Matusz-Vad Zrt. General Terms and Conditions (GTC) relating to Supplier Contracts

Transcription

1 Matusz-Vad Zrt. General Terms and Conditions (GTC) relating to Supplier Contracts (Short descriptions in other documents: The effective date of the Supplier s GTC: from 1 February 2016) 1. Matusz-Vad Zrt. (Registered office: 1103 Budapest Kőér u. 3/A.; VAT number: ; company registration number: ; represented by: Balázs MATUSZ managing director; beszerzes@matusz-vad.hu; ; fax: ; hereinafter referred to as 'Customer') shall apply the provisions of these GTC on legal transactions conducted with suppliers. 2. The GTC are available from the Customer's Purchasing Department and on Customer's homepage. ( 3. Scope of the GTC: The scope of the GTC extends to the legal transactions (hereinafter referred to as 'Contract') between the Buyer and their suppliers (hereinafter referred to as 'Supplier', Supplier and Buyer jointly referred to as 'Parities') which came into existence either inland or abroad, unless the Buyer requires otherwise in a written form. Provisions of the GTC related to contracts shall be applied properly to unilateral legal statements. 4. Following the of the conclusion of the Contract in compliance with the relevant legal and other requirements the Supplier contracts to provide on-going supply of goods (hereinafter: both goods or services covered by the Contract: product) ordered by the Buyer in the standardized electronic form to the locations specified in the order. The on-going deliveries shall be performed via the Supplier s own logistics network or that of its appointed representative by complying with the terms specified in the order and the quality standards defined on the website. 5. The various tax components included in the list price of the products, such as the public health product tax (hereinafter: NETA) and the value added tax (hereinafter: VAT) shall always be specifically indicated by the Supplier, since they are necessary for the calculation of the invoice discounts and trade amount bonifications. If the tax components like excise duty, NETA, environmental product tax or VAT are not identified separately in the list price, as for the calculation of the invoice discount or trade amount bonification, either the products are considered exempt of excise duty, environmental tax and NETA, or the excise duty, environmental tax, NETA and VAT payable are already included in the price given by the Supplier. Following the conclusion of the Contract, the Supplier guarantees that the amount of excise duty, environmental product tax or NETA included in the product prices has been paid by itself or by a third party at an earlier level of the supply chain, if applicable. 6. Should there be any change in data regarding the presentation, packing, size, weight or any other logistics parameters of a product, the Buyer shall be informed by the Supplier by means of a written item master form at least one week before the introduction of the modification. A product with modified data is regarded as a new product. 7. The Supplier shall notify the Buyer each time when the Buyer s site is the first place of unloading in Hungary regarding a specific product, so that the Buyer can notify the authorities in accordance with the binding legal obligations. Failing to meet this obligation, the Supplier shall bear all resulting loss or damage and fine. 8. Orders are placed by the Buyer with an agreed regularity by means of electronic mails. The order shall include: the Buyer s company name, bill-to address, order number, description and item number of the products ordered, quantity, unit of measure, exact address of destination, the name and contact information of the person in charge of goods receipt.

2 9. The Supplier shall send its order confirmation by within one working day upon receipt of the order by also making reference to the Buyer s Order Number. The confirmation shall include: a./ If the transport of products is organized by the Supplier: The exact date and time of delivery (hour, minutes) and all the details of the order as agreed with the Buyer s relevant warehouse. To avoid unnecessary waiting time, before confirming the order, the Supplier shall contact the person in charge of goods receipts to find a mutually acceptable date and time. This agreed date and time shall be specified in the order confirmation as exact delivery time. b./ If the transport is performed by a carrier company contracted by the Buyer: Exact starting and ending dates of the delivery at the Supplier s site, from and to times of the delivery, pallet numbers, gross weight and all the details of the order. 10. The Supplier shall fully deliver the confirmed order at the specified delivery time, according to the criteria defined in the order. Failing to meet these criteria, the Supplier shall pay a penalty defined in point 45 against the invoice of the Buyer, payable within 8 days upon issue. 11. If there is no Additional Agreement for Strategic Periodic Supply between the Parties, and the order is not confirmed within one day, and after all the products are still delivered, the Buyer is entitled to refuse the receipt of the products without any further consequences. In this case no claim may be made by the Supplier against the Buyer. 12. If there is an Additional Agreement for Strategic Periodic Supply in place between the Parties, and if the order, however, is not confirmed, or the Supplier confirms the order with conditions different from those stipulated in the order, the Parties agree to consider the order confirmed as per the Buyer s order. 13. Failure to fulfil the Buyer s orders during the effective period of the Additional Agreement for Strategic Periodic Supply, regarding the products involved, in parallel to purchase the goods elsewhere, the Buyer will be entitled to claim a failure penalty according to point 45 of the GTC. 14. Prior to the delivery, within a reasonable time period, the Buyer has the right to cancel the order partially or completely, or to modify it. The Parties always consider it a reasonable time period if withdrawals or modifications are passed until 10:00 on the working day preceding the delivery date. 15. The Supplier guarantees that the products ordered under the Contract are safe food, holding all required official authorizations and complying with all legal and official requirements and standards of Hungary and the EU, and they are manufactured, marked, stored and shipped according to the rules of HACCP. Regarding the use-by-date or best-before-date of goods (hereinafter: shelf life days): the Supplier undertakes to ensure a remaining shelf life of at least one third of the total shelf life days on delivery for the Buyer, otherwise the Buyer is entitled to refuse the receipt of the goods concerned on the grounds of inadequate performance. 16. The Supplier guarantees that the Product packaging meets all requirements stated in the current legislation, standards and authority requirements, it contains the appropriate licence numbers and compulsory labels and markings in Hungarian, German, Slovak and Romanian languages, and the expiry date appears on the individual packaging of the Product. The label should be applied on the Product to allow removal only by strong physical force. For products with varying weight it must contain the EAN 128 bar-code with weight, and for products with fixed weight the EAN 128 fixed bar-code must be included. Furthermore, by the conclusion of the Contract, the Supplier guarantees that the products are free of defects and they are suitable to be stored, transported and placed on the market in every other respect. Customer has to take over the products in that case if the expire date is the same in one individual pallet, or at least the expire date is the same in rows. If it is not the same Supplier has to mark every single product with EAN 128 barcode, which contains the expire date. 17. The Supplier is bound to provide detailed written information in advance about the storing and transporting requirements of the product.

3 18. The Supplier ensures that the transport of the pre-packed food requiring refrigeration or freezing shall take place solely by adequately clean and refrigerated means of transport with a temperature recording load area satisfying proper climate conditions for frozen food and also preventing the contamination of products from outside. If the core temperature of the product supplied does not comply with the instructions, the Buyer is entitled to refuse the receipt of the product. The vehicles used for the transport of all other products must also be lockable and isolated from the weather conditions with clean and sanitary load area. 19. The products must be placed on intact, undamaged pallets. The height of the loaded pallet may not be more than 1800 mm including the pallet. The weight of the loaded pallet may not be more than 800 kg including the pallet. Products may not span beyond the pallet laterally. The Supplier shall ensure the easy counting of the items by covering the products preferably with PET film. 20. One pallet should hold only one type of product with the same expiry date (homogeneous pallet). 21. Failure to fulfil any criterion regarding the products or the preparation of products, the Buyer is entitled to refuse the receipt of the shipment on the grounds of inadequate performance, or may allow the Supplier or its representative to load the shipment onto another vehicle. 22. Product warranties and guarantees fall on the Supplier. The Supplier shall indemnify the Buyer for any liability or damage arising from eventual product defects. Should the competent veterinary or other authority suspend or ban the marketing of the Product for any reason, depending on the decision of the authority, the quantity not yet sold or recalled after the sale should either be returned by the Supplier at its own expense, or, if destruction costs arise, these costs shall be reimbursed by the Supplier to the Buyer. 23. By the conclusion of the Contract the Supplier guarantees that the products supplied under this Contract by no means affect the rights or legitimate interests of third parties adversely, imply no threat or harm to the health, life and physical integrity of persons. Furthermore, the Supplier ensures to immediately inform the Buyer about any actual or potential adverse effect (e.g. product liability claim), indemnifies the Buyer for all liability and bears all costs and damages incurred following the Buyer s notice. 24. The place of delivery is the specific address indicated in the order, the sites or contracted facilities of the Buyer. 25. The order fulfilment date is the date specified in the order confirmation, which may not be later than one week after the order date, unless otherwise requested by the Buyer in the order. 26. The Supplier shall immediately inform the Buyer about any circumstances which can delay, prevent, or otherwise impede the order fulfilment in due time and manner, or which have any impact on the fulfilment. In default of this notification, the resulting loss or damage falls on the Supplier. This notification, however, shall not free the Supplier from penalties or other redemptions specified in point Upon receipt of the Product the Buyer acquires title thereto, and becomes entitled to resell it before settling the Supplier s invoice. 28. The receipt of goods is performed on the basis of packages. 29. Itemized quantitative and qualitative receipt of the goods by the Buyer takes place at the point of fulfilment without prejudice in each case. The Buyer reserves the right to enforce its claims arising from the breach of Contract according to Title X. of Book Six of the Civil Code. Quality defects or quantity deficits discovered following the receipt of goods should be communicated to the Supplier immediately as they emerge. 30. The Supplier shall be fully liable for any quality and quantity complaints or for the incomplete or defective delivery.

4 31. In the event of quantity complaint, the Supplier ensures to complement the missing products bearing the relevant transport costs within two weeks upon the notification of the quantity complaint. 32. The Parties agree that the Buyer is entitled to refuse the receipt of the products, even by returning the whole shipment in the cases listed below. Furthermore the Supplier undertakes to take back the goods concerned as a return shipment in the following cases: a. The product delivered is not the product ordered or it is not shipped in the agreed presentation. b. The Supplier changed the unit package without preliminary notification of the Buyer. c. The quality or transport conditions do not meet the quality and transport requirements specified in point 3. d. There are more than two different use-by dates or best-before-dates regarding the same product in one shipment. e. The LOT number, expiry date or EEC Identification No. of the product is not indicated individually in the Delivery Note, CMR Waybill or other shipping document, or there is no marking mentioning that the product is frozen. If more than one expiry date and/or LOT number are concerned, the weight of the Product must be broken down accordingly. f. Due to general official prohibition or to other restrictions, the product may not be marketed by the Buyer or by its interest sphere. g. Additionally, in other cases defined in the present Contract, or in a separate agreement of the Parties, or by law. h. Due to quality defects evaluated in the Buyer s competence by organoleptic tests. In the event of any controversy as regards the findings of the qualitative receipt of goods, the Parties agree to submit the dispute for decision to the competence of the official veterinarian responsible within the warehouse area, whose expertise will be accepted unconditionally. 33. In the circumstances referred above (a) the Buyer is entitled to refuse the receipt of goods concerned without any obligation of compensation or indemnity, on the other hand, the Supplier is bound to duly deliver the goods concerned within one working day following the notification sent by the Buyer, or (b) if the goods affected by defective performance have already been received, the Supplier is obliged to return them (return shipment) and to deliver the goods duly within two days after the notification sent by the Buyer. 34. If the Supplier fails to fulfil these replacement obligations, it is bound to compensate the Buyer according to point 45 of the GTC. 35. The Supplier shall modify the previously issued invoice by the quantity of the return shipment. If the invoice is not yet issued, the Supplier may issue it only with quantities reduced by the return shipment. 36. In the event of defective execution (quality or quantity complaint) the invoice should be modified by the Supplier. 37. The transfer of goods is attested by the detailed Delivery Note or the CMR Waybill issued by the Supplier, signed by both Parties (stamp, date, time, signature), stating the quantity and quality objections arisen upon the receipt process. The Delivery Note accompanying the product should include the order number of the Buyer as a reference, lacking this, the Buyer is entitled to refuse the receipt of the shipment on the grounds of inadequate performance without any legal consequences. Replacements or exchanges are documented on a separate Delivery Note which is not followed by any invoice charged to the Buyer. 38. The Parties may agree that for the special request of the Buyer, the Supplier may repurchase the product from the Buyer at a reasonably reduced price which reflects the quality and further usability of the product by the Supplier. The Supplier shall pay the Buyer s invoice within 30 days upon issue. If the invoice is not received within 15 days following the issue date, the due date and all legal and contractual terms calculated from the due date shall be prolonged by the duration of the delay.

5 39. In the event of quality complaint the Supplier provides the replacement of the defective products (e.g. on the request of customers or consumers) free of charge for the whole range of its products within 2 working days, or with the next shipment according to the Buyer s preference. 40. The invoiced transfer price of the product: a./ If the transport of goods is organized by the Supplier: the price includes the costs of packing, shipping and unloading, the costs of the goods transfer process and all other costs of the Supplier. b./ If the transport is performed by a carrier company contracted by the Buyer: the price includes the costs of packing, loading, the costs of the goods transfer and all other costs of the Supplier. 41. The Buyer ensures that the commercial sales price of food products purchased from the Supplier will not be lower than the invoiced transfer price, unless otherwise required by law. 42. The Supplier accepts that it shall not give any gift, commission, loyalty, bonus or any other allowance of a value exceeding 15,000 forints to the Buyer s employees and related persons or other ventures, except the normal business allowances (factory visit, free invitation to exhibitions) approved by the Chief Executive Officer of the Buyer in advance and in writing. 43. The Supplier notes that the commitment specified in point 42 is of primary importance in the collaboration of the Parties, and the breach of this commitment constitutes a severe impairment of rights, for which the Supplier shall pay compensation to the Buyer. The amount of compensation should be 15% of the yearly trade amount between the Buyer and the Supplier. If the unlawful conduct also gives rise to the suspicion of crime (Sections 290, 291 of the Criminal Code), the Buyer is obliged to notify the competent investigating authorities to initiate the criminal proceedings. Such an infringement is considered a serious breach of Contract and provides grounds for the termination of the Contract with immediate effect. 44. The Parties declare that regarding either the Terms and Conditions or the other aspects of the Contract, they always take into account the provisions of Act XCV of 2009 on the Prohibition of unfair distributor practices vis-à-vis suppliers regarding agricultural and food industry products, and they conclude and apply all their agreements with a willingness to comply with these acts (or other relevant regulations) in all respects. 45. In the event of late delivery or fulfilment not conforming to the contract, the Buyer is eligible for penalty for late delivery. The penalty is based on the list price of the products concerned in the inadequate fulfilment, exclusive of VAT. The penalty is 2% of the base amount per calendar day until the due fulfilment accepted by the Buyer, but in total cannot be more than 20% of the base amount. If the penalty reaches this top, it shall be regarded as the Buyer has withdrawn from ordering that product. In the event of non-fulfilment of the order the Buyer is entitled to a cancellation penalty. (A non-fulfilment is especially when the Supplier fails to confirm the order in any way, or the Buyer doesn t accept or confirm, or accepts only conditionally the communication of impediments or the partial delivery or other presentation of the product as substitution, and the conditions of acceptance are not met subsequently). The penalty is based on the list price of the products concerned in the non fulfilment, exclusive of VAT. The rate of penalty is 20% of the penalty basis. If the Parties have an Additional Agreement for Strategic Periodic Supply regulating the deliverable quantities, prices in a period for a product or product group, and if this schedule is not met with the execution of orders, the Buyer has the right to make substitute transactions to buy the goods from any other supplier, the extra cost of which shall be borne by the Supplier against the Buyer s invoice payable within 8 days. The Supplier accepts that in such cases the Buyer might be forced to purchase the goods at a 30% higher price, therefore the Supplier ensures to accept the prices of the substitute transaction supported by invoices and expressly renounces to dispute the transactions like this. 46. The amount of the penalty shall be transferred by the Supplier to the Buyer within 15 days following the receipt of the financial notification letter of the Buyer.

6 47. The penalties specified in point 45 of the Contract are accepted by the Parties as proportionate to the severity of the non-fulfilment of the Contract, and in view of this they expressly renounce any mitigation thereof. 48. The Parties expressly agree to apply only mutually accepted prices for packings. The Supplier shall indicate the quantity of packings delivered to the Buyer on the Delivery Note. The difference between the delivered and returned packings will be credited or debited on the Buyer by the Supplier. The Supplier and the Buyer s representative shall reconcile and clear the balance of packings annually until 1st December at the latest. 49. The Supplier is bound to take back its own packings to the extent of the quantity released for circulation throughout the full duration of present contractual relationship and within 120 days after its termination. In the event of termination of the contractual relationship, the Supplier shall repurchase the packings at the last contract price. 50. The Supplier is not entitled to invoice the pallets to the Buyer if the pallets received in exchange for them at the time of goods receipt are not accepted by the Supplier s representative for any reasons other than quality complaint against the pallet. In such cases it must be stated in the receipt documents that the Supplier s representative was not ready to accept the pallets in exchange. 51. The Supplier delivers the goods on pallets which are conforming to the requirements of the present Contract, and the pallets returned by the Buyer in exchange satisfy the same criteria. The Supplier is keeping records of the quantity of the pallets in relation to the Buyer. As regards the pallets, the Parties render an account to each other every three months, the eventual debit or credit balances are settled by exchange pallets. Pallets shall not be invoiced. Present point also applies to the other ancillary instruments of transport. 52. In the event that an individual provision within this Contract is or becomes invalid or unenforceable for any reason, the validity of the remaining provisions, or the GTC as a whole shall not be affected. In such cases the invalid or unenforceable provision should be replaced with a valid and enforceable provision that reflects the contractual will of the Parties in the moment of the contract conclusion. 53. Issues not covered by the GTC shall be governed by the Civil Code and the relevant legal acts in force regarding legal relationships, such as if they apply on a mandatory basis the provisions of Act CLXIV of 2005 on Trade, or the Act XCV of 2009 on the Prohibition of unfair distributor practices vis-à-vis suppliers regarding agricultural and food industry products. The Parties submit all disputes arising from or relating to this Contract to the exclusive competence and jurisdiction of the competent Court based in Győr. 54. Except the cases defined in Section 6:152 or 6:526 of the Civil Code on limiting the liabilities, the contracting Parties exclude the liability of the Buyer s senior executives for damages.