Conditions of Supply of Testing Services

THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CONDITION 8.

Additional Items means:

(a)   any taxes (including Value Added Tax), duties or other charges levied by any governmental or other authority in respect of the provision of the Services; and

(b)   any additional goods and or services that are provided by the Supplier in addition to the Services.

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

Charges means the charges payable by the Customer for the supply of the Services in accordance with condition 6.

Commencement Date has the meaning set out in condition 2.2.

Conditions means these terms and conditions as amended from time to time in accordance with condition 11.6.

Contract means the Quotation and the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.

Control means shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.

Customer means the person or firm receiving a Quotation from the Supplier and/or who purchases Services from the Supplier.

Customer Default has the meaning set out in condition 5.2.

Data Protection Legislation means (i) the Data Protection Act 1998, until the effective date of its repeal (ii) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the UK, and (iii) any successor legislation to the Data Protection Act 1998 and the GDPR, in particular the Data Protection Bill 2017-2019, once it becomes law.

Data Subject has the meaning given to it in the Data Protection Legislation.

Delivery Period means the estimated delivery date as set out in the Quotation.

Intellectual Property Rights means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Order means any written instruction from the Customer to request Services, which includes but is not limited to the Customer's order for Services as set out in the Customer's written acceptance of a Quotation by the Supplier.

Personal Data: has the meaning given to it in the Data Protection Legislation.

Quotation means the description or specification of the Services provided in writing by the Supplier to the Customer.

Report means any written report or other document (whether in paper or electronic format) produced by the Supplier pursuant to the Services.

Samples means any samples of any of the Customer's goods or products submitted by the Customer to the Supplier.

Services means the testing services the Supplier agrees to provide on the Samples submitted by the Customer pursuant to this Contract, the scope of which is confirmed by the Supplier in its Quotation.

Supplier means Eurofins BLC Leather Technology Centre Limited registered in England and Wales with company number 07009052.

Supplier Materials has the meaning set out in condition 5.1(e).

A reference to writing or written includes email.

1.1  The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

1.2  The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order or commences work on the Order at which point and on which date the Contract shall come into existence (Commencement Date).

1.3  Any 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.

1.4  The Supplier reserves the right to make minor alterations to the design specification or construction of the type of Services supplied without prior notification to the Customer.

1.5  These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

1.1  The Supplier shall supply the Services to the Customer in accordance with the Quotation in all material respects.

1.2  The Supplier shall use reasonable endeavours to meet any performance dates specified in the Quotation, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

1.3  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.

1.4  The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

4.1 Any Quotation given by the Supplier shall not constitute an offer.

4.2 The Quotation is valid for a period of 30 days starting from the date it was provided to the Customer.

4.3 Any prices in the Quotation are for single Sample testing. The Supplier may, at its option, provide a 10% discount for more than 5 (five) Samples submitted for the same testing.

4.4 The Supplier reserves the right to refuse to accept any Order based upon a Quotation.

4.5 Any and all Orders are subject to these Conditions.

4.6 The Supplier reserves the right to increase the price in the Quotation where the Customer fails to supply, within 30 days from the date on which the Contract comes into existence as per condition 2.2, the Sample or any other information required by the Supplier for the provision of the Services.

4.7 The Supplier reserves the right to increase the price quoted per contract for Services entered into if the cost of providing the Services increases by more than 2 per cent or the Customer subsequently requests Additional Items.

4.8 The Customer must ensure that sufficient quantities of Sample (as determined by the Supplier from time to time) are submitted to the Supplier to permit the Services to be performed accurately and to their full extent. The Supplier reserves the right to request further Samples from the Customer if the Supplier, at its sole discretion, deems appropriate and necessary.

4.9 If any process is to be applied to the Samples by the Supplier in accordance with a specification submitted by the Customer, the Customer shall indemnify the Supplier against all loss, damages, costs and expenses awarded against or incurred by the Supplier in connection with or paid or agreed to be paid by the Supplier in settlement of any Intellectual Property Rights claim by any person which results from the Supplier's use of the Customer's specification and/or Samples.

4.10 This condition applies to the extent that Samples are not destroyed in their entirety during the provision of Services. The Supplier reserves the right to hold and retain any and all Samples submitted by the Customer for a period of 6 (six) weeks after the date of the Report. After this 6 (six) week period the Samples will be destroyed by the Supplier unless specific written instruction is received from the Customer to indicate otherwise and the Supplier acknowledges receipt of such instructions in writing (such acknowledgment may not be unreasonably withheld or delayed). Samples are returned at the Customer's cost and expense.

4.11 The Supplier confirms and the Customer acknowledges that the Report shall be produced and the Services carried out solely on the basis of the Samples provided by the Customer. The Supplier does not provide any guarantee or warranty that the Report will be a representation of any bulk of any of the Customer's goods or products which the Samples represent and the Customer acknowledges that the Report is based solely on the Samples and is not a representation of any bulk of the Customer's goods or products. The Supplier confirms that the Report deals with issues in respect of the Sample which the Supplier has been asked to investigate.

The Customer may request future testing using the Supplier's testing request form which can be found at: https://www.blcleathertech.com/about-us/test-request-forms

5.1  The Customer shall:

(a)   ensure that the terms of the Order and any information it provides in its specification are true, complete and accurate;

(b)   co-operate with the Supplier in all matters relating to the Services;

(c)   provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;

(d)   obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start;

(e)   keep and maintain any and all Reports, materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation;

5.2  If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any of its obligations (Customer Default):

(a)   the Supplier shall, without limiting its other rights or remedies, have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;

(b)   the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this condition 5.2; and

(c)   the 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 Default.

6.1  Unless otherwise stated, any Additional Items shall be added to the price.

2.2  The Supplier reserves the right to require payment for Services, by way of an invoice, at any time before the completion of the Services.

6.3  Subject to condition 6.2, the Supplier shall invoice the Customer on completion of the Services.

6.4  The Customer shall pay each invoice submitted by the Supplier:

(a)   within 30 days of the date of the invoice; and

(b)   in full and in cleared funds to a bank account nominated in writing by the Supplier, and

(c)   time for payment shall be of the essence of the Contract.

6.5  All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

6.6  If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per cent per annum above the Bank of England's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

6.7  The Supplier reserves the right to recover from the Customer all direct expenses reasonably incurred by the Supplier in the collection of any overdue sums and/or any bank costs, expenses or charges which may be incurred by the Supplier (including but not limited to shortfalls arising from foreign currency conversion) as a result of any payment by the Customer to the Supplier, pursuant to the Contract.

6.8  The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

6.9  Without prejudice to any other rights of the Supplier, if there is reason to doubt that the amounts due from the Customer under the terms of the Contract will be paid in full according to the terms thereof, then the Supplier reserves the right to require payment in full before delivering or performing any Services whatsoever for the Customer.

6.10 Where payment requested in accordance with this condition 6.9 is not received within 30 days of demand, the Supplier reserves the right to suspend any further services under this Contract or any other contract for the Customer and to recover any additional loss from the Customer.

7.1  All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.

7.2  As between the Customer and Supplier, all Intellectual Property Rights and all other rights in the Report shall be owned by the Supplier upon full payment of the price in accordance with condition 6. The Supplier licences all such rights to the Customer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable the Customer to make reasonable use of the Report and the Services in the Customer's business. For the avoidance of doubt, the Customer shall retain any and all Intellectual Property Rights in the Sample.

8.1  Nothing in the Contract shall limit or exclude the Supplier's liability for:

(a)   death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

(b)   fraud or fraudulent misrepresentation; or

(c)   breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or

(d)   any other liability which cannot be limited or excluded by applicable law.

8.2  Subject to condition 8.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:

(a)   loss of profits;

(b)   loss of sales or business;

(c)   loss of agreements or contracts;

(d)   loss of anticipated savings;

(e)   loss of use or corruption of software, data or information;

(f)   loss of damage to goodwill; and

(g)   any indirect or consequential loss.

8.3  Subject to condition 8.1, the Supplier's aggregate liability to the Customer for insured losses, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to £2,000,000 (two million pounds).

8.4  Subject to condition 8.1, the Supplier's aggregate liability to the Customer for uninsured losses, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be the price paid by the Customer to the Supplier under this Contract.

8.5  The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

8.6  This condition 8 shall survive termination of the Contract.

9.1  Without limiting its other rights or remedies, the Supplier may terminate the Contract by giving the Customer 30 days' written notice if the Customer fails to adhere to condition 5.

9.2  Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:

(a)   the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 21 days of being notified in writing to do so;

(b)   the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c)   the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d)   the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

(e)   the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 7 days after being notified to make such payment; or

(f)   there is a change of Control of the Customer.

9.3  Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in condition 9.2 or the Supplier reasonably believes that the Customer is about to become subject to any of them.

10.1  On termination of the Contract for any reason:

(a)   the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

(b)   the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and

(c)   conditions which expressly or by implication survive termination shall continue in full force and effect.

11.1 Force majeure. Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

11.2 Assignment and other dealings.

(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

(b) The Customer shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.

11.3 Authority. Reference to the acknowledgement, consent, authority or agreement of the Supplier shall mean acknowledgement, consent, authority or agreement in writing signed by a director of the Supplier.

11.4 Confidentiality.

(a) Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by condition 11.4(b).

(b) Each party may disclose the other party's confidential information:

to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information are subject to confidentiality obligations at least as restrictive as those in this condition 11.4; and

(i) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(ii) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.

11.5 Data Protection

(a) Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11.5 onwards is in addition to, and does not relieve, remove or replace, each party's obligations under the Data Protection Legislation.

(b) Both parties will ensure that they have all necessary and appropriate consents and notices in place to enable lawful transfer of any Personal Data to each other for the duration and purposes of this contract.

(c) Both parties shall in relation to any Personal Data which may be processed in connection with the performance of either party under this contract:

• process that Personal Data only on the written instructions of each party and only as required for the purpose of the performance of this agreement;
• ensure that it has in place appropriate technical and organisational measures, reviewed, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
• ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
• not transfer any Personal Data outside of the European Economic Area;
• assist each party, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
• notify the other party without undue delay on becoming aware of a Personal Data breach;
• at the written direction of either party, delete or return Personal Data and copies thereof to that party on termination of this agreement; and
• maintain complete and accurate records and information to demonstrate its compliance with this clause.

11.6 Entire agreement.

(a) This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.

11.7 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.8 Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:

(a) waive that or any other right or remedy; or

(b) prevent or restrict the further exercise of that or any other right or remedy.

11.9 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this condition shall not affect the validity and enforceability of the rest of the Contract.

11.10 Notices.

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this condition, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier or email to: [email protected].

(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in condition 11.10(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission.

(c) The provisions of this condition shall not apply to the service of any proceedings or other documents in any legal action.

11.11 Third parties. No one other than a party to the Contract shall have any right to enforce any of its terms.

11.12 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.

11.13 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

September 2018

EUROFINS BLC LEATHER TECHNOLOGY CENTRE LIMITED