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General terms and conditions of purchase

Any Agreement concluded by or on behalf of a Baronie group company to purchase Products from a Supplier is conditional on the acceptance by the Supplier of these General Terms and Conditions of Purchase.

Any different or additional conditions of the Supplier are excluded.

1. Definitions

Agreement: Any contract between a Baronie group company and a Supplier for the purchase of Products comprised of a purchase or supply agreement and / or a Purchase Order or call-off.

Baronie group company: Baronie Switzerland S.A. and any legal entity that is under common control.

Buyer: The Baronie group company specified in the Agreement as the buyer or the Baronie group company on whose behalf and account the Agreement is concluded.

General Terms and Conditions of Purchase: These general terms and conditions of purchase which are part of and deemed incorporated in any Agreement.

Purchase Order (PO): Any binding purchase order, any binding blanked purchase order, any binding acceptance of an offer of the Supplier to sell Products and any call-off issued by or on behalf of a Baronie group company for the purchase of Products from a Supplier including PO's and call-offs issued pursuant to an Agreement.

Products: The goods which are purchased by the Buyer from the Supplier and the related services.

Specifications: (i) The applicable Baronie specifications, requirements and/or standards for the Products as set forth in the Baronie raw materials specification system and failing such Baronie specifications the specifications, requirements and /or standards that are provided or explicitly accepted by Buyer in the PO, (ii) samples that may have been provided by Buyer or Supplier, (iii) the state of the art industry standards for the Products, and (iv) the specifications and standards the Products must meet pursuant to the applicable EU regulations and the legislations of the country(ies) for which the Products are sourced by the Buyer and which are all made part of and deemed incorporated in the PO or Agreement.

Supplier: The entity or physical person listed in the Agreement as supplier or seller of the Products.

2. Scope of the General Terms and Conditions of Purchase / Specifications / Entire Agreement

The General Terms and Conditions of Purchase and the Specifications are part of each Agreement.

By making an offer for the sale and by entering into an Agreement for the purchase of the Products by the Buyer, the Supplier is deemed (i) to have read and accepted the General Terms and Conditions of Purchase and the Specifications and (ii) to have renounced to its own terms and conditions including but not limited to its general terms and conditions of sale.

Any terms and conditions and specifications of the Supplier which would be contained in any document of the Supplier and would be different or inconsistent with the Agreement or PO, will not be binding and remain without effect unless to the extent otherwise agreed in writing by the Buyer.

3. Structure of the Agreement

If there is a conflict between the terms contained in an Agreement composed of different documents, such conflict shall be resolved in the following order of priority of precedence: 

(a) the PO,

(b) the Agreement,

(c) the General Terms and Conditions of Purchase

4. Supply of the Products

The Supplier shall supply to the Buyer the Products and, if applicable, related services: (i) at the quality and in the quantities specified in the Agreement, PO or call-off (ii) in accordance with the Specifications for the Products and (iii) with the skill and care of a diligent Supplier of the Products.

Any items or services that are not specifically described in the Specifications but are reasonably necessary for the proper supply of the Products, are deemed to be included in the scope of the Products and related services that are to be provided.

The Supplier shall comply with the guidelines, the written policies and all reasonable instructions that may be communicated by the Buyer.

Time is of essence with respect to the delivery schedules and times specified in the Agreement or PO's.

All Products will be delivered and the related services will be performed on weekdays during the normal business at the Baronie point of delivery of the Buyer unless otherwise specified in the Agreement or PO.

Supplier will sufficiently in advance of the delivery provide accurate and complete information to the Buyer on all shipping and customs documents (including but not limited to: description of the Products, country of origin, manufacturing and delivery including, whenever possible, tracking information).

Supplier will, if applicable, as part of the deliverables, provide no later than three (3) working days before delivery a Certificate of Conformance ("CoC") and on the date of delivery a Certificate of Analysis ("CoA").

5. Ordering Process

Buyer will, unless otherwise stipulated in an Agreement, only be committed by an Agreement or PO. 

Forecasts that are to be provided by Buyer pursuant to an Agreement or PO or are otherwise communicated, shall be non-binding estimates only, unless otherwise agreed in writing by the Buyer. 

Unless otherwise explicitly stipulated in the applicable Agreement or PO, the Buyer will have no obligation in respect of the number of PO's or call-offs that are to be placed or the volume of Products that are to be purchased.

PO's - other than PO's to call-off Products pursuant to an existing Agreement - shall    only become binding for the Buyer (i) upon receipt  of a written acceptance without variance from the Supplier or (ii) by tacit acceptance if the PO is not rejected by the Supplier or annulled by the Buyer within five working days following communication of the PO by the Buyer.

The Buyer shall - unless otherwise agreed in writing - not be committed by conditional acceptances of PO's or acceptances which provide for different terms.

6. Price

The purchase price will be specified in the applicable Agreement or PO.

Unless otherwise provided in writing, the price set forth in the Agreement or PO includes all applicable duties, tariffs, VAT, surcharges, taxes and in general any amount assessable by any government agency in respect of the Products.

7. Packaging

The Supplier shall ensure that all packaging and storage material that it uses to pack, store and deliver the Products to the Buyer:

  • will meet the Specifications; and
  • is clean, non-toxic, does not harm the environment and does not affect the taste, colour or odour of the Products; and
  • complies with all applicable laws and regulations and state of the art industry standards.

The Supplier shall mark all returnable pallets and containers with Supplier's name and return address.

8. Shipping

Unless otherwise specified in the applicable PO or Agreement, the shipping term will be DDP (as published by the ICC 2010) including unloading at the Baronie point of delivery of the Buyer. 

Supplier will insure the Products against loss and damages during loading, transportation and the unloading operations.

9. Title to and risk of damages and loss of the Products

The Supplier guarantees that the Products are free from any liens of any nature and not subject to reservation of title.

Unencumbered title to the Products will pass to Buyer when the Products are made available for unloading to the Buyer at the Baronie point of delivery. 

The risks of damages or loss of Products will pass to Buyer following completion of the unloading operations at the Baronie point of delivery.

10. Acceptance / non-conforming deliveries / late deliveries

The Supplier warrants that the Products meet the agreed Specifications and are new, merchantable, of first class quality, fit for the intended purpose, have all required EU and national certifications and are free from apparent and latent defects.

In respect of food products, raw materials and ingredients for food products, Supplier warrants in addition that the Products are free from contaminants, comply with all applicable dietary certifications required by law and / or Buyer, all applicable laws relating to food products and food safety and shall be usable during the specified shelf-life.

Buyer cannot be deemed to have accepted the Products until it will have had at least ten (10) working days following delivery to inspect, and if applicable to reject all or part of the Products on apparent defects.

In the case of latent defects the Products can be rejected by the Buyer until three (3) months before the expiration of their shelf life subject to the understanding that the rejection is to be notified to the Supplier within two (2) months after the latent defect became apparent, if applicable or appropriate, following analysis in the laboratory of the Buyer or third party. Irrespective as to whether or not the Products are defective Buyer will not be obliged to accept non-conforming Products.

Buyer may in respect of non-conforming Products in its sole discretion reject the entire or only part of the non-conforming delivery and terminate the relevant Agreement or PO by law, without a prior warning being required, subject to the right to claim damages for the prejudice incurred as a consequence of the non-conforming delivery.

If the Supplier fails to deliver Products within the period specified in the Agreement, PO, call-off or delivery schedule, the Buyer may at its sole discretion accept or reject the entire or only part of the belated delivery.

Any acceptance of a belated delivery shall remain without prejudice to the right of the Buyer to compensation for the incremental costs caused by the belated delivery. Any rejection shall remain without prejudice to the right to terminate the relevant Agreement or PO by law, without a prior warning being required, subject to damages for the prejudice incurred as a consequence of the belated delivery.

11. Invoices

Supplier's invoices, together with the supporting documentation as may be requested by Buyer, must be sent to the address listed in the Agreement or PO.

12. Payment terms

Unless otherwise specified in the applicable Agreement or PO, payment terms are two (2) months from Buyer's receipt of a correct undisputed invoice with the appropriate invoice detail. 

Buyer shall have the right to set-off amounts that are due by the Supplier against the invoices of this Supplier.

13. Food safety / recalls

The Supplier warrants that all Products that will be supplied to the Buyer will be produced in such a manner as to ensure that under no circumstances the Products could be held to be defective or injurious to health or unfit for human consumption or contaminated.

If the Supplier becomes aware at any time of any incidents, events or discoveries which may in any way be relevant for the safe consumption of the Products previously supplied, the Supplier shall as per IFS / BRC standards issue within maximum three (3) working hours a written communication to the Buyer with all known details.

The Supplier shall reimburse, indemnify and compensate the Buyer for all damages and losses (including costs of legal actions) that the Buyer may incur or have to bear as a result of any claim(s) arising as a result of the Product being non-conforming, defective, contaminated or otherwise unfit for human consumption.

In case the defective nature of the Products would require a recall, Supplier will not contact any third parties or make any public statement regarding a recall that would affect goods of the Buyer without prior consultation and the prior written consent of the Buyer in respect of the actions that are envisaged.

Buyer may initiate a recall of its goods if, as a consequence of the use of defective, non-conforming or contaminated Products, (i) the goods of the Buyer create a risk of personal injury or public safety, or (ii) Buyer reasonably anticipates that the issue with the Products may adversely affect the Buyer, its brands and the goodwill associated with the Buyer and its brands.

14. Termination

Any Agreement and any PO may be terminated in whole or in part by the Buyer without any penalties or damages being due by the Buyer:

  • immediately in the event of material breach of an Agreement by the Supplier;
  • subject to a prior notice of seven (7) days in the event of non-material breaches that remain uncured following a written warning and in case a force majeure situation has prevented delivery for more than five (5) working days;
  • immediately or at a later specified date if the Supplier becomes insolvent, enters into administration, is declared bankrupt or if its goods are the subject of seizures by third parties.

Termination of any Agreement or PO shall remain without prejudice to the right of the Buyer to claim damages for the prejudice it has incurred.

Performance, expiry or termination of any Agreement or separate PO('s) shall remain without influence on the clauses that are designed to survive the expiry or termination of the Agreement or separate PO.

15. Insurance

The Supplier undertakes to maintain adequate insurance coverage with insurers of repute in respect of its potential liabilities in relation to the Products (including but not limited to insurance for product liability claims and recalls) towards the Buyer and third parties as well as in relation to actions or omissions of the Supplier in the proper performance of its obligations and its liability in tort. The Supplier will give to the Buyer on demand a copy of the relevant insurance policies.

16. Indemnification

Supplier shall indemnify the Buyer for all damages and losses that it will incur and will be attributable in whole or in part to any deficiency, defect or non-conformity in any of the Products supplied by the Supplier and / or the breach by the Supplier to comply with its contractual and / or legal obligations and in general as a result of any actions or missions of the Supplier that trigger his contractual liability or liability in tort.

Supplier shall indemnify, defend and hold harmless, the Buyer from and against any third party demands and actions including but not limited to demands and actions arising out or related to (i) a breach by Supplier of an Agreement or PO, (ii) any claims of personal injury, death or property damages arising out of the Products or Seller's performance (or non-performance) of its obligations, (iii) any third party claims including claims on or in relation to the Products, (iv) Suppliers' violation of any third party's Intellectual Property Rights and (v) all claims arising out of or related to recalls of the Product or goods in which the Products have been used.

17. Buyer's Intellectual Property Rights

Supplier acknowledges that it will not at any time acquire any rights, title or interest in any intellectual property or confidential information of Buyer and its Affiliates.

18. Confidentiality

Supplier may not disclose any information regarding the business relationship between parties nor the use of the Products by the Buyer and its Affiliates.

Supplier may not refer to Buyer or its affiliates and their brands in any marketing materials or promotion for the Products without the prior consent of the Buyer. 

19. Ethical business practices 

Supplier will conduct its business ethically, will strictly comply with all anti-bribery and anti-corruption laws and will not engage, encourage, induce or assist any third party in doing any unethical act.

Supplier will comply with the Code of conduct and guidelines that will be communicated by Buyer including but not limited on ethical sourcing.

Supplier shall not use child or forced labour in its operations and not source any Products or goods from suppliers that would do so.

20. Audit and Inspection

The Supplier guarantees that its production, storage, distribution and shipment processes are operated within a structured and documented quality management system and when applicable, food protection procedures. 

Buyer shall, until one (1) year after the last delivery of Products, at all times have the right to perform announced or unannounced audits of the quality and food protection records and the facilities of the Supplier. The audits may be conducted by authorised representatives of the Buyer or third-party auditors as determined by Buyer.

Supplier will grant them access to any facility, warehouse, plant or site where the Products or any ingredients or components that are used to produce the Products, are grown, processed, converted and or stored, to inspect and audit the activities being performed and to monitor Supplier's compliance.

Supplier shall, when applicable and requested by Buyer, cause its suppliers and contractors to cooperate with these audits and inspections.

Supplier will implement all required and reasonable corrective actions that would result from any audit, inspection or visit at its expenses. Buyer may suspend or annul any Agreement and any pending PO's and call-offs under any Agreement until all reasonable necessary deficiencies will have been corrected by Supplier.

Supplier must at all times be able to provide upon request of the Buyer copies of the valid GFSI - audit reports.

21. General Provisions

21.1. Assignment / subcontracting 

Supplier may not assign or subcontract all or part of its obligations under an Agreement or PO without the prior written consent of the Buyer. If Buyer consents to the use of (a) subcontractor(s), the Supplier shall be jointly and severally liable for any act or omission by the subcontractor.

21.2. Waiver

No waiver of any term or condition shall be valid unless it is in writing.

21.3. Survival

Any provision of the applicable Agreement which imposes on Supplier an obligation after termination of the Agreement, will survive the termination or expiration of the Agreement on completion of any Order.

21.4. Modifications

Buyer shall have the right to amend, revise and update these General Terms and Conditions of Purchase. The amendments, revisions and updates shall become effective when notified by the Buyer and shall be applicable to all Agreements, including PO's and call-offs, that will be subsequent to such notice. 

21.5. Severability

If any clause of an Agreement or PO including these General Terms and Conditions of Purchase cannot be legally enforced, Buyer and Supplier agree that the clause will be amended to the extent required to render it enforceable while remaining as much as possible with the initial intent of the clause.

The null and void nature of such clause shall remain without influence on the enforceability of the other clauses. 

21.6. Governing law

The Agreements and all disputes between Buyer and Supplier shall be subject to the laws of the country in which the Baronie point of delivery of the Buyer is located.

None of the provisions of the UN Conventions on the International Sale of Goods will be applicable to the interpretation and enforcement of any Agreement.

21.7. Dispute resolution

Disputes shall be within the jurisdiction of the courts of the legal district in which the Baronie point of delivery of the Buyer is located. This clause remains without prejudice to the right of the Buyer to introduce legal action before the courts of the legal district in which the registered office of the Supplier is located or which have otherwise jurisdiction pursuant to the governing Conventions on jurisdiction.