Terms of use

Effective date: Sep 13, 2021

Please read these terms and conditions carefully. The following Terms of Use govern your use and access of the Website (defined below) and the use of the Services. By accessing the Website and/or using the Services, you agree to be bound by these Terms of Use. If you do not agree to these Terms of Use, do not access and/or use this Website or the Services.

The Website is exclusively reserved for companies or individuals exercising an independent professional activity. Registration on the Website is subject to providing proof of existence of company and / or professional activity (such as by producing a valid tax number or any other valid document justifying professional activity). As long as you have not provided Firmenich with all of the supporting documents required you cannot access the Website.

You undertake to only make purchases directly related to your main professional activity. Persons carrying out an activity directly or indirectly, totally or partially competing with Firmenich cannot register to use the Website. Firmenich reserves the right to refuse access to the Website to any person or agent who has left an unpaid or any other unresolved dispute as part of a past or current activity.

If you are below 18 years old: you must obtain consent from your parent(s) or legal guardian(s), their acceptance of these Terms of Use and their agreement to take responsibility for: (i) your actions; (ii) any charges associated with your use of any of the Services or purchase of Products; and (iii) your acceptance and compliance with these Terms of Use. If you do not have consent from your parent(s) or legal guardian(s), you must stop using/accessing this Website and using the Services.

1. DEFINITIONS & INTERPRETATION

Unless otherwise defined, the definitions and provisions in respect of interpretation set out in the Annex will apply to these Terms of Use.

2. GENERAL USE OF SERVICES AND/OR ACCESS OF WEBSITE

2.1 Guidelines to the use of Website and/or Services: You agree to comply with any and all the guidelines, notices, operating rules and policies and instructions pertaining to the use of the Services and/or access to the Website, as well as any amendments to the aforementioned, issued by Firmenich, from time to time. Firmenich reserves the right to revise these guidelines, notices, operating rules and policies and instructions at any time and you are deemed to be aware of and bound by any changes to the foregoing upon their publication on the Website.

2.2 Restricted activities: You agree and undertake NOT to:

  1. use the Website or Services for illegal purposes;
  2. attempt to gain unauthorized access to or otherwise interfere or disrupt other computer systems or networks connected to the Website or Services;
  3. use or upload, in any way, any software or material that contains, or which you have reason to suspect that contains, viruses, damaging components, malicious code or harmful components which may impair or corrupt the Website’s data or damage or interfere with the operation of another user’s computer or mobile device or the Website or Services; and
  4. use the Website or Services other than in conformance with the acceptable use policies of any connected computer networks, any applicable Internet standards and any other applicable laws.

2.3 Availability of Website and Services: Firmenich may, from time to time and without giving any reason or prior notice, upgrade, modify, suspend or discontinue the provision of or remove, whether in whole or in part, the Website or any Services and shall not be liable if any such upgrade, modification, suspension or removal prevents you from accessing the Website or any part of the Services.

2.4 Privacy Policy: Your use of the Services and/or access to the Website is also subject to the Privacy Policy as set out at https://www.scentmate.com/user-privacy-policy

2.5 Terms & Conditions of Sale: Purchases of any Product or Associated Service would be subject to the Standard Terms and Conditions of Sale.

2.6 Product description: While Firmenich endeavours to provide an accurate description of the Products, Firmenich does not warrant that such description is accurate, current or free from error.

2.7 Prices of Products: All Listing Prices are subject to taxes, unless otherwise stated. Firmenich reserves the right to amend the Listing Prices at any time without giving any reason or prior notice.

3. USER ACCOUNTS

3.1 You must be registered on the Website to access it or use its Services and you may only register one account on the Website. Firmenich may cancel or terminate your member account if it has reasons to suspect that you have concurrently registered or are in control of two or more accounts. Further, Firmenich may reject your application for registration where you have not provided proof of your professional activity.

3.2 Upon registration on the Website, Firmenich will assign you an account and issue a member ID and password (the latter shall be chosen by you during registration).

3.3 Your ID and password is unique to a single account. You are solely responsible for maintaining the confidentiality and security of your ID and password and for all use of and activities that occur under your account (whether such use or activities are authorized or not). You may not share, assign, or permit the use of your account, ID or password by another person, even to other individuals within your own business entity. You agree to notify Firmenich immediately if you become aware of any unauthorized use of your password or your account or any other breach of security of your account.

3.4 You agree that all use of the Website and Services, and all activities that occur under your account (including without limitation, posting any company or product information, clicking to accept any additional agreements or rules, subscribing to or making any payment for any services) will be deemed to have been authorized by you.

3.5 You acknowledge that sharing of your account with other persons, or allowing multiple users outside of your business entity to use your account (collectively, "multiple use"), may cause irreparable harm to Firmenich. You will indemnify, our affiliates, directors, employees, agents and representatives against any loss or damages (including but not limited to loss of profits) suffered as a result of the multiple use of your account. You also agree that in case of the multiple use of your account or your failure to maintain the security of your account, Firmenich shall not be liable for any loss or damages arising from such a breach and shall have the right to suspend or terminate your account without liability to you.

4. INTELLECTUAL PROPERTY

4.1 Ownership: The Intellectual Property in and to the Website and the Materials are owned, licensed to or controlled by Firmenich, Firmenich’s licensors or service providers. Firmenich reserves the right to enforce its Intellectual Property to the fullest extent of the law.

4.2 Restricted use: No part or parts of the Website, or any Materials may be reproduced, reverse engineered, decompiled, disassembled, separated, altered, distributed, republished, displayed, broadcast, hyperlinked, mirrored, framed, transferred or transmitted in any manner or by any means or stored in an information retrieval system or installed on any servers, system or equipment without Firmenich’s prior written permission or that of the relevant copyright owners. Subject to Clause 4.3, permission will only be granted to you to download, print or use the Materials for personal and non-commercial uses, provided that you do not modify the Materials and that Firmenich or the relevant copyright owners retain all copyright and other proprietary notices contained in the Materials.

4.3 Trademarks: The Trademarks are registered and unregistered trademarks of Firmenich or third parties. Nothing on the Website and in these Terms of Use shall be construed as granting, by implication, estoppel, or otherwise, any license or right to use (including as a meta tag or as a “hot” link to any other website) any Trademarks displayed on the Services, without Firmenich’s written permission or any other applicable trademark owner.

5. LIMITATION OF RESPONSIBILITY AND LIABILITY

5.1 No representations or warranties: The Services, the Website and the Materials are provided on an “as is” and “as available” basis. All data and/or information contained in the Website, the Services or the Materials are provided for informational purposes only. No representations or warranties of any kind, implied, express or statutory, including the warranties of non-infringement of third party rights, title, merchantability, satisfactory quality or fitness for a particular purpose, are given in conjunction with the Website, the Services or the Materials. Without prejudice to the generality of the foregoing, Firmenich does not warrant:

  1. the accuracy, timeliness, adequacy, commercial value or completeness of all data and/or information contained in the Website, the Services or the Materials;
  2. that the Website, the Services or that any of the Materials will be provided uninterrupted, secure or free from errors or omissions, or that any identified defect will be corrected;
  3. that the Website, the Services or the Materials are free from any computer virus or other malicious, destructive or corrupting code, agent, program or macros; and
  4. the security of any information transmitted by you or to you through the Website or the Services, and you accept the risk that any information transmitted or received through the Services or the Website may be accessed by unauthorised third parties and/or disclosed by Firmenich or its officers, employees or agents to third parties purporting to be you or purporting to act under your authority. Transmissions over the Internet and electronic mail may be subject to interruption, transmission blackout, delayed transmission due to internet traffic or incorrect data transmission due to the public nature of the Internet.

5.2 Exclusion of liability: Firmenich Indemnitees shall not be liable to you for any Losses whatsoever or howsoever caused (regardless of the form of action) arising directly or indirectly in connection with:

  1. any access, use and/or inability to use the Website or the Services;
  2. reliance on any data or information made available through the Website and/or through the Services. You should not act on such data or information without first independently verifying its contents;
  3. any system, server or connection failure, error, omission, interruption, delay in transmission, computer virus or other malicious, destructive or corrupting code, agent program or macros; and
  4. any use of or access to any other website or webpage linked to the Website, even if Firmenich or its officers or agents or employees may have been advised of, or otherwise might have anticipated, the possibility of the same.

5.3 At your own risk: Any risk of misunderstanding, error, damage, expense or Losses resulting from the use of the Website is entirely at your own risk and Firmenich shall not be liable therefor.

6. ADVERTISING

6.1 Advertising: Firmenich may attach banners, java applets and/or such other materials to the Website for the purposes of advertising Firmenich’s products and/or services. For the avoidance of doubt, you shall not be entitled to receive any payment, fee and/or commission in respect of any such advertising or other promotional materials.

7. TERMINATION

7.1 Termination by Firmenich: In Firmenich’s sole and absolute discretion, Firmenich may with immediate effect upon giving you notice, terminate your use of the Website and/or Services and/or disable your Username and Password. Firmenich may bar access to the Website and/or Services (or any part thereof) for any reason whatsoever, including a breach of any of these Terms of Use or where it believes that you have violated or acted inconsistently with any terms or conditions set out herein, or if in Firmenich’s  opinion or the opinion of any regulatory authority, it is not suitable to continue providing the services relating to the Website.

7.2 Termination by you: You may terminate these Terms of Use by giving seven days’ notice in writing to Firmenich.

8. NOTICES

8.1 Notices from Firmenich: All notices or other communications given to you if:

  1. communicated through any print or electronic media as Firmenich may select will be deemed to be notified to you on the date of publication or broadcast; or
  2. sent by post or left at your last known address will be deemed to be received by you on the day following such posting or on the day when it was so left.

8.2 Notices from you: You may only give notice to Firmenich in writing sent to Firmenich’s designated address or e-mail address, and Firmenich shall be deemed to have received such notice only upon receipt.

8.3 Other modes: Notwithstanding Clauses 8.1 and 8.2, Firmenich may from time to time designate other acceptable modes of giving notices (including but not limited to e-mail or other forms of electronic communication) and the time or event by which such notice shall be deemed given.

9. GENERAL

9.1 Cumulative rights and remedies: Unless otherwise provided under these Terms of Use, the provisions of these Terms of Use and Firmenich’s rights and remedies under these Terms of Use are cumulative and are without prejudice and in addition to any rights or remedies Firmenich may have in law or in equity, and no exercise by Firmenich of any one right or remedy under these Terms of Use, or at law or in equity, shall (save to the extent, if any, provided expressly in these Terms of Use or at law or in equity) operate so as to hinder or prevent Firmenich’s exercise of any other such right or remedy as at law or in equity.

9.2 No waiver: Firmenich’s failure to enforce these Terms of Use shall not constitute a waiver of these terms, and such failure shall not affect the right later to enforce these Terms of Use.

9.3 Severability: If at any time any provision of these Terms of Use shall be or shall become illegal, invalid or unenforceable in any respect, the legality, validity and enforceability of the remaining provisions of these Terms of Use shall not be affected or impaired thereby, and shall continue in force as if such illegal, invalid or unenforceable provision was severed from these Terms of Use.

9.4 Rights of third parties: A person or entity who is not a party to these Terms of Use shall have no right under any legislation in any jurisdiction to enforce any term of these Terms of Use, regardless of whether such person or entity has been identified by name, as a member of a class or as answering a particular description. For the avoidance of doubt, nothing in this Clause shall affect the rights of any permitted assignee or transferee of these Terms of Use.

9.5 Governing law: Use of the Website and/or the Services and these Terms of Use shall be governed by and construed in accordance with Swiss law and you hereby submit to the exclusive jurisdiction of the Swiss courts.

9.6 Injunctive relief: Firmenich may seek immediate injunctive relief if it makes a good faith determination that a breach or non-performance is such that a temporary restraining order or other immediate injunctive relief is the only appropriate or adequate remedy.

9.7 Amendments: Firmenich may by notice through the Website or by such other method of notification as it may designate (which may include notification by way of e-mail), vary the terms and conditions of these Terms of Use, such variation to take effect on the date specified through the above means. If you use the Website or the Services after such date, you are deemed to have accepted such variation. If you do not accept the variation, you must stop access or using the Website and the Services.

9.8 Correction of errors: Any typographical, clerical or other error or omission in any acceptance, invoice or other document on Firmenich’s part shall be subject to correction without any liability on Firmenich’s part.

9.9 Language: In the event that these Terms of Use are executed or translated in any language other than English (“Foreign Language Version”), the English language version of these Terms of Use shall govern and shall take precedence over the Foreign Language Version.

9.10 Entire agreement: These Terms of Use shall constitute the entire agreement between you and Firmenich relating to the subject matter hereof and supersedes and replaces in full all prior understandings, communications and agreements with respect to the subject matter hereof.

9.11 Binding and conclusive: You acknowledge and agree that any records (including records of any telephone conversations relating to the Services, if any) maintained by Firmenich or its service providers relating to or in connection with the Website and Services shall be binding and conclusive on you for all purposes whatsoever and shall be conclusive evidence of any information and/or data transmitted between Firmenich and you. You hereby agree that all such records are admissible in evidence and that you shall not challenge or dispute the admissibility, reliability, accuracy or the authenticity of such records merely on the basis that such records are in electronic form or are the output of a computer system, and you hereby waive any of your rights, if any, to so object.

9.12 Sub-contracting and delegation: Firmenich reserves the right to delegate or sub-contract the performance of any of its functions in connection with the Website and/or Services and reserve the right to use any service providers, subcontractors and/or agents on such terms as Firmenich deem appropriate.

9.13 Assignment: You may not assign your rights under these Terms of Use without Firmenich’s prior written consent. Firmenich may assign its rights under these Terms of Use to any third party.

9.14 Force Majeure: Firmenich shall not be liable for non-performance, error, interruption or delay in the performance of its obligations under these Terms of Use (or any part thereof) or for any inaccuracy, unreliability or unsuitability of the Website's and/or Services’ contents if this is due, in whole or in part, directly or indirectly to an event or failure which is beyond Firmenich’s reasonable control.

SCHEDULE 1

Definitions and Interpretation

1. Definitions. Unless the context otherwise requires, the following expressions shall have the following meanings in these Terms of Use:

1.1 “Associated Service” means a service  available for sale to users on the Website.

1.2 “Intellectual Property” means all copyright, patents, utility innovations, trade marks and service marks, geographical indications, domain names, layout design rights, registered designs, design rights, database rights, trade or business names, rights protecting trade secrets and confidential information, rights protecting goodwill and reputation, and all other similar or corresponding proprietary rights and all applications for the same, whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recover damages and obtain relief or other remedies for any past, current or future infringement, misappropriation or violation of any of the foregoing rights.

1.3 “Listing Price” means the price of Products listed for sale to users, as stated on the Website.

1.4 “Losses” means all penalties, losses, settlement sums, costs (including legal fees and expenses on a solicitor-client basis), charges, expenses, actions, proceedings, claims, demands and other liabilities, whether foreseeable or not.

1.5 “Materials” means, collectively, all web pages on the Website, including the information, images, links, sounds, graphics, video, software, applications and other materials displayed or made available on the Website and the functionalities or services provided on the Website.

1.6 “Order” means your order for Products sent through the Website in accordance with the Standard Terms and Conditions of Sale.

1.7 “Personal Data” means means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

1.8 “Privacy Policy” means the privacy policy set out at https://www.scentmate.com/user-privacy-policy

1.9 “Product” means a product (including any instalment of the product or any parts thereof) available for sale to users on the Website.

1.10 “Prohibited Material” means any information, graphics, photographs, data and/or any other material that:

  1. contains any computer virus or other invasive or damaging code, program or macro;
  2. infringes any third-party Intellectual Property or any other proprietary rights;
  3. is defamatory, libellous or threatening;
  4. is obscene, pornographic, indecent, counterfeited, fraudulent, stolen, harmful or otherwise illegal under the applicable; and/or
  5. is or may be construed as offensive and/or otherwise objectionable, in Firmenich’s sole opinion.

1.11 “Services” means services, information and functions made available by Firmenich at the Website.

1.12 “Standard Terms and Conditions of Sale” means the terms and conditions governing a user’s purchase of the Products and Associated Services and are set out at https://www.scentmate.com/user-terms-and-conditions#terms-of-sales.

1.13 “Terms of Use” means the recitals, Clauses 1 to 9 and any Schedules to these terms and conditions.

1.14 “Trademarks” means the trademarks, service marks, trade names and logos used and displayed on the Website.

1.15 “Website” means both the web and mobile versions of the website operated and/or owned by Firmenich which is presently located at the following URLs: https://app.scentmate.com and https://www.scentmate.com.

1.16 “you” and “your” refer to the individuals over the age of 18 or otherwise under the supervision of a parent or legal guardian.

2. Interpretation: Any reference in these Terms of Use to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time. In the Agreement, whenever the words “include”, “includes” or “including” are used, they will be deemed to be followed by the words “without limitation”. Unless expressly indicated otherwise, all references to a number of days mean calendar days, and the words “month” or “monthly” as well as all references to a number of months means calendar months. Clause headings are inserted for convenience only and shall not affect the interpretation of these Terms of Use. In the event of a conflict or inconsistency between any two or more provisions under these Terms of Use, whether such provisions are contained in the same or different documents, such conflict or inconsistency shall be resolved in favour of Firmenich and the provision which is more favourable to Firmenich shall prevail.

Standard terms and conditions of sale of products and services

1. APPLICABILITY. These standard terms and conditions of sale ("Conditions") are the only terms and conditions applicable to any sale by the Firmenich entity named on the Order Confirmation ("Firmenich") to any person or company (“Buyer”) whom is deemed to have assented to these Conditions notwithstanding inconsistent or additional provisions stipulated by Buyer, which are expressly excluded hereunder. Differing or additional terms and conditions provided by Firmenich under separate written contract, or under the provisions set forth in the Order Confirmation (as defined below), document or form, if any, to which these Conditions are attached, form one and part of the same contract ("Agreement"), but prevail only to the extent of any inconsistency or conflict with these Conditions.

2. ACCEPTANCE. All orders ("Order(s)") placed by Buyer and pursuant to which Firmenich supplies any goods or services denominated in the Agreement ("Goods and Services") are subject to Firmenich's confirmation  ("Order Confirmation"). Any Order shall be deemed to be firm upon confirmation by Firmenich and may be modified, rescinded or cancelled, in whole or in part, only upon mutual written agreement of Firmenich and Buyer.

3. PRODUCTS AND SERVICES DESCRIPTION AND QUANTITIES. The description and quantities of Goods and Services are set forth separately in the Order Confirmation. Buyer may not reject or revoke acceptance of a Goods bulk shipment the quantity of which is within 3% of the amount specified for such shipment and the price payable by Buyer for such shipment shall be appropriately adjusted to reflect any overage or underage. Information supplied with regard to the percentage content of the Goods are only to be regarded as approximate average value and Firmenich shall not be liable for any variations in such content which are within the tolerances applicable to the particular Goods or not materially relevant. Buyer may not reject or revoke acceptance of the Services which substantially correspond to the Services requested by Buyer.

4. PRICES. Prices are fixed on the base of prices valid on the date of invoice. Price changes communicated by Firmenich to Buyer after placement of an Order and prior to shipment thereof shall be binding upon Buyer unless objected to in writing by Buyer within 7 (seven) working days from the date of such communication. Prices are net of all delivery charges, when applicable, including but not limited to VAT, custom duties, other taxes and cost of insurance, which shall be invoiced in addition to the price of the Goods and Services, if not otherwise specified in the Agreement. Any prices appearing on Firmenich's price list, booklets or offers are for general guidance only. Buyer shall pay additional transportation or additional charges if Buyer requests Firmenich to deliver the Goods and Services earlier than the delivery window stipulated in the Order Confirmation.

5. PAYMENT. Payment for Goods and Services may be made by credit card or bank transfer, unless Firmenich has approved creation of a credit account for the Buyer. Where payment is made by credit card or bank transfer, Goods will be shipped and Services rendered upon receipt of the full invoice amount. Where the Buyer has a credit account, Goods and Services will be invoiced respectively upon dispatch or rendering and are due net 30 (thirty) days from the date of invoice, unless otherwise specified in the Agreement or, if contrary to applicable law, due within the minimum term permitted by law. Any amount not paid by Buyer when due will be subject to a finance charge equal to 1.5% (or such lower rate which is the highest rate as permissible by applicable law) of the amount not paid per month until such amount is paid in full. Without limiting any and all remedies available hereunder, Firmenich may defer or cancel delivery of any subsequent instalments of the Goods or Services or of any other goods or services adopted by Buyer from Firmenich or any affiliated company thereof until all amounts due have been paid in full. Firmenich reserves the right to withdraw any credit account, reduce its limit or adjust the payment terms upon thirty (30) day written notice. Credit card payments are processed by Stripe Payment Processing Services for Firmenich on https://app.elixir-fragrances.com, are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the 'Stripe Services Agreement'). By agreeing to these terms or continuing to operate as a customer on https://app.elixir-fragrances.com, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Firmenich enabling payment processing services through Stripe, Buyer agrees to provide Firmenich accurate and complete information about Buyer and Buyer’s business, and Buyer authorise Firmenich to share it and transaction information related to your use of the payment processing services provided by Stripe. Firmenich shall not be liable for any incident of whatever nature that could arise due to the Stripe platform. Except with Firmenich's consent, no set off will be permitted. At Buyer’s written request, Firmenich may sell Goods or Services adopted by Buyer directly to third parties ("Sub-contractors") appointed by Buyer. Buyer shall provide appropriate security for its Sub-contractors’ payment obligations if Firmenich so requests. Buyer undertakes to indemnify and hold Firmenich harmless from any and all claims, losses, costs and damages arising out of or caused by any Sub-contractors’ failure to make full and timely payment to Firmenich of all amounts that such Sub-contractors owe to Firmenich.

6. DELIVERY. Incoterms 2020 or the then prevailing Incoterms in force at the time of the Order Confirmation shall apply, save that, to the extent there is any inconsistency or conflict between the applicable Incoterms and the Conditions, the Conditions shall prevail. Deliveries are made in accordance with Buyer's shipping instructions and Firmenich's Order Confirmation to the extent permitted by the availability of the Goods or of the raw materials thereof. Firmenich shall not be responsible for failure to meet the delivery date or period agreed between the parties, which are estimates only, and shall not be liable for any cost or damage due to early or late delivery. If Firmenich is unable to serve total demand for the Goods, Firmenich may allocate the available quantity of the Goods as it deems most fair in making partial shipments or shipments cancellation, and may give preference to the earliest commitments. Buyer may cancel any Order for such partial or cancelled shipments under written notification to Firmenich, no later than 48 (forty eight) hours after confirmation by Firmenich of such partial or cancelled shipment. Unless otherwise specified in writing, Buyer shall assume all risks of damage to or loss of the Goods upon delivery of the Goods. For Orders where delivery is to be made by collection by Buyer, such collection shall be at such premises of Firmenich as it may designate to Buyer and delivery shall be deemed to have taken place when the Goods are made available for collection by Buyer at such premises. If Buyer does not collect the Goods from such premises of Firmenich within 5 (five) days of delivery, Firmenich may charge Buyer for storage at commercial rates and Buyer agrees to pay such storage charges on demand. Firmenich reserves the right to make delivery of Goods ordered by Buyer in instalments.

7. WARRANTIES. Firmenich warrants it has title to the Goods and that the Goods comply with Firmenich's standard specifications in effect on the date of shipment and to the description of the Goods contained in the Agreement. Firmenich reserves the right at any time to change the specifications with or without advance notice. FIRMENICH EXPRESSLY EXCLUDES, TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, REPRESENTATIONS, CONDITIONS AND/OR GUARANTEES OTHER THAN AS PROVIDED ABOVE, INCLUDING WITHOUT LIMITATION, IN RESPECT OF NON INFRINGEMENT, MERCHANTABILITY, DESCRIPTION, CONDITION, PERFORMANCE OR FITNESS FOR A PARTICULAR PURPOSE RELATING TO THE USE, PERFORMANCE AND DELIVERY OF THE GOODS AND SERVICES. Without limiting the foregoing, under no circumstances whatsoever shall Firmenich have any liability or obligation to Buyer for any and all advice, assistance, recommendations or information provided by Firmenich to Buyer with regard to the handling, storing, applying or using any Goods supplied or Services furnished by Firmenich to Buyer. Any data provided by Firmenich in certificate and datasheet such as but not limited to safety datasheet, technical datasheet and information on allergens are the result of internal verification based on Firmenich methodologies, are accurate to the best of Firmenich's knowledge at the date of the certificate or datasheet and are given for information purposes only. No warranty is expressed or implied as to the quality, accuracy, completeness and compliance of the data or the results to be obtained from the use of such data by Buyer.

8. LIMITATION OF LIABILITY. Buyer shall carefully check all Goods upon receipt at the shipping destination. Claims must be notified to Firmenich in writing within 7 (seven) working days thereof and prior to the Goods' further processing or other use of such Goods. Any apparent defects must be duly reported on the proof of delivery documentation. Defects not reasonably detectable upon receipt of the Goods shall be notified within 10 (ten) working days of Buyer's detection of the defects but in any event no later than 6 (six) months after receipt of the Goods, or within the stipulated shelf life of the Goods, whichever shall first occur. Failure to give Firmenich such notice shall constitute full waiver of such claims by Buyer. At Firmenich's choice, a sample shall immediately be sent to Firmenich, or Firmenich shall be granted access to the Goods for which a claim is made. Firmenich will, at its option, replace such Goods as determined to be defective upon Firmenich's inspection at no cost to Buyer or refund the purchase price. Buyer may not send the Goods back to Firmenich unless authorised in advance. Claims do not discharge Buyer from its obligation to (i) properly document its claim and (ii) mitigate any loss. To the extent permitted by law, Firmenich shall not be liable for personal injury or property damage unless directly caused by Firmenich's gross negligence. To the full extent permissible by law, in no event shall Firmenich be liable for any loss of profit or anticipated profit, loss of revenue, loss of opportunity, loss of contract, loss of goodwill or loss arising from business interruption, losses resulting from failure to meet other contractual commitments, or any incidental, special, punitive or consequential losses or damages whatsoever arising out of or in connection with these Conditions, under statute, in tort (for negligence or otherwise) or any other basis in law or equity. To the full extent permissible by law, Buyer's exclusive remedy and Firmenich's sole liability in connection with the Goods, the Services or these Conditions shall be limited to actual costs or charges directly related to the breach and shall not in any event exceed the price of the Goods or the Services as mentioned in the relevant invoice.

9. PROPERTY. The Goods remain the property of Firmenich until complete payment of the price has been received by Firmenich, and until such time as the property in the Goods passes to Buyer hereunder, Buyer shall hold the Goods in a fiduciary capacity. Buyer is however entitled to use the Goods as set out in these Conditions unless it becomes insolvent or proceedings are issued for bankruptcy or winding up of Buyer, in which situation Firmenich shall be entitled to suspend deliveries, stop Goods in transit or take back possession of the Goods. Until the Goods have been fully paid for and without prejudice to any other remedies, Firmenich or its agents shall be entitled to draw an inventory of such Goods and re-possess any Goods to which it has title hereunder. Nothing in this clause shall confer any right on Buyer to return Goods supplied hereunder or to refuse or delay payment thereof. Unless otherwise expressly authorised by Firmenich in writing in advance, Buyer may not resell the Goods to any third party.

10. INTELLECTUAL PROPERTY, CONFIDENTIALITY. No licence, express or implied, under any patent, trademark, copyright or proprietary know-how on any Good or Service shall be granted through any sale of the Goods and Services hereunder, except to the extent necessary for Buyer’s proper development and manufacturing of its own products incorporating such Good and Services. Buyer is solely liable for any patent, trademark, copyright or proprietary know-how infringement in using the Goods in combination with other materials or operation of any process. Buyer understands and agrees that all intellectual property rights to the Goods and their formulae and the Services are and shall remain the sole property of Firmenich, which has a proprietary interest in maintaining the confidentiality status of the Goods and formulae and the Services. Unless otherwise expressly authorised by Firmenich in writing in advance, Buyer shall not disclose, resell or otherwise make available Firmenich formulae, original creations, technologies, samples, Goods, Services and proprietary information to any third party, or make use of them for any purpose other than as set out above. Buyer undertakes furthermore not to analyse, reverse engineer, match or counterfeit (in any case, either by itself or through another person) the Goods for its own account or for the account of any third party and not to use in its products similar goods from third parties which are the result of analysing, reverse engineering, matching or counterfeiting the Goods.

11. FORCE MAJEURE.  Acts of God, fires, floods, weather, epidemics, pandemics, war, or other cause(s) beyond the reasonable control of the Seller, not reasonably foreseeable, not caused by acts or omissions of Firmenich and that could not have been reasonably avoided through a work-around plan, which prevent Firmenich from providing or procuring the Goods or from otherwise performing under this Agreement (“Force Majeure Event”) will suspend Firmenich’s respective obligations under this Agreement during the period required to remove such Force Majeure Event. Firmenich will promptly notify the Buyer of the Force Majeure Event and its cause. Upon cessation of the Force Majeure Event, Firmenich’s obligations shall resume in accordance with the terms and conditions of this Agreement. Without limiting the application of the aforegoing, if Firmenich is prevented from performing on time or at all as a result of COVID-19 (or a similar epidemic or pandemic disease caused by a coronavirus), including measures taken by governments, companies or individuals in response to COVID-19, this shall constitute a Force Majeure Event, provided that Firmenich could not have reasonably avoided the impacts through a work-around plan. If Firmenich’s supply of Goods is limited as a result of a Force Majeure Event, Firmenich shall allocate the Goods  amongst Buyer and other customers in such manner as it may reasonably determine. If the period of the Force Majeure Event lasts longer than fifteen (15) calendar days, then Buyer is entitled, at any time thereafter, while such Force Majeure Event continues, to terminate this Agreement without any penalty, liability or further obligation therefore, immediately upon notice to Firmenich, or, at its sole option, purchase alternative products from other suppliers in which case the obligations of Buyer and Firmenich under this Agreement, if any, will be reduced accordingly.

12. ASSIGNMENT, SEVERANCE, WAIVER. Buyer shall not assign, transfer or charge any Order or contract with Firmenich without Firmenich's prior written consent. Each of the provisions of these Conditions are severable and distinct from others and if at any time one or more of the provisions is or becomes invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of these Conditions shall not in any way be affected or impaired by it. Except as agreed upon in these Conditions, no failure to exercise or delay in exercising of any rights hereunder shall operate as a waiver of that or any other right, nor shall any single, defective or partial exercise preclude any other or future exercise of that right. For the avoidance of doubt, each indemnity provided by Buyer under these Conditions is a continuing obligation separate and independent from the parties' other obligations and survives the expiry or earlier termination of these Conditions.

13. EXPORT CONTROL. Buyer shall comply with all applicable export control laws and shall not, directly or indirectly, export, reexport, ship or divert any Goods or Services to customers or entities which it knows or reasonably should know will resell or export the Goods or Services to parties and/or destinations currently subject to the Sanctions as defined in clause 14 below, or otherwise in violation of applicable national legislation. Buyer shall indemnify and hold Firmenich harmless from and against any and all claims, losses, costs and damages arising from Buyer’s failure, intentional or unintentional, to comply with this clause 13 and clause 14 below.

14. TRADE COMPLIANCE. Buyer represents, warrants and undertakes that neither it, its affiliates nor any of their respective directors, officers, agent, employees or any person or entity acting on behalf of any of them, is, or is directly or indirectly, owned or controlled, by a person or entity that is or will be designated on any economic sanctions or export controls list of any governmental authority, including the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) Specially Designated Nationals and Blocked Persons List. Buyer promises that no action of Buyer or any of its affiliates, and its respective directors, officers, agents, employees or any person or entity acting on behalf of any of them, or any other transaction contemplated hereby or the fulfilment of the terms hereof, will result in a violation of any trade sanctions, foreign trade controls, export controls, non-proliferation, anti-terrorism and similar laws administered by OFAC, the U.S. Departments of State or Commerce in the United States, the European Union and its Member States, Switzerland, the United Nations Security Council (“UNSC”), or any other relevant sanctions authority which prohibit the sale, export or diversion of products, services and technology to sanctioned countries or nationals of those countries, as well as to persons or entities whose names appear on the List of Specially Designated Nationals and Blocked Persons maintained by OFAC (collectively, “Sanctions”). Neither party shall be obliged to perform any obligation otherwise required by these Conditions and the Agreement, including without limitation an obligation to (i) perform, deliver, accept, sell, purchase, pay or receive monies to, from, or through a person or entity, or (ii) engage in any other acts if this would be in violation of, inconsistent with, or expose such party, a parent company or affiliate of such party, or any other person related to that party to punitive measure under any Sanctions. If Buyer should learn that any of the representations made in this clause are no longer accurate, or learns of any violation of Sanctions by Buyer that may involve Firmenich products, technology, including the Goods and the Services, Buyer shall inform Firmenich immediately in writing. Furthermore, Buyer shall provide all information, assistance and cooperation requested by Firmenich in connection with Firmenich’s compliance efforts, including taking corrective or remedial action recommended by Firmenich and/or by providing certifications of compliance with relevant Sanctions as requested by Firmenich.

15. DATA PRIVACY. If the performance of these Conditions and the Agreement requires Buyer to collect, receive, store, transmit, retransfer, dispose or otherwise use (collectively “process” or “processing”) any information relating to an identified or identifiable natural person (“Personal Data”), Buyer undertakes to (i) process the Personal Data solely for the legitimate purposes of performing its obligations under these Conditions and the Agreement and for no other purpose, and only in accordance with the local law governing such processing; (ii) to provide the subject of the Personal Data with the same rights in relation to their Personal Data, including but not limited to rights of access, rectification or erasure available to such individual as they would have in the country in which he or she resides; (iii) ensure that any persons it authorises to have access to the Personal Data will respect and maintain the confidentiality and security of the Personal Data; (iv) provide all necessary information to Firmenich to demonstrate compliance with this clause and allow for and contribute to audits, including inspections, conducted by Firmenich or another auditor mandated by Firmenich; and (v) as soon as possible after delivery of the Goods and Services or termination of Buyer’s relationship with Firmenich, delete all existing copies of Personal Data or return any Personal Data to Firmenich, at Firmenich’s discretion. Buyer warrants that it has full legal authority to process the Personal Data as contemplated, it has in place appropriate technical and organisational measures to prevent unauthorised or unlawful processing or accidental loss or destruction of, or damage to, such Personal Data, and it has adequate security programs and procedures to ensure that unauthorised persons will not have access to the Personal Data. Buyer shall be responsible for, and remain fully liable to, Firmenich for the actions and omissions of Buyer, all its affiliates and its respective employees, representatives and subcontractors concerning the treatment of Personal Data as if it were Buyer’s own actions and omissions.

16. GOVERNING LAW AND JURISDICTION. These Conditions and the Agreement are governed by the laws of Switzerland excluding the United Nations Convention on Contracts for the International Sale of Goods or any successor to it. Firmenich and Buyer shall attempt to amicably resolve any dispute arising out of or in connection with these Conditions and the Agreement, including any question regarding their existence, application, validity or termination. Should they fail to do so within 60 (sixty) days from the date of first notice of any such dispute, then any such dispute shall be (1) submitted to the exclusive jurisdiction of the courts of the place of incorporation of Firmenich, or (2) in Firmenich's sole discretion and provided Firmenich sends a notice to this effect within 90 (ninety) days of the date of first notice of any such dispute, resolved by way of arbitration in Geneva, Switzerland in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers’ Arbitration Institution in force on the date on which the Notice of Arbitration is submitted in accordance with these rules. Any such arbitration shall be adjudicated by a sole arbitrator and the language of the arbitration will be English. Notwithstanding any other term of these Conditions and the Agreement, Firmenich may commence court proceedings relating to any dispute arising from these Conditions or the Agreement at any time where Firmenich seeks urgent interlocutory relief.