General terms and conditions of sale and delivery

 

 

ASTRA SWEETS SA/NV

BLEUKENLAAN 18, 2300 TURNHOUT – VAT BE0432.549.427

 

1: DEFINITIONS

1.1 “Seller”: the société anonyme/naamloze vennootschap under Belgian law “Astra Sweets”, with its registered office at 2300 Turnhout, Bleukenlaan 18, entered in the Register of Legal Entities of Antwerp, Turnhout Division, under number 0432.549.427 and registered with the VAT authorities under number BE0432.549.427, being the company responsible for the production and sale and/or distribution of the Seller’s products.
1.2 “General Terms and Conditions”: these general terms and conditions of sale and delivery.
1.3 “Customer”: any person or legal entity who purchases a product and/or service from the Seller, places an order with the Seller, and/or requests a quote from the Seller, as well as anyone who, in the name of or on behalf of another person or legal entity, purchases a product and/or service from the Seller, places an order with the Seller, and/or requests a quote from the Seller within the scope of his or her trade, business, craft or profession.
1.4 “Annual agreement”: an agreement between the Seller and the Customer in which the Seller and the Customer have agreed for the fixed term of one (1) year that the Seller will supply certain products to the Customer at a previously agreed price, and on previously agreed terms and conditions. This agreement will be renegotiated every year between the Seller and the Customer, and will not be tacitly renewed.

2: APPLICABILITY

2.1 Without prejudice to the application of any special terms and conditions included in a separate, written agreement/order form/quotation, these General Terms and Conditions shall be applicable to agreements with the Seller.
2.2 The conclusion of an agreement with the Seller implies full knowledge as well as the full and unconditional acceptance of the General Terms and Conditions of the Seller.
2.3 The Seller reserves the right to amend these General Terms and Conditions at any time in line with economic and legal requirements. The new General Terms and Conditions shall automatically enter into force within a period of 10 working days after the Customer is notified of the new General Terms and Conditions. The Customer shall be entitled to terminate the agreement with the Seller, without payment of any damages and with immediate effect, provided that a registered letter is sent to the Seller within the stipulated period of 10 days after the Customer is notified of the new General Terms and Conditions.
2.4 The applicability of these General Terms and Conditions excludes any other general and/or special terms and conditions of the Customer. Other (different) terms and conditions shall only apply if the Seller expressly signs the said (different) terms and conditions for acceptance, and they shall moreover only apply to the specific order/agreement in question and cannot be invoked for any other orders/agreements, even if they are similar.
2.5 If any of the provisions, or any part of a provision, of these General Terms and Conditions, should be void, this shall not affect the applicability of the remaining provisions and/or the remainder of the provision. If one of the provisions is void, the Seller and the Customer shall negotiate, to the extent possible, in good faith, to replace the void provision with an enforceable and legally valid provision that corresponds to the purpose and scope of the original provision.

3: QUOTATION, ORDER AND ORDER CONFIRMATION

3.1 The offers and quotations that the Seller sends to Customers are without obligation and are as such not binding on the Seller. Orders not confirmed in writing by a Customer are also not binding on the Seller.
3.2 All offers and quotations issued by the Seller are drawn up based on the information and requirements indicated by the Customer. Any change in the said information and requirements may give rise to a revision of the terms and conditions as set out in the offer or quotation.
3.3 The agreement between the Seller and the Customer shall only come into effect once (i) a person authorised to legally bind the Seller confirms the Customer’s order in writing and/or electronically, (ii) the Seller’s quotation or offer is signed by both parties within the validity period of the quotation or offer, or (iii) the Seller commences execution of the order.
3.4 The Seller shall be entitled to require payment of an advance on the agreed price, as stipulated in the quotation or offer, in which case an agreement shall not be concluded until it has been paid in full.

4: PRICE AND COSTS

4.1 Unless the parties agree in writing on different terms of remuneration, the Seller shall execute the agreement at the price that is agreed in the quotation/offer/order between the Seller and the Customer.
4.2 All prices are exclusive of VAT and are expressed in the currency stated in the quotation/offer/order. The prices also exclude costs associated with intervention by third parties.
4.3 For each individual order, including orders placed under an Annual Agreement, an individually tailored price will be calculated on the basis of the data available to the Seller. The said price is only valid for a specific order and therefore does not apply to any other orders, even if they are similar. Thus, by way of example, agreed prices in the context of an advertising leaflet or other advertising campaign will apply during the agreed period only.
Furthermore, it is the Customer’s responsibility to provide the Seller with all data necessary to determine the price, and to ensure the provision of correct data in this context. If it subsequently turns out that the data provided by the Customer, on the basis of which the price was determined, were incorrect or have changed in the meantime, this will result in a price revision.
4.4 The Seller expressly reserves the right to change the agreed price if, after the date when the agreement is concluded, one or more objective cost price factors (i.e. prices of materials and energy, raw material prices, wage costs or social security costs) undergo a demonstrable change, but limited to a maximum of 80% of the final price). In such case the Seller will inform the Customer of the price change.
4.5 The Seller shall always be entitled to ask the Customer for a bank guarantee or a positive evaluation or credit report from its credit insurer before discharging its obligations in regard to the Customer.
4.6 If the Customer has ordered special packaging and/or labels under an agreement, the Customer shall be obliged, even if this has not been expressly agreed, to pay the Seller for the remaining packaging and/or labels upon discontinuation or termination of the agreement, for whatever reason.
4.7 Purchases agreed under an Annual Agreement or other purchase agreements between the Seller and the Customer are binding on the Customer. The Seller shall always be entitled to charge for volumes not purchased by the Customer at the agreed price after the expiry of the agreed purchase period.

5: INVOICING AND PAYMENT

5.1 Unless otherwise expressly agreed by Seller, all invoices, including invoices for advances where applicable, shall be paid within a period of thirty (30) calendar days after the invoice date.
5.2 All invoices are payable by bank transfer to the bank account number indicated on the invoice. The Customer is not allowed to make payments to intermediaries.
5.3 The Customer must notify the Seller in writing of its complaints relating to invoices within eight (8) calendar days of receipt of the invoice, stating reasons, the invoice number and date, and such notification shall not constitute any acknowledgement of the contents thereof on the part of the Seller. In the absence of such notification, the invoice is considered to have been accepted without reservation by the Customer. Notification should be made to the following email address: to Astra Sweets: finance@astrasweets.com
5.4 In case of non-payment, or incomplete payment, on the due date of an invoice:

• an annual interest rate of 10% from the due date of the invoice on the outstanding invoice amount shall be applied automatically and without prior notice of default;
• the Customer shall be liable, automatically and without prior notice of default, for a fixed amount of compensation equal to 10% of the outstanding invoice amount, excluding VAT, with a minimum of two hundred and fifty euros (€250.00), without prejudice to the Seller’s right to prove higher damages;
• all other claims of the Seller against the Customer, even those not yet due, shall become due and payable automatically and without prior notice of default; and
• the Seller shall be entitled to demand that the delivered products be returned by the Customer on the basis of retention of title, to suspend (further) execution of the relevant and/or other current agreements with the Customer, without prior notice of default or judicial intervention being required and without compensation.
  • A partial payment will be applied in the following order: (1) damages; (2) interest; (3) the invoices with the longest period outstanding.

6: EXECUTION AND DELIVERY

6.1 The Seller undertakes to execute the agreement with the Customer in accordance with professional standards. However, the Seller is only under a best effort obligation and is under no circumstances under any obligation concerning any outcome.
6.2 If a deadline has been agreed in the agreement for delivery of the goods and/or services, this deadline shall at all times be strictly indicative and with no obligation on the Seller’s part concerning any outcome. The Seller nevertheless undertakes to make every effort to meet such deadlines. A delay in delivery does not entitle the Customer to any damages nor does it entitle the Customer to terminate the agreement.
6.3 Agreed deadlines shall in any case be extended pursuant to any cases of force majeure for the duration of the force majeure or delays attributable to a third party and/or the Customer, including but not limited to late provision by the Customer to the Seller of data required to commence execution of the agreement.
6.4 The Seller shall always have the right to deliver or perform the goods and/or services in multiple instalments. Partial delivery or execution cannot, under any circumstances, give rise to payment of any damages or to termination of the agreement between the Seller and the Customer. The Seller shall, however, make every effort to deliver or provide all the goods and/or services at one time.
6.5 Unless otherwise agreed in writing, deliveries will be made as follows:

• by Astra Sweets: in accordance with the Incoterm® “Free Carrier (FCA)”;

Unless expressly agreed otherwise, the Customer shall thus be obliged to collect the goods, at its own expense and risk, at the time and place specified by the Seller. If full collection does not take place within the five (5) working days following the scheduled collection date, the Customer shall be liable to pay a storage fee of 5% of the full invoice amount per day or part of a day, beginning from the day after the day when the collection period expired. Once the scheduled collection date has been exceeded by two (2) weeks, the Seller shall be entitled to terminate the agreement between the Seller and the Customer, without prior notice of default and without judicial intervention, with effect from the date when notification is given thereof. In this case, the Customer shall owe a fixed amount of damages equal to 35% of the total invoice amount (excluding VAT), without prejudice to the Seller’s right to prove higher damages.

6.6 The agreed delivery terms shall always be interpreted in accordance with the Incoterms® valid at the time when the agreement is concluded between the Seller and the Customer.
6.7 The Customer should send complaints about damage in transit to:

• in the case of Astra Sweets: the carrier;

 

7: ADDITIONAL WORK

7.1 Any change or additional work ordered by the Customer requires prior written agreement from the Seller.
7.2 If the Customer requests additional work or orders changes during execution of the agreement, the Seller is entitled to extend the predetermined execution period.
7.3 The products and/or services that were not explicitly provided for in the agreement between the Seller and the Customer, such as additional work or changes, are deemed to be additional orders and/or additional works at the Customer’s request and are invoiced to the Customer as such based on the prices applicable at that time.

 

8: TERM AND TERMINATION

8.1 The agreement between the Seller and the Customer commences on the date agreed in writing or on the date when the Seller commences execution of an order, and shall terminate when all goods and/or services have been delivered by the Seller to the Customer and the Customer has made all payments due under the agreement.
8.2 The Seller reserves the right to terminate all or part of the agreement between the Seller and the Customer, without any compensation and with no right of recourse against the Seller, if certain goods and/or ingredients for certain goods are out of stock.
If certain goods and/or ingredients for certain goods are out of stock, the Seller will inform the Customer and the Seller may replace such missing goods and/or ingredients with a functional equivalent of a different brand or type, except in the case of a private label, subject to the Customer’s agreement. The possible replacement of missing goods and/or ingredients by a functional equivalent in no way releases the Customer from its obligations, and can under no circumstances give rise to a reduction in price or termination of the agreement between the Seller and the Customer. Any additional cost of such replacement is not included in the price and will be charged to the Customer.
8.3 Unless expressly agreed in writing by the Seller, the Customer is not permitted to terminate its order or the agreement between the Seller and the Customer prematurely. If the agreement between the Seller and the Customer is terminated prematurely by or on behalf of the Customer, this may only be done if the Seller has not yet commenced production, and the Customer shall be liable to pay compensation to the Seller which shall be assessed at 30% of the total invoice amount (excluding VAT), without prejudice to the Seller’s right to claim higher damages if proof is furnished to this effect. As soon as production has commenced, the Customer will be obliged to pay the total relevant invoice amount.
8.4 Each party has the right to suspend and/or terminate the agreement with immediate effect, at any time, without judicial authorisation, without prior notice and without payment of any damages, in the following cases: (i) if, despite written notice of default providing a term of 7 working days, the other party fails to comply with one or more material obligations arising from the agreement, (ii) in case of cessation of payments or (an application for) bankruptcy by the other party, or (iii) in case of liquidation or cessation of business by the other party. In the event of such termination, each party reserves the right to claim compensation for the costs, interest and damages it has incurred as a result, and all claims shall become immediately due and payable.

9: WARRANTY

9.1 The Seller warrants to provide goods and/or services corresponding to the agreed goods and/or services in accordance with professional standards.
9.2 The Seller makes no warranty that the goods comply with the regulations or requirements in force in any jurisdiction other than the regulations or requirements in force in Belgium at the time of delivery of the goods to the Customer. The Seller is consequently not responsible for compliance with the respective legal obligations associated with the delivery and/or use of the goods that are applicable in the country where the goods are to be delivered and/or used, such as, among others (although not restricted to), environmental obligations, applications for permits, quality requirements, etc., with the exception of those mandatory obligations which the law or regulations impose on the Seller or unless otherwise agreed in writing between the Seller and the Customer.
9.3 The Customer undertakes to examine the goods and/or services immediately after they are delivered by the Seller to ensure conformity with the agreement and for any visible defects. The Seller must be notified in writing immediately and no later than three (3) calendar days after delivery of any non-conformity between the agreed goods and/or services and the goods and/or services delivered, or of the existence of any visible defect, failing which the goods and/or services shall be deemed accepted by the Customer.
9.4 Complaints based on hidden defects must, under penalty of nullity, be communicated by the Customer to the Seller by registered post at the latest two (2) months after they are discovered.
9.5 Complaints must be described very precisely, mentioning the batch number, photographs of the goods (if relevant) and explaining the defect.

Complaints must be addressed by the Customer to:

• in the case of Astra Sweets: quality@astrasweets.com;

If relevant, a sample indicating the batch number and referring to the prior notification should be delivered by post to the address of the Seller’s registered office after notification.
9.6 Complaints relating to goods and/or services modified after delivery by the Customer or a third party or defects attributable to the Customer or a third party will not be considered.
9.7 The Customer acknowledges that the goods delivered by the Seller are subject to warranty restrictions by their manufacturer, and agrees that such warranty restrictions may be invoked directly by the Seller against the Customer. In the event of a complaint, the Seller will pass such complaint directly to the respective manufacturer or supplier. During subsequent handling of the said complaint, the Seller shall only act as an intermediary between the Customer and the respective manufacturer or supplier. The Seller’s responsibility in this regard shall be limited to the transmission of information between the relevant manufacturer or supplier, on the one hand, and the Customer, on the other hand, and the Seller shall not be in any way liable to remedy the damages.
9.8 The Customer is obliged to allow the Seller to investigate the complaint and must therefore cooperate fully with this.
9.9 The unconditional acceptance of the goods delivered by the Seller shall be evidenced by the use of the delivered goods without issuing any reservation.
9.10 In the event that goods and/or services delivered by the Seller under the agreement with the Customer should show visible defects or insofar as the Customer proves that non-conform goods and/or services were delivered, the Customer can only claim a repair, replacement, or execution of the agreement in an equivalent way if a repair or replacement is not possible, in which case the Customer can only claim a form of compensation provided this can be objectively proven.
9.11 In the event of a hidden defect, the Customer may only claim a refund of the price of the defective goods after their return or a price reduction that reasonably corresponds to the nature and extent of the hidden defect in question, in which case the Customer may only claim a form of compensation provided it can be objectively demonstrated.
9.12 Complaints and/or any (partial) replacement of goods and/or services shall in no case release the Customer from his obligation to pay.
9.13 The Customer is obliged to reimburse costs incurred as a result of unjustified complaints.

10: INFORMATION, SAMPLES, MODELS AND DESIGNS

10.1 The Customer is deemed to be aware of all the characteristics of the goods and/or services he has ordered. The Customer cannot derive any rights from the information, samples, models and/or designs that the Seller may provide on its own initiative or at the Customer’s request.
10.2 The Customer bears sole and full responsibility for determining whether the goods and/or services purchased are suitable and meet all the quality requirements in relation to the use and/or purposes for which the Customer and/or its customer has purchased the products and/or services or wishes to use them.
To that end, the Customer shall carry out the necessary tests and request the necessary information (including with regard to the correct use of the goods and/or ingredients in question, any dangers associated with the said goods and/or ingredients, the applications and qualities of these goods and/or ingredients, etc.).
To this end, the Customer expressly undertakes to verify the information thus obtained, including with regard to the accuracy of the information obtained, the completeness of such information, and the applicability of the information in relation to the use and/or purposes for which the Customer has purchased or wishes to use the products.

11: DATA PROTECTION

11.1 The Seller undertakes to treat all personal data it receives from the Customer in accordance with the legal obligations relating to the processing of personal data, including Regulation 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
11.2 If the Customer requires more information regarding the Seller’s privacy policy, he or she can contact the Seller by email (info@astrasweets.com) or consult the Seller’s privacy statement on the website (https://www.astrasweets.com/privacy-policy/).

12: FORCE MAJEURE

12.1 If the agreement cannot be executed due to force majeure, the defaulting party shall notify the other party within a period of two (2) working days after the start of the force majeure situation. Force majeure shall mean the situation in which execution of the agreement by one of the parties is prevented in whole or in part, temporarily or otherwise, by circumstances beyond the control of that party, even if this circumstance was foreseeable at the time the agreement was concluded. With no intention of providing an exhaustive list, the following are considered cases of force majeure: depletion of stock, delays or failure to deliver by a party’s suppliers, breakdown of machinery, strike or lock-out, fire, riot, war, epidemic, flood or other severe weather conditions, electrical or telecommunications failures, government decisions or intervention and errors and delays attributable to third parties.
12.2 If the force majeure situation results in execution of the agreement being interrupted, the period of execution and the obligations of the relevant party shall in any case be suspended automatically for the duration of the interruption, plus the time required to restart the services. In such case, the parties shall make all reasonable efforts to mitigate the effects of the force majeure situation.
12.3 If the force majeure situation lasts longer than 20 (twenty) working days, each party shall be entitled to terminate the agreement without judicial intervention, whereby the other party shall not be liable to pay any compensation to the first party, with the exception of the costs already incurred by the Seller prior to the force majeure situation, which shall be borne by the Customer.

13: CUSTOMER’S OBLIGATIONS

13.1 The Customer bears full and exclusive responsibility for:

• • handing over to the Seller, in due time, all data which the Seller indicates are necessary or useful for the calculation of a price corresponding to the actual purchase price or to execute the agreement;
  • notifying the Seller in writing and in good time (i.e. prior to execution of the agreement) of any legal requirements or specific requirements to be met by (the delivery or use of) the goods and/or services;
  • thoroughly examining the goods and/or services within 48 hours of delivery, and adequately testing the goods and/or services before using, processing and/or reselling them;
  • treating, using and storing the goods and/or services at all times in accordance with the instructions provided with the goods and/or services, where applicable;
  • giving its customers adequate information concerning any storage and usage instructions (as communicated upon delivery, if applicable, and the Customer declares that it is familiar with the contents thereof);
  • concluding the necessary insurance agreements, including those relating to retention of ownership as described in article 14.5. The Customer authorises the Seller to inspect the policies and proofs of payment for the aforementioned insurance upon first request.

13.2 If the Customer fails to meet one or more of its obligations, the Seller shall be entitled to (temporarily) suspend its obligations. The costs associated with such suspension shall be borne entirely by the Customer. These costs include (but are not limited to) additional hours of work performed, storage fees, etc

14: TRANSFER OF OWNERSHIP AND RISK

14.1 Ownership of goods delivered by the Seller under the agreement shall only be transferred to the Customer upon full payment by the Customer of the relevant invoices, including interest, costs and any damages clause, to the Seller. Nevertheless, the risks of loss, damage or destruction of such goods, inter alia, shall be borne in full by the Customer as from delivery to the Customer.
14.2 Until such time as ownership of the goods is effectively transferred to the Customer, the Customer is forbidden to dispose of the goods, use them as a means of payment, give them in pledge or encumber them with any other security interest.
14.3 The Customer undertakes to notify the Seller in writing immediately of any right that a third party may assert over the goods subject to retention of ownership under this article.
14.4 The Customer undertakes to notify the Seller if the goods are stored on premises that are not owned by him or her and will provide the identity of the owner at the Seller’s request.
14.5 Furthermore, the Customer undertakes to insure the goods that have not been paid for against fire, explosion and water damage and theft. The Seller is entitled to receive any payout from these insurance policies.
14.6 In the event that the Seller invokes the retention of ownership as a result of non-payment by the Customer, the agreement shall be deemed to be terminated, without prejudice to the Seller’s right to compensation for any damage, including but not limited to lost profits and other commercial damages. In such cases, the Customer shall, at the Seller’s first and simple request, return the relevant goods to the Seller at the Customer’s own expense and risk within 24 hours of the request.
14.7 Upon return of the goods, and provided the said goods are still found to be in good condition, the amounts already paid will be refunded to the Customer, after deducting: (1) the loss of profit, assessed at a flat rate of 15% of the total invoice amount; and (2) a fixed amount of damages of 5% on the total invoice amount, for (additional) management and administration costs. All this is without prejudice to the Seller’s right to prove higher damages.

15: LIABILITY

15.1 Except in the case of fraud or wilful misconduct on the part of the Seller, the Seller shall never be liable for or obliged to pay compensation for any intangible, indirect or consequential damages, including but not limited to loss of profits, loss of turnover, loss of income, loss of customers or third party claims, or any other form of damage.
15.2 The Seller’s total (contractual and extra-contractual) liability for direct damages shall at all times be limited to an amount of EUR 50,000.00 (fifty thousand euros).
15.3 Damages attributable to the Seller shall, at the Seller’s discretion, be remedied in kind, by replacement or repair. Where a remedy in kind is impossible or involves an unreasonable workload, the Seller will refund the price set out in the agreement to the Customer.
15.4 The Customer shall fully indemnify the Seller and hold the Seller harmless against all claims and proceedings, including third party claims and proceedings, which may arise out of, or result from, any act or omission of the Customer.

16: ESTOPPEL

Any failure by the Seller to assert any right, even if it occurs repeatedly, can only be considered as tolerating a certain state of affairs and does not result in legal estoppel.

17: NETTING

17.1 Astra Sweets, on the one hand, and the Customer, on the other hand, agree, in accordance with the Belgian Financial Collateral Act dated 15 December 2004, that in their mutual relationship, all existing and future debts vis-à-vis each other shall always be set off and offset, automatically and as of right, irrespective of their due date, their purpose or the currency in which they are expressed. This means that in their permanent relationship, only the largest debt shall remain after the aforementioned automatic set-off.
17.2 In the event of the bankruptcy of Astra Sweets, the Customer’s claim against the bankruptcy in question shall be limited in every case to the balance after set-off of the amounts due and the permanent set-off shall in any case be enforceable against the trustee in bankruptcy and the other concurrent creditors, who therefore cannot oppose the netting and/or set-off that takes place. The same applies to Astra Sweets’ claim in the event of the Customer’s bankruptcy.

18: CONFIDENTIALITY AND INTELLECTUAL PROPERTY

18.1 Unless otherwise agreed in writing, the Seller shall remain the exclusive owner and holder of all intellectual property rights attached to the goods and/or services it provides under the agreement with the Customer.
18.2 If the Seller is also required to supply specific packaging, the Customer grants the Seller, for the duration of the agreement, a limited right of use for the trademarks or trade names, signs, logos, texts, descriptions, illustrations and any other material supplied to the Seller by the Customer in order to allow it to produce the said packaging. In this regard, the Customer confirms that the material provided is his or her property or that he or she has obtained the necessary rights from the rightful owner. The Customer shall indemnify the Seller against any third-party claim in this regard.
18.3 All documents, information, models and/or designs of any kind provided to the Customer during the negotiations regarding the agreement and/or the execution of the agreement between the Seller and the Customer, and/or mentioned in any possible document issued by the Seller, including the order confirmation and the delivery note issued by the Seller, must be treated as confidential. The aforementioned documents must be returned at the Seller’s first request.
18.4 The said documents, information, models and designs remain the property of the Seller and may not be communicated to third parties, copied, or used (in)directly, in whole or in part, for purposes other than those for which they are intended, except with the express and written consent of the Seller.
18.5 The confidentiality obligation shall remain even after the termination or expiry of the agreement between the Seller and the Customer, at least until the relevant documents, information, models and/or designs are publicly known, by no fault of the Customer.
18.6 The Customer authorises the Seller to use the images of the goods and/or services delivered to the Customer for (among other things but not limited to): general information, advertising purposes, publication on the Seller’s website, publication in leaflet(s), etc.

19: DISPUTES

19.1 Belgian law applies to all agreements between the Seller and the Customer.
19.2 All possible disputes between the Seller and the Customer fall within the exclusive jurisdiction of the competent courts of the Antwerp legal district, Turnhout division, unless the Seller chooses to bring a dispute before the court of the Customer’s registered office or place of residence.