TERMS AND CONDITIONS
1. Definitions: In these Terms:
Confirmed Order means an Order that has been accepted in writing by Taura in accordance with clause 4;
Customer means the purchaser or Intended purchaser of the Goods (and includes any agent, contractor or representative of such purchaser). If the Customer is more than one person, the obligations upon the Customer in these Terms shall apply to all such persons jointly and severally;
Delivery means to deliver the Goods (as evidenced by the transfer of risk in the Goods from Taura to the Customer occurring in accordance with the lncoterms Basis). If there is no lncoterms Basis that is applicable, Delivery means when physical delivery of the Goods is made to the Customer;
Duty means any tax, import, charge or levy of an export, customs, excise, import or similar nature applicable to the exportation, importation, transportation, sale, use or ownership or any Goods from time to time under any applicable law;
Goods means any goods or products supplied to the Customer by Taura;
lncoterms 2010 means the international rules for the interpretation of trade terms as published by the International Chamber of Commerce, Paris, France, 2010;
lncoterms Basis means EXW (Ex Works), or such other shipping term as agreed in writing, as set out in lncoterms 2010;
Order means a written order for Goods from the Customer that complies with Taura’s ordering procedures (as notified to the Customer from time to time);
Sales Tax means any tax or levy of a sales, value added or goods and services nature applicable to the sale and/or supply of any Goods from time to time under any applicable law in accordance with these Terms;
Taura means Taura Natural Ingredients (North America) Inc, a duly incorporated company conducting business from an office at 5404 Duff Drive, Cincinnati, Ohio, 45246, USA and such other of its related companies from whom you receive Goods and their officers, employees, representatives, agents, contractors and advisers; and Terms means these Terms and Conditions of trade.
2. General
2.1 Unless Taura has specifically agreed otherwise in writing all Goods supplied by Taura to the Customer shall be subject to these Terms and the Incoterms Basis (if applicable). These Terms supersede and exclude all prior or subsequent discussions, representations, terms and/or conditions of trade, oral agreements and any other terms and conditions which the Customer seeks to extend to the supply of Goods.
2.2 If there is any inconsistency between these Terms and those Taura has agreed otherwise in writing then the Terms Taura has agreed otherwise in writing shall apply.
2.3 The Customer’s submission of an Order shall constitute its acceptance of these Terms.
2.4 Taura reserves the right to change these Terms at any time by notice to the Customer and the amended Terms shall apply to all orders for Goods placed by the Customer after receipt of such notice.
2.5 Taura’s employees, agents and representatives have no authority to make any oral representations, statements, warranties, conditions or agreements that conflict with these Terms. Any such unauthorized representations, statements, warranties, conditions or agreements shall not bind Taura nor shall they form a part of the agreement between Taura and the Customer.
3. Price and Taxes
3. 1 The price for the Goods and currency of payment will be agreed in writing between Taura and the Customer and the Customer will pay for the Goods in the agreed currency.
3.2 If for any reason an amount is paid to Taura in a different currency from that agreed, and on conversion into the agreed currency (after deducting any costs or expenses incurred in accepting those funds or their conversion) Taura realises an amount that is less than the amount due, the Customer must immediately pay such further amounts as are necessary to ensure that Taura receives the full amount due in the agreed currency (including after taking account of any further conversion that is required).
3.3 Taura reserves the right to change its prices at any time. Unless otherwise included within the lncoterms Basis, the price does not include any applicable Sales Tax, Duty, other taxes, fees, freight or insurance.
3.4 The amount to be paid or other consideration to be provided to Taura for any taxable supply it makes that is governed by or otherwise connected with these Terms must be increased by an amount equal to any Sales Tax and Duty that Taura is or will become liable to pay in respect of that supply so that Taura retains after payment of Sales Tax and Duty the amount which it would have been entitled to receive but for its obligations to pay Sales Tax and Duty.
4. Order Confirmation
4.1 No Order is binding on Taura unless and until Taura has accepted such Order in writing (which may be by fax or email).
4.2 The Order cannot be cancelled by the Customer without Taura’s written consent.
4.3 Taura may cancel a Confirmed Order if:
(a) the Customer breaches any provision or these Terms; or
(b) the Customer becomes insolvent or, in Taura’s reasonable opinion, is unlikely to be able to pay its debts as they fall due.
5. Shipping
5.1 Taura’s standard shipping terms are EXW (Ex Works) North American Warehouse. The Customer will pay for all costs associated with the delivery of the Goods from the North American warehouse unless otherwise agreed in writing.
5.2 The rights and obligations of Taura and the Customer in respect of EXW shipping terms (or such other agreed shipping terms) shall be as stated in Incoterms 2010.
6. Delivery
6.1 If Taura confirms an Order in writing, such confirmation only represents a commitment by Taura to supply Goods pursuant to that particular Order. No ongoing commitment to supply shall be implied from any confirmation of one or more Orders, from any quotations given or from the previous business dealings of the parties. Taura reserves the right to refuse to confirm any Order submitted by a Customer in Taura’s sole and absolute discretion.
6.2 Taura will advise the Customer where, how and when Taura intends Delivery to occur (in each case having regard to any requests set out in the Order and consistent with the lncoterms Basis).
6.3 Taura will make all reasonable efforts to deliver the Goods to the Customer as advised under clause 6.2. Dates or periods specified for Delivery are not of the essence. If Delivery as advised under clause 6.2 becomes commercially impractical for Taura (in its reasonable opinion) then Taura may Deliver the Goods to a commercially reasonable substitute Delivery location or using a commercially reasonable substitute method of Delivery selected by Taura and notified to the Customer. Taura will not be liable for any loss or damage (including not being liable for consequential, special, punitive, incidental, indirect or economic loss or damage or loss of profits or opportunity) arising or resulting (directly or indirectly) from a delay in Delivery, failure to Deliver or change in location or method of Delivery or part or multiple Deliveries.
6.4 If the Customer is unable to accept Delivery as, how and where scheduled or arranged by Taura for any reason (including where the Customer declines to accept all or any part of the Delivery or delays in doing so), Taura has complete discretion to resell or resupply the Goods to a third party and the Customer will be liable for any loss incurred by Taura on that resale or resupply. For the avoidance of doubt, if any of the Goods perish, become damaged or tainted, or are otherwise unsaleable (Damaged) as a direct or indirect result of the Customer being unable to accept Delivery, the Customer indemnifies Taura for all costs and expenses incurred by Taura in connection with the Damaged Goods (including arranging for transport and/or disposal).
6.5 The Customer must inspect all Goods Delivered and check all Delivery volumes and advise Taura within 10 working days of being entitled to access the Goods (whether the Customer does inspect them or not) of any claimed defects or other dispute. The Customer acknowledges and agrees that the burden of proof in respect of alleged defects in Goods (or teir Delivery) rests with the Customer.
6.6 If the Customer does not notify Taura of any dispute or defect within the relevant period set out in clause 6.5 the Goods are deemed to have been Delivered by Taura and accepted by the Customer in compliance with these Terms.
6.7 Where the Goods are to be Delivered by part or multiple shipments, any failure by Taura to Deliver any one or more of the shipments or any claim by the Customer in respect of any one or more shipments will not affect Taura’s rights in respect of any Goods already Delivered or that remain to be Delivered.
7. Payment
7.1 Payment for the goods is due within 30 days following the date of invoice.
7.2 For the avoidance of phishing / fraud attempts Taura hereby instructs the customer to ignore any change in the details of Taura’s bank account, unless the customer verified, by a phone call to the relevant contact person in Taura, that this change is indeed confirmed by Taura. The customer will indemnify Taura for any expenses, loss or damages incurred as a result of the customer’s non-compliance with this instruction.
7.3 The Customer shall effect payment of all Invoices in full (without deduction, set-off or counterclaim) and in cleared funds to the bank account nominated by Taura. In the event of late payment, or if the Customer fails to post security by the required date, Taura may impose a charge upon the Customer equivalent to 1.5% per month of the outstanding account balance. Unless specified by the Customer, Taura is entitled to apply any payment received towards any balance owed by the Customer.
7.4 In the event that the Customer disputes a charge on an invoice, it shall notify Taura within 10 working days of receipt of the invoice and furnish Taura with all relevant information to enable Taura to evaluate such claim. The Customer must pay the undisputed amount of the invoice on the due date. Once the dispute is resolved, the Customer must pay the resolved amount due within 10 working days. While an invoice remains disputed, Taura is entitled to withhold or defer any future Deliveries pending resolution.
7.5 If the Customer does not effect payment in accordance with these Terms, then Taura is entitled to take any or all of the following steps (in addition to all other rights and remedies that it may have at law):
(a) cancel all Orders or Confirmed Orders and withhold all Deliveries; and/or
(b) treat all sums owing from the Customer in relation to the supply of Goods (along with any other sums that may be due to Taura) as immediately due and payable and draw any relevant letter of credit or enforce any other security given by the Customer; and/or
(c) Institute such proceedings as Taura may deem fit for the immediate recovery of all sums due to Taura, whether by way of statutory demand, litigation or otherwise; and/or
(d) repossess any Goods in the Customer’s possession or under its control; and/or
(e) recover all of the costs incurred in effecting cancellation and/or making demand and taking action to recover monies or repossessing Goods, or both. Such costs include but are not limited to attorney’s fees, collection costs, witness fees and travel costs.
7.6 Taura will not be liable to the Customer for any losses the Customer incurs as a result of Taura exercising any or its rights under this clause.
8. Risk and Title
8.1 Risk in all Goods passes to the Customer in accordance with the requirements of the Incoterms Basis or, if no lncoterms Basis is applicable, on physical delivery of the Goods to the Customer even though title may not.
8.2 Title in all Goods remains with Taura until such time as full payment is made in cleared funds for all amounts owing by the Customer to Taura for all Goods Delivered by Taura from time to time. Taura and the Customer’s respective obligations (if any) with respect to the insurance of Goods will be in accordance with the lncoterms Basis.
9. Liability
9.1 Notwithstanding any provision to the contrary in these Terms, these Terms do not exclude or limit the application or any law in the USA or in any country where such laws apply to the subject matter or these Terms with respect to any Goods where to do so would either contravene that law or cause any part of clause 9 to be void.
9.2 The Customer assumes full responsibility for any claims relating to the Goods, with the exception of any claims that the Goods do not conform to their specification at the lime of shipment. The Customer will carry appropriate insurance against claims for which it assumes responsibility, including product liability insurance.
9.3 Any claim by the Customer that the Goods do not conform to their specification at the time of shipment must be notified to Taura within 10 working days of delivery. The Customer must keep the relevant Goods stored separately from all others and in the state or condition in which they were delivered to the Customer until Taura has an opportunity to inspect them. If Taura accepts that Taura is responsible for defective Goods, then the Customer must destroy the Goods or deliver them to (or as directed by) Taura.
9.4 Taura’s liability for breach of any express provision of these Terms, any negligence by Taura (or anyone on behalf of Taura) in supplying Goods or breach of any law that is preserved by clause 9.1 is limited, at Taura’s option, to any combination of the following selected by Taura:
(a) refunding the price or the Goods (or offering credit where payment has not been made); or
(b) replacing or reworking Goods or paying for someone else to do so.
Taura will not be liable for any failure or delay in complying with any of its obligations to the Customer if such failure or delay results from a cause beyond Taura’s control. The Customer’s sole remedies for any breach of these Terms or loss or damage arising from the subject matter of these Terms are expressly set out in these Terms.
9.5 The Customer and Taura must cooperate in respect of the initiation and conduct of any recall of the Goods with the objective being to optimize the Customer and Taura’s reputation and goodwill whilst ensuring public health and safety is maintained.
9.6 In no circumstances will Taura be liable to the Customer or any other person for any loss or damage to persons or property, or for consequential, special, punitive, incidental, indirect or economic loss or damage or loss of profits or opportunity arising out of Taura Delivering Goods or otherwise providing or supplying any goods in connection with these Terms, and whether by way of damages or indemnity or in respect of breach of contract, tort (including negligence) or defect in manufacturing/processing, design or information and regardless of whether the Customer has advised Taura of the possibility of such losses or damages.
9.7 The Customer undertakes to comply with all applicable laws and regulations in the countries where the Customer intends to use, sell or market the Goods. The Customer warrants that any Goods it purchases under these Terms are purchased for use or sale in the country to which the Goods were originally proposed to be exported.
10. Indemnity
10.1 The Customer shall indemnify and hold Taura harmless against any claims, suits, actions, demands, losses, liability, costs and expenses of whatever nature (including attorney’s fees) incurred by Taura that arise (directly or indirectly) in connection with a breach of these Terms by the Customer, or any negligent act of omission or breach of any law applicable to the handling, storage, processing, marketing, use or sale of the Goods (including as incorporated into other goods) by the Customer or any of the Customer’s officers, employees, agents or contractors.
10.2 The indemnity in clause 10.1 is a continuing indemnity and is in addition to any statutory or other rights or remedies Taura may have or exercise against the Customer.
11. Intellectual Property and Confidential Information
11.1 Any confidential information or intellectual property provided by Taura in connection with the Goods remains at all times Taura’s confidential and proprietary information and must be kept in strict confidence by the Customer. The Customer disclaims any interest in Taura’s intellectual property and will not challenge the validity of such intellectual property. The Customer will not take any action that may be prejudicial to Taura’s intellectual property.
12. Governing Law and Disputes
12.1 Delaware law shall govern these Terms, all Orders and all transactions between the Customer and Taura arising out of the supply of Goods by Taura to the Customer. Taura and the Customer irrevocably and unconditionally submit to the non-exclusive jurisdiction of the Delaware courts.
12.2 The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any transaction conducted in accordance with, or pursuant to, these Terms.
12.3 Any dispute in connection with these Terms or the supply of Goods to the Customer shall first be referred to a senior executive of Taura and the Customer for resolution by negotiation for not less than 10 working days before legal proceedings may be initiated.
13. Waiver
13.1 No delay or failure by Taura to exercise any of its rights or remedies will constitute a waiver or variation of any such right or remedy.
14. Assignment
14.1 The Customer shall not assign or novate any or all of its rights or obligations under these Terms without Taura’s prior written consent (which may be given or withheld in Taura’s complete discretion).
14.2 Taura shall have the right to assign or novate any or all of its rights or obligations under these Terms without the consent of the Customer.
15. Validity
15.1 In the event that part or all of any provision of these Terms is illegal or unenforceable, such provision will be interpreted as may be necessary to ensure it is not illegal or unenforceable. If any provision (or part of it) cannot be interpreted in that way, the provision (or part of it) will be severed from these Terms and the remaining provisions will continue in full force and effect.