TURNTIDE TERMS AND CONDITIONS FOR SUPPLY OF GOODS AND/OR SERVICES – AMERICAS

This Agreement is made between the Turntide group company listed on the Order Confirmation (“Turntide”) and the name of the person or legal entity identified on the Order Confirmation and its Affiliates (“Customer”).

This Agreement consists of the following (and any conflicts between such documents shall be resolved in the following order of priority): a) these Terms; b) the Order Confirmation; c) the Quotation; and d) the Specification.

1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms, the following words have these meanings:

“Affiliate” means any entity which directly or indirectly controls, or is controlled by, or is under common control with the subject entity.
“Agreement” means this agreement in respect of the supply of the Products and/or the supply of the Services consisting of the Terms, the Order Confirmation, the Quotation and the Specification.
"Applicable Law” means all applicable laws, statutes, regulations, guidance and codes applicable to this Agreement.
“Background Rights” means any and all IPR owned by either party (or any other third party) which was created or existed before the commencement of this Agreement.
“Business Day” means any day other than a Saturday or Sunday or a federal or bank holiday in the United States of America (“U.S.A.”).
“Collection Date” means the estimated delivery date as set by Turntide on its Order Confirmation or such other date as notified by Turntide.
“Collection Location” means the location for collection of the Products by the Customer within the U.S.A. as notified by Turntide from time to time.
“Confidential Information” means all confidential information relating to the disclosing party including their business, assets, affairs, customers, clients, prices, suppliers, plans, intentions, or market opportunities, operations, processes including manufacturing processes, materials, suppliers, product information, Know-How, technical information and documentation, designs, trade secrets or software and any information, findings, data or analysis derived from such information, Intellectual Property Rights and shall include to avoid doubt the Specification, Quotation, Order Confirmation and pricing of the Products and/or Services.
“Customer” means the customer specified in the Order Confirmation.
“Customer Default” has the meaning set out in clause 5.7.
“Deliverables” means all results and deliverables produced by Turntide which includes, but is not limited to, the Product, prototypes, Tooling, documents, drawings, software, reports, presentations, still or moving pictures, picture creations, designs or other tangible and/or intangible results and outcome, IPR, developed, experienced or otherwise made by Turntide under or in connection with this Agreement.
"EOL Battery Products’ has the meaning set out in clause 9.9.
“Force Majeure Event” means an event beyond the reasonable control of the relevant party including but not limited to acts of God, fire, pandemic, epidemic, marketplace unavailability of components, strikes, industrial action, interruption of utilities services, law imposing export or import restriction, government action//restriction, quota or prohibition, natural disasters (including but not limited to floods, drought, earthquakes, perils of sea, severe weather), war or civil commotion, terrorist attack, accident, sanctions imposed by governments..
“Foreground Rights” means any and all IPR (including but not limited to the Deliverables) which are generated under or in connection with the provision of the Services under this Agreement.
“Insolvency Event’ means a party is either: i) suspending or threatening to suspend payment of its debts; or ii) unable to pay their debts as they become due; or iii) deemed unable to pay their debts or as having no reasonable prospect of so doing by the other party (acting reasonably in its discretion); or iv) appointing a receiver, trustee, liquidator or an administrator of itself or of the whole or any substantial part of its property or shall otherwise be dissolved or liquidated; or v) filing a petition under any insolvency statute; or vi) making a general assignment for the benefit of its creditors; or vii) making an application or commences a proceeding seeking reorganization or liquidation or similar relief under any Applicable Law, other than for solvent reconstruction.
“Intellectual Property Rights” or “IPR” means all forms of intellectual property rights, existing in any form (including tangibly, virtually or digitally) including but not limited to inventions, trade secrets, patents, industrial designs, technical information, processes of manufacture, utility models, domain names, digital assets, three-dimensional and other models, copyrights, design, trademarks (whether or not registered or registerable and including applications for registration of any such thing and whether or not affixed on a Product or Tooling) and Know-How, ideas, data, reports, source code, software, hardware and any other intellectual property, as well as any works of authorship fixed in any tangible medium of expression (including, without limitation, drawings, prints, manuals and specifications).
“Know-How” means any and all knowledge or business information of any nature or form, including but not limited to, research and development data and records, inventions, discoveries, ideas, processes, formulae, drawings, specifications, prototypes, samples, descriptions, methods, routines, manuals, instructions, production data, experiences and other technical or commercial know-how as well as all books and records in whatever form in relation to the foregoing.
“Order Confirmation” means the order confirmation issued by Turntide following acceptance of the Quotation issued by the Customer.
“Prices” means the prices for the Products and/or Services as set out in the Quotation and/or Order Confirmation as may be amended under this Agreement from time to time.
“Product” means the product specified in the Order Confirmation to be supplied by Turntide.
“Quotation” means the quotation issued by Turntide setting out the Prices of the Products and/or Services.
“Representative” means a party’s employees, officers, agents, subcontractors or professional advisers.
"Recycling Facility” means the local recycling facility nominated by Turntide to process, treat and recycle the EOL Battery Products.
“Services” means the services described in the Order Confirmation and/or the Specification.
“Specification” means the specification, if any, relating to the Products and/or the Services, as supplied by Turntide.
“Tooling” means any and all tools, jigs, fixtures, dies, moulds, models and/or other equipment, including any related software, specifically manufactured or adapted for manufacture or quality control of the Product and/or provision of the Services.
“Turntide” means the company within the Turntide group as identified in the Order Confirmation.
“Turntide Materials” includes any Tooling, equipment, documentation or Confidential Information owned by or licensed to Turntide.
“Terms” means these terms and conditions which form part of the Agreement.
“Warranty Period” means a period of twelve (12) months from the date of collection or delivery of the Products to the Customer.

1.2 Any reference to a person shall include any natural person, partnership, joint venture, body corporate, incorporated association, government, governmental agency, persons having a joint or common interest, or any other legal or commercial entity or undertakings. The singular includes the plural and vice versa. The headings are for convenience only and shall not affect interpretation. Any reference to a statute or statutory provision includes a reference to any modification, amendment, replacement, consolidation or re-enactment of the provision from time to time in force and all subordinate instruments, orders or regulations made under it from time to time. A reference to any of the parties includes, where appropriate, persons deriving title under it including permitted assignees or successors. Each reference to “includes”, “such as”, “in particular” or “including” or any similar expression shall be construed without limitation. Any undertaking by a party not to do any act or thing shall be deemed to include an undertaking not to permit or suffer the doing of the act or thing. References to any document or a provision thereof shall be construed as a reference to that document or provision as from time to time supplemented, varied or replaced. References to “writing” or “written” excludes fax but shall include email.

2. BASIS OF THE CONTRACT

2.1 Turntide shall provide and the Customer shall purchase the Products and/or Services in accordance with this Agreement. This Agreement applies to the exclusion of any other terms and conditions which the Customer may seek to incorporate or assert. Following acceptance of the Quotation by Customer, Customer hereby makes an offer to purchase the Products and/or Services pursuant to the terms and conditions of this Agreement, the Order Confirmation, the Quotation, and the Specification, and on no other terms.
2.2 Each party is responsible for performing its obligations detailed in this Agreement. Neither party shall be liable to the other party for any failure or delay which is caused by the failure or delay of the other party.

3. QUOTATIONS, ORDER CONFIRMATIONS AND TURNTIDE CHANGES

Quotations

3.1 Any Quotation, Order Confirmation or other estimate or contract proposal issued by Turntide is subject to withdrawal or revision at any time before the absolute and unqualified acceptance of the Customer’s order by Turntide. Any Quotation is valid for a period of thirty (30) calendar days from its date of issue.
3.2 Each purchase order for Products and/or Services issued by the Customer is an offer by the Customer to purchase the Products and/or Services subject to this Agreement. Any Quotation and/or Order Confirmation is not an acceptance of any purchase order from the Customer but an offer or counteroffer by Turntide. Turntide’s willingness to sell the Products and/or provide the Services is expressly conditioned upon the Customer’s absolute and unqualified acceptance of this Agreement.

Order Confirmations

3.3 Both parties agree that the Order Confirmation is an acknowledgement only of the Customer’s purchase order.
3.4 The Order Confirmation issued by Turntide will include a Collection Date for collection of the Products by the Customer from the Collection Location. The Collection Date is only an estimated and advisory delivery date. The Collection Date may be changed by Turntide from time to time as notified in writing.

Turntide Changes

3.5 Turntide reserves the right to make any changes to the Quotation, Order Confirmation and/or the Specification which are required to conform with Applicable Law or for any other reason. Turntide will notify the Customer in writing of any such change and the Customer will have the right to cancel an affected purchase order within seven (7) days of notification of the change.

4. SPECIFICATION AND CUSTOMER CHANGES

4.1 The Products and/or Services are set out in Order Confirmation and/or the Specification.
4.2 All other descriptions, samples or illustrations issued by Turntide are for the sole purpose of describing the Products and/or Services and do not form part of the Agreement.
4.3 The Customer shall have the right to request changes in writing within fourteen (14) calendar days of issuing a purchase order to Turntide. Upon receipt of such a written change request, Turntide will consider the Customer’s change request. Turntide may agree (but is not obliged) to provide a revised Quotation for the change request (in whole or in part), whereupon the Customer may decide to accept the revised Quotation and issue a corresponding purchase order. Turntide may subsequently accept the Customer’s change request (in whole or in part) and would do so by issuing a revised Order Confirmation. The decision to accept or reject the change request will be at the sole discretion of Turntide and shall be binding upon the Customer.

5. PERFORMANCE AND DELIVERY

5.1 Unless agreed otherwise by Turntide in writing, the Customer will collect the Products within seven (7) calendar days of the Collection Date.
5.2 Delivery of the Products shall be completed on the completion of loading of the Products at the Collection Location. If the Customer fails to collect the Products within seven (7) calendar days of the Collection Date, then delivery of the Products shall be deemed to have been completed on the Collection Date and Turntide is entitled to levy the charges set out in clause 6 (Cancellation and Postponement).
5.3 Without prejudice to its other rights or remedies, if after seven (7) calendar days following the Collection Date, the Products remain uncollected by the Customer, then Turntide may in its discretion:
a) (where the Products have not been paid for by the Customer), resell or otherwise dispose of the Products in whole or in part; and/or
b) (where the Customer has paid in part for the Products), Turntide may resell or otherwise dispose of part or all of the Products and reimburse to the Customer the monies already paid, subject to deduction of reasonable storage and administration costs by Turntide.
5.4 Turntide shall not be liable in respect of any delay in supply of the Products, the Deliverables and/or performance of the Services under this Agreement.
5.5 Turntide may, in its sole discretion, deliver or perform the Agreement in instalments. The delivery or performance of each instalment shall be a separate contract.
5.6 With respect to the performance of the Services, the Customer shall: (i) ensure that the terms of the Order Confirmation are complete and accurate; (ii) cooperate with Turntide in all matters relating to the Products and/or the Services including the provision of relevant information and materials as well as access to facilities and equipment including the Customer’s premises (where appropriate); (iii) comply with Applicable Law; iv) obtain and maintain all necessary licences, permissions and consents which may be required for the Agreement.
5.7 If Turntide's performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Customer (“Customer Default”), Turntide shall be relieved of its obligations and any liabilities to the extent the Customer Default prevents or delays Turntide's performance of its obligations.

6. CANCELLATION OR POSTPONEMENT

6.1 The Customer shall not cancel or postpone the delivery or collection of the Products within ninety (90) calendar days from the Collection Date. Turntide shall be under no obligation to accept a Customer’s request to postpone or delay collection of the Products beyond the Collection Date.

Postponement

6.2 If the Customer postpones collection beyond the Collection Date or the Customer does not collect the Products within seven (7) calendar days from the Collection Date, then Turntide shall be entitled in its sole discretion:-
a) to levy administration and storage charges, as determined by Turntide, in respect of every day in which the Products are not collected by the Customer (and the Customer acknowledges such charges represent a genuine pre-estimate of the loss incurred by Turntide for administration and storage costs as well as loss of sales opportunity);
b) to terminate this Agreement and make available for sale the Products to other customers of Turntide in accordance with clause 5.3; and/or
c) to levy any other charges incurred by Turntide, as determined by Turntide, as a result of the postponement or the failure by the Customer to collect the Products on the Collection Date.

Cancellation

6.3 If the Customer cancels its purchase order for the Products and/or Services, Turntide shall be entitled to charge the Customer the full Price as set out in the Order Confirmation.
6.4 Notwithstanding Turntide’s other rights or remedies, the Customer shall indemnify Turntide for all losses (including loss of profit), costs, (including the cost of all labour and materials used), damages, charges, costs and expenses incurred by Turntide in performing the original Agreement order up until the Collection Date that Turntide will incur as a result of the Customer’s cancellation, postponement or delay in collection of the Products and/or performance of the Services.
6.5 Turntide reserves the right to defer the Collection Date (or any subsequent estimated delivery dates issued by Turntide) or performance of the Agreement without liability to the Customer. This right shall apply without limitation in the following circumstances:
a) if Turntide is prevented from or delayed in carrying on Turntide’s business by the unavailability of raw materials or other parts within Turntide’s supply chain; and/or
b) any other Force Majeure Event.



7. FEES AND PAYMENT

7.1 The Prices and payment terms for the Products and/or Services are set out in the Order Confirmation.
7.2 The Prices are exclusive of packaging, value added tax (or other sales tax), insurance, storage and transportation of the Products. The Prices are provided on an Ex Works basis (Incoterms 2020 or as updated from time to time) from the Collection Location.
7.3 If the Customer requests any change to the Specification, Turntide will decide in its sole discretion whether to quote for the same.
7.4 Turntide reserves the right to increase the Prices, by giving notice to the Customer at any time before delivery/completion, to reflect any increase in Turntide’s costs that is due to:
a) any factor beyond the control of Turntide (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs including availability of raw materials or parts within the supply chain);
b) any request by the Customer to change the Collection Date, quantities or types of Products ordered, performance dates, or the types of Services ordered pursuant to clause 4.3 of this Agreement; and/or
c) failure of the Customer to give Turntide adequate or accurate information or instructions.
7.5 The revised Prices will be issued by Turntide on a new Quotation. The Customer shall have seven (7) calendar days in which to reject the amended Price otherwise it will be deemed to be accepted by the Customer.
7.6 Turntide’s invoices are payable in U.S.A. dollars (or such other currency as identified on the Order Confirmation) into the bank account nominated on Turntide’s invoice. Turntide does not accept payment in cash or by credit card.
7.7 Invoices for Products and/or Services will be payable in cleared funds. All payments must be either made without deduction or set-off in advance or within 30 days of the date of Turntide’s invoice, as nominated by Turntide on the Order Confirmation. Time is of the essence concerning payment.
7.8 If the Customer fails to make payment on the due date then, without prejudice to any other right or remedy available to Turntide, Turntide shall be entitled to terminate or suspend the Agreement and/or claim interest and compensation for debt recovery costs under Applicable Law.
7.9 Turntide may at any time set off any amount owing to it (or any entity within the Turntide group) against any amount payable by Turntide (or any entity within the Turntide group) to the Customer.

8. INTELLECTUAL PROPERTY RIGHTS AND TOOLING

Intellectual Property Rights
8.1 All rights, title and interest in Background Rights shall at all times remain vested with the owning or controlling party.
8.2 All rights, title and interest in the Foreground Rights relating to the Products, the Deliverables and/or the provision of the Services shall be owned by Turntide.
8.3 Turntide hereby grants to the Customer a non-exclusive, non-transferable, royalty-free licence to use the Products, the Deliverables and/or the Services for the purpose for which the license is granted.
8.4 The Customer hereby grants to Turntide a non-exclusive, royalty-free, licence to use, copy, modify and incorporate into the Products and/or Deliverables any materials provided by the Customer to Turntide for the purpose of supplying the Products, Deliverables and/or Services to the Customer.

Tooling

8.5 The Customer acknowledges and agrees that Turntide will own the Tooling (and use the same as it sees fit) where Turntide has purchased the Tooling or where the Customer has made only a financial contribution to the cost of the Tooling.
8.6 Where Turntide has agreed (in writing signed by an authorised signatory) that the Customer has paid for all of the costs of the Tooling with no financial contribution from Turntide, the Parties may, by prior written agreement signed by authorized signatories of both Parties, agree to transfer ownership of the Tooling from Turntide to the Customer.
8.7 Where ownership of the Tooling is transferred from Turntide to the Customer, the Customer will be responsible for the costs of ongoing maintenance of the Tooling and any replacement Tooling.
8.8 Turntide will be entitled to charge the Customer accordingly for such maintenance or replacement Tooling costs and Turntide will be entitled to continue to use such Tooling as required for manufacturing by Turntide. Where a legal transfer of Tooling ownership has been effected between Turntide and the Customer, the Customer agrees and undertakes that it will not remove any Customer-owned Tooling at Turntide’s premises without obtaining the prior written consent of Turntide (not to be unreasonably withheld). In the absence of any written signed transfer of Tooling ownership, Turntide will own the Tooling. The Tooling will be insured by the owning party. This clause 8 (Intellectual Property Rights and Tooling) will survive expiry or termination of this Agreement.

9. GOODS WARRANTY AND RECYCLING

Goods Warranty

9.1 Turntide warrants that, during the Warranty Period, each of the Products will (i) be free from material defects in design, material and workmanship, (ii) be of a merchantable quality (within the meaning of the Uniform Commercial Code (UCC) Article 2 ), and fit for the purpose for which they are supplied, (iii) conform in all material respects with the applicable Specification and iv) in respect of battery-related Products only, conform to the specific duty cycle as notified in writing by Turntide or included within the Specification. The warranty in this clause 9.1 applies only if the Products are:
a) at all times throughout the Warranty Period, installed, stored, used, operated and maintained as set out in the Specification or any other instructions issued by Turntide including without limitation avoiding contact with or exposure to fire, liquids, chemicals, other substances, flooding, vibrations, external temperatures, radiation, electrical discharges, excess or incorrect supply or input voltage;
b) not defects due to wear and tear, misuse, wilful damage, negligence or abnormal working conditions;
c) not used by the Customer following an identified defect;
d) adjustments, adaptations, repairs (or attempted repairs) made by the Customer without Turntide’s prior written consent; and
e) in respect of any battery-related Products, installed, stored, used, operated and maintained by the Customer in accordance with the duty cycle instructions provided by Turntide or included in the Specification.
9.2 The Customer must inspect the Products on collection and notify Turntide within ten (10) calendar days from the Collection Date if the Customer identifies any defects upon inspection.
9.3 If, during the Warranty Period, the Customer gives notice to Turntide within fourteen (14) calendar days of an alleged faulty Product, then Turntide will analyse and examine such Products. The Customer must at its own cost return to Turntide the alleged faulty product at the Collection Location or such other premises within the U.S.A. as nominated by Turntide.
9.4 If Turntide determines in its sole discretion the alleged faulty Products do comply with the warranty in clause 9.1 or one of the exceptions set out in clause 9.1 applies, i.e. there is ‘No Fault Found’, then Turntide will be entitled to charge the Customer reasonable analysis costs and any other relevant disbursements as determined by Turntied. Alternatively, Turntide may set off such costs from any monies owned by Turntide to the Customer.
9.5 If Turntide determines the Product does not comply with the warranty at clause 9.1, then Turntide will at its sole discretion either repair or replace the Products or refund the Price paid by the Customer (or, where relevant, a proportionate part of the Price). Any replaced Products will be owned by Turntide when the replacement is supplied to the Customer. Turntide’s sole liability to the Customer is, at Turntide’s discretion, to repair, replace or refund the Price.
9.6 All warranties, conditions or other terms implied by statute, common law, trade usage or otherwise are excluded to the fullest extent permitted by law. Turntide makes no other warranties or representation (express, implied, statutory or otherwise) save as set out in this clause 9. To the extent not prohibited by Applicable Law, any claims, disputes, or causes of action with respect to Product warranties hereunder must be filed within one (1) year from the date the Customer knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s). Claims filed after the foregoing term will be precluded by this provision and deemed time barred.
9.7 Turntide shall not be liable to the Customer or any third party to the extent that Products are not used in accordance with the Specification and/or any other documentation or instructions issued by Turntide from time to time.
9.8 If any Products are to be manufactured by Turntide in accordance with a specification supplied by the Customer or using Intellectual Property Rights provided by the Customer, the Customer shall indemnify and hold harmless Turntide against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Turntide arising out of or in connection with any third party claim made against Turntide for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with Turntide's use of such specification or Intellectual Property Rights. This clause 9 shall survive termination of the Agreement.

Recycling
9.9 ‘EOL Battery Products’ means any batteries or energy storage devices which have reached their end-of-life.
9.10 The Customer shall be responsible, at its own cost, for delivering the EOL Battery Products to the Recycling Facility in accordance with Applicable Law. In order to deliver the most sustainable disposal option for both parties, the Customer shall, prior to delivery of the EOL Battery Products to the recycling Facility, request Turntide to nominate which Recycling Facility managed by Turntide’s recycling operator is nearest to the Customer’s EOL Battery Products requiring disposal. This delivery obligation shall include without limitation the Customer paying for packaging, transportation, delivery, customs taxes and any other costs concerning the delivery of the EOL Battery Products to the Recycling Facility of Turntide’s operator.
9.11 In order to charge the Customer the correct sum in respect of packaging the EOL Battery Products, Turntide will request the Customer to send relevant information concerning the number and type of EOL Battery Products to be packaged including any potentially hazardous waste. Turntide will issue such information received from the Customer to its recycling operator who will provide a quotation to Turntide. Turntide will forward the received quotation to the Customer and the Customer will thereafter issue a purchase order to Turntide in the amount of the relevant quotation which will be paid by the Customer within thirty (30) days of receipt of an invoice issued by Turntide. Turntide will then request its recycling operator to send to the Customer the relevant packaging for use in delivering the EOL Battery Products to Turntide’s nominated recycling operator.
9.12 Risk in and title to such EOL Battery Products shall pass to Turntide upon delivery of the EOL Battery Products to the nominated Recycling Facility of Turntide’s operator. Turntide agrees to arrange and pay for the treatment and recycling of the EOL Battery Products once the Customer has delivered the EOL Battery Product to the Recycling Facility.
9.13 The Customer shall indemnify and hold harmless Turntide in respect of all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Turntide arising out of or in connection with third party claim (including from a competent authority) that the EOL Battery Products have not been packaged, transported or delivered to the Recycling Facility as required by Turntide’s operator or in accordance with Applicable Law including without limitation payment of customs taxes or any financial loss or fines from any spillages or contamination which occurs during the transportation of the EOL Battery Products from the Customer’s premises to the Recycling Facility.
9.14 Clauses 9.9 to 9.13 shall survive expiry or termination of the Agreement.


10. SERVICES WARRANTY

10.1 Subject to the other provisions of this clause 10, Turntide warrants to the Customer that the Services will be provided with reasonable care and skill.
10.2 The Customer must inspect the output of the Services, including any Deliverables, within seven (7) calendar days after the Services have been performed.
10.3 Any claim by the Customer which is based on any deficiencies in the Services must be notified to Turntide within thirty (30) days from the date of completion of the Services and in any event by no later than twelve (12) months from the date of completion of the Services whereupon the Customer will be precluded from bringing any claim against Turntide.
10.4 If the Customer does not notify claims in accordance with clause 10.3, then the Customer shall not be entitled to reject the Services and Turntide shall have no liability for such deficiencies. In such events, the Customer will be liable for full payment of the Price towards Services provided by Turntide.
10.5 In no event shall the Customer be entitled to reject any Services on the basis of any defect or failure other than a defect or failure to conform in all material respects with the applicable Specification.
10.6 In the event Turntide agrees the Customer has a valid claim notified pursuant to clause 10.3, Turntide will re-perform the Services (or the part in question) or, at Turntide’s sole discretion, refund to the Customer the Price (or a proportionate part) and Turntide shall have no further liability to the Customer.

11. LIMITATION OF LIABILITY

11.1 Nothing in these Terms excludes or limits Turntide’s liability for any matter where, as a matter of law, liability cannot be excluded or limited.
11.2 Turntide shall not be liable to the Customer or any third party for any i) loss of profit; ii) loss of revenue; iii) loss of production (including stopping or suspension of production); iv) compensation or penalties suffered by Customer; v) loss of sales or business; vi) losses caused by business interruption; vii) loss or delay in enjoyment of Products; viii) loss of agreements or contracts; or ix) loss of anticipated savings, whether the aforementioned are direct or indirect in nature.
11.3 Neither party will be liable to the other party for any indirect, special or consequential losses of any nature.
11.4 Subject to clauses 11.1 to 11.3, Turntide’s total aggregate liability to the Customer arising under or in connection with this Agreement whether in contract, tort (including negligence), strict liability, indemnity, breach of statutory duty, misrepresentation, restitution, misstatement or any other action shall not exceed the Prices paid by the Customer in respect of the Products and/or Services (as applicable) within the preceding twelve (12) months period or (USD) $50,000 (fifty thousand dollars), whichever is lower.
11.5 This clause 11 (Limitation of Liability) shall survive expiry or termination of this Agreement.

12. TERMINATION

12.1 Without prejudice to any other right or remedy, Turntide may terminate this Agreement for any reason without liability by giving at least fourteen (14) days’ notice to the Customer in writing.
12.2 Either party may terminate the Agreement with immediate effect by notice in writing to the other party if:
a) there is an Insolvency Event;
b) there is a material breach of the Agreement which is not remedied within thirty (30) days of receipt of a notice from the non-defaulting party; or
c) there is an irremediable material breach by the other party.
12.3 Turntide may at its discretion either suspend or terminate this Agreement with immediate effect (in whole or in part) where clause 12.2 applies or where the Customer commits persistent breaches of the Agreement (remedied or not).
12.4 Turntide may terminate the Agreement with immediate effect (or whole or in part) where the Customer does not pay any amount due under the Agreement on the due date for payment and does not make such payment within ten (10) days of being notified by Turntide of its obligation to pay.
12.5 If this Agreement is terminated in whole or in part, or it expires, the Customer shall be liable to pay Turntide any outstanding monies on an indemnity basis and shall return any Turntide Materials as well as any Deliverables or Products which have not been fully paid for.
12.6 Termination or expiry of the Agreement shall not affect any accrued rights or remedies of the parties. Any provision of the Agreement that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.

13. TITLE, RISK AND RETENTION OF TITLE

13.1 Title and Risk

Title in the Products shall pass from Turntide to the Customer upon receipt of payment in full in cleared funds in Turntide’s bank account of all monies owed by the Customer to Turntide under this Agreement or any other agreement with Turntide or one of its Affiliates. The Products are at the risk of the Customer from the point at which delivery of the Products is completed or deemed delivery has taken place.

13.2 Retention of title

Until title to the Products passes to the Customer, the Customer shall:
a) hold the Products as Turntide’s fiduciary bailee;
b) keep the Products separate from all other goods held by the Customer and readily identifiable as the property of Turntide;
c) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
d) not attach to the Products or mark the Products with any trade mark name, design or logo;
e) maintain the Products in a satisfactory condition, insured on Turntide’s behalf for their full Price against all risks; and
f) immediately forward to Turntide on receipt the proceeds of insurance referred to in sub-clause 13.1 e).

13.3 Turntide may at any time recover the Products before title passes to the Customer. Upon the occurrence of an Insolvency Event, the Customer agrees to permit immediate access to the Customer’s premises (or any access where the Products are stored) for the purpose of recovering Turntide’s Products. This clause 13 (Title, Risk and Retention of Title) will survive expiry or termination of this Agreement.

14. FORCE MAJEURE

Neither party will be liable to the other party for any delay or failure in performing its obligations under this Agreement if such delay or failure is caused by a Force Majeure Event. If any Force Majeure Event prevents any party from performing its obligations for more than three (3) months, the other party may terminate this Agreement with immediate effect.

15. CONFIDENTIALITY

15.1 Each party shall keep secret and confidential the other party’s Confidential Information at all times and shall not, at any time, whether before, during or after the term of the Agreement use, disclose, exploit, copy or modify any of the other party’s Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the exercise of its rights and/or the performance of its obligations in connection with this Agreement except that the receiving party may disclose the other party’s Confidential Information to its Affiliates where disclosure is necessary to perform its obligations under this Agreement and to its Representatives provided there is a legally binding obligation of confidentiality in place.
15.2 A party shall not be in breach of this clause 15 (Confidentiality) if it discloses the other party’s Confidential Information where:
a) such disclosure is required by law or order of a competent authority; or
b) it is already publicly known (expect when in breach of this clause 15); or
c) it can be shown by the disclosing party, to the reasonable satisfaction of the non-disclosing party, to have been known to the disclosing party before it was disclosed publicly, provided that (to the extent permitted by law) the other party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.
15.3 Upon the termination or expiry of the Agreement, if so requested in writing by Turntide, the Customer shall securely destroy or return to Turntide all documents and materials incorporating or based on Turntide’s Confidential Information (whether in hard copy or electronic form) and then confirm the same in writing.
15.4 No licence under any IPR is granted by one party’s transmittal of Confidential Information or other information to another party. The disclosing party does not make any representations, extend any warranties of any kind, either express or implied, or assume any responsibilities whatsoever with respect to the adequacy, accuracy, completeness, operability, fitness for a particular purpose, or utility of any Confidential Information. The receiving party agrees that the disclosing party will have no liability for any damages, loss, expense, or claim of loss resulting from the receiving party's use of the Confidential Information.
15.5 This clause 15 (Confidentiality) will survive expiry or termination of this Agreement.

16. IMPORT AND EXPORT REGULATIONS

16.1 Each party represents and warrants that it will not import, export or re-export the Products to or from any country in contravention of any trade sanction, embargo or applicable export or import law or regulation of the United Kingdom, European Union, Canada, or the United States of America.
16.2 The Customer shall be responsible for all export and import costs including any tariffs, duties and levies imposed on the Products following collection of the Products by the Customer from the Collection Location unless Turntide has agreed otherwise in writing. The Customer will upon request provide to Turntide any relevant information including export or import documentation in respect of customs end user undertakings required by competent authorities concerning the import, export or re-import of the Products.

17. GENERAL

17.1 Each party’s rights or remedies under the Agreement are without prejudice to any other right or remedy the relevant party may have under the Agreement or by law.
17.2 Failure or delay in enforcing or partially enforcing any provision of these Terms is not a waiver of any of such party’s rights. Any waiver by a party of any breach is not a waiver of any subsequent breach. Any waiver must be in writing and signed by an authorised signatory of the other party.
17.3 Any notice to be given by either party to the other must be in writing addressed to that other party at its registered office or such other address as may have been notified for these purposes. Notices shall be delivered personally or sent by registered or first-class post or sent by courier. A notice is deemed to have been received if delivered in person, at the time of delivery; if sent by prepaid registered or first-class post, on day and time when the delivery is recorded by the postal service provider; if sent by courier, on the date and time recorded by the courier.
17.4 This Agreement does not create, confer or purport to confer any benefit or right enforceable by any person not a party to it. The rights of the parties to vary the Agreement are not subject to the consent of any other person.
17.5 Turntide may assign or subcontract the Agreement or any part of it and may dispose of or deal in any manner with any of its rights or beneficial interests under it.
17.6 The Customer may not assign, transfer subcontract the Agreement or dispose of or deal in any manner with any of its rights or obligations.
17.7 If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable by a competent authority, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Agreement. If any provision or part provision of the Agreement is deemed deleted by a competent authority, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
17.8 Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
17.9 This Agreement may be varied only in writing and when signed by an authorised signatory of both parties.
17.10 The Agreement constitutes the entire agreement between the Customer and Turntide in respect of its subject matter. Each party acknowledges that in entering into the Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Agreement. Nothing in this clause shall exclude liability in respect of any fraud or fraudulent misrepresentation.
17.11 The Customer will not make any press announcement or publicise the Agreement or relationship with Turntide without Turntide’s prior written consent.
17.13 This clause 17 (General) will survive expiry or termination of this Agreement.

18. LAW AND JURISDICTION

18.1 This Agreement including any dispute or claim arising out of or in connection with this Agreement (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the state of Delaware (U.S.A.).
18.2 The parties hereby consent to submit to the exclusive jurisdiction of the courts of the state of Delaware and the United States of America located in the District of Delaware for any disputes, claims (including non-contractual disputes or claims), actions, suits, or proceedings arising out of or in connection to this Agreement or its subject matter or formation.

19. DISPUTE RESOLUTION

19.1 All disputes, disagreements or questions arising out of or in connection with this Agreement or relating to its construction or performance shall be settled amicably by mutual consultation of both parties. If after thirty (30) calendar days of the commencement of the discussions, the parties have failed to resolve their disputes or differences by mutual discussions, the matter shall be referred to arbitration in accordance with the rules of the American Arbitration Association then in effect, conducted by one (1) arbitrator mutually appointed by both parties. Each party shall bear their own costs.
19.2 The arbitration proceedings shall be held in Delaware. The language of arbitration shall be English and the decision shall be binding on the parties.
19.3 Notwithstanding any reference to arbitration as per this clause 19 (Dispute Resolution), the parties shall continue to perform their obligations under this Agreement.
19.4 This clause 19 (Dispute Resolution) shall survive the termination or completion of this Agreement.