. The Customer shall not attempt to assign, transfer, charge or otherwise deal with its rights or obligations under the Contract without the prior written consent of the Supplier.

13.7 The rights and remedies of the Supplier under these terms and conditions shall be cumulative and no right or remedy of the Supplier set out in these terms and conditions shall be deemed to be in lieu of any other right or remedy.

13.8 Any notice required or permitted to be given by either party to the other under these terms and conditions shall be in writing addressed to the other party at its registered office.

13.9 Nothing in these terms and conditions shall create or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties and no employee of one party shall be deemed to be or become an employee of the other party.

13.10 The parties to the Contract do not intend that any term of the Contract shall be enforceable by a third party under the Contracts (Rights of Third Parties) Act 1999.

13.11 In the event of any disputes arising out of or in relation to this Contract, without prejudice to any rights either party may have (including but not limited to the right to obtain injunctive relief and any right of the Supplier if it reasonably believes that the Customer has repudiated the Contract or is in material breach), either party may request that the parties attempt to settle it first by negotiation. If the parties have not settled such dispute within 21 days of the commencement of negotiations the provisions of Condition 13.12 apply.

13.12 The Contract and any dispute or claim arising out of or in connection with it, or its subject matter or formation, whether of a contractual or non-contractual nature, shall in all respects be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts, including (without limitation) in respect of any application for injunctive or ancillary relief.