GENERAL TERMS AND CONDITIONS OF PURCHASE
ICL Food Specialties Europe
1. GENERAL APPLICABILITY:
These terms and conditions of purchase (“Conditions”) constitute an integral and binding part of any purchase of Products or Services, whether incorporated by reference to an Internet website, by notice or transmitted electronically, or in paper form. These Conditions together with the Order constitute the contract (“Contract for Purchase”) and such purchase is conditioned on and limited to its terms. By performing pursuant to, or acknowledging receipt of, an Order, Supplier assents to these Conditions as fully as if Supplier had accepted them in writing. Unless and only to the extent expressly adopted in the Order, Purchaser rejects, and these Conditions expressly exclude, any additional or inconsistent terms and conditions regardless of materiality offered by Supplier at any time, irrespective of Purchaser’s acceptance of Products or Services. Any reference in the Order to Supplier’s quotation, offer or proposal will be deemed adoption of only those portions of the quotation, offer or proposal which are not inconsistent with, or do not conflict with, these Conditions.
Throughout these General Terms and Conditions of Purchase, the following terms shall have the respective meanings set forth below:
“Applicable Law and Regulations” means laws and regulations (i) applicable to the Supplier in all places where the Supplier does business, (ii) applicable to the Products provided pursuant to the Contract for Purchase, including without limitation, such laws and regulations applicable at the place of delivery, or (iii) required by the law governing these General Conditions of Purchase.
“Contract for Purchase” means, collectively, this General Conditions of Purchase, the Purchase Order and the Specifications, whereby Supplier and Purchaser agree, among other things, on the type and quantity of the Products to be sold by Supplier and purchased by Purchaser, the term of the contract, the pricing of the Products, and the payment terms.
“Incoterms” means the International Commercial Terms, published by the International Chamber of Commerce, 2010 edition.
“Order Confirmation” means a confirmation issued by Supplier to Purchaser as a response to a Purchase Order, confirming the Products to be supplied by Supplier pursuant to the Contract for Purchase.
“Products” means products sold by Supplier to Purchaser pursuant to the Contract for Purchase.
“Purchaser” means ICL Europe Coöperatief U.A. or affiliate company as mentioned in the Purchase Order.
“Purchase Order” means an order issued by Purchaser to Supplier for the supply of Products by Supplier.
3.1. Supplier agrees to supply Purchaser with the Products or Services indicated in the Purchase Order in accordance with these General Terms and Conditions, and the specifications and instructions sent by Purchaser to Supplier. Orders submitted orally, by telephone, fax, email, or other electronic means require Purchaser’s written confirmation to become valid. The Order shall be binding upon the Purchaser and Supplier unless the Parties otherwise agree in writing. Within two (2) business days, but in no event more than four (4) calendar days of receipt of an Order, Supplier shall confirm its receipt by fax, email or other electronic means. If Supplier fails to send an order confirmation within such period, Purchaser’s Order shall be deemed accepted without change on any points.
3.2. Subcontracting or Delegations. Supplier shall not use sub-contractors (including any Affiliate of Supplier) to perform Services or purchase from sub-vendors (including any Affiliate of Supplier) without the prior written consent of Purchaser.
3.3. Delivery. Unless otherwise agreed in writing, Supplier will Deliver Products per the applicable International Chamber of Commerce’s Incoterm 2010 (“INCOTERMS”) as set in the applicable Order, and perform Services when and as directed by the Order, it being understood that TIME IS OF THE ESSENCE with respect to such Delivery and performance. If the Product has associated manuals, Supplier shall Deliver to Buyer at least two (2) hard copies of such manuals and a copy in printable media, which may be used by Buyer to make additional copies of such manuals.
3.4. Order Changes after Acceptance. Purchaser may, at any time, notify Supplier in writing, by regular or electronic means, of a change in the Order and Supplier shall use its commercially reasonable efforts to promptly comply with such change under the same terms and conditions set forth in the Order or as agreed in writing between Supplier and Purchaser. No change to the Products may be made by Supplier without the prior written consent of Purchaser.
3.5. Title and Risks. The title to the Products shall pass to Purchaser upon the earlier of: (i) Delivery of the Product, or (ii) any payment by Purchaser under the Order. Supplier shall bear all risks with respect to the Products in accordance with agreed INCOTERM.
4.1. Warranties. Without limiting the rights Purchaser may otherwise have under Applicable Law and Regulations, Supplier warrants to Purchaser (collectively the “Warranty”) that with respect to all Product Delivered hereunder that, as of the Delivery Date: (a) such Product conforms with the specifications and other requirements for such Product attached to the Purchase Order; (b) such Product is new and not reprocessed or refurbished, merchantable and fit for Purchaser’s particular use and is free from defects in materials and workmanship; (c) such Product shall have been manufactured in accordance with the highest quality standards used in the industry and shall comply with Applicable Law and Regulations, including regulations on health, safety and environmental protection; (d) in the absence of packaging instructions set forth in the Order, the Product will be packaged in the best available packaging materials and in accordance methodologies to ensure receipt at the Purchaser’s facility in an undamaged condition; (e) title to such Product will pass to Purchaser free and clear of any security interest, lien, taxes, rights of third parties or other encumbrance; and (f) such Product and its intended use does not infringe, misappropriate or otherwise violate any patent, copyright, industrial design, trademark or other intellectual property right of any third-party.
4.2. Notification. If any Products are not supplied in accordance with the Warranty or the Contract for Purchase, Purchaser shall inform the Supplier thereof promptly upon discovery. Purchaser and its Affiliates shall have no obligation to examine, sample or test Products for defects and Purchaser’s and its Affiliates’ decision not to perform such examination, sampling or testing shall not relieve Supplier of any obligation, warranty or liability set forth herein or under Applicable Law and Regulations. Should Purchaser choose to examine, sample or test Products, Supplier shall provide all information which Purchaser reasonably requests to carry out such actions.
4.3. Right of Rejection. Without prejudice to any additional rights arising from the delivery of such Products, Purchaser shall have the right to reject any Products that are defective, deficient, or nonconforming with this Agreement or the Warranty. Purchaser shall have the option (i) to allow Supplier, at its sole expense, to promptly repair such Products, or (ii) to allow Supplier, at its sole expense, to replace such rejected Products with conforming Products within four (4) weeks of notification thereof, or (iii) to return any such Products at Supplier’s expense. All costs and expenses incurred by the rejecting Party in connection therewith (including return or disposal of defective Products) shall be borne by Supplier. Any Product repaired or replaced shall be warranted on the same basis as provided in Section 4.1. If Supplier fails to replace Product(s) in such time period, without prejudice to any other rights they may have, Purchaser may source their requirements from alternative suppliers and Supplier shall reimburse Purchaser for the price difference.
4.4. Product Recall. In the event that any regulatory authority issues or requests a recall or takes similar action in connection with a Product, or in the event Purchaser reasonably believes that an event, incident or circumstance has occurred that may result in the need for a voluntary or mandatory recall, Purchaser shall promptly notify Supplier in writing of such situation, and shall decide and have control over the recall, market withdrawal or required corrective action. Supplier shall then: (i) follow all reasonable instructions provided by Purchaser; (ii) hand over to Purchaser all the necessary information related to the issue that is the cause of the recall; and (iii) shall not take any action or make any public statement on this issue without the express written consent of Purchaser. Supplier shall bear all the costs and damages incurred by Purchaser due to the delivery of Products nonconforming with specifications or defective. Supplier shall maintain, during the period of the Contract of Purchase, insurance with adequate coverage for this purpose.
5. DELIVERY DELAY:
5.1. Notice of Non-Compliance. In the event that Supplier believes that a delay in Delivery of Products or performance of Services may occur for any reason including but not limited to Force Majeure, or Supplier believes it may be unable to fulfill any of its other obligations under the Order, Supplier must notify Buyer in writing as soon as Supplier becomes aware of such circumstances. Such written notice shall include all relevant information and the full particulars with respect to such delay or non-fulfillment including a reasonable estimation of the duration of such delay or inability to perform such obligations. Such notice does not relieve Supplier of its obligations, liability or warranties hereunder.
5.2. Results of Delay. Any delay in delivery of Products or performance of Services (other than as a result of a Force Majeure) exceeding five (5) days shall be deemed a material breach of the Contract. In the event that Purchaser is willing to accept such delay in accordance with Section 5.3 below, Supplier shall make such delivery or perform such Services at such time as the parties mutually agree in writing, or failing such agreement, within twenty (20) days from the original due date for delivery or performance. Failure of Supplier to comply with such extended due date also shall be a material breach of the Contract. In the event of either such material breach of Contract and without limiting any other remedy to which Purchaser may be entitled hereunder or under Applicable Law and Regulations, Supplier shall reimburse Purchaser (i) an amount equal to any cost or price increase (including transportation costs) that Purchaser is required to pay to obtain a comparable product or service from another source; and (ii) any costs and expenses related to such procurement.
5.3. Discount for Late Delivery or Performance. In the event that Supplier does not deliver all of the Products or complete performance of all of the Services pursuant to the Order (for any reason other than as a result of a Force Majeure) within five (5) days of the date for such Delivery or completion set forth in the Order, then Purchaser shall have the right but not the obligation to accept such delay and reduce the price for such undelivered quantities or Services for each week of such delay by an amount equal to one half of one percent (0.5%) of the agreed upon unit price or rate for Services up to a maximum reduction of five percent (5%). Purchaser’s election under this Section shall be deemed a cure of Supplier’s initial breach of the Contract under Section 5.2.
5.4. Force Majeure. Neither Party shall be responsible to the other Party for loss or damage due to any unanticipated circumstances beyond such Party’s reasonable control and which could not have been avoided by due care including, without limitation, war, whether declared or undeclared, national emergency, fire, flood, windstorm or other act of God, order or act of any government, whether foreign, national or local, whether valid or invalid, labor disputes or any other cause of like or different kind beyond the reasonable control of such Party (herein, a “Force Majeure”). The obligations of the Party affected by Force Majeure shall be suspended for the duration of such Force Majeure provided that such Party will use commercially reasonable efforts to resume performance of the Order as soon as possible, however, such efforts do not require the resolution of labor disputes or equivalent event.
5.5. Purchaser’s Rights during Force Majeure. At the Purchaser’s option, any quantity of Products so affected by a Force Majeure shall be deducted from the total quantity purchased by Purchaser. Supplier, during any period of shortage due to any of the causes listed in section 5.4. and after, shall ensure that Purchaser will not receive less than the same allocation on a pro rata basis as it received prior to such event of Force Majeure, or in case Supplier cannot re-start production, Supplier shall supply Purchaser with Products sourced from a third party provided that such Products will conform with the agreed specifications. If Supplier’s performance is suspended for more than fourteen (14) calendar days due to a Force Majeure, Purchaser may, at its option, terminate the Contract for Purchase or the Order with immediate effect upon written notice to Supplier.
6. PRICE AND PAYMENT TERMS:
6.1. Price. Unless otherwise mutually agreed in writing, prices set forth in the Order are full compensation for the performance of the Order, including the statutory value added tax, and Buyer shall have no obligation to pay any amount in excess of the price set forth therein.
6.2. Invoices. Supplier shall invoice Purchaser using an invoice containing the purchase order numbers and other agreed references, which shall also clearly indicate the Products ordered. All proofs of origin (if applicable) shall be attached to the relevant invoice. Purchaser is entitled to return invoices that do not meet these requirements and Supplier shall reissue invoices which satisfy these requirements. Payment term shall be as stipulated in the Purchase Order.
7. PACKAGING AND RAW MATERIALS – Food Specialties:
Supplier warrants to Purchaser that all packaging materials and Products delivered hereunder that are purchased for Purchaser’s Food Specialties division comply with the current European food law and national food law of the country of the Purchaser, and when appropriate, Supplier shall submit to Purchaser all the relevant documentation to that extent. Supplier, with respect to packaging material, delivered as such or as part of other raw materials, and other materials that will come into contact with or be part of Purchaser’s food products and production, shall warrant the following: (i) the Products supplied are produced in line with good manufacturing practices as regulated under Commission Regulation (EC) No 2023/2006 of 22 December 2006 and its following amendments; (ii) the Products when intended to come into contact with food are in line with applicable European Union legislations and applicable national law, including but not limited to Regulation (EC) no 1935/2004 of 27 October 2004 and its following amendments; (iii) the Products supplied do not contain any substance or material different than the ones disclaimed by Supplier to Purchaser or that are forbidden to use under European Union legislation; (iv) the products supplied, when intended to be brought or already in contact or that can reasonably be expected to be brought in to contact with food are safe and they will not transfer their components into Purchaser’s final food products in quantities that could endanger human health, or change Purchaser’s final products composition in an unacceptable way or deteriorate its taste and odor; and (v) Supplier warrants that the Products delivered are in adequate microbiological conditions.
8. ENTIRE ORDER:
Each Order and these Conditions constitute the entire Contract between Supplier and Buyer for the purchase of Products and/or Services under the Order, and supersede all prior negotiations, representations or other agreements, either oral or written related to the subject matter hereof.
The Contract for Purchase shall be binding upon and inure to the benefit of the respective successors of the parties hereto, but it shall not be transferred or assigned by the Supplier without the prior written consent of Purchaser. Purchaser shall have the right to assign the Contract for Sale to any of its affiliates without the Supplier’s consent, including the right to assign the receivables due to it from Supplier or any other third party, as the case may be, to a third party without any limitation and without notice to Supplier.
Delay or failure by either party in exercising any right hereunder shall not constitute a waiver of that or any other right or subsequent right in the Contract for Purchase, except as otherwise specifically set forth herein.
If any provision or part of a provision of the Contract for Purchase shall be, or be found by any authority, tribunal or court of competent jurisdiction to be, invalid or unenforceable, such validity or enforceability shall not affect the other provisions or parts of such provisions of the Contract for Purchase, all of which shall remain in full force and effect.
GOVERNING LAW AND JURISDICTION
The Contract for Purchase shall be governed and construed in all respects in accordance with the laws of the jurisdiction of Purchaser, without regard to the conflict of law provisions thereof. Jurisdiction and venue in any legal proceeding between Supplier and Purchaser will be in the courts where the Purchaser’s home or registered office is located. The rights and obligations of the parties under the Contract for Purchase shall not be governed by or construed in accordance with the provisions of the convention for the UN International Purchase of Products.
The English version of this Contract shall be the official version of this Contract and any translation into any other language shall not be an official version thereof, and in the event of any conflict in interpretation between the English version and such translation, the English version shall control.