CPL AROMAS INC. TERMS AND CONDITIONS OF SALE
1.1 In these Terms and Conditions, the following expressions shall have the following meanings except where the context otherwise requires;
Business Day: a day upon which banks in the City of New York are open for the transaction of normal business.
Company or CPL: CPL Aromas Inc., a New York corporation.
Contract: any agreement between the Company and the Customer for the sale and purchase of the Products incorporating these Terms and Conditions.
Customer: any person, firm or company who purchases the Products from the Company.
Delivery Note: the document produced either by the Company or by its appointed agent for carriage in relation to Products custody of which is given to the Customer at the Delivery Point.
Delivery Point: the location specified on the Order and which has been accepted by CPL in the Order Acknowledgment.
Expenses: any out-of-pocket costs directly or indirectly incurred by CPL in connection with the fulfilment of an Order, including (without limitation):
(a) postage, packaging, carriage, freight, storage and handling charges each as specifically set out on the Order Acknowledgment;
(b) insurance premiums or other costs (if any) as set out on the Order Acknowledgement;
(c) the cost of converting any non US currency into US dollars;
(d) banking charges applicable to the payment method or system used by the Customer;
(e) taxes of any nature, including sales, use, excise or value added taxes and any other similar taxes and charges of any kind imposed on any amounts payable by Customer, other than taxes based on the Company’s income, revenue, gross receipts, personnel or real or personal property or other assets; and
(f) any customs, import or other similar duties charged in respect of the sale and importation of Products into the country in which the Customer is resident or the Delivery Point is located.
Invoice: any invoice, bill of sale, request for payment or other similar document issued by the Company relating to Products (which shall include the amount of all Expenses).
Order: an order in writing (including but not limited to fax and email), sent by the Customer to the Company, requesting the supply of Products or confirming an oral order for Products, which is accepted by the Company in accordance with paragraph 2.
Order Acknowledgment: an order acknowledgement document, sent by the Company to the Customer, agreeing to fulfil the Order and identifying the relevant Order by its reference identifier.
Prices: the prices for the Products charged by the Company from time to time (but excluding any Expenses).
Products: any goods agreed to be supplied to the Customer by the Company (including any part of them).
Specification: the specification of the Products set out in the product specification and data sheet (if any) attached to the Order Acknowledgment and any other specification agreed in writing between CPL and the Customer from time to time.
Terms and Conditions: the contractual terms and conditions evidenced by this document as amended from time to time in writing.
1.2 Any reference to a statutory provision is to that provision as amended or re-enacted from time to time;
1.3 References to these Terms and Conditions is a reference to them as amended or supplemented from time to time;
1.4 The headings used in these Terms and Conditions are for convenience only and do not affect their import or interpretation;
1.5 Words importing the singular number shall include the plural and vice versa;
1.6 References to “in writing” or any similar expression includes a reference to any communication effected by electronic or facsimile transmission or similar means;
2 ORDER AND ACKNOWLEDGEMENT PROCESS; CANCELLATION AND INDEMNIFICATION
2.1 When the Customer wishes to place an order for Products, it shall send an Order to CPL.
2.2 Each Order shall constitute an offer by the Customer to purchase Products from the Company at the Prices then prevailing and otherwise on the basis of these Terms and Conditions. For the avoidance of any doubt, the placing of an Order shall constitute the Customer’s irrevocable acceptance of these Terms and Conditions and its confirmation that no other terms and conditions whether written or oral shall apply in respect of the Order. The Customer shall ensure that the terms of its Order and any applicable Specification are complete, accurate and suitable for its intended purposes.
2.3 No Order shall be deemed accepted by the Company unless and until:
2.3.1 the Company has received a completed application form from the Customer (where the Company requires an account to be opened) and has offered the Customer a pro-forma account; and
2.3.2 an Order Acknowledgment is issued by the Company or (if earlier) the Company delivers the Products to the Customer.
2.3.3 CPL may, at its sole discretion, accept amendments to an Order prior to delivery of the Products after acceptance and it reserves the right to charge the Customer for administrative costs and alter Prices accordingly.
2.4 CPL shall arrange delivery of the Products to the Delivery Point.
2.5 Subject to paragraph 2.6, any contract between the Company and the Customer shall be on the basis of these Terms and Conditions only.
2.6 These Terms and Conditions apply to all sales of Products and any variation to these conditions shall have no effect unless expressly agreed in writing and signed on behalf of the Company and the Customer. The Customer acknowledges that it has not relied on any statement, promise or representation express or implied made or given by or on behalf of the Company which is not set out in writing and signed on behalf of the Company and the Customer.
2.7 Any quotation in relation to Prices which may be given either orally or in writing shall only be valid if it is confirmed in an Order Acknowledgment or where no Order Acknowledgment has been issued, by delivery of the Products to the Delivery Point. Any quotation will be valid for a period of 90 Business Days from the date of issue, unless withdrawn or amended by the Company during that time.
2.8 If a Customer wishes to cancel an Order, it shall notify the Company immediately in writing. In the event that the Company accepts the cancellation it shall so notify the Customer in writing. The Customer hereby agrees to indemnify and keep indemnified the Company against all costs claims losses (including loss of profit) liabilities and Expenses of any nature whatsoever which it may suffer or incur directly or indirectly as a result of the Customer cancelling the Order.
3 DESCRIPTION AND SPECIFICATION OF THE PRODUCTS; LIMITED WARRANTY
3.1The Customer shall be solely responsible for testing samples of Products (including combinations thereof) to ascertain their suitability for use in its own products prior to placing an order for any such Products. The Company accepts no responsibility for and makes no representation or warranty in respect of its Products other than as set out herein and will accept no responsibility to the Customer or any third party for any loss suffered by any of them as a result of the Customers failure to carry out any or adequate testing.
3.2 Subject to paragraph 4.6, the Company warrants that any Products delivered to a Customer are consistent with any samples of that Product previously supplied to that Customer and where applicable conform in all material respects to the Specification. EXCEPT FOR THE WARRANTY SET FORTH ABOVE, THE COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE SPECIFICALLY DISCLAIMED. THE COMPANY'S LIABILITY FOR BREACH OF WARRANTY IS AS STATED IN PARAGRAPH 4 AND IS THE EXCLUSIVE REMEDY OF CUSTOMER FOR BREACH OF WARRANTY.
3.3 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Products described in them. No warranty express or implied is given in respect of them and no part of such material forms or shall be deemed to form part of the Specification.
3.4 The Company reserves the right to make any changes in the any Specification which are required to conform to any applicable statutory or regulatory requirements.
3.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, Offer Acknowledgement or invoice or other documentation or information issued by the Company shall be subject to correction without any liability on the part of the Company.
4 DELIVERY OF THE PRODUCTS AND PRODUCT DEFECTS
4.1 The Company shall be deemed to have fulfilled its contractual obligations in respect of each delivery provided that the quantity actually delivered is no greater than 5% more or less than the quantity specified on the Order Acknowledgement or, where no Order Acknowledgement has been issued, the Order. Provided that the Company has complied with this paragraph 4.1, the Customer shall pay for the actual quantity of Product delivered.
4.2 Delivery of the Products shall take place at the Delivery Point. Acceptance of any change to the Delivery Point requested by the Customer shall be at the Company’s sole discretion and the Customer shall be liable for any additional Expenses incurred by the Company as a result of such change. The Company shall arrange for suitable transport to the Delivery Point. On completion of delivery the Company (or its appointed agent) shall provide the Customer with a Delivery Note.
4.3 Delivery or performance dates in relation to the supply of Products are approximate only and, unless otherwise expressly stated in the Order of Acknowledgement, time is not of the essence for delivery of the Products.
4.4 The Company shall have absolute discretion in relation to the mode and frequency of effecting delivery and may do so in one or more instalments, without liability or penalty. Each instalment shall constitute part performance of the Order, and the Customer shall not be entitled to cancel or terminate or repudiate the Contract relating to the Order by virtue of the Company exercising its rights under this paragraph 4.4. Without limiting the foregoing, the Customer shall pay for the units shipped whether in whole or part performance. No delay in the delivery of Products shall entitle the Customer to terminate or rescind any Order unless such delay exceeds 180 days from the later of the date of the Order or the date of the relevant Order Acknowledgement, in which case Customer may cancel its Order for any undelivered Products, which cancellation shall be Customer’s sole and exclusive remedy for such delay.
4.5 The Customer shall inspect the Products upon arrival at the Delivery Point. Customer will be deemed to have accepted the Products, and to have waived any claim that the Products delivered do not comply with the warranty referred to in paragraph 3.2 and which was or should have been apparent on such inspection, unless the Customer delivers written notice of non-conformity or other breach of warranty within five Business Days of the arrival of such Product(s) at the Delivery Point. No Products may be returned to the Company without its written consent. Subject thereto, any Products returned which the Company is satisfied were supplied and which did not comply with the warranty referred to in paragraph 3.2 shall either be replaced free of charge or, at the Company’s sole discretion, the Customer shall have refund or credit of the Price or the relevant proportion thereof, which shall be the exclusive remedy of the Customer for any breach of warranty.
4.6 Notwithstanding paragraphs 3.1 and 3.2, the Company shall be under no liability in respect of any defect in the Products which arises wholly or partly from normal deterioration due to age or from failure to store or handle the same in accordance with the Company’s written recommendations nor from any wilful damage, negligence, exposure to abnormal conditions, misuse or alteration by the Customer its agents, employees or subcontractors.
4.7 If the Customer fails to give notice as specified in paragraph 4.5, the Products shall be deemed to comply for all purposes with the warranty referred to in paragraph 3.2 at the time of delivery and, accordingly, the Customer shall be treated as having accepted the delivery of the same and waived any right to reject the same. Save in accordance with paragraphs 3.1 and 3.2, and subject always to paragraph 4.6, the Company shall have no further liability to the Customer with respect to those Products.
4.8 If following the period of five Business Days referred to in paragraph 4.5 the Customer wishes to allege that any Products do not comply with the warranty referred to in paragraph 3.2 due to the fact such defect was not apparent upon inspection in accordance with paragraph 4.5, it shall do so in writing setting out in detail the reasons for its contention. If so requested by the Company, it shall (at its own risk and expense) return such of the relevant Products that remain in its possession in their original state to the Company and shall further provide all such further information as the Company shall reasonably require in order to assess its claim. Notwithstanding the foregoing, any such claims for breach of warranty must be brought within 90 days of delivery, after which 90-day period the warranty will expire.
4.9 The Company’s decision as to whether the Products comply with the warranty referred to in paragraph 3.2 shall be final. The provisions of paragraphs 4.5 and 4.6 apply, mutatis mutandis, in respect of any decision made by the Company pursuant to this paragraph.
4.10 If for any reason the Customer fails to accept delivery of any of the Products within three Business Days of having been notified by the Company or its appointed agent for carriage that they are ready for delivery, or if the Company is unable to deliver or procure delivery of the Products on time because the Customer has not provided appropriate instructions, facilities, documents, licences or authorisations:
4.10.1 risk of loss in the Products shall pass to the Customer (including for loss or damage caused by the Company's negligence);
4.10.2 the Products shall be deemed to have been delivered; and
4.10.3 the Company may store the Products until the date that delivery is effected as it in its absolute discretion sees fit and without liability to the Customer, whereupon the Customer shall be liable for all related costs and Expenses (including, without limitation, storage and insurance) incurred by the Company in connection therewith.
4.10.4 in the event a period of 10 Business Days has elapsed following the failure by the Customer to accept delivery of the Products, the Company shall have the power (but not the obligation) to sell the Products for the account of the Customer and apply the proceeds of sale in diminution of any amount due to the Company from the Customer whether in respect of the Price of the Products or in respect of any other amounts whatsoever due to the Company from the Customer but without prejudice to the Company’s right to pursue the Customer in respect of any sums due and owing pursuant to these Terms and Conditions.
4.11 The Company shall have the right to suspend or cancel all further deliveries in respect of any Order or to refuse to accept further Orders from the Customer in the event that the Customer has not paid when due any sums owing to the Company pursuant to these Terms and Conditions.
5 IMPORT AND EXPORT LICENCES
The Customer shall obtain, at its own cost, all such licences, permissions and consents (including but not limited to import and export licences) in relation to the purchase and delivery of the Products as are required from time to time. If required by the Company, the Customer shall make those licences and consents available to it prior to the Company affecting the relevant delivery of Products.
6.1 The Customer shall pay the Company for the Products in accordance with the provisions of this paragraph 6.
6.2 Prices may be varied from time to time by the Company on giving notice to the Customer in writing. The price applicable to each Order shall be either:-
6.2.1 the Prices for the Products as advised to the Customer on the Order Acknowledgment; or
6.2.2 in the absence of an Order Acknowledgement, the Prices in any valid quotation given pursuant to paragraph 2.7: or
6.2.3 in any other case, the Company’s advertised Prices.
6.3 The Company shall subject to the other provisions of these Terms and Conditions invoice the Customer for all Orders when delivered together with all Expenses.
6.4 All Invoices claims for Expenses and any other amounts of money referred to in these Terms and Conditions shall be interpreted as being amounts exclusive of taxes of any nature, including sales, use, excise or value added taxes and any other similar taxes and charges of any kind imposed on any amounts payable by Customer, other than taxes based on the Company’s income, revenue, gross receipts, personnel or real or personal property or other assets. Any such tax payable in relation to any such amounts shall be paid in addition to those amounts. If the Customer is required under any applicable law to withhold or deduct any amount from the payments due to the Company, the Customer shall increase the sum it pays to the Company by the amount necessary to leave the Company with an amount equal to the sum it would have received if no such withholdings or deductions had been made.
6.5 The time for payment shall be of the essence and no payment shall be deemed to have been made until the Company has received payment in cleared funds.
6.6 If the Customer does not make payment on or before the date on which it is due interest shall be payable on the overdue amount at the rate of 1.5% per month or such lesser amount as is the maximum rate of interest allowed by law. Interest shall be payable at this rate both before and after any judgment is made against the Customer until the date on which payment in cleared funds is received in full, including all accrued interest. Customer shall pay any and all reasonable costs, including attorneys’ fees, incurred by the Company while collecting any delinquent balance.
6.7 Subject to paragraph 6.4, the Customer shall make all payments due without any deduction by way of set-off, counterclaim, discount or otherwise.
7 DELIVERIES; TITLE AND RISK OF LOSS AND OWNERSHIP
7.1 The Company shall deliver the Products to Customer at the Delivery Point. Title and risk of loss for the Products shall pass to the Customer once they have been delivered as aforesaid. As collateral security for the payment of the purchase price of the Products, Customer hereby grants to the Company a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New York Uniform Commercial Code.
7.2 Until payment in full, the Customer shall ensure that:
7.2.1 the Products shall be adequately stored and maintained in a satisfactory condition; and
7.2.2 each Product shall at Customer’s sole expense be insured with financially sound reputable insurers for an amount at least equal to its Price. Upon the Company’s request, the Customer shall provide the Company with a certificate of insurance from the Customer’s insurer evidencing the insurance coverage specified in these Terms and Conditions. The Customer shall provide the Company with 30 days' advance written notice in the event of a cancellation or material change in the Company's insurance policy. Except where prohibited by law, the Customer shall require its insurer to waive all rights of subrogation against the Company's insurers and the Company.
7.3 The following shall be considered a default entitling the Company to all rights of a secured creditor:
7.3.1 the Customer becomes insolvent, files a petition for bankruptcy or commences, has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors or significantly curtails its business or operations; or
7.3.2 the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract (including payment obligations) or any other contract between the Company and the Customer; or
7.3.3 the Customer encumbers or in any way permits any lien to encumber any of the Products.
7.4The Customer grants the Company, its agents and employees an irrevocable right and licence at any time until payment for the Products is made in full to enter any premises where the Products are or may be stored in order to inspect them, or, upon a default, to recover them.
7.5Where the Company is unable to determine whether any Products are the goods in respect of which the Customer' has defaulted, the Customer shall be deemed to have sold all goods of the kind sold by the Company to the Customer in the order in which they were invoiced to the Customer.
7.6 The Company’s rights hereunder shall survive expiration or earlier termination of the Contract.
The Company may, immediately on giving written notice to the Customer elect to alter the specification of any of the Products and should it so do the warranty in paragraph 3.2 shall be deemed amended accordingly. The Customer shall have the right to cancel Orders or part of an Order where a Product has been varied in accordance with this paragraph save where such alteration has been made by the Company to comply with any law or regulation in relation to such Product.
9.1 The Company and the Customer reciprocally undertake to keep confidential all information (written or oral) concerning the business and affairs of the other which they have obtained or received other than that which.
9.1.1 They are required to disclose under law, or by order of a court or competent regulatory authority; or
9.1.2 Is already in their possession other than as a result of a breach of this paragraph 9; or
9.1.3 Is in the public domain other than as a result of a breach of this paragraph 9.
10 FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel Orders or reduce the volume of the Products ordered by the Customer without liability if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that, if the event in question continues for a continuous period in excess of 180 days, the Customer shall be entitled to give notice in writing to the Company to terminating any Orders outstanding and unperformed in whole or in part.
11 LIMITATION OF LIABILITY
11.1 Subject to paragraphs 3 and 4, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer in respect of:
11.1.1 Any breach of these Terms and Conditions;
11.1.2 Any use made or resale by the Customer of any of the Products, or of any product incorporating any of the Products; and
11.1.3 Any representation, statement or tortious act or omission including negligence arising under or in connection with these Terms and Conditions.
11.2 All warranties, conditions and other terms implied by statute or common law.
11.3 Nothing in these conditions excludes or limits the liability of the Company:
11.3.1 for death or bodily injury caused by the Company's negligence; or
11.3.2 for gross negligence or wilful misconduct.
11.4 Subject to paragraphs 11.2 and 11.3:
11.4.1 the Company's total liability to Customer hereunder for any cause whatsoever, and regardless of the form of action, whether in contract or tort (including but not limited to negligence), arising in connection with the performance or contemplated performance of any Order incorporating these Terms and Conditions shall be limited to the aggregate Price of the Products the subject of an Order; and
11.5 The Company shall not be liable to the Customer for any of the following losses or damages, even if the Company is advised in advance of the possibility of any such losses or damages:
11.5.1 any indirect, special, incidental or consequential loss or damage; or
11.5.2 loss of data or other equipment or property; or
11.5.3 economic loss or damage; or
11.5.4 loss or damage of any nature whatsoever suffered by third parties (including in each case incidental and punitive damages); or
11.5.5 any loss of actual or anticipated profit, interest, revenue, anticipated savings or business or damage to goodwill.
11.6 The Company shall not be liable for any losses arising from the Customer's subsequent use or misuse of the Products including (without limitation):
11.6.1 wilful damage;
11.6.2 the Customer's negligence, or that of its agents or employees, or any failure to follow the Company’s instructions as to use of the Products;
11.6.3 abnormal working conditions beyond those (if any) referred to in the Specification or otherwise mandated in writing by the Company; and
11.6.4 any alteration of the Products.
11.7 The Company shall not be liable for any breach of warranty unless such breach is notified in accordance with paragraph 3 and paragraph 4 of these Terms and Conditions, and then the Company shall be liable solely to the extent provided therein.
11.8 The Company shall not be liable for:
11.8.1 non-delivery, unless the Customer notifies CPL of the claim within five Business Days of the date delivery;
11.8.2 shortages in the quantity of Products delivered in excess of those permitted by these Terms and Conditions, unless the Customer notifies the Company of a claim within five Business Days of receipt of the Products; or
11.8.3 damage to or loss of all or part of the Products in transit (where the Products are carried by the Customer’s own transport or by a carrier on its behalf),
11.9 The Customer acknowledges and agrees that the Prices reflect the limitations of liability contained in these Terms and Conditions.
The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
13 RELATIONSHIP OF THE PARTIES
The relationship between the parties is that of independent contractors. Nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
14 NO THIRD-PARTY BENEFICIARIES
These Terms and Conditions are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms and Conditions.
15 LAW AND JURISDICTION
15.1 These Terms and Conditions shall be governed by and construed in all respects in accordance with the laws of the State of New York, without giving effect to its choice of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms and Conditions.
15.2 Any legal suit, action or proceeding arising out of or relating to these Terms and Conditions shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York, County of New York and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
15.3 It is the Customer's obligation to acquaint itself and to comply with all applicable requirements and restrictions imposed by law or by governmental and other authorities or corporations relating to the possession, use, import, export, or resale of the Products. It is the Customer's obligation to ensure that no Products are exported or imported in violation of the laws of any jurisdiction into or through which the Products are transported during the course of reaching the Delivery Point. Where necessary, the Customer shall inform the Company at a reasonable time before delivery of any documents which it is necessary for the Company to provide in order to allow export of the Products in compliance with the laws of any relevant jurisdiction.
16.1 Any notice or other communication to be given under this agreement shall be in writing and in the English language and may be delivered or sent by pre-paid first-class, air mail (registered) post, or fax to the party to be served at that party's registered office or last known trading address.
16.2 Any notice or document shall be deemed served:
16.2.1 if delivered by hand, at the time of delivery;
16.2.2 if posted, 48 hours after posting;
16.2.3 if posted by air mail 7 days after posting;
16.2.4 if sent by email upon receipt of a Delivery Receipt in the senders Inbox; and
16.2.5 if sent by fax, at the time of transmission printed on the transmission confirmation sheet.
If any term or provision of these Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
18 DATA PROTECTION SUPPLEMENT TO TERMS AND CONDITIONS
The following provisions are in addition to any national or supra-national terms and conditions under which business is undertaken between Customers and any company or associated company within the CPL Group to the extent applicable.
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy.
UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation.
1.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation. In this clause 1, Applicable Laws means (for so long as and to the extent that they apply to the Provider) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
1.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Provider is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation). Please refer to the Privacy statement on our website at https://www.cplaromas.com/company/privacy-policy/ to understand the scope, nature and purpose of processing by the Provider, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject.
1.3 Without prejudice to the generality of clause 1.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Provider for the duration and purposes of this agreement.
1.4 Without prejudice to the generality of clause 1.1, the Provider shall, in relation to any Personal Data processed in connection with the performance by the Provider of its obligations under this agreement:
(a) process that Personal Data only on the written instructions of the Customer unless the Provider is required by Applicable Laws to otherwise process that Personal Data. Where the Provider is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Provider shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Provider from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or the Provider has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Provider complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Provider complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(e) assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause.
1.5 The Customer does not consent to the Provider appointing any third party processor of Personal Data under this agreement.
1.6 Either party may, at any time on not less than 30 days’ notice, revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).