GENERAL PROCUREMENT CONDITIONS

1. General – Scope

1.1 These General Procurement Conditions (hereinafter: “GPCs”) govern in principle the legal relationship between Foodcase International B.V, who is registered at Wageningen, The Netherlands and having its business address at Ultra Plus Bronland 12 L-1 in Wageningen, The Netherlands or its Group companies (each company referred to hereinafter as “Foodcase”) and its contracting partners (each company referred to hereinafter as “Supplier”) in the procurement of goods, work and/or services by Foodcase.

1.2 Any conflicting or deviating terms and conditions shall not apply even if not rejected in a particular case. These GPCs apply only where the customer is an entrepreneur or a legal entity or a special fund under public law.

 

2. Delivery, default

2.1 In the event that the delivered goods deviate from the procurement contract or from the (purchase) order, Foodcase shall be bound only if it has given its written consent to the deviation prior to delivery. This shall also apply to any part-deliveries or early deliveries. Acceptance of deliveries and services, the issuance of receipts or any payment on the part of Foodcase shall not, per se, be deemed to constitute consent. Acceptance of deliveries is confined to the receiving unit indicated to the Supplier or to the forwarder authorized by Foodcase. Acceptance of deliveries by unauthorized personnel shall in no case result in a loss of rights on the part of Foodcase.

2.2 Deliveries of goods shall be accompanied by delivery notes in duplicate. Handover of the goods shall be receipted by Foodcase (receipt for goods shipped). In the event of any collection (agreed in a departure from Art. 2.3) by a contractor commissioned by Foodcase, handover of the goods shall be receipted by the contractor. The Supplier shall be responsible for obtaining receipts for goods shipped.

2.3 Time and place of delivery specified in the procurement contract or the order are binding. The crucial date for adherence to a delivery term or deadline is the date of receipt of goods at Foodcase premises or the premises assigned by Foodcase in the order, for example Foodcase’s customers premises. Failing other written arrangements, deliveries shall be delivered according to Incoterm DDP (Incoterms edition 2010). Foodcase and Supplier undertake to unload the goods on the ramp of Foodcase operation. This shall also apply to any specimens.

2.4 If the contractual service consists in work, adherence to the delivery time shall depend on the acceptance or acceptability of the work.

2.5 The Supplier undertakes to notify Foodcase in writing without delay, and orally in advance, if circumstances have occurred or are foresee-able that point to possible non-adherence to the agreed delivery time.

2.6 In the event of default in delivery, Foodcase shall be entitled to claim all rights offered by the provisions of statute. Moreover, in the event that the Supplier is in default, Foodcase shall be entitled to demand a contractual penalty amounting to 0.3% of the value of the delayed delivery or service per calendar day, though max. 5% of the total order value. The Supplier is free to demonstrate that no or less outlays have been incurred. The contractual penalty shall count toward the total amount of any claim for loss caused by the delay. Foodcase reserves the right to claim the contractual penalty pending final payment. For the rest, this shall not affect any further going claims and rights.

2.7 Delivery notes shall contain the following particulars: number of the delivery note, quantity delivered, agreed article designation and number, place of performance, contract and order number, BBD, lot-code, and date. In the case of incomplete data, the arrangement under Art. 5.2, sent. 4, shall apply by analogy.

2.8 In the case of any deliveries from abroad, an additional copy of the delivery note and, where necessary, the appropriate import records shall be attached to the delivery.

2.9 At the demand of Foodcase, the Supplier undertakes to include the requested documents, a certificate of origin, manufacturer and/ or preference certification, with the shipment free of charge.

 

3. Prices and offset

3.1 The prices specified in the various orders or contracts are, in principle, without value-added tax (VAT) but, failing other express contractual arrangements between the parties, include the costs of transport, packaging and return or disposal of the outer packaging. They are fixed prices and rule out any subsequent demands on the part of the Supplier.

3.2 The Supplier affirms that the calculation of the agreed prices and any transport costs, wherever these are to be borne by Foodcase in exceptional cases, is not based on any taxes or levies that may be remitted for whatever legal reason. Should any such taxes or levies form the basis for the Supplier’s pricing, the price shall be deemed to be reduced by such amounts. If any or all of these levies are remitted or reimbursed to the Supplier following conclusion of a procurement contract, it shall reimburse Foodcase in the full amount.

3.3 The Supplier may only offset such claims of Foodcase as are un-disputed or final. No claims of the Supplier against Foodcase may be assigned to third parties without the prior written consent of Foodcase. Payments may be made only to the Supplier.

 

4. Payment terms

Failing other written agreements, payments shall be made within forty-five (45) calendar days. These payment periods commence upon complete delivery or acceptance and receipt of a due and proper invoice.

 

5. Invoices

5.1 The Supplier’s invoices for goods shall be drawn up only on the basis of the receipted delivery note. A separate invoice shall be produced in respect of each delivery at each place of delivery or each collection agreed (in a departure from Art. 3.1) by Foodcase or a contractor commissioned by Foodcase.

5.2 Invoices drawn up by the Supplier shall contain the same data as the receipted delivery note (quantity delivered, agreed article designation and number, place of performance, contract and order number, BBD, lot-code, and date). The contractually agreed price shall be stated in the invoice. If an invoice contains deviating or incomplete particulars, Foodcase may, at its discretion, correct or supplement any incorrect or missing particulars or else return it to the Supplier for verification. At any event, the payment term pursuant to Art. 4 shall not apply until correction or until Foodcase has received the invoice verified by the Supplier.

5.3 The parties may contractually agree on settlement via the Evaluated Receipt Settlement (ERS) procedure. In such case, the Supplier provides its service on the basis of the procurement contract or order by Foodcase without producing an invoice. Within the scope of automated incoming-goods inspection, Foodcase makes a credit entry in favour of the Supplier on the basis of the particulars contained in the delivery note. Foodcase transmits to the Supplier a record of the credit entry in writing or by email. The Supplier undertakes to notify Foodcase of any deviations of the credited amount and any associated excess payments or shortfalls without delay and to make up any differences.

5.4 The Supplier’s invoices for individual services shall be drawn up within thirty (30) calendar days of performance of the service. Recurrent services performed by the Supplier shall be invoiced on a monthly basis, failing other express contractual arrangements.

6. Acceptance, defects

6.1 The contractual service shall be accepted after an incoming-goods inspection performed by Foodcase upon receipt or (wherever contractually agreed in a departure from Art. 2.1) after an agent commissioned by Foodcase has collected the goods at the agreed place of performance.

6.2 Foodcase – or its customers in case of a direct delivery by the Supplier to Foodcase’s customers premises – shall examine deliveries within fourteen (14) calendar days of acceptance as to obvious defects. Foodcase shall promptly notify the Supplier in writing of any defects as soon as they are established in the course of due and proper business operations.

 

7. Passage of risk and title

7.1 The risk shall pass to Foodcase, in the case of work and services, with their acceptance and, in the case of goods deliveries, upon their receipt at the receiving unit named by Foodcase.

7.2 Upon delivery (acceptance) or handover of the ordered goods or work, Foodcase shall be given direct title thereto.

 

8. Warranty

Foodcase shall be entitled to the full statutory warranty claims subject to the following stipulations:

8.1 The warranty period shall commence with the passage of risk. If deliveries by the Supplier concern component supplies of Foodcase to third parties, the warranty period shall commence upon their delivery to the third party by Foodcase.

8.2 Wherever the warranty arrangements contain options be-tween different forms of warranty claims, these options shall be due to Foodcase.

 

9. Liability

9.1 In respect of its deliveries and services, the Supplier shall ad-here to the state of the art, the variously applicable safety rules and the relevant accident-prevention, environmental and industrial-safety rules. Any permits and approvals necessary for due and proper deliveries or services shall be obtained or updated by the Supplier at its expense and in good time. If this provision is not heeded, the order shall be deemed to have been improperly discharged.

9.2 Any infringement by the Supplier of the contractual duties shall entitle Foodcase to rescind from the contract. Any recurrent infringements shall entitle Foodcase to terminate the contract without giving no-tice. In addition, Foodcase shall be entitled to assert claims to compensation.

9.3 The Supplier shall exempt Foodcase from any third-party claims to compensation under product liability wherever the cause lies in its sphere of influence and organization, and itself is liable in its external relations.

9.4 In addition, the Supplier shall be liable for reimbursement of any outlays resulting from or in connection with any recall scheme carried out by Foodcase. Foodcase undertakes to notify the Supplier – wherever this is possible and can reasonably be expected – of the content and scope of any recall measures to be taken and to give it an opportunity to submit an opinion.

9.5 In the event that recourse in connection with guarantees or advertising statements made by the Supplier is claimed to Foodcase by third party, the Supplier undertakes to exempt Foodcase from any alleged and existing claims. The Supplier’s exemption duty refers to any outlays and costs incurred by Foodcase arising from or in connection with any re-course had by third parties. This shall also include any lawyer’s costs.

9.6 The Supplier’s liability pursuant to the provisions of statute shall not be affected.

 

10. Force Majeure

10.1 Force Majeure is defined to include (but without limitation to) inability to perform as a result of any cause beyond the reasonable control of that party including acts of God, fire, flood, storm, earthquake, terror acts, war, riots, or any act of any government or public authority. In the event Supplier is prevented or delayed from or in performing its duties or obligations by Force Majeure, Foodcase may engage a third party to provide the affected services or products until such time as the Supplier, upon giving notice in writing, is able once again to perform in accordance with the contract.

10.2 If any Force Majeure preventing either party from performing its obligations under the contract lasts for a continuous period of more than ninety (90) calendar days, then either party may terminate the con-tract by giving thirty (30) calendar days’ notice in writing to the other party without penalty, liability or further obligation.

11. Quality agreement

Should any product investigation made by Foodcase establish that the quality level pursuant to the quality agreement is not reached, Foodcase reserves a special right of termination. The same shall apply where the Supplier’s personnel, building and equipment hygiene is insufficient.

 

 

12. Compliance

12.1 The Supplier agrees to perform this contract in accordance with applicable laws and directives, including anti-bribery and anti-corruption legislation (such as the U.S. Foreign Corrupt Practices Act or the UK Bribery Act). Local legal requirements must be observed, but at least the following obligations.

12.2 The Supplier agrees not to render, approve, offer, accept or promise, either itself or through third parties acting on behalf of the Supplier, any form of contribution (e.g. bribes, kickbacks, valuables or other benefits) in favour of a public or elected official or another third party (including a director, officer or employee of Foodcase) for the purpose of initiating or continuing business transactions, obtaining other favourable business decisions or obtaining other unlawful advantages, which are in each case connected with Foodcase.

12.3. The Supplier furthermore confirms that it has not rendered, approved, offered, accepted or promised any contribution pursuant to section 12.2 in connection with Foodcase and this contract, either itself or through third parties acting on behalf of the Supplier.

12.4. Foodcase expects that the Supplier will likewise demand that its business partners, contractors or other third parties who are commissioned or employed to perform any duties under this contractual relationship vis-à-vis Foodcase comply with the obligations contained in the above sections 12.1 to 12.3.

12.5 The Supplier confirms that it has taken note of the Foodcase Code of Conduct & Ethics, which is available at the website of Foodcase.

13. Legal Consequences

If the Supplier (including any third parties employed by the Supplier in connection with this contract) is suspected of breaching its obligations under sections 12.1 or 12.2 or if the declarations being made in section 12.1 are incorrect, the Supplier is obliged to investigate the suspicion immediately and to inform Foodcase in writing of the investigation and its results. If available and legally allowed, the Supplier will provide Foodcase with all relevant documents, information and evidence to evaluate the suspicion. If the suspicion is confirmed, the Supplier will provide Foodcase with a written statement within a reasonable period of time of the measures taken to prevent future breaches. If the Supplier does not comply with these obligations within a reasonable period of time, or if the announced or taken preventive measures are not sufficient to pre-vent future breaches of sections 13.1 or 13.2 under objective standards even after setting a reasonable period of grace, or if the breach is re-peated, Foodcase is entitled, irrespective of other rights, to terminate the relevant contract as well as any other contractual relationships without further notice. This shall not affect Supplier’s obligation to provide any agreed termination support.

14. Corporate Social Responsibility
15. 1 The Supplier agrees to comply with the 10 principles of the UN Global Compact and the 4 basic principles of the International Labour Organization (ILO) within the meaning of an essential contractual obligation. Foodcase expects the Supplier to demand the same from its business partners.
16. Secrecy, data protection

15.1 The Supplier shall treat in strict confidence the contractual relationship with Foodcase, any personal data and any records handed over to it in this connection and any information (whether in written, oral or other form) of which it becomes aware, even if they are not specifically identified as such. The Supplier shall be liable for any damage/loss incurred by Foodcase due to any breach of this duty.

15.2 Such information and data may be disclosed to third parties only with the express written consent of Foodcase. Any advertising of the business relation with Foodcase shall require the latter’s written consent.

15.3 Heed must be paid to statutory and company data-protection rules. Wherever personal data are processed or used under an order, the parties shall conclude a data-protection agreement pursuant to the pro-visions of the EU General Data Protection Regulation (EU-GDPR).

15.4 The statutory data protection provisions, in particular the provisions of the EU-GDPR, are observed by Foodcase. Foodcase processes the information on interested parties, suppliers and customers transmitted exclusively for the purpose of carrying out the framework contracts negotiated with the respective parties. The storage of prospect, supplier and customer information serves only to establish contact with the persons responsible in the areas of purchasing, finance, logistics and operations for the purchase of products and services as well as for the provision of services. The affected persons can contact Foodcase at any time to request information about their stored contact information at the following address:

info@foodcase-international.com

16 Intellectual Property

16.1 Supplier represents and warrants that as of the delivery of the goods to Foodcase, and covenants that, continuously thereafter, the goods and any parts thereof and purchase, use, sale, offer to sell and/or importing of such goods and any parts thereof, will not infringe any copyrights, design patents, utility patents, trademarks or trade secrets of any third party. The Supplier shall undertake to defend and hold Foodcase harmless from any claims of third parties arising from or in connection with the assertion of such a right.

16.2 All intellectual property rights or other neighbouring rights of Foodcase shall remain with Foodcase.

17. Use and exploitation rights

17.1 Foodcase shall retain title to any recipes, packaging materials, specifications, production instructions/techniques and other records made available to the Supplier. They shall be returned without delay upon completion of the order.

17.2 Such information and materials will be used by Supplier solely to the extent necessary for Supplier to fulfil its obligations to Foodcase under this Agreement and to produce and deliver the goods. Supplier will not copy, sell, lend or otherwise dispose of or use the information or materials without the prior written consent of Foodcase.

18 Other provisions

18.1 The contractual relationship between the Supplier and Foodcase and any claims resulting therefrom are exclusively subject to Dutch law. The UN Convention on Contracts for the International Sale of Goods dated April 11, 1980 is ousted.

18.2 The courts the Netherlands (forum: Arnhem) shall have exclusive jurisdiction in any disputes, including the special procedure based on documents (trial by record) and bills of exchange, arising from or in connection with the contractual relationship, its emergence, legal effect or termination.

18.3 Failing other arrangements set forth in the procurement contract or the order, the place of performance is the registered office of Foodcase.

18.4 The contractual language is English. To the extent that the contracting parties also make use of the national language pertaining at the registered office of Foodcase in The Netherlands, the English wording shall have priority.

18.5 Failing other arrangements, any declarations of Foodcase shall be in writing to be effective. Neither party may rely on any actual exercise deviating from the Agreement, until such time as both contracting parties have confirmed such deviation in writing. An advanced electronic signature or similar electronic procedure in accordance with Article 26 of Regulation (EU) No 910/2014 dated 23 July 2014 meets the requirement of this clause. The Parties agree that the electronic signature shall not be denied concerning the legal effect and its admissibility as evidence in legal proceedings because of its electronic form or its missing for qualified electronic signatures.

18.6 Even if the contracting parties agree that one or more provisions of these GPCs be replaced by special covenants, this shall not affect the remaining provisions, which shall continue to apply.

18.7 Should any provision of this agreement be or become ineffective, this shall not affect the validity of the remaining provisions. Failing other arrangements under optional law, any invalid term shall be replaced with a valid provision reflecting the economic purpose of the ineffective provision, with heed paid to its legality.