Buyer’s Standard Terms & ConditionsUpdated on April, 2014
This Purchase Order (“PO”) contains the entirety of the Terms and Conditions (“Terms”) of Agilex Flavors & Fragrances’ (“Buyer”) offer. Neither Buyer nor Seller (“Seller”) shall be bound by oral or written agreements not expressly included in this PO. Acceptance of the PO is expressly limited to and made conditional upon the exclusivity of the Terms and Conditions and is expressly made conditional upon Seller’s assent to terms and conditions which differ from or are additional to those in Seller’s offer. This PO may be amended and altered only by a writing signed by authorized representatives of both Seller and Buyer expressly referencing the terms or conditions being modified, and purporting to constitute an amendment to this PO. The Buyer and Seller may each be referred to herein as a “Party” and together as the “Parties.”
These Terms and Conditions, as may be amended from time to time, apply to the purchase by Buyer of all Products and/or services (“Product”) from Seller as described on the face of the PO or other documents referenced on the face of such PO. The term Product throughout these Terms and Conditions includes without limitation, raw materials, supplies, components, tooling equipment and all services. No PO is valid unless issued by Buyer on its official, electronic or otherwise generated, PO to the Seller. If there is an existing agreement executed by both Buyer and Seller, the terms and conditions of the executed agreement will prevail over the Terms hereunder.
PRICING; RISK OF LOSS
All prices payable by Buyer for the Product are stated in the PO and include the cost of packaging and delivery and shall be on the delivery term specified in the PO to the specified destination. Unless otherwise specified in this PO, title to the Product covered by this PO and all risk of loss or damage to such Product shipped shall be in Seller, irrespective of FOB or other delivery terms, and shall remain in the Seller until the Product have been delivered to Buyer’s applicable facility and have been accepted at that facility. Product have been delivered to Buyer’s applicable facility and have been accepted at that facility.
Seller shall meet all quality requirements of Buyer and all quality requirements of Buyer’s customers, including, but not limited to, all applicable plans, specifications, and other contract descriptions, as set forth on the face of the PO. The quality of the Product shall be subject to the satisfaction of the Buyer, who shall be entitled to rejectnon-conforming Product.Buyer or its designated representative or government agency shall have the right from time to time during business hours after reasonable notice to the Seller to
- inspect the Product wherever it is located;
- remove samples of the Product for inspection and testing; and
- obtain factory site and other information from the Seller to confirm conformance of the Product with agreed specifications. No such inspection, testing or inquiry shall be deemed to be or result in any variation of any of the Seller’s obligations or a waiver of Buyer’s rights.
All Product covered by this PO, unless otherwise directed on the PO or in a writing signed by Buyer’s authorized representative, shall be suitably marked and shipped in accordance with the requirements of common carriers and when transportation costs are payable by the Buyer, in a manner to secure the lowest transportation cost. Seller shall pay all additional costs related to delivery of late shipments.
The Seller shall make delivery to the specified destination by the due date stated on the PO or as otherwise agreed in writing by the Parties. Any such stated due date is of the essence and the Seller shall notify Buyer promptly if it reasonably anticipates that delivery will not be on time. Seller shall incur all costs related to unauthorized early delivery. The Seller warrants that upon acceptance of delivery at the destination the Seller will convey to Buyer good and marketable title to all Product free of any liens or encumbrances of any kind. Buyer shall not be obliged to buy or pay for, and Buyer or its designated representative may at any time after delivery reject, all or any part of a given delivery of Product that Buyer or its designated representative determine does not conform with the PO or agreed specifications. The Seller shall retain or reacquire title to, and bear all risks of loss of such non- conforming Product and shall at its own expense be responsible for the return or disposal. Seller shall incur all costs related to Buyer’s receiving non-conformingProduct which costs include but are not limited handling, storing, and testing.
In addition to all other warranties provided by the Seller, Seller warrants from the date of delivery or the appropriate period if contrary to applicable law, that all Product:
- strictly conform with the description contained in the PO, the quality and agreed specifications stated or incorporated as a schedule, by reference or otherwise;
- are merchantable, fit for the purpose intended, and free of defect; and
- are not articles which may not, under the provisions of Sections 404 or 505 of said Act be introduced into interstate commerce.
The Seller shall indemnify and hold Buyer and its customers harmless from all claims, losses, suits, damages, liability, and all expenses, (including but not limited to reasonable attorney’s fees) arising out of or related to any such actual patent, copyright, trademark or other property rights infringement or alleged direct or contributory infringement by reason of the manufacture, use or sale of the Product.
Seller agrees to indemnify and hold Buyer, its employees, directors, representatives, its affiliates and subsidiaries, and agents from and against any and all claims, libels, suits, judgments, fines, penalties, actions and proceedings, damages (including special, consequential, punitive, and exemplary damages), including costs and expenses including reasonable fees for attorneys, experts and consultants, settlement costs, incurred in connection with any claims (including lawsuits, administrative claims, regulatory actions, and other proceedings to recover for personal injury or death, property damage or economic losses) that are related in any way to or arise in any way from the Product, Seller’s representations, Seller’s performance or failure to perform obligations under any PO, including claims based on Seller’s breach or alleged breach of warranty or caused or alleged to have been caused by the consumption or use of such person or persons of any Product as shipped or delivered by Seller to Buyer.Seller’s obligation to indemnify will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability, or otherwise, except to the extent any such liability arises solely out of the gross negligence or willful misconduct of Buyer, its employees or authorized representatives.
TERMINATION BY THE BUYER
Buyer reserves the right to terminate all or any part of each PO without liability of Buyer to the Seller, in the event:
- Seller repudiates, breaches, or threatens to breach any of the terms of the PO including without limitation, Seller’s warranties;
- Seller fails to perform or deliver Product as specified by Buyer;
- Seller fails to provide Buyer with adequate and reasonable assurances of Seller’s ability to perform timely any of Seller’s obligations under any PO, including without limitation, delivery of Product;
- Buyer terminates for breach of any other PO issued by Buyer to Seller in accordance with the terms of such PO;
- Seller attempts an assignment or transfer of any interest without prior written approval of Buyer;
- Seller fails to remedy the breach or violation listed above at 10(a)-(e)within thirty (30) days after receipt of written notice from Buyer; or
- Seller makes an assignment for the benefit of its creditors, commits any act of bankruptcy, has a receiver appointed, or otherwise admits of its inability to pay its debts as they mature, and Seller fails to remedy the breach or violation of this Section 10(g) within sixty (60) days after receipt of written notice from Buyer.
The Seller shall not assign, transfer or otherwise dispose of any rights or obligations to any third party without the prior written consent of Buyer. All rights and obligations shall inure to the benefit of and be binding on any permitted assignee or successor of each Party.
COMPLIANCE WITH LAWS
Seller agrees to comply with all federal, state, and local laws, executive orders, rules and regulations that may be applicable to Seller’s performance of its obligations to under each PO. If requested, Seller shall so certify when and in such form as Buyer or Buyer’s customers or suppliers may require, including among other things, a certification that the items were produced in compliance with all applicable requirements of the Fair Labor Standards Act.
Payment terms are stated on the face of the PO.
Any specifications, samples, designs, formulations, trade secrets, patents, financial data, or other information that Buyer identifies as or otherwise deems confidential (“Buyers Confidential Information”) and discloses to the Seller in connection with the PO shall remain the exclusive property of the Buyer and shall, along with any information derived from the same, be kept confidential by the Seller and its employees and agents and shall not, without Buyer’s prior written consent, be disclosed to any third party or used except for purposes of the PO. Notwithstanding the foregoing, such information shall not be deemed confidential to the extent that the Seller can demonstrate by written record that it was previously known by the Seller, became generally available to the public through no fault of the Seller, was disclosed to the Seller by a third party without breach of any confidentiality obligation, or is specifically required to be disclosed by law or legal process.The Buyer and Seller agree that the covenant of confidentiality and nondisclosure set forth above shall survive termination of this Agreement and shall remain in effect for so long as the Buyer’s Confidential Information remains confidential. The Parties agree that this covenant shall supersede any contrary duration term set forth in any previously executed confidentiality agreement.
In the event Seller fails to perform in accordance with the PO (“Breach”), without limiting the generality of the foregoing, should any Product fail to conform to the warranties, or should Seller or any Product provided by Seller fail to meet any of the conditions or specifications set forth, and without prejudice to any other rights or remedies it may have under applicable law or in equity, Buyer shall have the right, after any applicable cure period, to recover from the Seller any and all mitigated losses and reasonable additional expenses incurred by Buyer arising from Seller’s Breach, and at Buyer’s option:
- require the Seller promptly cure such Breach with conforming delivery at no additional charge or expense to Buyer; and/or
- reject any non-conforming Product, cancel any and all outstanding deliveries, cover by purchasing replacement Product from one or more other suppliers.
The Seller agrees to maintain insurance covering the Product and its performance under the PO in compliance with applicable legal requirements and including but not limited to comprehensive commercial general liability (including products liability completed operations and third party liability coverage) for not less than $1,000,000 per occurrence and $2,000,000 annual aggregate with an Umbrella Liability policy which incorporates excess Product Liability Insurance of not less than $25,000,000 per occurrence and $25,000,000 Annual Aggregate and product recall insurance of $100,000 per occurrence and $200,000 Annual Aggregate, with an insurance company that has an A.M. Best rating of not less than A-X. Such insurance shall name the Buyer an Additional Insured. Seller shall furnish Buyer annually with a Certificate evidencing such insurance.
Seller’s failure to deliver Product as provided in the PO by reason of any of the following and such event shall not constitute an event of default or breach of any Terms: strikes, picket lines, boycott efforts, fires, floods, freeze, accidents, war (whether or not declared), revolution, riots, insurrections, acts of God, acts of government (including without limitation any agency or department of the United States of America or any other country), acts of the public enemy, scarcity or rationing of gasoline or other fuel or vital products, inability to obtain materials or labor, or other causes which are reasonably beyond the control of the defaulting Party. Seller shall promptly notify the Buyer of any such delay and its cause. Provided that if any such cause that continues for more than thirty (30) days the Buyer may at its own option cancel this PO and all its obligations to Seller.
Any dispute, claim or controversy arising out of, or between the Parties during the execution of or interpretation of this Agreement shall be resolved by arbitration in accordance with the American Arbitration Association Dispute Resolution Procedures in effect at the time of arbitration. The number of arbitrators shall be one and the place of arbitration shall be Middlesex County, New Jersey. All proceedings will be governed by the laws the State of New Jersey, USA.
Seller is an independent contractor and not an employee or agent of Buyer. Buyer disclaims any right to control the manner of performance by Seller and Buyer will not control the manner of performance by Seller. Seller has no authority to direct or control the performance of any employee of Buyer. As applicable, Seller’s role will be that of an adviser and not of master to any Buyer employee. Seller does not have any Buyer title and Seller is not eligible for Buyer benefits or employee plans.
- Failure of Buyer to insist upon performance of any provisions of these Terms or to exercise any rights hereunder shall not be construed as a waiver or relinquishment of the future performance of any such term or condition or the future exercise of such right.
- Any enforceable term, provision, undertaking or restriction contained in these Terms are held by a court of competent jurisdiction to be invalid, void or unenforceable (in whole or in part), the remainder of the terms, provisions, undertakings and restrictions will remain in full force and effect and will in no way be affected, impaired or invalidated.
- Any notice or request required or permitted to be given in connection with these Terms shall be sent by mail, prepaid, return receipt requested, by fax, with receipt confirmed, or by express delivery service to the address set forth on the PO or to any other business address furnished in writing by the intended recipient to the sender. The date of notice shall be deemed to be the date on which such notice has been sent by fax, received by mail, or by express delivery service.
- Section headings are for convenience only and are not to be construed as part of this Agreement.
Supplier’s Terms & ConditionsUpdated on April, 2014
These standard conditions of sale (“Conditions”) are the only terms and conditions applicable to any sale by Agilex entity named on the Order Confirmation (“Agilex”) to any person or company (“Buyer”) whom is deemed to have assented to these Conditions notwithstanding inconsistent or additional provisions on Buyer’s Order (as defined below) or otherwise, which are expressly excluded hereunder. Differing or additional terms and conditions provided by Agilex under separate written contract, or under the provisions set forth in the Order Confirmation (as defined below), document or form, if any, to which these Conditions are attached, form one and part of the same contract (“Form”), but prevail only to the extent of any inconsistency or conflict with these Conditions.
All oral, written or EDI purchase orders (“Order(s)”) placed by Buyer and pursuant to which Agilex supplies any goods denominated in the Form (“Goods”) are subject to Agilex’s confirmation either through written confirmation (“Order Confirmation”) or through shipping the Goods. Any Order shall be deemed to be firm and may be modified, rescinded, or cancelled, in whole or in part, only upon mutual written agreement of Agilex and Buyer.
PRODUCTS DESCRIPTION AND QUANTITIES
The description and quantities of Goods are set forth separately in the Form. Buyer may not reject or revoke acceptance of a bulk shipment the quantity of which is within 3% of the amount specified for such shipment and the price payable by Buyer for such shipment shall be appropriately adjusted to reflect any overage or underage. Information supplied with regard to the percentage content of the Goods are only to be regarded as approximate average value and Agilex shall not be liable for any variations in such content which are within the tolerances applicable to the particular Goods or not materially relevant.
Prices are fixed on the base of prices valid on the date of the invoice. Price changes communicated by Agilex to Buyer after placement of an Order and prior to shipment thereof shall be binding upon Buyer unless objected to in writing by Buyer within 7 (seven) working days from the date of such communication. Prices are net of all delivery charges including but not limited to VAT, customs duties, other taxes, and cost of insurance, which shall be invoiced in addition to the price of the Goods, if not otherwise specified in the Form. Any prices appearing on Agilex’s price list, booklets, or offers are for general guidance only. Buyer shall pay additional transportation charges if Buyer requests Agilex to deliver the Goods earlier than the delivery window stipulated in the Order Confirmation.
All payments for Goods shipped are invoiced on or immediately after shipment date and are due net 30 (thirty) days from the date of invoice, unless otherwise specified in the Form or, if contrary to applicable law, due within the minimum term permitted by law. For all payments made with a valid credit card, Buyer authorizes Firmenich to charge an additional fee of three percent (3%) of the total charges for the related Order. Any amount not paid by Buyer when due will be subject to a finance charge equal to 1.5% (or such lower rate which is the highest rate as permissible by applicable law) of the amount not paid per month until such amount is paid in full. Without limiting any and all remedies available hereunder, Agilex may defer or cancel delivery of any subsequent instalments of the Goods or of any other goods adopted by Buyer from Agilex or any affiliated company thereof until all amounts due have been paid in full. the event Agilex requires payment for Goods prior to shipment of the Goods, Agilex may, at its sole and absolute discretion, cancel an Order, in whole or in part, if Buyer fails to initiate or make payment within two (2) weeks of the Order Confirmation date. In the event Agilex cancels an Order, Buyer may place a new Order when Buyer is prepared to make timely payment. Except with Agilex’s consent, no set off will be permitted. At Buyer’s written request, Agilex may sell Goods adopted by Buyer directly to third parties (“Sub-contractors”) appointed by Buyer to manufacture consumer products. Buyer shall provide appropriate security for its Subcontractors’ payment obligations if Agilex so requests. Buyer undertakes to indemnify and hold Agilex harmless from any and all claims, losses, costs and damages arising out of or caused by any Subcontractors’ failure to make full and timely payment to Agilex of all amounts that such Subcontractors owe to Agilex.
Incoterms 2020 or the then prevailing Incoterms in force at the time of the Order Confirmation shall apply, save that, to the extent there is any inconsistency or conflict between the applicable Incoterms and the Conditions, the Conditions shall prevail. Deliveries are made in accordance with Buyer’s shipping instructions and Agilex’s Order Confirmation to the extent permitted by the availability of the Goods or of the raw materials thereof. Agilex shall not be responsible for failure to meet the delivery date or period agreed between the parties, which are estimates only, and shall not be liable for any cost or damage due to early or late delivery. If Agilex is unable to serve total demand for the Goods, Agilex may allocate the available quantity of the Goods as it deems most fair in making partial shipments or shipments cancellation and may give preference to the earliest commitments. Buyer may cancel any Order for such partial or cancelled shipments under written notification to Agilex, no later than 48 (forty-eight) hours after confirmation by Agilex of such partial or cancelled shipment. Unless otherwise specified in writing, Buyer shall assume all risks of damage to or loss of the Goods upon delivery of the Goods. For Orders where delivery is to be made by collection by Buyer, such collection shall be at such premises of Agilex as it may designate to Buyer and delivery shall be deemed to have taken place when the Goods are made available for collection by Buyer at such premises. If Buyer does not collect the Goods from such premises of Agilex within 5 (five) days of delivery, Agilex may charge Buyer for storage at commercial rates and Buyer agrees to pay such storage charges on demand. Agilex reserves the right to make delivery of Goods ordered by Buyer in instalments. Buyer shall comply with Agilex’s Minimum Order Quantity (“MOQ”) and Agilex’s Minimum Order Value (“MOV”) requirements and pay Agilex’s small packaging surcharges, in each case as prescribed from time to time. Goods ordered under Incoterms EXW will be invoiced on, or shortly after the date the goods have been placed at Buyer’s disposal
Agilex warrants it has title to the Goods and that the Goods shall comply with Agilex’s standard specifications in effect on the date of shipment and to the description of the Goods contained in the Form. Agilex reserves the right at any time to change the specifications with or without advance notice. AGILEX EXPRESSLY EXCLUDES, TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS AND/OR GUARANTEES OTHER THAN AS PROVIDED ABOVE, INCLUDING WITHOUT LIMITATION, IN RESPECT OF NONINFRINGEMENT, MERCHANTABILITY, DESCRIPTION, CONDITION, PERFORMANCE OR FITNESS FOR A PARTICULAR PURPOSE RELATING TO THE USE OR PERFORMANCE OF THE GOODS. Without limiting the foregoing, under no circumstances whatsoever shall Agilex have any liability or obligation to Buyer for any and all advice, assistance, recommendations or information provided by Agilex to Buyer with regard to the handling, storing, applying or using any Goods supplied by Agilex to Buyer. Any data provided by Agilex in certificate and datasheet such as but not limited to safety datasheet, technical datasheet and information on allergens are the result of internal verification based on Agilex methodologies, are accurate to the best of Agilex’s knowledge at the date of the certificate or datasheet and are given for information purposes only. No warranty is expressed or implied as to the quality, accuracy, completeness and compliance of the data or the results to be obtained from the use of such data by Buyer.
LIMITATION OF LIABILITY
Buyer shall carefully check all Goods upon receipt at the shipping destination. Claims must be notified to Agilex in writing within 7 (seven) working days thereof and prior to the Goods’ further processing or other use of such Goods. Any apparent defects must be duly reported on the proof of delivery documentation. Defects not reasonably detectable upon receipt of the Goods shall be notified within 10 (ten) working days of Buyer’s detection of the defects but in any event no later than 6 (six) months after receipt of the Goods, or within the stipulated shelf life of the Goods, whichever shall first occur. Failure to give Agilex such notice shall constitute full waiver of such claims by Buyer. At Agilex’s choice, a sample shall immediately be sent to Agilex, or Agilex shall be granted access to the Goods for which a claim is made. Agilex will, at its option, replace such Goods as determined to be defective upon Agilex’s inspection at no cost to Buyer or refund the purchase price. Buyer may not send the Goods back to Agilex unless authorized in advance. Claims do not discharge Buyer from its obligation to (i) properly document its claim and (ii) mitigate any loss. To the extent permitted by law, Agilex shall not be liable for personal injury or property damage unless directly caused by Agilex’s gross negligence. To the full extent permissible by law, in no event shall Agilex be liable for any loss of profit or anticipated profit, loss of revenue, loss of opportunity, loss of contract, loss of goodwill or loss arising from business interruption, losses resulting from failure to meet other contractual commitments, or any incidental, special, punitive or consequential losses or damages whatsoever arising out of or in connection with these Conditions, under statute, in tort (for negligence or otherwise) or any other basis in law or equity. To the full extent permissible by law, Buyer’s exclusive remedy and Agilex’s sole liability in connection with the Goods or these Conditions shall be limited to actual costs or charges directly related to the breach and shall not in any event exceed the price of the Goods as mentioned in the relevant invoice.
The Goods remain the property of Agilex until complete payment of the price has been received by Agilex, and until such time as the property in the Goods passes to Buyer hereunder, Buyer shall hold the Goods in a fiduciary capacity. Buyer is however entitled to use the Goods as set out in these Conditions unless it becomes insolvent or proceedings are issued for bankruptcy or winding up of Buyer, in which situation Agilex shall be entitled to suspend deliveries, stop Goods in transit or take back possession of the Goods. Until the Goods have been fully paid for and without prejudice to any other remedies, Agilex or its agents shall be entitled to draw an inventory of such Goods and re-possess any Goods to which it has title hereunder. Nothing in this clause shall confer any right on Buyer to return Goods supplied hereunder or to refuse or delay payment thereof. Unless otherwise expressly authorized by Agilex in writing in advance, Buyer may not resell the Goods to any third party.
INTELLECTUAL PROPERTY, CONFIDENTIALITY
No license, express or implied, under any patent, trademark, copyright or proprietary know-how on any Good shall be granted through any sale of the Goods hereunder, except to the extent necessary for Buyer’s proper development and manufacturing of its own products incorporating such Good for which Buyer has selected such Good. Buyer is solely liable for any patent, trademark, copyright, or proprietary know-how infringement in using the Goods in combination with other materials or operation of any process. Buyer understands and agrees that all intellectual property rights to the Goods and their formulae are and shall remain the sole property of Agilex, which has a proprietary interest in maintaining the confidentiality status of the Goods and formulae. Unless otherwise expressly authorized by Agilex in writing in advance, Buyer shall not disclose, resell or otherwise make available Agilex formulae, original creations, technologies, samples, Goods, and proprietary information to any third party, or make use of them for any purpose other than as set out above. Buyer undertakes furthermore not to analyze, reverse engineer, match, or counterfeit (in any case, either by itself or through another person) the Goods for its own account or for the account of any third party and not to use in its products similar goods from third parties which are the result of analyzing, reverse engineering, matching or counterfeiting the Goods.
Acts of God, fires, floods, weather, epidemics, pandemics, war, or other cause(s) beyond the reasonable control of Agilex, not reasonably foreseeable, not caused by acts or omissions of Agilex and that could not have been reasonably avoided through a work-around plan, which prevent Agilex from providing or procuring the Goods or from otherwise performing under this Form (“Force Majeure Event”) will suspend Agilex’s respective obligations under this Form during the period required to remove such Force Majeure Event. Agilex will promptly notify the Buyer of the Force Majeure Event and its cause. Upon cessation of the Force Majeure Event, the obligations of Agilex shall resume in accordance with the terms and conditions of this Form. Without limiting the application of the foregoing, if Agilex is prevented from performing on time or at all as a result of COVID-19 (or a similar epidemic or pandemic disease caused by a coronavirus), including measures taken by governments, companies, or individuals in response to COVID-19, this shall constitute a Force Majeure Event, provided that Agilex could not have reasonably avoided the impacts through a work-around plan. If Agilex’s supply of Goods is limited as a result of a Force Majeure Event, Agilex shall allocate the Goods amongst Buyer and other customers in such manner as Agilex may reasonably determine. If the period of the Force Majeure Event lasts longer than fifteen (15) calendar days, then Buyer is entitled, at any time thereafter, while such Force Majeure Event continues, to terminate this Agreement without any penalty, liability or further obligation therefore, immediately upon notice to Agilex, or, at its sole option, purchase alternative products from other suppliers in which case the obligations of Buyer and Agilex under this Form, if any, will be reduced accordingly.
ASSIGNMENT, SEVERANCE, WAIVER
Buyer shall not assign, transfer or charge any Order or contract with Agilex without Agilex’s prior written consent. Each of the provisions of these Conditions are severable and distinct from others and if at any time one or more of the provisions is or becomes invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of these Conditions shall not in any way be affected or impaired by it. Except as agreed upon in these Conditions, no failure to exercise or delay in exercising of any rights hereunder shall operate as a waiver of that or any other right, nor shall any single, defective or partial exercise preclude any other or future exercise of that right. For the avoidance of doubt, each indemnity provided by Buyer under these Conditions is a continuing obligation separate and independent from the parties’ other obligations and survives the expiry or earlier termination of these Conditions.
Buyer shall comply with all applicable export control laws and shall not, directly or indirectly, export, reexport, ship or divert any Goods to customers or entities which it knows or reasonably should know will resell or export the Goods to parties and/or destinations currently subject to the Sanctions as defined in clause 14 below, or otherwise in violation of applicable national legislation. Buyer shall indemnify and hold Agilex harmless from and against any and all claims, losses, costs and damages arising from Buyer’s failure, intentional or unintentional, to comply with this clause 13 and clause 14 below.
Buyer represents, warrants and undertakes that neither it, its affiliates nor any of their respective directors, officers, agent, employees or any person or entity acting on behalf of any of them, is, or is directly or indirectly, owned or controlled, by a person or entity that is or will be designated on any economic sanctions or export controls list of any governmental authority, including the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) Specially Designated Nationals and Blocked Persons List. Buyer promises that no action of Buyer or any of its affiliates, and its respective directors, officers, agents, employees or any person or entity acting on behalf of any of them, or any other transaction contemplated hereby or the fulfilment of the terms hereof, will result in a violation of any trade sanctions, foreign trade controls, export controls, non-proliferation, anti-terrorism and similar laws administered by OFAC, the U.S. Departments of State or Commerce in the United States, the European Union and its Member States, Switzerland, the United Nations Security Council (“UNSC”), or any other relevant sanctions authority which prohibit the sale, export or diversion of products, services and technology to sanctioned countries or nationals of those countries, as well as to persons or entities whose names appear on the List of Specially Designated Nationals and Blocked Persons maintained by OFAC (collectively, “Sanctions”). Neither party shall be obliged to perform any obligation otherwise required by these Conditions and the Form, including without limitation an obligation to (i) perform, deliver, accept, sell, purchase, pay or receive monies to, from, or through a person or entity, or (ii) engage in any other acts if this would be in violation of, inconsistent with, or expose such party, a parent company or affiliate of such party, or any other person related to that party to punitive measure under any Sanctions. If Buyer should learn that any of the representations made in this clause are no longer accurate or learns of any violation of Sanctions by Buyer that may involve Agilex products, services or technology, including the Goods, Buyer shall inform Agilex immediately in writing. Furthermore, Buyer shall provide all information, assistance and cooperation requested by Agilex in connection with Agilex’s compliance efforts, including taking corrective or remedial action recommended by Agilex and/or by providing certifications of compliance with relevant Sanctions as requested by Agilex.
If the performance of these Conditions and the Form requires Buyer to collect, receive, store, transmit, retransfer, dispose or otherwise use (collectively “process” or “processing”) any information relating to an identified or identifiable natural person (“Personal Data”), Buyer undertakes to (i) process the Personal Data solely for the legitimate purposes of performing its obligations under these Conditions and the Form and for no other purpose, and only in accordance with the local law governing such processing; to provide the subject of the Personal Data with the same rights in relation to their Personal Data, including but not limited to rights of access, rectification or erasure available to such individual as they would have in the country in which he or she resides; ensure that any persons it authorizes to have access to the Personal Data will respect and maintain the confidentiality and security of the Personal Data; (iv) provide all necessary information to Agilex to demonstrate compliance with this clause and allow for and contribute to audits, including inspections, conducted by Agilex or another auditor mandated by Agilex; and (v) as soon as possible after delivery of the Goods or termination of Buyer’s relationship with Agilex, delete all existing copies of Personal Data or return any Personal Data to Agilex, at Agilex’s discretion. Buyer warrants that it has full legal authority to process the Personal Data as contemplated, it has in place appropriate technical and organizational measures to prevent unauthorized or unlawful processing or accidental loss or destruction of, or damage to, such Personal Data, and it has adequate security programs and procedures to ensure that unauthorized persons will not have access to the Personal Data. Buyer shall be responsible for and remain fully liable to, Agilex for the actions and omissions of Buyer, all its affiliates, and its respective employees, representatives, and subcontractors concerning the treatment of Personal Data as if it were Buyer’s own actions and omissions.
GOVERNING LAW AND JURISDICTION
These Conditions and the Form are governed by the laws of the place of incorporation of Agilex excluding the United Nations Convention on Contracts for the International Sale of Goods or any successor to it. Agilex and Buyer shall attempt to amicably resolve any dispute arising out of or in connection with these Conditions and the Form, including any question regarding their existence, application, validity or termination. Should they fail to do so within 60 (sixty) days from the date of first notice of any such dispute, then any such dispute shall be (1) submitted to the exclusive jurisdiction of the courts of the place of incorporation of Agilex, or (2) in Agilex’s sole discretion and provided Agilex sends a notice to this effect within 90 (ninety) days of the date of first notice of any such dispute, resolved by way of arbitration in the following manner: (a) if Agilex is incorporated within the Asia-Pacific region, referred to and finally resolved by arbitration in Singapore administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause; (b) if Agilex is incorporated within North America or South America, referred to and finally resolved by arbitration in New York, USA, administered by the American Arbitration Association in accordance with its International Arbitration Rules for the time being in force; (c) if Agilex is incorporated within Europe or within any other place not referred to in (a) or (b) above, referred to and finally resolved by arbitration in Geneva, Switzerland in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers’ Arbitration Institution in force on the date on which the Notice of Arbitration is submitted in accordance with these rules. Any such arbitration shall be adjudicated by a sole arbitrator and the language of the arbitration will be English. Notwithstanding any other term of these Conditions and the Form, Agilex may commence court proceedings relating to any dispute arising from these Conditions or the Form at any time where Agilex seeks urgent interlocutory relief.
Welcome to www.agilexfragrances.com (the “Site”). The Site is owned and operated by Agilex Flavors and Fragrances, Inc. (“Agilex,” “we,” or “us”). Agilex offers substantial fragrance capabilities that we provide to our customers with passion and excellence. This Site contains information about our company, our products, and our commitment to excellent customer service.
Agilex’s community, like any community, functions best when its people follow a few simple rules. By accessing and/or using the Site, you hereby agree to comply with these community rules and that:
- You will not access or use the Site to collect any market research for a competing business;
- You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Site, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file;
- You will not use the Site for any unlawful purpose or malicious activity, as determined by Agilex in its sole and absolute discretion
- You will not interfere with or attempt to interrupt the proper operation of the Site through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Site through hacking, password or data mining, or any other means; and
- You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features (e.g., report abuse button) on the Site.
We reserve the right, in our sole and absolute discretion, to deny you access to the Site, or any portion of the Site, without notice, and to remove any comments that do not adhere to these guidelines.
The trademarks, service marks, and logos of Agilex (“Agilex Trademarks”) used and displayed on the Site are registered and unregistered trademarks or service marks of Agilex. Other company, product, and service names located on the Site may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with Agilex Trademarks, the “Trademarks”). Nothing on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Agilex Trademarks inures to our benefit.
Elements of the Site are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
COMMUNICATIONS TO US
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails you send to us, including but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information.
NO WARRANTIES/LIMITATION OF LIABILITY
we make no warranties or representations about the contents of the site. we shall not be subject to liability for any delays or interruptions of the site from whatever cause. you agree that you use the content and the site at your own risk.
we do not warrant that the site will operate error-free or that the site, its servers, or the content are free of computer viruses or similar contamination or destructive features. if your use of the content or the site results in the need for servicing or replacing equipment or data, we shall not be responsible for those costs.
the content and the site are provided on an “as is” and “as available” basis without any warranties of any kind. we disclaim all warranties, including, but not limited to, the warranty of title, merchantability, non-infringement of third parties’ rights, and fitness for particular purpose.
in no event shall we be liable for any damages whatsoever (including, without limitation, incidental and consequential damages, lost profits, or damages resulting from lost data or business interruption) resulting from the use or inability to use the content or the site, whether based on warranty, contract, tort (including negligence), or any other legal theory, even if we have been advised of the possibility of such damages. some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. in such states, our liability shall be limited to the greatest extent permitted by law.
the site may contain technical inaccuracies or typographical errors or omissions. we are not responsible for any such typographical, technical, or pricing errors listed on the site. the site may contain information on certain products and services, not all of which are available in every location. a reference to a product or service on the site does not imply that such product or service is or will be available in your location. we reserve the right to make changes, corrections, and/or improvements to the site at any time without notice.
The Site may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
COMPLIANCE WITH APPLICABLE LAWS
The Site is based in the United States. We make no claims concerning whether the Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Site or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
Copyright 2014 Agilex Flavors and Fragrances, Inc. All rights reserved.
(the “Website”) will be included in a data file of Agilex. Where European Economic Area and Swiss (“EEA + CH”) law applies, Agilex is the controller of your personal information.
- a visitor of this Website;
- an investor;
- a job applicant,
- or an Agilex customer or supplier.
- in the agreement you have entered into with Agilex;
- on your purchase order or invoice.
- Types of personal information collected
- Purposes for processing your personal information
- Disclosure of your personal information
- Your choices
- Protection of your personal information
- Storing and transferring your personal information
- User-generated content
- Third party sites
- Your EEA + CH rights
- California privacy rights
Types of personal information collected
We use different methods to collect personal information from and about you including through:
- Direct Interactions:
You may provide personal information to us when you register for certain services, access various content or features, submit an application to work at Agilex or other Agilex group companies (“Group Companies”) or directly contact us via the Website. You may also provide personal information to Agilex if you post in community discussions, participate in any other online interactive features and if you participate in any research questionnaires, projects and surveys (the nature of which will be explained to you in more detail prior to your participation in them), or when contacting our media or investors relations. The types of information we may collect from you includes personal details (including name and gender), contact information (including email address, postal address/location, telephone numbers), financial interests you may have as an investor, education and training details (including qualification, attendance at educational establishments and training received), and employment details (including details of previous employment roles).
- Automated technologies or interactions:
When you use our Website, we will automatically collect technical information about your equipment, browsing actions and patterns, including your browser type and operating system, search history, the links you click on within the Website, unique identifiers (including mobile device identification and IP address), information collected through cookies, web beacons, pixel tags, and other, similar technologies (please refer to our Cookies Policy), your bandwidth speed and information about the software programs installed on your computer and standard server log information. We collect your internet or other electronic network activity information from your interactions with our website.
- Third parties or publicly available resources:
Where permitted by applicable law, we may collect information about you from other sources, including through interactive applications (such as mobile devices, third-party services, and embedded video players), from third-party sites (for example social media sites), and from commercially available sources (such as data aggregators and public databases). The types of information we may collect includes personal details (including name, age, gender, and other demographic data), contact information (including postal address and telephone numbers), your interests and purchase behavior and navigation data (including websites visited and advertisements viewed or clicked on).
- Direct Interactions:
Purposes for processing your personal information
We may process any personal information you provide to us to enable us to perform the contract entered into between you and us, to ensure compliance with local legal and regulatory requirements and for the purposes of our legitimate business interests, including:
- To designate you as the contact person and to enable us to fulfill your requests for products, services, and information, including to complete transactions that you have requested;
- To ensure the security of our websites;
- To enable you to participate in features such as surveys, polls, promotions and message boards;
- With your consent, to provide you with electronic newsletters, information, special offers and promotional materials about us and the Website and on behalf of our Group Companies, in accordance with applicable law (see Your Choices below for further information of opting out of such marketing communications);
- To better understand how you interact with the Website to understand and improve the Website and our service offerings (including customizing the content of the Website and developing advertising tailored to your interests); and
- To produce anonymous or aggregated data and statistics that might help third parties develop our or their own products and service offerings; and
- To enable us to process and consider your application to join Agilex and our Group Companies.
Disclosure of your personal information
Agilex is committed to maintaining your trust and we want you to understand when and with whom we may share information collected about you. We may share your personal information with the following categories of recipients:
- Agilex Group Companies: We may share your contact information with other Group Companies so that they can contact you regarding features such as surveys, polls, and promotions and/or send you communications about their products and services. As a global company, some of our employees in different sites may need to access your personal data in order to deliver you better services you may request from Agilex. A list of our locations is available on our website. For more information, please email firstname.lastname@example.org.
- Authorized third-party service providers: We may share your information with services providers who help us with specialized services, including customer support, email and text message deployment, business analytics, marketing and data processing. These service providers are required to keep your personal information confidential and secure, and must only use your personal information as instructed by Agilex;
- California Only: Analytics providers: We may share your internet or other electronic network activity information with our analytics providers so they may perform auditing related to a current interaction with the consumer and concurrent transactions, including, but not limited to, counting ad impressions to unique visitors, verifying positioning and quality of ad impressions, and auditing compliance with this specification and other standards; and
- Our selected commercial partners and sponsors: Where you have chosen to enter a sweepstakes, contest, or other promotion your personal information may be disclosed to sponsors and third parties who help design, administer and implement the promotion, including in connection with winner selection, prize fulfillment and aggregated data analysis.
We may also share your personal information in the following circumstances:
- Business transfers: We may share your information in connection with a substantial corporate transaction, such as the sale of a Group Company, a merger, consolidation, asset sale, or in the unlikely event of bankruptcy.
- Legal requirements: We may disclose information about our users, including contact information, where we have a legal duty to do so, including in response to court orders or legal process, and to comply with other legal obligations imposed on us.
- Protect our Website and users: We may disclose information to protect and defend the legal rights, interests, and safety of the Website, the Agilex group of companies, and their employees, agents, and contractors (including enforcing our agreements); to protect the safety and security of users of the Website and members of the public. Your personal information may also be subject to foreign laws and may be accessible by foreign governments, courts, law enforcement and regulatory agencies.
We may share aggregated or anonymized information with third parties, for purposes including helping us develop content and services we hope you will find of interest or to help these third parties develop our or their products and service offerings. This sharing of anonymized or aggregated information will not include information that could be used to identify you.
Your choicesYou can choose to enjoy content and features on the Website without directly providing us with any information about you; however, as described above, some information may automatically be collected or may be requested so you can take advantage of certain features and services offered on the Website.We send marketing communications where you have agreed to us doing so. You can opt-out of receiving marketing emails or text messages from us by following the instructions contained in any such message or by contacting us at any time (see Section 12 “Questions” below). Please note that even if you unsubscribe to marketing communications, we still may need to send you communications relating to your use of the Website, such as service announcements and if we may need to send certain information to you under a legal, regulatory, or ethical requirement.
Protection of your personal information
We have adopted appropriate and commercially reasonable technical, organizational, administrative, and physical measures to help protect your personal information from loss, misuse, and unauthorized alteration. We ensure only the persons who need to for legitimate business purposes, have access to your personal data. Please note that no data transmission or storage can be guaranteed to be 100% secure. As a result, while we strive to protect your personal information, we cannot ensure or warrant the security of any personal information you transmit to us via the Website.
Storing and transferring your personal informationYour personal information collected via this Website will be stored on servers located in Switzerland or an EU member state.We share your personal information with our Group Companies. If you are located in the EEA+ CH, this will involve transferring your data outside the EEA + CH.Many of our external third parties are based outside the EEA + CH so their processing of your personal information will involve a transfer of data outside the EEA + CH.Whenever we transfer your personal information out of the EEA +CH, we ensure a similar degree of protection is afforded to it by ensuring at least one of the following safeguards is implemented:
Please contact us at email@example.com if you want further information on the specific mechanism used by us when transferring your personal data out of the EEA + CH.We will only retain your personal information for as long as necessary to fulfill the purposes we collected it for, including for the purposes of satisfying any legal, accounting, or reporting requirements and in accordance with our data retention rules.To determine the appropriate retention period for personal information, we consider the amount, nature, and sensitivity of the personal data, the potential risk of harm from unauthorized use or disclosure of your personal data, the purposes for which we process your personal information and whether we can achieve those purposes through other means, and the applicable legal requirements.In some circumstances, we may anonymize your personal information (so that it can no longer be associated with you) for research or statistical purposes in which case we may use this information indefinitely without further notice to you.
- We will transfer your personal data to countries that have been deemed to provide an adequate level of protection for personal data by the European Commission. For further details, see European Commission: Adequacy of the protection of personal data in non-EU countries.
- Where we use certain service providers, we may use specific contracts approved by the European Commission which give personal data the same protection it has in Europe. For further details, see European Commission: Model contracts for the transfer of personal data to third countries.
- Where we use providers based in the US, we may transfer data to them if they are part of the Privacy Shield which requires them to provide similar protection to personal data shared between Europe and the US. For further details, see European Commission: EU-US Privacy Shield.
Third party sites
Your EEA + CH rights
You may be entitled under local law to:
Residents of the EEA + CH: In addition to the rights listed above you may also have the right to: (a) restrict the processing of personal information we hold about you; (b) object to the processing of personal information we hold about you; (c) receive any personal information we hold about you in a structured and commonly used machine-readable format or have such personal information transmitted to another company and/or (d) not be subject to any decision that significantly affects you being taken solely by automated processing, including profiling.Please contact us if you wish to exercise any of these rights. We will process any request in line with any local laws and our policies and procedures. We may ask you for additional information to confirm your identity and for security purposes, before disclosing the information requested to you. If you are located in the EEA + CH, you have the right to lodge a complaint about how we process your personal information with the supervisory authority in your country. We would, however, appreciate the chance to deal with your concerns before you approach your local supervisory authority so please contact us in the first instance.
- access, update or amend the information that we hold about you;
- object to the processing of your information by Agilex, including for marketing purposes or otherwise where you have a legitimate reason for doing so; and/or
- ask us to delete your information. Please note that we may need to retain some information about you in order to satisfy our legal or security obligations.
California privacy rightsIf you are a California Consumer, you have certain rights with respect to the collection, use, transfer, and processing of your “Personal Information”, as defined by the California Consumer Privacy Act (CCPA). We reserve the right to limit these rights where permitted under applicable law, including where your identity cannot be reasonably verified or to the extent your rights adversely affect the rights and freedoms of others. To exercise any of the rights below, please contact us via the contact information below. Only you or a person registered with the California Secretary of State that you authorize to act on your behalf, may make a verifiable consumer request related to your personal information.In the preceding 12 months, we have not sold Personal Information about consumers.In the preceding 12 months, we have not sold Personal Information about minors.Individual RightsRight to Know About Personal Information Collected, Disclosed, or Sold
You have the right to request that Agilex disclose the Personal Information it collects, uses, and discloses about you to third parties. There are two types of Right to Know requests you can make:
Right of DeletionYou have the right to request that Agilex and our service providers delete any Personal Information about yourself that Agilex has collected from you upon receipt of a verifiable request. This right is subject to exceptions.Right to Opt Out of the Sale of InformationCalifornia Consumers have the right to opt-out of the sale of Personal Information by a business that sells Personal Information. Agilex does not sell any Personal Information of California Consumers.Submitting RequestsYou may submit a request through email at firstname.lastname@example.org or by telephone (toll free) at 1-833-771-0298.Verifying RequestsAgilex provides California Consumers with the ability to submit requests through our request website, our telephone number, and our email address. Agilex must verify that the person requesting information or deletion is the California Consumer about whom the request relates in order to process the request. To verify a California Consumer’s identity, we may request up to up to three pieces of Personal Information about you when you make a request to compare against our records. We cannot respond to your request or provide you with Personal Information if we cannot verify your identity. Making a verifiable consumer request does not require you to create an account with us. We will only use Personal Information provided in your request to verify your identity and will delete any information you provide after processing the request.
Right to Know (Abbreviated Request): If you make a Right to Know (Abbreviated Request), you will receive the following information about you:
- Category of Personal Information collected in the past twelve months,
- Categories of sources from which that information was collected,
- The business or commercial purpose(s) for which the information was collected,
- The categories of third parties with whom Personal Information has been shared, and
- The business or commercial purpose for which Agilex sold or disclosed the category of Personal Information.
Right to Know (Specific Pieces of Information Request): If you make a Right to Know (Specific Pieces of Information Request), you will receive the following information about you:
- Specific pieces of Personal Information collected about you.
This information will be provided to you free of charge, unless Agilex determines that your request is manifestly unfounded or excessive. You may request this information twice in a 12-month period.
- Specific pieces of Personal Information collected about you.
Agilex reserves the right to take additional steps as necessary to verify the identity of California Consumers where we have reason to believe a request is fraudulent.Authorized AgentConsumers may use an authorized agent to submit their request. The authorized agent must be registered with the California Secretary of State and be authorized to submit requests on behalf of a consumer. If you are an authorized agent and a consumer has given you signed permission to submit a request on his or her behalf, please send a copy of your signed permission by the consumer to Agilex. Failure to submit proof of signed permission may result in Agilex denying the consumer’s request. Agilex will require the consumer to verify his or her identity and directly confirm with Agilex that the consumer has provided you with permission to submit the request.Right to Equal ServiceAgilex will not discriminate against you because you exercised any of your rights, including, but not limited to, by:
- Denying goods or services to you.
- Charging different prices or rates for goods or services, including through the use of discounts or other benefits or imposing penalties.
- Providing a different level or quality of goods or services to you.
- Suggesting that you will receive a different price or rate for goods or services or a different level or quality of goods or services.
- Right to Know (Abbreviated Request): If you make a Right to Know (Abbreviated Request), you will receive the following information about you:
QuestionsIf you have any questions about this privacy notice, including any requests to exercise your legal rights, please contact email@example.com.Residents of Germany: We have appointed a local data protection officer in Germany, as required by law. The German data protection officer can be contacted at: DSB-Firmenich@intersoft-consulting.com.