1.1 The following definitions shall apply for these General Business Standards (Sales):
- “Close Relative” shall mean an individual’s spouse, the individual’s and the spouse’s grandparents, parents, siblings, children, nieces, nephews, aunts, uncles, and the spouse of any of these people.
- “Confidential Information” shall mean any information regarding the Agreement (including the pricing of any Deliverables) and/or the business or affairs of Supplier or any member of the Yara Group that would be regarded as confidential by a reasonable business person, including information relating to Supplier’s or any member of the Yara Group’s operations, finances, processes, plans, product information, pricing information, Intellectual Property Rights, trade secrets, software, market opportunities, customers, suppliers or business partners.
- “Explosives Precursors” shall mean such substances and mixtures that are defined or otherwise identified as explosives precursors under applicable Laws.
- “GTCs of Sale” shall mean the General Terms and Conditions of Sale available at https://www.yara.us/legal/terms-and-conditions-of-sale/.
- “HESQ” shall mean health, environment, safety and quality.
- “Intellectual Property Rights” shall mean, without limitation: Supplier’s or any member of the Yara Group’s (i) patent rights; (ii) registered and unregistered designs, copyrights, trademarks, service marks and trade names; (iii) technical know-how and advice and (iv) all other intellectual property rights of any kind wherever and however in the world enforceable.
- “Personal Data” shall mean data from which an individual can, directly or indirectly, be identified, or as otherwise defined under applicable Laws.
- “Public Official” shall mean anyone employed by or acting on behalf of, whether on a full or part time basis, a foreign, federal, national, regional, state or local government; government owned or controlled company or other entity; employees or agents of public international organizations (such as the United Nations, European Union, World Bank and other international development organizations); political parties, political party officials and candidates for public office; and anyone else acting in an official capacity for or on behalf of a government agency or entity, including persons holding a legislative, administrative or judicial post and members of the military and police.
- "Sanctioning Body" shall mean any of the following: (i) the United Nations Security Council; (ii) the European Union; (iii) the Office of Foreign Assets Control of the Department of Treasury of the United States of America; (iv) Global Affairs Canada; and (v) any governmental authority that administers Sanctions in the country which is the domicile of the Supplier or its ultimate holding company, or Customer.
- "Sanctions" shall mean economic or financial sanctions, trade embargoes and restrictions relating to terrorism imposed, administered or enforced by a Sanctioning Body from time to time.
- “Sanctions Event” shall mean the events listed in Section 8.1.
- "Sanctions List" shall mean any list of specifically designated nationals or blocked or sanctioned persons or entities (or similar) imposed, administered or enforced by a Sanctioning Body in connection with Sanctions from time to time.
1.2 Capitalized terms used in these General Business Standards (Sales) but not defined in these General Business Standards (Sales) shall have the meaning ascribed to such terms in the GTCs of Sale.
1.3 For the avoidance of doubt, these General Business Standards (Sales) for all purposes constitute a part of the Agreement, as that term is defined in the GTCs of Sale.
2. LAWS AND REGULATIONS APPLICABLE TO DELIVERABLES
2.1 Customer shall load, unload, transport, export, import, store, handle, use, sell, purchase, transfer and dispose of the Deliverables only in full compliance with all applicable Laws. Customer agrees that the Deliverables will not at any time directly or indirectly be loaded, unloaded, transported, exported, imported, stored, handled, used, sold, purchased, transferred or disposed of in a manner which will result in non-compliance with, or breach or violation of, any applicable Law.
2.2 Customer shall also comply with the instructions set forth in any safety data sheet (including any annexed exposure scenario) which may be provided by Supplier to Customer in relation to the Deliverables.
3. HESQ AND PRODUCT STEWARDSHIP
3.1 Customer shall at all times comply with applicable Laws and good industry standards relating to HESQ and recycling of any packaging, and have a satisfactory system for HESQ assurance and quality assurance suitable for the Deliverables. If Customer or any of its Representatives visit one of Supplier’s facilities, it shall at all times comply with Supplier’s rules and regulations relating to HESQ.
3.2 Customer is aware that chemicals can be a dangerous product when stored or used carelessly or incorrectly. Customer undertakes to become familiar and comply with the warning and safety information relating to the Deliverables and to make certain that anyone who handles or takes possession of such Deliverables is also familiar with the warning and safety information relating to the Deliverables. Customer undertakes to make sure that the Deliverables are properly labeled and that they remain labeled as they were when they were delivered. Further, the Deliverables must be used, handled, stored, mixed and applied only in strict accordance with Supplier’s recommendations, as well as in line with any relevant industry regulations, guidelines and best practices. Customer acknowledges that when delivered in bulk, the nature of such delivery makes it impractical for Supplier to include labels or warnings regarding the use or misuse of the Deliverables and Customer represents that it will include such warnings and labels as are necessary and practical upon any further sale or distribution of the Deliverables.
3.3 Supplier reserves the right for its Representatives to conduct safety walks and/or safety inspections at Customer’s storage facilities for the Deliverables. Such inspections may take place either before or after delivery, and Customer agrees that Supplier may conduct subsequent periodic inspections at a frequency decided by Supplier based on an assessment of the risk potential. Supplier shall notify Customer of its intention to conduct such inspections at least five (5) Business Days in advance. The inspections shall be performed by the Parties together in accordance with Supplier’s safety manuals and procedures. These inspections and any consequent reports are for Supplier’s internal purposes only and shall not relieve Customer of its obligations. However, if Supplier notices a material safety deviation from good industry standard in the storage facilities, its management, or otherwise, Supplier reserves the right to suspend further deliveries to Customer until such deviation has been corrected to Supplier’s satisfaction.
3.4 Information contained in any safety data sheets or conveyed by any recommendation is to the best of Supplier’s knowledge correct and accurate, respectively, on the date of issuance of the relevant safety data sheet and when the recommendation was provided. Any information provided is merely intended to serve as guidelines for the appropriate use, handling and storage of the Deliverables and may not be deemed as a guarantee or indication of quality, or serve as a basis for liability towards Supplier or its Representatives in any way whatsoever.
3.5 Customer acknowledges the Deliverables or certain components of the Deliverables may be deemed to be Explosives Precursors pursuant to Law. Should the Deliverables or any component thereof be subject to such Explosive Precursor Laws, Customer shall: (i) act in accordance with any relevant public authority as required by applicable Laws; (ii) only resell or make Explosives Precursors available to customers with a professional need; (iii) identify dangers and problems that may arise during the handling of Explosives Precursors by conducting a risk assessment for accidents and the risk for the Explosives Precursors going astray (to include both external and internal circumstances); (iv) as a result of the risk assessment, make plans and implement measures to prevent Explosives Precursors from going astray and to prevent accidents; (v) ensure that everyone handling Explosives Precursors have the sufficient knowledge and skills to carry out their tasks in a safe and secure manner; (vi) ensure safe and appropriate storage and record-keeping of their stocks of Explosives Precursors; and (vii) without undue delay, report suspicious transactions or attempts at such transactions, thefts or significant and inexplicable disappearances of Explosives Precursors to the relevant public authority.
4.1 Customer shall not at any time during the term of the Agreement and for a period of five (5) years after termination of the Agreement disclose to any person or entity any Confidential Information disclosed to Customer or any of its Representatives by or on behalf of Supplier or any of its Representatives, except as permitted by Section 4.2.
4.2 Customer may disclose Confidential Information: (i) to its Representatives who need to know such information for the purposes of carrying out Customer’s obligations under the Agreement, provided that Customer takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this Section 4 as though they were a party to the Agreement; and (ii) as may be required by applicable Law, court order or any governmental or regulatory authority. Customer shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this Section 4.
4.3 Customer shall not use any Confidential Information for any purpose other than to perform its obligations under the Agreement.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Supplier reserves all rights in its Intellectual Property Rights. No rights or obligations in respect of Supplier’s Intellectual Property Rights, other than those expressly stated in the Agreement, are granted to Customer or to be implied from the Agreement. In particular, no license is hereby granted directly or indirectly under any Intellectual Property Rights held, made, obtained or licensable by Supplier now or in the future. Unless otherwise agreed by Supplier in writing, Supplier shall retain the exclusive ownership of any (i) amendments or improvements to its existing Intellectual Property Rights and (ii) new Intellectual Property Rights created by the making or delivery of the Deliverables (or otherwise) by Supplier to Customer.
5.2 Customer shall not, without the prior written consent of Supplier: (i) sub-license, transfer or otherwise deal with the rights of use of any Intellectual Property Rights granted under the Agreement; (ii) establish, register and/or adopt visual identities that are using elements from the Intellectual Property Rights (by way of example the square of the logo, the Viking ship, the shields, the font-type, the parts of the name Yara, Viking and Ship); (iii) use the Intellectual Property Rights, alone or in combination or in connection with any company name, trade name or trademark owned or used by Customer or any third party; (iv) alter, deface, make any addition or remove any reference to the Intellectual Property Rights, any reference to Supplier or any other name displayed on the Deliverables or their packaging or labeling; or (v) do, or omit to do, anything in its use of the Intellectual Property Rights that could adversely affect their validity.
5.3 Supplier makes no representation, condition or warranty, either express or implied, (i) as to the validity or enforceability of its Intellectual Property Rights or (ii) to the effect that its Intellectual Property Rights do not infringe any intellectual property rights of any third parties.
5.4 If Customer should notice or become aware of any infringements of Supplier’s Intellectual Property Rights by a third party or any unlawful act prejudicial to Supplier’s interests, Customer shall promptly report the same to Supplier. Customer shall, to the best of its ability and in accordance with any directions given by Supplier, assist Supplier in its protection against any such infringements.
6. DATA PRIVACY
6.1 Customer shall, during the term of the Agreement (i) comply with, and procure that all Representatives comply with, all applicable data privacy Laws in connection with Personal Data and its performance under the Agreement; and (ii) not do, or cause or permit to be done, anything which may cause or otherwise result in a breach by the other party of applicable data privacy laws and regulations.
6.2 Customer permits and authorizes Supplier to collect and process Personal Data pursuant to Supplier’s Data Privacy Directive for Customer, Supplier and Business Partner Data, which can be found on Supplier’s website (https://www.yara.com/globalassets/privacy-policy/yara-data-privacy-policy-for-customer-data.pdf/) or received in hard copy upon request, and any applicable Laws. Supplier may also, as far as is permitted by applicable Law, process Personal Data for the following business purposes: (i) development and improvement of products and/or services; (ii) performance of customer services; (iii) conclusion and execution of agreements; (iv) relationship management and marketing; (v) business process execution, internal management and management reporting; (vi) HESQ; and (vii) compliance with legal obligations. In particular, Supplier may process Personal Data to prepare reports and/or recommendations to Customer about Deliverables which Supplier believes may be of interest to Customer. Customer may opt-out of receiving such reports and/or recommendations by sending an e-mail to email@example.com.
6.3 Customer hereby warrants that: (i) at the time of providing data subjects' Personal Data to Supplier, including any of its former, current or future Representatives, the data subjects have been (or will have been) fully notified as to the purpose for which his or her Personal Data will be used and any required consent of data subjects have been (or will have been) fully and sufficiently obtained or Customer is otherwise entitled to disclose any Personal Data which has been or may be provided to Supplier; and (ii) the relevant Representative has in place (or will have in place) adequate legal basis (e.g. consent where required) under applicable data privacy Laws for the transfer of data subjects’ Personal Data to countries outside the home country of Customer by Supplier, or another member of the Yara Group.
6.4 Customer shall immediately notify Supplier in writing and in any event within two (2) Business Days of (i) becoming aware of any actual or suspected accidental or unauthorized access, disclosure, loss or use of Personal Data; or in the event of any claim or complaint from any data subject of accidental or unauthorized access to Personal Data and/or where there has been an event of non-compliance with applicable data privacy laws or regulations by Customer, whether discovered by Customer or forming the subject of an investigation and/or action by the relevant authorities. Such notification shall include reasonable details of any such actual or suspected accidental or unauthorized access, disclosure, loss or use of Personal Data. Customer shall not use any Personal Data received from Supplier unless necessary for the purpose of this Agreement and shall at all times ensure that appropriate security measures are taken to protect the same from loss, misuse, modification, unauthorized or accidental access or disclosure, alteration or destruction.
7. STANDARDS OF BUSINESS CONDUCT
7.1 Customer shall comply with all applicable Laws relating to the Agreement and/or the Deliverables, and in particular relating to human rights, bribery, corruption, money-laundering, accounting and financial controls and anti-terrorism, including the Code of Conduct for Yara’s Business Partners, which can be found on Supplier’s website (https://www.yara.com/this-is-yara/ethics-and-compliance/policies/code-of-conduct-for-business-partners/) or received in hard copy upon request.
7.2 Customer warrants, agrees and undertakes that in connection with the Agreement it has not and will not make, give, offer, promise or authorize any type of bribes, “facilitation” or “grease” payments by way of improper or illegal payment, gift, advantage or other thing of value, whether directly or indirectly, to any third party.
7.3 Customer represents and warrants that except as otherwise disclosed in writing to Supplier prior to the date of the Agreement, no Public Official or its Close Relatives are presently (i) owning any Controlling interest in Customer (directly or indirectly); (ii) or has a right to any benefit if Supplier enters into the Agreement with Customer.
7.4 Supplier may at any time and at its own cost and upon reasonable notice in writing perform regular integrity due diligence reviews and audits of Customer to ensure compliance with this Section 7. Subject to appropriate confidentiality procedures, Customer shall fully cooperate with Supplier in the performance of any such reviews and audits, and comply with any and all reasonable requests upon reasonable notice in writing for access to facilities, information, individuals and documentation.
7.5 Customer shall ensure that all of its business partners who perform services or provide goods in connection with the Agreement do so only on the basis of a written contract, which imposes on and secures from such persons or entities terms substantially equivalent to those imposed on Customer in this Section 7. Customer shall be responsible for reasonable and appropriate due diligence procedures prior to engaging its business partners in connection with the Agreement, and for monitoring the adherence and performance by such persons or entities of its compliance obligations.
7.6 Notwithstanding any other provision of the Agreement, Supplier may, upon written notice to Customer, (i) suspend delivery of Deliverables if, and for as long as, Supplier reasonably believes that Customer has breached or failed to properly carry out any of its obligations set out in this Section 7; and/or (ii) terminate the Agreement if Customer has breached or failed to properly carry out any of its obligations under this Section 7.
7.7 As agreed from time to time by Supplier, Supplier and Customer shall cooperate in arranging and participating in compliance trainings, seminars and projects at their own cost.
7.8 Customer shall without undue delay report any suspected infringements, breaches or violations of this Section 7 to Supplier.
8.1 Customer represents and warrants to Supplier, on the date of the Agreement, that Customer: (i) is not a person or entity that is named on any Sanctions List or directly or indirectly targeted under any Sanctions; (ii) is not violating any applicable Sanctions; and (iii) has not involved any person or entity mentioned in subsection (i) above in connection with the negotiation of, entry into or performance of the Agreement.
8.2 If a Sanctions Event occurs after the date of the Agreement and before the later of expiry or termination of the Agreement and the date that all obligations under the Agreement are fully and finally discharged: (i) Customer shall promptly notify Supplier in writing with full details of the Sanctions Event together with, following any request from Supplier for it to do so, any other information reasonably requested by Supplier; (ii) Customer shall continue to use all reasonable efforts to resolve, and shall keep Supplier informed of developments with respect to, the Sanctions Event; (iii) without limiting subsection (iv) below, Supplier may at any time during which the Sanctions Event is continuing, suspend performance of the Agreement by notice to Customer (and Supplier shall not be liable for non-performance of any of its obligations during the period of suspension); and (iv) Supplier may, at any time during which the Sanctions Event is continuing, terminate the Agreement by notice to Customer (and such termination shall be without further liability to Supplier but shall not affect liabilities of Customer which accrued prior to the date of suspension or termination and which are lawful for Customer to discharge as at the date of termination).
9. DIFFERENT AGREEMENTS ON TITLE
9.1 If the Parties expressly agree in writing that title to Deliverables shall pass to Customer at a time later than the delivery of the Deliverables, until title has passed from Supplier to Customer, Customer shall (i) store such Deliverables separately from all other Deliverables (to the extent possible depending on the characteristics of the Deliverables) held by Customer so that they remain readily identifiable as Supplier’s property; (ii) not pledge or encumber the Deliverables wholly or partly; (iii) maintain and store such Deliverables in satisfactory conditions; (iv) return the Deliverables to Supplier upon request; (v) keep the Deliverables insured on Supplier’s behalf for their full price against all risks, all at Customer’s own cost; (vi) at the request of Supplier, assist Supplier in taking any measures necessary to protect Supplier’s title in the Deliverables, including filing a Uniform Commercial Code (UCC) Financing Statement over goods and executing financing statements or other documentation evidencing Supplier’s title to such Deliverables. Customer grants to Supplier an irrevocable license for the Supplier and its Representatives to enter any premises where Deliverables owned by Supplier are normally stored to ascertain whether any Deliverables are stored there and to inspect, count and recover them.
9.2 If the Parties expressly agree in writing that title to Deliverables shall pass to Customer at a time later than the delivery of the Deliverables, until title has passed from Supplier to Customer, Customer may only resell the Deliverables to a third party and pass title to that third party on the following terms: (i) the sale is in the ordinary course of Customer's business; and (ii) Customer holds the proceeds of any resale in trust for Supplier.
9.3 If the Parties expressly agree in writing that title to Deliverables shall pass to Customer at a time later than the delivery of the Deliverables, until title has passed from Supplier to Customer, Customer may only process, (i.e. mix or blend) the Deliverables on the following terms: (i) the processing is in the ordinary course of Customer's business; (ii) Supplier and Customer become co-owners of the processed goods proportionately with the input provided; and (iii) Customer holds the jointly owned goods or the proceeds of any sale of such jointly owned goods in trust for the Parties at no expense for Supplier.