TRONOX FRANCE SAS
Definitions
1. In these Terms and Conditions for Sales (“the agreement”):-
1.1 “Company” means the purchaser of Tronox goods;
1.2 “the delivery dates” means the dates upon which Tronox is required to deliver or the Company is required to collect the goods as set out in the order confirmation and/or in accordance with the relevant Incoterms 2020;
1.3 “developmental product samples” means limited quantities of developmental and/or non-commercialised products made available to the Company by Tronox for assessment of the viability of the developmental samples in the Company’s processes;
1.4 “surcharge adjustments” means any and/or all of (i) exceptional road or ocean freight increased costs that may be applicable to the delivery of the goods, (ii) exceptional energy cost increases, or (iii) new regulatory compliance costs that may have arisen after the order confirmation shall have been given.
1.5 “the goods” means the quality and quantity of the Tronox product/s forming part of the standard product offering of Tronox that are purchased by the Company;
1.6 “order” means individually each and every request from the Company to purchase Tronox goods.
1.7 “order confirmation” means individually each and every acceptance of an order or offer document received by Tronox from the Company confirming that Tronox will supply product/s to the Company. The purchase order will also set out the prices (excluding value added tax (“VAT”) as well as the packaging requirements, delivery charges, or delivery instructions, if applicable;
1.8 “price/s” means the price/s for the goods as set out in the order confirmation which shall be exclusive of VAT and any import taxes;
1.9 specifications” the publicly available specifications for Tronox goods read together with the certificate of analysis accompanying any goods.
1.10 “Tronox” means any Tronox France SAS.
Orders and Order Confirmations
2 The terms and conditions of sale contained in this agreement will supersede all of the Company’s terms and conditions.
3 Tronox shall notify the Company within ten days of the receipt of any order or enquiry, by means of an emailed order confirmation that it accepts the order. A binding agreement of sale shall immediately come into force upon the issue of an order confirmation by Tronox, subject only to surcharge adjustments, provided that the imposition of the surcharge adjustments are beyond Tronox’s reasonable control. Where such adjustment materially affects the commercial balance of the order, the parties shall in good faith discuss and agree an appropriate pricing change in respect of the order/s affected by the relevant surcharge adjustment.
4 An order will only be capable of alteration without charge (other than in respect of the price payable for additional goods or the surcharge adjustment) until five days prior to the delivery date/s as set out in the order confirmation. Any request to alter the order outside of this time period will be subject to an administrative fee and to the extent that additional goods are required, Tronox will be entitled to additional delivery time for the additional product.
5 The mode of delivery shall be as set out in the Order Confirmation. The Company shall have five days from the date of delivery to notify Tronox in writing of any damaged pallets or packaging, failing which the goods will be deemed to have been received in good order and without obvious physical damage.
6 In the event that any order confirmation is issued with reference to an existing supply agreement between the Company and Tronox, these terms and conditions shall be superseded by those of said supply agreement.
Developmental Products and Samples
7 In the event that the Company purchases or receives any developmental product samples, it is recorded and agreed that such developmental product samples are supplied strictly on an experimental and non-commercial basis, without any warranties or representations of any kind.
8 To the maximum extent permitted by applicable law, the Company assumes all risks arising from the use of such developmental product samples and shall indemnify and hold Tronox harmless from and against all losses, damages, liabilities, costs and expenses arising from or in connection with the use of such developmental product samples by the Company, except to the extent caused by Tronox’s wilful misconduct or fraud.
9 Tronox gives no undertaking that any developmental product samples will be available for future supply.
Professional User – Information, Safety and Use of Products
10 The Company acknowledges and agrees that it is a professional acting in the ordinary course of its business and that it possesses the technical knowledge, experience, personnel and resources required to assess, handle, store, process, integrate and use the Products safely and in accordance with applicable laws, regulations, industry standards and good professional practice.
11 The Company further acknowledges that the Products are intended for professional use only and may present inherent or specific risks when improperly handled or used outside their intended purpose. Tronox has provided, or made available, all safety information, technical data, instructions for use and other documentation normally required for such Products, including where applicable safety data sheets and regulatory information.
12 The Company undertakes to:
(a) comply with all applicable health, safety and environmental laws and regulations;
(b) ensure that any personnel, contractors or third parties involved in the handling or use of the Products are adequately trained and informed of the relevant risks and safety measures; and
(c) pass on all necessary warnings, instructions and safety information to any downstream users or recipients of the Products.
13 Nothing in this clause shall exclude or limit the Seller’s liability to the extent such liability may not be excluded or limited under applicable law, including liability arising from defective products or mandatory safety obligations.
Payment
14 Unless otherwise agreed in writing, payment of the price for the goods shall be due and payable no later than 30 days calculated from the date of invoice. Risk in and to the goods shall (unless otherwise agreed in writing) pass to the Company on delivery/relevant Incoterm 2020. Ownership and title in and to the goods shall only pass to the Company on payment in full and to the exclusion of the Incoterm 2020 provisions.
15 Without prejudice to any other rights, Tronox shall be entitled, upon written notice to the Company, to suspend delivery of the goods or require advance payment, security or other financial assurances in form and substance satisfactory to Tronox if:
(a) the Company fails to make any payment when due;
(b) Tronox reasonably believes that the Company’s creditworthiness has deteriorated; or
(c) the Company becomes insolvent, enters business rescue, or takes any steps towards liquidation or compromise with creditors.
16 In addition, Tronox shall be entitled to immediately terminate this Agreement and any purchase order that has not been delivered by written notice to the Company in the event that the Company becomes insolvent, enters business rescue or takes any steps towards liquidation or compromise with creditors.
Goods Warranty
17 Tronox warrants that the goods comply with the specifications and certificate of analysis. Tronox provides no other warranties whether express or implied and in particular does not warrant that the goods are fit for any particular purpose. In the event that the goods do not meet the specification, Tronox shall at its election be entitled to (i) collect and replace the non-conforming goods at its cost, (ii) issue a credit note without collection of the non-conforming goods or (iii) if the goods are still usable, reduce the purchase price/s payable.
18 Any and all claims relating to the quality of the goods must be brought to the attention of Tronox in writing by no later than 30 days following the delivery date together with evidence that the goods have been stored and handled in accordance with Tronox instructions failing which such claims shall be barred.
Breach
19 Either party shall have the right to claim damages which may be suffered as a result of any breach of this agreement.
20 To the maximum extent permitted by applicable law, neither party shall under any circumstances be liable to the other party for any indirect or consequential damages, including but not limited to loss of profit, loss of business, or pure economic loss.
21 Subject always to the foregoing, the total aggregate liability of either party arising out of or in connection with this agreement, whether in contract, tort (including negligence) or otherwise, shall not exceed the total purchase price payable under the relevant order confirmation.
22 Nothing in this agreement shall exclude or limit liability which cannot lawfully be excluded or limited under applicable mandatory law.
23 Without prejudice to any of a party’s common law rights and/or the provisions of any applicable Civil Code, if a party commits a breach of this agreement and should such breach be:
23.1 capable of being remedied and that party fails to remedy such breach within 5 (five) days of receiving a written notice from the other party to do so; or
23.2 incapable of remedy, or if the other party is at any time liquidated, whether provisionally or finally or placed under business rescue, or compromises or attempts to record a compromise with creditors, or if any civil or criminal court judgements are against its name which materially create reputational or other risk to the other party, the non-breaching party shall each be entitled (without prejudice to any other rights which it may have) to cancel the agreement by notice and/or (i) claim specific performance, and/or (ii) to claim damages from the breaching party.
24 Nothing in this clause 19 shall prevent or restrict a party from applying for urgent mandatory relief.
25 In the event of a breach of the agreement between the parties, in addition to any other liability contemplated in that agreement or these terms and conditions, the breaching party shall be liable to the non-breaching party for all legal costs, including collection commission, tracing charges and costs on the scale as between attorney and client.
No Partnership or Agency or Distributor Relationship Created
26 The parties agree that any purchase of goods in terms of these terms and conditions does not form a partnership, agency or employment agreement between them. There are no joint and several liabilities on the part of either party and each party shall be liable for those obligations provided for in this agreement. Neither party shall act on behalf of or bind the other party or represent that their relationship is a partnership or other legal entity.
27 The company shall inform Tronox of any situation or relationship vis-à-vis any Tronox official/s that may reasonably construed as a conflict of interest.
Compliance with all laws and anti-corruption
28 Both parties shall, at all times, and at its own expense comply with all applicable laws, regulations, bylaws and requirements of local and other authorities and all relevant policies of Tronox regarding the goods and the point of delivery.
29 It is recorded that none of the goods sold in terms of these general terms and conditions are subject to additional labelling requirements under the CLP.
30 Tronox is committed to the highest standards of honesty, integrity and fairness and have a zero tolerance for the commissioning or concealment of fraudulent acts by employees, contractors or suppliers. Any act or consideration of any kind as an inducement or reward for doing or refraining from doing, in relation to the obtaining or execution of a purchase order, tender or agreement by employees, contractors or suppliers will be viewed as a fraudulent act. Suppliers can report any fraudulent acts, within the Tronox operations, through the Tronox hotline number: 0805.080339 (France), 0.800.022.0441 (Netherlands) or via the online portal or www.tronox.com/speakup.
31 By acceptance of the goods, and to the extent applicable the Company represents and warrants that it will comply with (a) the Regulation 1907/2006 of 18 December 2006 as amended concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”) and UK REACH and all applicable laws relating to the storage, use, handling, processing, resale or export of the goods regarding all substances in the goods where they are used or manufactured in or imported in to the European Economic Area (or elsewhere) and (b) all applicable laws and regulations in any jurisdiction relating to or impacting on the purchase and/or use of the goods and performance of this agreement.
32 Tronox warrants that where required under applicable law, the substances contained in the goods have been registered in accordance with REACH for the uses set out in the REACH dossier and the safety data sheets and product information provided by Tronox. Tronox shall have no responsibility for any use not expressly communicated or for any downstream obligations of the Company.
Confidentiality
33 Both parties shall keep confidential any information of, or relating to the other party, or any person which the other party is in any way associated with, including, without limitation, any of such party’s or potential parties, or their operations or affairs, which it has acquired or may acquire and no such information shall be published or in any way disseminated without the prior written consent of the disclosing party.
34 The confidentiality undertakings contained in this Agreement come into force on the issue of the order confirmation and will remain in force for a period of 10 years following the delivery of the goods or the termination of the Agreement, whichever occurs last.
Reciprocal Warranties
35 Both parties warrant, represent and undertake that: (i) it has been duly authorised to enter into the agreement to which these terms and conditions apply and to perform its obligations under that agreement; (ii) no third party’s rights will be infringed due to the conclusion or implementation of the agreement by it; (iii) no license fees, levies, penalties, charges or the like may be claimed from the other party arising from the use by it of the goods other that those expressly provided for; (iv) in the event that the goods are or include software, the software does not contain any bugs or malware that could cause Tronox’s systems to malfunction; (v) it has the necessary licenses, consents, authority and permission to perform under the agreement.
36 Tronox shall have no liability for any direct or third party claims of intellectual property infringement arising from the use of the goods in combination with other products, processes or materials not supplied by Tronox, or from use of the goods other than in accordance with Tronox’s specifications or instructions.
Force Majeure
37 Neither party shall be liable to perform in the event that it is unable, by reason of its inability to secure labour, materials, power or supplies, due to an act of God, war, civil disturbances, riot, state of emergency, strike, lockout or other labour dispute, fire, flood, drought or legislation.
The suffering party is obliged to immediately inform the other party in writing of the occurrence of any such an event and the possible duration thereof.
General
38 This agreement is to be interpreted and construed in accordance with the laws of France. The parties agree that any dispute which cannot be resolved between the parties amicably in terms of this agreement shall be referred to (i) mediation before a commercial mediator and failing which (ii) arbitration before the ICC and in accordance with the ICC Rules. The mediation/arbitration shall be conducted in Paris, France.
39 Failure of either party to require strict performance of any provision of this agreement, or such party’s forbearance to exercise any right, shall not be deemed a waiver by or prejudice of such party of its right to require strict performance or exercise such right in the future. No latitude, indulgence, consent or forbearance or any other similar act by either party in enforcing any provisions of this agreement shall constitute a variation or novation of this agreement or a waiver of rights or estoppel in terms of this agreement.
40 The Company shall not cede, assign, sublet or make over this agreement or any part thereof or any of its rights, benefits, duties or obligations hereunder to any other person without the written consent of Tronox.
41 In the event that any of the terms of this agreement are found to be invalid, unlawful or unenforceable, such terms will be severable from the remaining terms, which will continue to be valid and enforceable.
Privacy
42 It is recorded that Tronox (Data Controller) is subject to the provisions of the General Data Protection Regulation. The Data Controller values the Company’s privacy and undertakes to maintain the integrity and security of any and all Personal and Sensitive Data provided by the Company (Data Subject) to the Data Controller. By accepting any purchase order the Data Subject agrees (i) that the Data Controller may collect, use, process, transfer and store such personal information submitted by the Data Subject as may be required for purposes of the agreement. The full details of the Data Controller’s privacy policy may be accessed at www.tronox.com/privacy; (ii) in the course of conducting business with the Data Subject, the Data Controller intends to maintain and process data about the Data Subject in an internal data base and the Data Subject consents to the maintenance and processing of such data.
43 Save as otherwise agreed in writing, this agreement represents the sole agreement between the parties as to the sale of goods contemplated herein and applies to the exclusion of any other terms and conditions whether oral or in writing. In no event shall this agreement be modified, unless agreed to in writing and signed by both parties.
Domicilium
44 The Company chooses its domicilium citandi et executandi for all purposes their address as communicated to Tronox in writing in the order.
45 Tronox chooses its domicilium citandi et executandi for all purposes as the address from which the goods sold in terms of these terms and conditions emanate.
46 Prohibition on Export / Re-export into Russia Federation or Russian Federation held Territories
47 It is expressly recorded and agreed that no Goods purchased by the Company shall be exported or re-exported by the Company into the Russian Federation or any Russian Federation.
48 The Company shall use its best efforts to ensure that the purpose of paragraph 23 is not frustrated by third parties further down the commercial supply chain, including by possible resellers.
49 The Company shall establish and maintain an adequate monitoring mechanism to detect any activities by third parties that have or may have the effect of avoiding or circumventing the prohibition contained herein.
50 Any violation of the prohibitions on export or re-export into Russia or the Russian Federation held territories will constitute a material breach of this agreement and Tronox will be entitled to seek such remedies as may be available to it in law.
51 The Company shall immediately inform Tronox of any challenges in applying the provisions of the prohibition contained in this clause and provide all reasonable and necessary information to demonstrate its attempted compliance within 2 weeks of a written request to that effect from Tronox.