General Purchase Conditions

GENERAL PURCHASE CONDITIONS

1: Scope of application – These general purchase conditions (hereinafter referred to as the ‘Purchase Conditions’) apply to all purchases of goods, including raw materials and packaging, and services from suppliers/agents (hereinafter referred to as the ‘Supplier(s)’) by Astra Sweets N.V., Astra Faam BV, Sweet Paradise N.V., De Faam B.V. and/or Sweet Paradise SA (hereinafter referred to jointly as ‘Astra’), insofar as Astra has not expressly deviated from this in writing. Astra reserves the right to change these Purchase Conditions unilaterally, in accordance with the changes in its commercial policy and the financial and legal requirements. New general terms and conditions will take effect immediately after the Supplier has been notified of them. By accepting a purchase order or purchase contract, the Supplier confirms that it has prior knowledge of the Purchase Conditions and accepts them as contract terms relating to the agreement between Astra and the Supplier. The agreement consists of the purchase order, the purchase contract, if any, and these Purchase Conditions. All other terms and conditions stipulated by the Supplier, however formulated, do not bind Astra unless Astra has explicitly accepted them in writing.

2: Acceptance of the purchase order – Astra is only bound to purchase goods/services after the Supplier has confirmed the purchase order in writing. On confirmation, the Supplier is deemed to have accepted the purchase order unreservedly. If the Supplier makes deviating observations when accepting the purchase order, Astra will always be entitled to cancel the order without incurring costs. If goods or services cannot be delivered, the Supplier will inform Astra of this in writing within 24 hours. After obtaining Astra’s approval, the Supplier may deliver an alternative of at least the same quality, without incurring additional costs.

3: Offering services – If applicable, offers of services must include a breakdown by hours and materials on the purchase order, and state the lead time and any sub-deliveries.

4: Delivery period – The delivery period for goods and/or services or the results thereof, indicated on the purchase order or agreed in writing between the parties is an essential part of the order and must be strictly observed. The Supplier’s acceptance of the purchase order constitutes the Supplier’s formal commitment to comply with the delivery period. In the event of failure to comply with the agreed delivery period, Astra will automatically and without prior notice of default be entitled to a lump sum compensation equal to 1% of the value of the order in question, effective as of the commencement of each week of delay up to a maximum of 10 weeks, without prejudice to Astra’s right to claim a higher compensation if it has proof of the actual loss suffered (including all consequential damages) and without prejudice to Astra’s right to cancel the agreement in accordance with Article 28 below.

5: Price – The price for the goods/service is as stipulated on the purchase order or order confirmation. The stipulated price is fixed and can only be changed with Astra’s prior written approval. However, parties can always decide in mutual agreement to change the quantity of ordered goods/services as determined on the purchase order after order confirmation and thereby change the stipulated price. The price includes costs of transport, insurance, taxes, levies and excludes VAT, and is denominated in the currency indicated by Astra on the purchase order, unless otherwise agreed in writing.

6: Place of delivery – All deliveries are delivered duty paid (DDP) in accordance with Incoterms 2010, at the delivery address stated on the purchase order and within the opening hours stated on the purchase order. Each purchase order must be fully executed in a one-off delivery. Failing which, each deviation must be clearly stated on the dispatch note and invoice.

7: Compliant delivery – The goods/services to be delivered must always be received at the delivery address stated on the purchase order. All deliveries must comply strictly with the provisions of the purchase order and with the provisions in these Purchase Conditions. As far as weight is concerned, only weights measured using Astra’s equipment will be valid. Any deviations from the provisions of the purchase order or the samples supplied by Astra or submitted by the Supplier entitle Astra to either cancel the agreement in accordance with Article 28, or to accept the delivery under all conditions, or to refuse the goods/services which will then be regarded as undelivered. If the goods are refused and thus regarded as undelivered, the Supplier will, at the discretion of Astra and within the period set by Astra, remedy the lack of conformity, or take back the rejected goods (and, if applicable, services) at their own expense and supply replacement goods/services that conform with the order. If the Supplier does not succeed in fulfilling its obligations, Astra will still be entitled to cancel the agreement. If there are backorders, the Supplier must comply with these orders and must keep Astra informed in writing, without prejudice to the provisions of Article 4.

Astra is not obliged to pay the price for goods rejected or for excess supply, and rejects any liability for rejected or excess goods/services supplied, even if Astra has stored the goods in its warehouses. This storage is at the expense, risk and liability of the Supplier and can never be regarded as proof of acceptance.

8: Transfer of ownership – The ownership and the risk of the goods and services, or results and materials that are part thereof, will pass to Astra after they have been cumulatively (i) delivered, if necessary installed/mounted; and (ii) accepted by Astra in accordance with Article 19. If Astra rejects the goods/services after delivery, the risk and the ownership remain with the Supplier.

9: Intellectual property rights – The Supplier guarantees that it lawfully owns all rights, patents, licences, approvals, know-how, copyrights, trademarks, drawings, specifications, instructions, software, source codes, inspection regulations, models, etc. (hereinafter referred to as ‘intellectual property rights’) to the delivered goods/services, relating to the delivered goods/services or otherwise made available by the Supplier, and grants Astra, as far as useful, a free of charge, irrevocable, non-exclusive and unlimited licence in terms of time and scope regarding the intellectual property rights, with a view to the enjoyment of the delivered goods/services. The licence granted constitutes an unlimited part of the agreement between Astra and the Supplier.

If, despite the previous paragraph, the intellectual property rights of a third party are infringed, company secrets are breached and/or unfair commercial practices are carried out, the Supplier will at its expense:

1. i) indemnify Astra against all third-party claims, claims for refunds or sanctions in this respect;
2. ii) compensate Astra for all direct and indirect damages, such as consequential loss, loss of profit, loss of savings, loss due to business interruption, loss due to any downtime of systems, damages due to halting the use of the goods/services supplied, claims arising from Astra’s business customers, etc.; and

iii) take all necessary measures to acquire the required intellectual property rights or at least obtain them in licence in order to guarantee Astra the (further) enjoyment of the delivered goods/services, or replace the delivered goods/services with similar goods/services that are not subject to third-party intellectual property rights. In this case, all costs arising from this replacement are at the Supplier’s expense, including costs for dismantling, reconstruction, recommissioning, etc.

10: Documents to be provided on delivery – All deliveries of goods must be accompanied by the following documents:

i) A CONSIGNMENT NOTE stating the consignment number; name and address details of the Supplier, the customer and the carrier; the registration number of the lorry and any trailer/semi-trailer; the weight of the goods; and the product name and product code according to the specification.

ii) A DISPATCH NOTE stating the number of the purchase order and the order date; product name and product code according to the specification; number of units by content per unit; type of packaging (single use or returnable packaging); name and address details of the Supplier and the customer; and the lot and batch numbers.

iii) The INFORMATION ON THE PACKAGING ITSELF, stating the: product name and product code according to the specification; the lot and batch numbers; customer’s item number; expiry date

iv) If no certificate of conformity has been agreed for the raw material supplied, an ANALYSIS CERTIFICATE with set parameters must be submitted with each delivery.

v) As well as all documents and manuals required by law for the goods and services in question.

When delivering goods/services to Astra’s Maintenance and Engineering Department, the Supplier must supply the following:

i) A Class IIA or IIB and a CE certificate.

ii) A risk analysis in accordance with the EU Machinery Directive.

iii) A user manual in Dutch and/or English.

iv) The source code.

v) The drawings, which must be delivered as follows: mechanical digital: in AutoCAD and a hard copy; or electrically digital: in E-Plan and a hard copy.

vi) A maintenance plan (if applicable).

11: Product specifications – Product specifications: each food supplier submits to Astra the product specifications of the food supplied. The product specifications must be up-to-date, complete and on original letterhead from the supplier. The supplier is obliged to immediately notify Astra of any adaptation and / or change to the foodstuff and to provide the amended product specification. Astra must always have the most up-to-date product specification for each foodstuff. Astra can always request the supplier to provide additional information.

12: Other transfers of ownership – The Supplier is obliged to provide Astra with all documentation, operating instructions, instruction manuals and information in hard copy or digital form in Dutch or English on delivery of the goods/services at no extra cost. If there is a legal obligation to provide the documentation in Dutch, the Supplier is responsible for doing so. Astra is at liberty to use this documentation, including reproducing it for its own use. The Supplier must also supply all useful parts, auxiliary materials, accessories, tools and spare parts to Astra on delivery of the goods/services.

The ownership of all software/source codes for the machines and panels supplied by the Supplier will pass to Astra on delivery. The Supplier is obliged to lend all its cooperation to the extent necessary for the transfer of ownership.

13: Goods made available by Astra to the Supplier – All intellectual property rights, raw materials, information, semi-finished products, tools, materials and parts, software and information carriers and other resources made available by Astra to the Supplier for the implementation of this agreement will remain the property of Astra. The Supplier is obliged to keep these goods made available to it separate from goods belonging to itself or to third parties, in good condition, at its risk and as property recognisably belonging to Astra, and to insure it at its expense against all risks for the duration that the Supplier acts as a holder of these items. Once the agreement has been implemented, the Supplier will return the property made available to it to Astra in their entirety.

14: Packaging, storage and transport of goods – Unless otherwise agreed in writing or if the goods are delivered in re-usable containers or in bulk, the goods must be delivered on undamaged pallets measuring 100 cm x 120cm or 80 cm x 120 cm in dimension, and the goods must be loaded within the dimensions of the pallet. These pallets must be fitted with a protective layer, for instance foil, over the top and sides.

If the goods are delivered in reusable containers, the Supplier is obliged to implement a policy that rules out fraud and the occurrence of contamination with other raw materials from a previous load transported in the containers during the period from dispensing the goods into the containers until the time of use.

Liquid bulk goods must always be unloaded electronically. For this, the Supplier must use its own electronic pump so that safety is guaranteed. If the Supplier does not have an electric pump, then the Supplier is not allowed to unload/deliver the goods.

If the goods are delivered in bulk (among other things from bulk lorries or ‘bag in box’), the Supplier is obliged to implement a policy that rules out fraud and the occurrence of contamination with other raw materials from a previous load transported in the containers during the period from dispensing the goods into the containers until the time of use.

The Supplier’s tankers for bulk deliveries must meet the following conditions:

i) Only foodstuffs may be transported in the tanker. The tanker must be clearly marked with the words ‘for foodstuffs only’.

ii) If the previous load involved raw materials other than the raw materials delivered to Astra, the tanker must be cleaned with cleaning agent and the tank, pipes, hoses, pump and connectors must be rinsed thoroughly before loading. The rinsing after cleaning with cleaning agent is necessary to remove all residues of the cleaning agent (including detectable traces or odour).

iii) The cleaning certificate for the cleaning carried out using cleaning agent followed by a rinsing must be supplied with each delivery, indicating the following at least:

a) preceding load (per compartment);
b) new load (per compartment);
c) type of cleaning/disinfection/rinsing carried out per cleaned component;
d) numbers of the seals affixed after cleaning;
e) numbers of the seals affixed after loading.

iv) If several substances are transported in the respective compartments, the cargo must be accompanied by a document clearly stating into which compartment the goods ordered by Astra were loaded.

If the nature of the cargo renders it impossible to unload the Supplier’s lorry for safety reasons or quality reasons, Astra is entitled to refuse the delivery at the Supplier’s expense. The Supplier will then arrange for a new delivery that can be delivered properly as soon as possible.

On delivery, the Supplier must always inform Astra’s employees about any returnable packaging that may be present. Any returnable packaging must always be taken back, unless the Supplier has Astra’s permission to leave it.

15: Raw material hazards – Astra is always entitled to impose additional conditions on the Supplier for safeguarding against raw material hazards.

16: Cost of packaging – The packaging for the delivered goods is considered to be free of charge and not redeemable unless otherwise agreed in writing. If Astra has explicitly agreed to take all or part of the packaging costs for its account, the costs will be calculated at the most appropriate price and may not exceed the actual value of the packaging used. In principle, the packaging that has been charged for will be returned to the Supplier in good condition and must be taken back at the invoiced price.

17: Food safety – The foodstuffs Supplier must have a fully operational food safety system and must work in accordance with the required hygiene code for its sector. In consultation with its Supplier, Astra has the right to have the Supplier’s quality assurance and food safety systems audited independently or by an independent party.

18: Supplier’s declaration and guarantees – The Supplier guarantees that the goods and services (i) comply with the stipulations on the purchase order, or in the purchase contract or agreement; (ii) with respect to goods: that they are ready for use, can be traded, are free of preferential rights, securities and visible and hidden defects, are of good quality, comply with all current requirements concerning reliability and service life (to ensure trouble-free operations), comply with local legal and regulatory standards (including technical, safety and hygiene standards), as applicable at the time and place of delivery, comply with the statutory norms under the Commodities Act and the standards as stated on the product specifications provided and are suitable for the intended use stipulated by Astra to the extent that such use was communicated, or failing this, for the customary intended use of the relevant goods (especially for applications in the food and/or pharmaceutical industry); and (iii) with respect to services, that they are performed correctly and meet the most stringent professional criteria as applicable at the time of execution at the place where these services are performed. The preceding terms and conditions are cumulative.

The packaging of delivered goods must be clean, closed and undamaged. Packaging materials must protect foodstuffs against impurities and contamination with pathogenic micro-organisms. The Supplier must guarantee that no (harmful) substances are contained in the packaging that may contaminate the foodstuffs that is packaged in it and that would lead to anomalies in quality and/or food safety.

The Supplier must immediately inform Astra as soon as it suspects that the goods/services supplied by it do not meet the set standards or could constitute a hazard for food safety.

The Supplier is responsible and liable for all direct and indirect costs associated with the recall of products that do not meet quality or food safety requirements of Astra’s customers due to a defect in the goods/services delivered by the Supplier. Astra is obliged to co-operate with the recalling of the defective products. The Supplier will be responsible vis-a-vis third parties, i.e., consumers, government agencies, the media, etc., for the recall and, to that end, it will carry out all communications with third parties that Astra deems appropriate.

19: Defects – Visible defects are only covered if express written acceptance of the goods/services has been given or, failing this, 21 working days after delivery to Astra. The use of all or part of the delivered goods/services, the invoicing of the delivery, the payment of the invoice, or the signing of a delivery note/dispatch note for receipt only or any other similar document do not constitute the acceptance of the delivered goods/services or any defects thereof. The Astra contact person designated by Astra in writing to the Supplier is the only person who may inspect and accept the work performed in the context of services.

The goods/services must be guaranteed against all material defects, conception, construction, operational and other defects for two years after their acceptance, unless another period has been agreed in writing. The guarantee extends to the repair or replacement of the defective goods/service free of charge. All costs (including for parts, labour, travel and accommodation costs, transport and installation costs) are at the Supplier’s expense. Any acceptance by the Supplier of a purchase order for goods from Astra presupposes that the Supplier undertakes to guarantee delivery of the necessary spare parts throughout the normal service life of the goods.

Insofar as it concerns consumer durables, the Supplier guarantees that it will be able to supply parts to Astra for the delivered services/goods for a period of at least 10 years after delivery, and that it will carry out maintenance and repairs at market prices.

20: Delivery instructions to be observed – When delivering the goods/services to Astra, the Supplier must report to Astra’s authorised department manager on its arrival. The Supplier must at all times follow the instructions of Astra’s employees and observe the company regulations applicable at Astra, and the work must be carried out during the times specified by Astra. When delivering the goods/services to Astra, the Supplier must wear clean clothing, footwear and headgear. The Supplier is only permitted to enter the areas at Astra where it needs to be for the purposes of carrying out the work. Entering other areas without permission is prohibited. The Supplier is not permitted to smoke, eat, chew gum and drink in Astra’s production, storage and packaging areas. The Supplier must have the delivered products checked by Astra and it must have the dispatch note signed. Only products for which the dispatch note/CMR has been signed by an Astra employee can be considered as received. The Supplier must have an adequate command of the Dutch language or at least be able to express itself in English, French or German. After delivery, the Supplier must sign out with one of Astra’s employees. The Supplier must make every effort to ensure that all its employee(s) or agent(s) also comply with these regulations.

21: Environmental regulations – The Supplier must comply with all statutory safety, health and environmental regulations. If there are derogations to these regulations, the Supplier must notify Astra immediately. The Supplier must comply with Astra’s visitor regulations, company regulations and Astra’s other regulations in the field of safety, health and environment. The Supplier is obliged to collect, remove and process/dispose of waste on the Astra sites in accordance with the statutory provisions. The Supplier must immediately clean up spilled oil and/or toxic substances on site, and deposit them in the appropriate waste containers. Discharging these substances into the public sewer system is strictly forbidden. In the event of a suspected or actual environmental incident, the Supplier must immediately inform Astra’s contact person at the site. Astra aims for the most efficient use of energy and water, and expects its Supplier to regard this as an important part of its own business operations. The Supplier must make every effort to ensure that all its employee(s) or agent(s) also comply with these regulations.

22: Maintenance contracts – Maintenance contracts are always concluded for a fixed duration of one year, unless Astra explicitly states in writing that it is entering into a multi-year maintenance contract. The specific duration will then be explicitly agreed in the maintenance contract. The maintenance contract ends by operation of law after the agreed duration of the maintenance contract. Astra is always entitled to terminate a multi-year maintenance contract with effect from the new calendar year, without being obliged to pay any compensation, provided that this is done by 15 November of the current calendar year at the latest, without prejudice to the provisions of Article 28.

If it concerns a multi-year maintenance contract, the Supplier will send Astra a new offer (contract with new prices, substantiated) – no later than October – for maintenance for the new calendar year. If Astra does not receive a new offer by 1 November at the latest, the rates applicable at the time will remain in force for a subsequent period of one year, if the maintenance contract is renewed.

For the implementation of a maintenance contract, the Supplier must address the contact person designated by Astra at the relevant Astra location in writing to make an appointment for the maintenance. The Supplier’s employee responsible for maintenance must report to Astra’s contact person on the day of the maintenance, both before the work commences and after carrying out its work for completion or otherwise of the maintenance and the signing of the work order.

23: Invoicing – All deliveries of goods/services must be invoiced. The invoice much give a detailed description of the delivered goods/services.

The invoicing for delivery of services must be done after the service has been carried out in full, unless otherwise agreed in writing. If it concerns a project, the Supplier and Astra’s Maintenance and Engineering Department may reach alternative payment agreements under the following circumstances:

• if the project is implemented in several phases, the invoicing may take place per phase and after completion of each phase;
• if the project exceeds € 20,000, the following advance payments may be made for the service:
  • 30% on awarding of the contract (only for materials).
  • 30% on commencement of the installation (at the Supplier).
  • 30% when the factory acceptance test is carried out.
  • 10% when the site acceptance test is carried out.

Astra’s order number and cost centre must be stated on the Supplier’s invoices. The Supplier must prepare separate invoices per purchaser, also if the cost centre starts with a 2 or 6. Invoices must always be sent by email to astrasweetsinvoices@astrasweets.com; each e-mail must not have more than one attachment. The attachment must be in PDF format and may consist of several pages. Invoices that do not meet these requirements will not be accepted.

24: Payments – Payment will be made at the buyer’s head office, after delivery and final approval, as a one-off payment or in instalments as agreed on the purchase order, and in any case 60 days after the end of the month in which the invoice was received. If the payment is late, Astra will only owe the statutory interest after prior notice of default by registered letter. Astra is permitted to offset all of the Supplier’s claims that have a monetary value against Astra’s outstanding claims against the Supplier and its affiliated companies as referred to in the Belgian Companies Code. Astra also reserves the right to offer bills of exchange to the Supplier for acceptance.

25: Confidentiality – The Supplier will refrain from using Astra as a reference or passing on to third parties any information that was made available to it or that it has taken note of, unless it has Astra’s express written permission.

26: Transferability – Without Astra’s express written permission, the execution of the order may not be entrusted either entirely or in part to subcontractors nor may the contract be transferred. In any case, the Supplier remains fully liable for the proper execution of the agreement.

Astra has the right to transfer its rights and obligations under the agreement to a third party that is exclusively bound to fulfil Astra’s obligations arising from this agreement.

27: Force majeure – Astra reserves the right to change or cancel orders in the event of force majeure. Force majeure concerns all circumstances that are not due to fault on the part of Astra, and which render the execution of the agreement impossible or difficult, or delay it, such as, but not confined to, fire, strikes, war, revolution, import or export restrictions or other government measures, accidents, and so on.

The Supplier will immediately inform Astra in the event of force majeure; in the process, it will explain and confirm the reason for the force majeure on the same day and in writing. It will periodically inform Astra about further developments. Failing which, it will lose the right to invoke force majeure, without prejudice to the provisions in 28. The Supplier will make all reasonable efforts to limit the consequences of the force majeure.

28: Termination – Astra is entitled to cancel an order, or the entire agreement between the parties, by means of mere notification and without any further formal requirements, including prior judicial intervention, at the Supplier’s expense in the event of:

i) death, bankruptcy, judicial or private dissolution, an application for court composition, as well as any change to the Supplier’s legal status;

ii) full or partial non-delivery within the agreed period if the term is exceeded by two weeks or more;

iii) loss or the threat of loss of registration for the activities necessary for the execution of the Supplier’s agreement;

iv) force majeure on the part of the Supplier that could last longer than one month,

v) breach of the provisions of Article 25 in the context of non-disclosure and confidentiality;

vi) any shortcoming on the part of the Supplier for which Astra has given notice of default to the Supplier and if the shortcoming has not been fully rectified within fourteen calendar days after the notice of default is sent.

If the agreement is terminated, the Supplier is obliged to reimburse all amounts that Astra has paid up to that time. In addition, the Supplier will owe Astra a fixed compensation amounting to 50% of the contracted price, without prejudice to Astra’s right to claim higher compensation if it has proof of the actual loss suffered.

29: Privacy statement – The Supplier declares that it has received, read and understood Astra’s Privacy Statement.

30: Applicable law – Belgian law applies, with the exclusion of the Vienna Sales Convention and the regulations of private international law. All disputes are subject to the exclusive jurisdiction of the courts where Astra has its registered office or the District Court of Ghent.