GENERAL TERMS AND CONDITIONS OF PURCHASE

 

Article 1. Definitions and scope

1. These general terms and conditions of purchase (the ‘General Conditions’) govern all offers from, all acceptances by, and all contracts with Fromatech Ingredients B.V., a private limited company with registered office and principal business address at Industriestraat 15, 6135 KE Sittard, Netherlands Chamber of Commerce registration number 14019715, (‘the buyer’) in which Fromatech Ingredients B.V. acts as the buyer.

2. These General Conditions may be read on, and downloaded from, the website http://www.fromatech.com/legal. The Dutch text of these General Conditions takes precedence over any translation hereof in the event of any discrepancy.

3. In these General Conditions the term ’seller’ means the party with which the buyer contracts subject to these General Conditions.

4. Once these General Conditions are stipulated to apply to a contract, they will also apply without further stipulation to all future contracts between the buyer and the seller.

5. Any change to these General Conditions is only binding if it has been agreed in writing between the parties. If there is any exception to any of the provisions of these General Conditions the other conditions will remain fully enforceable. An agreement to depart from these General Conditions on one occasion does not give the seller any rights in respect of future occasions.

6. Any complaint concerning notification of these General Conditions must be sent in writing to the buyer in writing within two weeks of the creation of a contract, failing which all rights are lost.

7. Any complaint alleging that any provision of these General Conditions is unreasonably onerous must be sent in writing to the buyer within two weeks of the buyer seeking to enforce such a provision, failing which all rights are lost.

8. If any provision of these General Conditions is voidable, void, or otherwise declared to be unenforceable, the other provisions of these General Conditions will remain fully enforceable and the parties shall replace the voidable, void, or otherwise unenforceable provision with a valid provision that is as close as possible in scope and intent to the provision that is voidable, void, or otherwise unenforceable.

9. The buyer is entitled to amend these General Conditions. The seller is deemed to have accepted the amended General Conditions if it has not sent written notice of objection to the amended General Conditions to the buyer within fourteen days of having received or having been notified of the amended General Conditions.

10. The buyer expressly rejects any general or other terms and conditions of the seller.

Article 2. Creation and termination of contract

1. All offers from the seller include all costs of any kind, are irrevocable and entirely without charge to the buyer. An offer must remain open for at least 30 days unless agreed otherwise in writing.

2. The buyer is only contractually bound once it has entered into any written contract with the seller.

3. Any oral or written undertaking by, or agreement with, any employee of the buyer will only bind the buyer if and when it is confirmed in writing by an authorised signatory for the buyer.

4. The seller guarantees that the information it supplies to the buyer within the context of its offer is accurate and complete.

5. The seller must alert the buyer to any evident fault or ambiguity in the contract and accompanying documentation.

6. Orders are binding upon the seller; the contract pertains only to the supply of these goods that have been expressly agreed.

7. The buyer is not bound by any discrepancy with the contract, such as amounts or weights, unless expressly agreed between the parties in writing. In the event of any such discrepancy, the buyer is entitled to change the agreed price, delivery period, method of delivery, or other part of the contract, or to terminate the contract.

8. The information pertaining to offers, acceptances, and contracts as recorded in the systems of the buyer constitute conclusive evidence thereof. It is not possible to rely on rebuttal evidence. This provision constitutes an agreement on evidence as defined by Article 153 of the Dutch Code of Civil Procedure.

9. The seller is not entitled to transfer or contract out any or all of its rights and obligations under the contract without the prior written consent of the buyer. The buyer may attach conditions to any such consent.

10. Whether or not a contract is for a fixed term, any contract may be terminated at any time by the buyer, without the need to give reasons, for example if the seller increases its prices or makes other contract changes. In such a case the buyer has no liability to pay compensation. As soon as it receives notice to terminate, the seller must cease performance of the contract.

11. The buyer does not agree to any automatic extension of contracts. No later than three months before the end of a fixed term the seller writes to the buyer to seek agreement, if it so wishes, for a new contract or fixed term.

Article 3. Prices and payment

1. The purchase price is fixed, expressed in euros, in accordance with prevailing prices at the time of the offer and includes, unless otherwise agreed in writing by the parties, the price of the goods, the price of the packaging, transportation, delivery costs to the address stipulated by the buyer (Delivered Duty Paid), taxes, duties, and all other costs of the seller in compliance with its obligations.

2. Unless agreed otherwise in writing by the parties, the buyer will pay for the delivered goods within 60 days of the invoice date, provided that the said goods have been approved and the buyer has received all accompanying documentation, including a correctly addressed and completely itemised invoice – according to type and quantity.

3. Failure to comply with the requirements set out in the order, or otherwise agreed in writing, concerning data on invoice, shipping advice, and packaging lists, as well as failure to complete these documents with all the required information, entitles the buyer to suspend its payment obligation to the seller.

4. Payment by the buyer in no way constitutes approval of the delivery or the waiver of any right.

General Terms and Conditions of Purchase of Fromatech Ingredients B.V.; Version 1.0 Page 3 of 7

5. Claims by the buyer are immediately enforceable – and the buyer is entitled to terminate the contract by written notice – if the seller is subject to an attachment order upon its goods, or if a moratorium, insolvency order or debt rescheduling scheme is applied for or granted, or if steps in this regard are deemed at any moment to be unavoidable.

6. The buyer is not obliged to provide security for compliance with its obligations.

Article 4. Delivery of goods and transfer of risk

1. Goods are to be delivered Delivery Duty Paid (DDP), unloaded, at the agreed location at the agreed time, and within the agreed delivery period. The agreed delivery period is a deadline.

2. Except in the case of force majeure, failure to deliver within the delivery period will mean that the seller is immediately in breach of contract, without the need to first serve notice of default.

3. As soon as the seller knows or suspects that it cannot comply with the agreed delivery period, it must notify the buyer in writing of the reason for non-compliance, the length of the delay, and the steps it has taken to prevent such delay. If the seller fails to notify the buyer in good time, it will not be able to rely on force majeure.

4. The seller is not entitled to perform the contract in parts unless the parties have agreed otherwise in writing.

5. In the event of late delivery of a part of the agreed order, the buyer is entitled to return the part already delivered at the expense and risk of the seller.

6. The ownership and risk of the goods transfers at the time of delivery once the buyer has taken receipt of them at the agreed place for delivery. In the event of rejection of all or some of the goods, ownership and risk of the goods remains with the seller.

7. The seller must comply with all current business and safety rules or house rules imposed by the buyer.

8. Whilst ownership and risk remains with the seller, the seller must at its own expense ensure that the goods are adequately insured.

9. The seller must ensure that goods to be delivered are accompanied by all available documentation, such as certificates of inspection, testing, assessment and approval.

10. Before making any payment, the buyer is entitled to require that the seller provides security for compliance with its obligations, such as an unconditional and irrevocable bank guarantee.

11. The buyer is free at any time to sell and deliver to third parties the goods supplied by the seller.

Article 5. Packaging and storage

1. The seller must package and preserve all its goods for delivery such that they can be transported damage free and/or stored damage free for a duration of at least 12 calendar months.

2. The seller must comply with any requirements stipulated by the buyer with regard to packaging, labels, or transportation.

3. The seller guarantees that the labels for its goods for delivery comply with all laws and regulations in the country for which they are intended.

4. On demand by the buyer, the seller must take back at its own expense and risk its packaging and/or labels.

5. If the parties have agreed that the goods are to be stored prior to delivery, then they will be stored in such suitable place as is agreed between the seller and the buyer, at the expense and risk of the seller, who must store them in a demonstrably appropriate way and demonstrably ensure they are adequately insured at all times.

6. The seller is liable for all loss resulting from inadequate packaging, wrong labels, preservation, or storage.

Article 6. Quality and guarantee

1. The seller guarantees that the goods and accompanying documents it supplies comply with these General Conditions, with the contract, with the relevant regulations, and with the requirements of the safety and quality standards applied within the sector, and that they are free of latent and patent defects and are suitable for the purposes for which they are intended.

The seller guarantees, inter alia, that the goods are at all times of a good and consistent quality, are free from alien odours, colours, characteristics and any kind of contamination (irrespective of whether such contamination causes any change to the product characteristics) and from any errors relating to materials, construction, and manufacture, or defects in the nature, composition, content, or formulation.

2. If any or all of the goods or accompanying documents are rejected by the buyer or a competent authority during their manufacture, or following completion thereof, or during or after delivery, or are otherwise established not to meet the relevant specifications, characteristics, and standards, the buyer may require the seller:

- to adapt the production to the satisfaction of the buyer so that the specifications, characteristics, and standards are met; and/or

- to return payment already made; and/or

- to supply goods and/or documents that do comply with the specifications, characteristics, and standards;

without prejudice to all other rights of the buyer.

3. The seller may not introduce changes to product specifications without the prior written consent of the buyer.

4. The buyer is entitled to approve, inspect, and sample the goods before, at the time of, or after delivery, or to engage any third party to do so. The seller will assist in such inspection and give access to the places where the goods are produced, administered, and/or stored. On demand by the buyer, the seller must immediately supply all documentation necessary for establishing the quality of the goods.

5. Unless agreed otherwise in writing, the cost of approving, inspecting, and/or sampling the goods is payable by the seller, likewise the cost of re-approving, re-inspecting, and/or re-sampling the goods.

6. The buyer is entitled to return rejected goods and/or documentation at the cost of the seller, or to hold on to them at the expense and risk of the seller. If the goods and/or documentation are stored by the buyer, the seller must collect them within two days of being requested to do so by the buyer, failing which the buyer may deal with them as it thinks fit.

7. If the approval, inspection, and/or sampling of the goods indicate that delivery is no longer possible or appropriate given its nature or purpose, the buyer is entitled to terminate the contract, without being required to first serve notice of default or to pay compensation.

Article 7. Liability and force majeure

1. The seller is liable for all loss of any kind incurred by the buyer and/or any third party (including employees of, and those engaged to perform work by, the buyer) as a result of the performance of the contract by the seller.

2. The seller indemnifies the buyer against any third-party claim arising from the performance of the contract by the seller including, but not limited to, claims for compensation for failure to deliver goods on time or at all, third-party ownership, product liability, product recall, infringement of third-party intellectual property rights, undesired residue, or breach of standards and MRLs by the goods supplied by the seller.

3. If and insofar as any liability of any kind lies with the buyer, such liability is always limited to the net amount invoiced, excluding VAT, for the performance giving rise to the loss, with the proviso that the buyer cannot be held liable for a higher amount than the maximum amount for which it is insured.

4. In the event of force majeure on the part of the seller, the buyer is entitled:

- to terminate the contract with immediate effect;

- to stipulate a further period for compliance by the seller.

If at the end of this further period the seller is still unable to comply with its obligations,

the buyer is entitled to then terminate the contract with immediate effect. The buyer is not obliged to compensate the seller for loss and/or costs in the event of force majeure.

5. The seller must notify the buyer in writing of the existence of, and reason for, force majeure within 48 hours.

6. The term ‘force majeure’ does not, among other things, include strike, lock-out, labour shortage, absence through sickness, energy supply problems, lack of raw materials, transport problems, non-compliance with obligations of the seller or any third party engaged by the seller, non-suitability of materials, and liquidity or solvency problems on the part of the seller.

Article 8. Confidentiality and liability insurance

1. All contracts, orders and related correspondence are confidential and must not be disclosed by the seller.

2. All information, product specifications, designs, formulae, drawings, or other data, digital or otherwise, provided by the buyer to the seller, or used or manufactured for the benefit of the buyer, remain or become the property of the buyer and must be treated by the seller as strictly confidential. They may only be used by the seller for the benefit of the buyer and must be sent/returned to the buyer in good condition as soon as requested by the buyer.

3. The seller must impose the duty of confidentiality set out in sections 1 and 2 of this article on its employees, agents, and third parties who necessarily need to know the aforesaid information, and guarantees that such employees, agents and third parties will comply with these obligations.

4. The seller may not use goods created jointly by the buyer and the seller for the benefit of third parties without the prior written consent of the buyer.

5. The duty of confidentiality remains binding on any ground whatsoever at any time after termination of this contract.

6. The seller must adequately insure itself against liability and risks. To this end, the seller must be adequately insured at all times against third-party liability, product liability, and professional negligence.

7. The seller must provide the buyer immediately on request with copies of the policies and proof that policy premiums have been paid on time.

8. If, in respect of its liability to the buyer, the seller can claim payment under any such insurance policy it must, if the buyer so requires, ensure that such payment is made direct to the buyer by means, for example, of assignment of rights or authorization to receive the payment.

9. Any loss not covered by insurance, as well as the policy excess, is always payable by the seller.

10. In the event of breach of any section of this article, the seller is immediately liable to pay the buyer a penalty of €10,000 per breach and €500 for each day that the breach continues, without prejudice to the other rights of the buyer.

Article 9. Intellectual and industrial property rights

1. The seller grants the buyer a non-exclusive, permanent, irrevocable, global, and transferable user right to any intellectual and industrial property rights to the goods supplied by the seller. This user right includes the right to grant such a user right to customers, potential customers, and other third parties with whom the buyer maintains relationships in connection with the performance of its business.

2. The seller guarantees that the use (including onward sale) of the goods it supplies does not infringe any third-party intellectual, industrial, or other property rights.

3. The seller indemnifies the buyer against any third-party claim arising from any infringement of the rights described in section 2 of this article and will compensate the buyer for all loss that is a consequence of this.

4. Insofar as the buyer provides the seller with any documentation or goods to which the buyer has any intellectual property rights, the seller acknowledges that the buyer is and remains at all times the owner of such rights and that the seller will not acquire any intellectual property rights or title thereto. The intellectual property rights pertaining to the formulae, ideas, designs, etc., of the buyer, always accrue to the buyer, even if they have been developed in consultation with, or on the recommendation of, the seller. This also applies to additions or changes made by the seller to the formulae, ideas, designs, etc., of the buyer. The seller must keep in good condition and manage such documentation and/or goods at its own expense and risk. The seller may not use these for, or allow their use by, third parties without the written consent of the buyer.

5. If in the context of the contract the seller creates goods for itself, then any intellectual property rights that can be established thereon accrue exclusively to the buyer. Any payment for these is deemed to be included in the contract price for the goods to be supplied. The seller must, where necessary, cooperate fully in the establishment of those rights for the benefit of, and their transfer to, the buyer.

6. The seller is not entitled to offer, show to, or otherwise inform any third party of information, product specifications, images, catalogues, or other data provided by the buyer to the seller, or to copy such information, product specifications, images, catalogues, or other data provided by the buyer, or to use such information, product specifications, images, catalogues, or other data provided by the buyer otherwise than for a purpose for which it was supplied, without the prior written consent of the buyer.

7. In the event of a breach of any provision of this article, the seller is immediately liable to pay the buyer a penalty of €10,000 per breach, plus €500 for each day that the breach continues, without prejudice to all other rights available to the buyer.

Article 10. Jurisdiction and competent court

1. Any dispute arising between the parties pertaining to any contract with the buyer, and any contract derived thereunder, is governed exclusively by Dutch law. The provisions of the Vienna Sales Convention are excluded.

2. Any dispute arising between the parties pertaining to any contract between them, and any contract or other actions pertaining to such contract, including, but not limited to, unlawful act, undue payment, and undue enrichment shall be brought in the first instance before the competent court of the Court of Limburg, for the district of Maastricht, except insofar as any mandatory rules of competency may prevent such a choice.