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TERMS AND CONDITIONS OF BUSINESS FOR THE SUPPLY OF SERVICES

1. INTERPRETATION

1.1 In these Conditions the following words have the following meanings:

Conditions – these terms of business;

Contract - the contract between the Supplier and the Customer for the supply of the Services.

Customer – the person, firm or company with whom the Supplier contracts to provide the Services.

Materials – any documents, materials, data or information in any form (including computer programs, data, reports, specifications and drafts) provided by the Supplier in connection with a Contract.

Proposal – any estimate, quotation, proposal, offer or similar document put forward by the Supplier (prior to starting the Services) that describes the Services.

Services – the services provided or to be provided by the Supplier to the Customer.

Supplier – Amur, a division of AB Agri Limited, a company registered in England and Wales with registered number 00193800.

1.2 In these Conditions references to the singular include the plural and vice versa and headings will not affect the interpretation of these Conditions.


2 INCORPORATION

2.1 These Conditions shall apply to the Contract and to the Services to the exclusion of all other terms and conditions and shall prevail over all inconsistent terms that the Customer seeks to apply to the Contract.

2.2 Variations to these Conditions shall have no effect unless approved in writing by a director of the Supplier.

2.3 No order for Services placed by the Customer shall be deemed to be accepted by the Supplier until it has received an order from the Customer (oral or written) and has either issued an acceptance of order or has started to perform the Services. Each acceptance of an order by the Supplier shall give rise to a separate Contract.

2.4 Each Proposal is valid for a period of thirty days only from its date (or such longer period as it may state), although the Supplier may withdraw a Proposal at any time before it is accepted.

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

2.6 The Contract constitutes the entire agreement and understanding between the parties.

2.7 The Customer acknowledges that it has not relied on, and shall have no remedy in respect of, any statement, promise, warranty or representation (whether made innocently or negligently) made or given by or on behalf of the Supplier which is not expressly set out in the Contract. An action for breach of contract is the only remedy for any statement, promise, warranty or representation set out in the Contract (whether made innocently or negligently). Nothing in this Condition 2.7 shall limit or exclude liability for fraud.


3 TIME OF PERFORMANCE

3.1 Any dates given for performance of the Services are estimates given with due care and in good faith but time for performance of the Services shall not be of the essence, unless explicitly agreed otherwise by the Supplier in writing.

3.2 The Supplier will not be liable for any loss (including loss of profit, loss of business or depletion of goodwill), costs, damages, charges or expenses caused directly or indirectly by any delay in performing the Services (even if caused by the Supplier’s negligence), nor will any delay entitle the Customer to terminate or rescind the Contract.


4 CHARGES

4.1 Unless otherwise agreed by the Supplier in writing, the Supplier’s charges for the Services (the “Charges”) are as set out in this Contract. If no charges are agreed the Supplier’s then current standard rates shall apply.

4.2 The Supplier may increase the Charges if they are based on inaccurate or incomplete information supplied by or on behalf of the Customer.

4.3 The Supplier reserves the right to increase the Charges to take account of any unanticipated or exceptional increases in its costs of performing the Services including (but not limited to) increases in sub-contractor charges, employment costs, overheads, airline fuel surcharges, and taxes, but where practicable it shall give the Customer reasonable notice of any such increase.

4.4 If the Supplier provides additional Services or the scope of the Service increases or changes the Supplier may charge for such services at its current standard rates.

4.5 The Charges are exclusive of any applicable VAT which the Customer will pay in addition.

4.6 In addition to the Charges the Customer shall pay the Supplier the full amount of any disbursement (including VAT) incurred by the Supplier or its employees in the performance of the Services, including (but not limited to) travel expenses; hotel expenses; the costs of telephone calls, facsimile transmissions and internet access.

4.7 Any estimate of disbursements given shall constitute a non-binding estimate only and notwithstanding that an estimate may have been given, the Customer shall pay the full amount of all disbursements reasonably incurred by the Supplier in the performance of the Services.


5 PAYMENT

5.1 Unless the Supplier agrees otherwise in writing, the Customer shall pay each invoice in Pounds Sterling and (in relation to invoices raised on or before the 13th of the relevant month) not later than the 28th of the month of invoice date, and (in relation to all other invoices) not later than the 13th of the month following invoice date.

5.2 Should the Supplier have reasonable concerns as to the creditworthiness of the Customer it may adjust the credit terms applicable to the Customer and may impose credit limits on the Customer which, if reached, allow the Supplier to suspend the Services or terminate the Contract.

5.3 No payment shall be deemed to have been received until the Supplier has received it in fully cleared funds.

5.4 All sums payable to the Supplier under the Contract shall become due immediately on its termination, without prejudice to any right to claim for interest under the law, or any such right under the Contract.

5.5 The Customer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.

5.6 Time for payment shall be of the essence of the Contract.

5.7 Without prejudice to any other rights or remedy that it may have, if the Customer fails to pay the Supplier on the due date, the Supplier may:

  1. suspend all services until payment has been made in full; and

  2. charge interest on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis and being compounded quarterly until payment is made, either before or after any judgment.

5.8 The Supplier may, without prejudice to any other right it may have, set-off any liability of the Customer to the Supplier against liability of the Supplier to the Customer.

5.9 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 obligations as to payment by means of payment in GBP or USD (at the Supplier’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. if the above provisions of this Condition 5.9 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 events set out above occurred.


6 Quality of Services

6.1 The Supplier shall perform the Services using reasonable care and skill.

6.2 The Customer acknowledges that the anaerobic digestion process involves Customer input as well as the interaction of living organisms and raw materials, and accordingly the Customer agrees that the Supplier does not, in the performance of any Contract, guarantee any particular outcome including (without limitation) that suggested feedstocks will produce a particular level of energy or other performance.

6.3 The Customer acknowledges and agrees that, in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) or any person (whether party to these terms and conditions or not) relating to the subject matter of this contract, other than expressly set out in the Contract.

6.4 If notification of a claim is not made within three months of the date Services are completed, they shall be deemed to be in all respects in accordance with the Contract. The Supplier shall, in any event be discharged from all liability unless proceedings are brought within six months of the date on which Services are provided.


7 CUSTOMER’S OBLIGATIONS

7.1 The Supplier’s obligation to provide the Services is conditional upon the Customer providing to the Supplier:

  1. access to and copies of all documentation, information and materials which may at any time be necessary or desirable for the purpose of performing the Services (the Customer shall obtain and maintain any licences or consents required by the Supplier in relation to the use of such documentation, information and materials);

  2. access to personnel and to premises in each case to such extent and at such time and for such purposes as the Supplier shall specify; and

  3. generally such assistance and co-operation as shall be necessary or expedient for the proper performance of the Services.

7.2 Where access to premises is provided by the Customer the Customer shall:

  1. ensure that it provides a safe and suitable environment for the Supplier’s personnel and agents;

  2. comply with all relevant laws and regulations from time to time (including, without limitation, health and safety laws) in relation to the use by the Supplier’s personnel and agents of the premises; and

  3. inform the Supplier of all health and safety rules and regulations and any other reasonable security requirements that apply to the premises (or any part of it).

7.3 If the Supplier’s performance of its obligations under the Contract is prevented or delayed by an act or omission of the Customer, its agents, sub-contractors or employees the Supplier shall not be liable for any costs, charges or losses sustained or incurred by the Customer as a consequence and the Supplier shall still be allowed to be paid as though it were performing normally.

7.4 The Customer shall neither itself nor through any of its associates, solicit, directly or indirectly, any employee of the Supplier with whom it has had contact in connection with the Contract and if it does it shall indemnify the Supplier against any costs the Supplier incurs as a consequence.


8 LIMITATION OF LIABILITY

8.1 The following provisions of this Condition 8 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 for any breach of these Conditions and any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.

8.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

Nothing in these Conditions excludes or limits the liability of the Supplier for:

  1. human death or personal injury caused by the Supplier’s negligence, or the negligence of its employers, agents or sub-contractors;

  2. fraud or fraudulent misrepresentation; or

  3. any other liability which cannot be legally excluded or limited.

(The Customer’s attention is drawn to the provisions of Condition 8.4 below)


8.4 Subject to Condition 8.3 above:

    1. the Supplier’s total aggregate liability (including costs and interest) in any Liability Year (as defined below), in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract and any other contracts, taken together, between the Customer and the Amur division of AB Agri Limited (together, the “Relevant Contracts”), shall be limited to the higher of:

      1. the total of all sums under Relevant Contracts paid or payable by Customer to the Supplier in any twelve month period ending on the date that the relevant claim arises (the “Liability Year”); and
      2. £500,000; and

    2. the Supplier shall be entitled to set-off from the liability cap in subclause (a) the amount of any other claim arising under a Relevant Contract in the Liability Year for which the Supplier is liable, which shall have the effect of reducing the amount of the liability cap in subclause (a) accordingly; and

  1. the Supplier shall not be liable to the Customer for any indirect or consequential loss or damage nor for any loss of profit, loss of business or depletion of goodwill howsoever caused which arises out of or in connection with the Contract.


9 INTELLECTUAL PROPERTY

9.1 For the purpose of this Condition 9 intellectual property rights include, without limit, copyright, patent rights, utility models, rights to inventions, domain names, rights in computer software, service marks, trademarks, rights in goodwill or rights to sue for passing off, design rights, data base rights, know how, trade secrets, technical information, confidential process information, trade and business names, proprietary information and all similar rights whether registered or not and all rights to apply for such registrations which subsist now or in the future in any part of the world (“Intellectual Property Rights”).

9.2 All Intellectual Property Rights in the Services and the Materials belong to the Supplier. The Supplier shall not unreasonably refuse any request from the Customer for a licence to be granted to it to make reasonable use of the Materials and Services (provided the scope of the licence is limited to the Customer’s internal purposes and is non-exclusive).


10 CONFIDENTIALITY

10.1 Each party shall, and shall procure that its employees shall keep secret and confidential all business and trade secrets, know-how, specifications, processes, initiatives, methods of doing business, price lists and other confidential information and material disclosed by or obtained from the other (“Confidential Information”). Each party undertakes not to disclose the other’s Confidential Information to any third party other than its responsible employees to whom disclosure is in good faith necessary for the proper performance of their duties in connection with the Contract.

10.2 The obligations of confidentiality under Condition 10.1, above, shall not apply to any information or material which: (a) was known to the recipient before its receipt from the disclosing party; or (b) is lawfully in the public domain other than by reason of breach; or must be disclosed by law; or (c) the Supplier receives from the Customer, if the Supplier becomes entitled to terminate the Contract under Condition 11 below.

10.3 The obligations of confidentiality under Condition 10.1 above, shall not prevent the Supplier using, exchanging and commercially exploiting the data and results that it obtains in connection with its services to compile data bases of results for itself and third parties provided that in doing so it does not disclose the identity of the Customer.


11 CANCELLATION OF THE CONTRACT

Without prejudice to any other rights and remedies which the Supplier may have against the Customer, the Supplier may by notice in writing terminate the Contract wholly or in part or suspend the provision of the Services if the Customer is in breach of any of its obligations under the Contract or any other contract or account with the Supplier or if any distress or execution shall be levied on its property or assets or if it makes or offers to make any arrangement or composition with its creditors or commit any act of bankruptcy or if any bankruptcy petition be presented against it or if any resolution or petition to wind it up is passed or presented or if a receiver, administrative receiver or administrator of the whole or any part of its business, property or assets is appointed.


12 FORCE MAJEURE

The Supplier shall not be liable if it is delayed in or prevented from performing its obligations due to circumstances outside its reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes, failures in utility supply, supplier failures, systems interruption, power surges, network unavailability, equipment failures, virus attack and any comparable circumstances.


13 ANTI-BRIBERY

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) 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:

  1. 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”);
  2. 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
  3. 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
  4. 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 the Contract.

14 GENERAL

14.1 To give notice under the Contract a letter must be delivered personally or sent by pre-paid first class post to the registered office address and normal business address of the recipient. A notice delivered by hand is served when delivered; a notice sent by post is served once 2 business days after posting have elapsed.

14.2 Nothing in the Contract shall create an agency, partnership or employment relationship.

14.3 The Customer may not assign or sub-contract the Contract or any part of it without the prior written consent of the Supplier. The Supplier has the right to assign and sub-contract its rights and obligations under the Contract or any part of it to any person, firm or company.

14.4 Each right or remedy of the Supplier under the Contract is without prejudice to any other right or remedy of the Supplier whether under the Contract or not.

14.5 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

14.6 Failure or delay by the Supplier in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.

14.7 The parties to the Contract do not intend that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

14.8 The formation, existence, construction, performance, validity and all aspects of the Contract including the legal relationships established by the Contract shall be governed by the law of England and Wales and the parties submit to the non-exclusive jurisdiction of the English courts.