Froneri Philippines Inc
Contract and Purchase Order Terms & Conditions
1. Scope
The terms of this document (Contract) will apply to the purchase of services (the Services) and/or goods (the Goods), Described in the face of this contract, made by the entity identified in this contract as “Purchaser” from the entity identified in this contract as Supplier, Parties refer to Purchaser and Supplier collectively. Specific orders under this contract will be made through purchase orders (PO(s)
A master Agreement is a written agreement governing (1) several transactions of the same class of goods and/or services that includes the Goods and/or Services subject of this contract; (ii) the exact same goods and/or Services covered by this contract or (iii) a long term commercial relationship regarding the Goods and/or services described in the face of this contract. The Master Agreement may be entered into between the parties, or between Purchaser or Supplier and any Affiliate of the other, or between Affiliates of the Purchaser and the Supplier. If a master agreement as described above, has been signed and is applicable to the purchase of Goods and/or Services under this contract, such purchase will be governed by the Master Agreement, and the following will apply: (i) if the Master Agreement details which are the valid supplemental terms of this contract, then the only valid terms of this Contract will be those expressly identified in the Master Agreement, or (ii) if the Master Agreement does not indicate which are the valid supplemental terms in this Contract, then the Contract will apply in addition to the Master Agreement, but in case of contradiction, the Master Agreement will prevail.
This contract will be deemed agreed upon and accepted by Supplier upon the occurrence of any of the following; (i) Supplier fails to reject this Contract within three (3) days from its receipt by Supplier, (ii) Supplier accepts this Contract in any written form; (iii) Supplier partially or fully delivers the Goods and/or Services covered by this Contract; or (iv) Supplier accepts any payment from purchaser pursuant to this contract.
Except when a Master Agreement applies as a described above, this contract will be deemed to contain all the terms and conditions agreed upon between the Parties. Any terms and conditions in Supplier’s quotation, acknowledgement, invoices, or any other form of writing related to the transaction established by this Contract, irrespective of its wording or form, or when received by Purchaser will not be applicable or valid. This contract will prevail over and replace any clickwrap or browse wrap end user agreement included in the Service or in any deliverable under this Contract. Acceptance of Goods and/or Services delivered pursuant to this Contract will not constitute acceptance of Suppliers terms and conditions, nor will they in any way to modify or change the full effect of the terms and conditions herein.
Any reference to a Suppliers quotation or proposal on the face of this Contract will not be deemed to incorporate any provision of such Supplier’s quotation or proposal which are inconsistent or in conflict with any provision set forth in this Contract pre-printed provisions contained therein, and such conflicting provisions of the Supplier’s proposal are hereby expressly excluded.
All previous communications (excluding the terms of any Master Agreement) are hereby abrogated and withdrawn and no stipulation or agreements by Supplier or any of its officers, agents, or employees will be binding on the Purchaser unless contained in the Master Agreement, or this Contract, or unless referenced herein. No local, general, or trade custom or previous course of dealing or performance will alter or vary the terms hereof,
2. Definitions
For the purposes of this Contract; (i) Affiliate means any company controlling, controlled by or under common control with Purchaser or Supplier where control means ownership directly or indirectly in an entity of fifty percent or more of the voting rights; (ii) Force Majeure Event means an event caused by a circumstance beyond a party’s reasonable control and that could not have been prevented or avoided by the exercise of all due diligence, e.g natural catastrophes, war, public power outages, civil unrest and conflicts acts of terrorism, labour strikes (strikes and other labour unrest that affect only one party are not caused by a general or mass strike will not constitute an excusable delay) riots, firs, flood, storm, acts of God, governmental action and earthquakes; provided that shortages in the Goods that a Supplier is obligated to deliver, or the imposition of a higher tax on said Goods, or any circumstance resulting in a higher cost to Supplier of supplying the Goods and/or Services covered by this Contract than what Supplier had originally anticipated, will not be deemed a Force Majeure Event; (iii) intellectual Property Rights or IPR are defined as trade names, trademarks, logos, brands, service marks, trade dress, copyrights, designs, patents, know-how, trade secrets, plant certificate, and any other intellectual property rights, whether registered or not; (iv) Laws mean any law regulation, executive order, rule, statue, ordinance or act established or enacted by the applicable authorities, whether national, federal, state, provincial or local as well as international treaties and conventions, and (v) both the terms Goods and Services include all labour, workmanship, activities, materials, equipment, supplies, transportation and supervision necessary to the proper and complete delivery and/or fulfillment of the referred Goods and Services.
3. Volume estimations
Unless a volume commitment is established on this Contract or in Master Agreement any quantity or volume listed on the face of this Contract is not intended to be a firm commitment of the amount of Goods or Services to be purchased by the Purchaser but is only an estimated or forecasted amount of goods or services which may be purchased by Purchaser. Purchaser is not subject to penalty and quantities will not carry over if all or any part of estimated or forecasted goods or services is not finally ordered or used. Purchaser will have the ability to increase this estimated or forecasted volume of goods if its requirements necessitate the increase. Production should only be made against POs. Any production without POs from Purchaser is fully at Supplier’s risk.
4. Delivery schedule
Time is of the essence with regard to this Contract. Supplier will deliver the Services and/or the Goods by the date(s) specified on the PO. If delivery date(s) cannot be met, Supplier must immediately inform the Purchaser in writing of Supplier’s best possible delivery date(s) subject to Purchaser’s acceptance. If deliveries are not made at the time agreed upon. Purchaser may exercise one or more of the following remedies; (i) request that Supplier ships the Goods by other than designated routing to expedite delivery (cost of alternative means of shipment will be borne by Supplier) (ii) cancel the Contract or the applicable PO in whole or in part; (iii) refuse to accept any or all deliveries of Goods or performance of Services; (iv) recover from Supplier any expenditure reasonably incurred by Purchaser in obtaining substitute Good and/or the Services from another supplier; (v) apply a penalty for late delivery of 0.5% of the price of the applicable PO per day, until Supplier’s delivers the Goods and/or the Services, or (vi) claim damages for any costs, losses or expenses incurred by Purchaser which relate to Supplier’s failure to deliver the Goods and/or the Services on the due date.
5. Price and Payment terms
The price of the Goods and/or the Services is the price stated on the face of this Contract and it includes all charges for production, packing and loading, any other related charges as per the applicable Incoterms (see article10) No price changes will be accepted unless authorized in writing by the Purchaser prior to shipments of Goods or performance of Services. Purchaser shall pay Supplier within the term established in this Contract or the applicable PO after receipt of Supplier’s undisputed invoice for duly delivered and conforming Goods and/or Services. Supplier will comply with all Purchasers instructions in connection to invoicing and payment process. In no case will Supplier Invoice Purchaser for the Goods and/or Services subject of this Contract earlier than the actual receipt by Purchaser, or Purchaser’s designated recipient, of such Goods and/or Services. Advanced payments, if any are made in consideration of the future full and satisfactory performance of the Services or delivery of the Goods, and will constitute a recoverable advance in case of non-satisfactory, incomplete or non-performance of the Services or delivery of the Goods.
Delay in payments will be notified to Purchaser by Supplier and solved amicably between them, without entitling Supplier to suspend performance of this Contract.
Supplier will assume the risk of unfavourable currency fluctuations between the time of invoicing and the time of payment. Without prejudice to any other right or remedy, Purchaser reserves the right to set off any amount owing at any time from Supplier to Purchaser against any amount payable by Purchaser to Supplier.
6. Quality
Supplier will carry out quality assurance testing of the Goods in accordance with the quality standards and issue certificates of conformity or analysis as required by Purchaser or as otherwise agreed in writing with Purchaser. Supplier will submit to Purchaser free of charge such samples of the Goods, ingredients, and packaging materials to be used in the manufacturing and packaging of the Goods as Purchaser may reasonably require from time to time in order to allow Purchaser to monitor the compliance by Supplier with its obligations. In the event that Supplier becomes aware of the existence of any quality or technical problem relating to any Goods within the control of Supplier. Supplier will ensure that the Goods affected or believed to be affected by the problem are kept separate from all other Goods, and are not allowed to leave Supplier’s premises without the prior consent of Purchaser. Supplier will establish (with Purchaser’s previous approval) reporting procedures with a view to identifying the nature and extent of, and resolving the problem in question and keeping the appropriate Purchaser representatives informed of all progress being in these areas.
No delivery arrangement between Supplier and Purchaser, such as direct delivery by Supplier to Purchaser’s co- manufacturer, or by Supplier’s Affiliate to Purchaser’s Affiliate, will release Supplier from its obligation to comply with the paragraph above.
7. Packaging
Storage. Supplier will properly and lawfully package all Goods for safe and wholesome shipment to the Purchaser. Or as established in this Contract or otherwise instructed by Purchaser. No charge will be allowed for packing, boxing, or cartage unless accepted in writing by Purchaser. Supplier will be responsible for breakages shortages and damage cause by inadequate packaging or storage, Storage must be appropriate for the type of Goods and must be made in a dry, clean place, and will be bird, insect and rodent proof.
8. Transport
Transport will be handled in accordance to what is established in the face of the Contract or as instructed by Purchaser. Supplier will be accountable for and pay any excess transportation costs arising from Supplier’s failure to follow Purchaser’s instructions. In any case transport must be in clean and safe vehicles. Supplier warrants that any transportation costs included in the price of the Contract will not exceed actual transportation costs paid by Supplier.
9. Documentation requirements
Applicable PO number must appear on all containers, papers, packing slips, invoices and all other correspondence or documents related to this Contract. Supplier will comply with all Purchaser’s instructions regarding tagging of the Goods and related documentation. Supplier will, in accordance with applicable Incoterms, be responsible for any and all duties, fillings, documentation and record keeping or redeliveries as may be required by the applicable custom services in connection with the Supplier’s sale and delivery of Goods and Purchaser’s use thereof. Supplier will be accountable for and pay any costs arising from any errors or omissions in performance thereof.
10. Risk of loss and title
The risk over the Goods will be transferred to purchaser in accordance with the Incoterm established in the Contract or in the applicable PO. In absence of that information, the applicable Incoterm where no letter of credit is involved will be FCA. In transactions that involve letters of credit, the applicable Incoterm will be FOB. Title to the Goods to Purchaser will be transferred together with the risk as set forth herein.
11. Warranties
In addition to any other warranties included in this Contract or in the applicable Laws. Supplier warrants that the Goods and/or the Services to be supplied pursuant to this Contract are; (i) fit and sufficient for the purpose intended; and (ii) in conformity with the specifications, drawings, samples, electronic, files, documents, instructions, design descriptions, performance standards of applicable industry or other descriptions, if any specified in this Contract or which have otherwise been provided to Supplier by Purchaser (Specifications) Supplier will not modify or change any Specifications without Purchaser’s prior written approval. Any change that may affect product performance, especially the change of place of origin. Ingredients or processing will be implemented only upon prior written approval from Purchaser. Any attached Specifications are hereby made a part of this Contract. Supplier will furnish. Purchaser prior to commencing the performance of the Contract with copies of the manufacturer’s handbook, patterns, designs, drawings, documents, installation instructions, servicing and maintenance brochures for approval. Supplier will be responsible for all errors or omissions in any drawings, calculations, or particular supplied by it whether or not Purchaser approved such information. The Goods and the Services will be supplied on the basis that Supplier holds itself out to be expert in every aspect of the performance of the Contract and have full notice of the purpose for which Purchaser requires them.
Supplier warrants to Purchaser that any Goods supplied to Purchaser hereunder; (i) are merchantable, of good quality, free from defects (patent or latent) and in case of edibles are wholesome and fit for human or animal consumption (as applicable); (ii) were grown or manufactured in a facility or under conditions which are free of any contamination, microbiological or otherwise, and with due care and using necessary hygiene and quality control measures; and (iii) have been processed or produced in accordance with the applicable Laws(including the Laws of the place of final destination of the Goods) and are not adulterated, misbranded or mislabeled, nor do such Goods contain any ingredient, colour additive, chemical or element which has not been disclosed as an ingredient of such Goods to Purchaser and which has not been duly approved or certified for inclusion within such Goods by all appropriate authorities having jurisdiction or authority over such Goods. Supplier agrees to use reasonable efforts to seek independent certification that Supplier’s food safety and quality management system complies with food safety Laws. Supplier will provide Purchaser with a copy of such certification or any denial of such certification issued by the independent certification entity or body promptly upon receipt by Supplier. Supplier also warrants that; (i) it will be fit, qualified and competent to perform its obligations under this Contract; (ii) has absolute and good title to the Goods supplied. And at the time of delivery will be free of all liens. Security interest or circumstances of any kind against the Goods; (iii) will comply with all applicable Laws of any jurisdiction from or in which the Goods and/or Services are provided or received including Laws about export control, import, customs and economic sanctions, anticorruption, anti-bribery, patents, trademarks, copyrights, tax, food safety, labour and labour safety environment, consumer rights, labelling, electrical standards; (iv) will comply with all voluntary industry standards, codes or other obligations; applicable health and safety standards for manufacturing operations and (v) the supply of the Goods and performance of the Services will not give rise to any breach by any person of nay Laws or third party rights.
Without prejudice to any other right or remedy which Purchaser may have under this Contract, the Master Agreement (if existing) or the applicable Laws, if any Good or Service fails to meet any warranty contained in this Contract (even after acceptance, payment or use of the Goods and/or Services by purchaser) or the Supplier fails to comply with any of the terms or warranties under this Contract. Purchaser may at its option exercise one or more of the following remedies; (i) cancel this Contract Or the applicable PO in the whole or in part; (ii) ask Supplier to repair the non-conformity, faults or defects at Suppliers expense; (iii) seek a reduction of the purchase price; (iv) reject the Goods and/or Services as provided in Article 13; (v) refuse to accept any or all deliveries of the Goods or performance of the Services; (vi) carry out at Supplier’s expense any work necessary to make the Goods and/or the Services compliant with the Contract and (vii) claim any and all related damages, including the cost of storage and return shipment of the defective Goods or unwinding of defective Services and all costs and damages related to any recall or pull-out from trade of the defective Goods.
12. Security for Obligations
Purchaser may require additional security for the fulfillment of Supplier’s obligations under this Contract, as may be stated in the specifications for the Goods and/or Services covered herein.
13. Inspection and Rejection
Not with standing any prior payment and/or acceptance, all Goods and Subject to inspection and testing after arrival at the ultimate destination delivery or performance as the case may be, and in the case of the Goods if they are to be incorporated into an operating facility, the inspection and testing of the Goods may be made under operating conditions after the Good have been installed. If specific acceptance testing procedures or acceptance criteria are specified or referenced on the face of this Contract, then Supplier and Purchaser (or either of them, as applicable) will carry out the activities related to the acceptance procedures. If during such testing period, the Goods are not performing in accordance with the acceptance criteria. Supplier will, at no expense to Purchaser and with prior agreement of the Purchaser make necessary and appropriate corrections, adjustments or modifications to the Goods in order to bring them into compliance. If upon inspection or testing, the Goods and/or Services or any portions thereof are found to be non-conforming, unsatisfactory, defective of inferior quality or workmanship or fail to meet any guarantees or warranties or the applicable
Specifications or fail to meet any other requirements of Purchaser or of this Contract then without prejudice to any other rights or remedies. Purchaser may reject the Goods and/or the Services (in whole or in part) and return them to Supplier at the risk and cost of Supplier on the basis that a full refund for the Goods and/or Services so returned will be paid forthwith by Supplier. Also, Purchaser may exercise one or more of the following remedies; (i) cancel this Contract or the applicable PO in whole or in part; (ii) seek a reduction of the purchase price if the rejection is partial (iii) refuse to accept any or all deliveries of the Goods or Performance of the Services; (iv) carry out at Supplier’s expense any work necessary to make the Goods and/or the Services compliant with the Contract; (v) claim any and all related damages including the cost of storage and return shipment of the defective Goods or unwinding of defective Services and all costs and damages related to any recall or pull-out from trade of the defective Goods. Neither the inspection. Nor failure to make inspection, nor acceptance or payment for Goods and/or Services or make claims in connection with the non-conforming Goods and/or Services
Any goods (which for purposes of this provision will include any work in process) rejected by Purchaser, in Supplier’s possession or control and determined by Purchaser not to be re-conditionable or salvageable will be disposed of by Supplier at Supplier’s cost and expense in a manner which will absolutely preclude re-use for human or unless Purchaser otherwise consents, animal consumption. If purchaser determines that any such Goods (or work in process) are in writing between Purchaser and Supplier. Supplier will immediately withdraw rejected Goods from Purchaser’s premises unless Supplier specifically requests for temporary storage which will be the expense and risk of Supplier. Purchaser reserves the right to change storage fees for rejected Goods not immediately collected after notification of rejection.
Any of the activities related to reception, inspection, testing acceptance or rejection mentioned above may be performed by an Affiliate of Purchaser, or by any third party designated by Purchaser and will be considered and have the same effect as if performed by Purchaser.
14. Traceability of Ingredients and Goods
Supplier will at all times be able to provide details and data regarding the exact origin of the ingredients used to produce the Goods and the movement of the Goods in order to, in the event of quality issues, respectively, ensure traceability of ingredients used and guarantee an efficient recall action of Goods.
15. Product recall
In the event that Supplier becomes aware of the existence of any non-conformity or defect relating to any Goods which have left the control of Supplier and Supplier reasonably believes that such defect or non-conformity either creates or is likely to give rise to a risk to the health or safety of consumers possibility of action by enforcement authorities, or a risk of adverse publicity or public dispute for Purchaser or Its Affiliates, the following provisions will apply; (i) Supplier immediately upon becoming aware of the problem, notify Purchaser. Any such notification will include as a minimum. a) the identity and quantity of the Goods involved b) any relevant coding information (if existing) c) any other relevant information which may be of assistance in tracing Goods. (or the products containing the Goods) (ii) representatives of Supplier and Purchaser will meet as soon as practicable for the purpose of agreeing the measures to be taken by Supplier in order to remedy issues arising from such defects or non-conformity. (iii) Purchaser will be entitled to demand the cessation of the production of the Goods forthwith to inquire the withdrawal of the Goods and to require the destruction of the Goods.
Not only for the reasons described above, in the event that Purchaser at its own discretion initiates a recall is ordered or recommended by governmental authorities. Supplier will fully cooperate and share all information with Purchaser. All recall related expenses (cost of transporting, storing, managing, and destroying the recalled product) as well as all the damages incurred by Purchaser. Its Affiliates or affected third parties, will be borne and compensated by supplier to the cause of the measure, problem or recall is due to any breach by Supplier of its obligations or warranties hereunder or any negligent or unlawful act of Supplier, its employees, agents, contractors or representatives.
16. Purchaser’s materials
Any material owned by Purchaser or any of its Affiliates Which Purchaser may deliver to Supplier or which may come to Supplier’s possession in relation to this Contract will remain at all times the exclusive property of Purchaser. These materials may include any kind of print tools or matrix, graphics, drawings, models, photographs, software, moulds or equipment, packaging, products, prototypes, samples, raw materials, ingredients, promotional materials. Supplier will: (i) exclusively use the materials to perform its obligations under this Contract; (ii) return them to Purchaser upon request or upon completion or termination of this Contract; (iii) hold them in safe custody and identified as Purchaser’s property, at Supplier’s own risk and not transfer or otherwise disclose them to any third party; (iv) maintain the materials in good condition until returned to Purchaser, (v) not dispose of them or use them other than in accordance with Purchaser’s written instructions, and (vi) not reverse engineer, decompile, fractionate, replicate, reprocess or partition them or cause them to be reverse engineered, decompiled, fractionated, replicated, reprocessed or partitioned.
17. Intellectual property
Supplier understands that any IPR owned by or licensed to, Purchaser or its Affiliates (Purchaser’s IPR) are valuable assets. Any Purchaser’s IPR shared with Supplier in connection with this Contract will be used by Supplier only on Goods and/or Services provided under this Contract. In order to ensure preservation of Purchaser’s IPR. Supplier undertakes not to sell or otherwise distribute Goods or deliverables bought under this Contract that use any Purchaser’s IPR to anyone other than Purchaser or its Affiliates without Purchaser’s prior written approval. No provision of this Contract will be interpreted as granting any explicit or implicit license, title or other right over Purchase’s IPR to the benefit of the Supplier, unless established in this Contract or otherwise expressly agreed in writing.
Supplier agrees that all IPR developed in the performance of this Contract or at the request of Purchaser, related to Purchaser’s products, formulation, packaging, technology, processes, Specifications or other Purchaser’s IPR or Confidential Information, including any improvements or modifications thereof (Developed IPR) will be the exclusive property of Purchaser or its respective Affiliates (such rights to include without limitation, the right to register protection for that Developed IPR). To the extent the Developed IPR does not vest automatically in Purchaser, Supplier hereby irrevocably assigns to Purchaser (or its respective Affiliates) all right, title and interest in and to all such Developed IPR, and will execute, and will cause its employees to execute, all documents which may be necessary to give effect to this provision. Supplier agrees to provide to Purchaser in writing full and complete information and documents related to the Developed IPR, in the format and language specified by Purchaser, Supplier undertakes: (i) not to use directly or indirectly the Developed IPR for any purpose other than the performance to this Contract, unless it has obtained the prior written consent of the Purchaser, and (ii) to keep the Developed IPR confidential and not to register any protection for the Developed IPR.
Supplier warrants that any deliverables generated, made, conceived, developed or written by or on behalf of Supplier (either individually or in collaboration with others) under this Contract, including any tangible work product, sketches, drawings, designs, pictures, films, photos, images, recordings, videos, music, plans, technical drawings, inventions, discoveries, improvements, know-how, computer programs, including any source and object codes, and any other creation or documentation, will be original work, and that all works generated and the provision of Goods and/or the Services under this Contract and the use or exploitation of the deliveries by Purchaser or its Affiliates will not infringe any right of third parties including any IPR belonging to third parties. Any IPR owed by, or licensed to, Supplier or its Affiliates prior to this Contract or developed independently from this Contract (Supplier’s IPR) is and will remain the exclusive ownership of the Supplier. If any Supplier’s IPR, including any software, source code or object code, are necessary for the utilization of the Goods and/or the Services by Purchaser or its Affiliates, Supplier hereby grants Purchaser and its Affiliates a worldwide, non-exclusive, fully paid up, irrevocable and perpetual license to use such rights to the extent necessary to fully exploit or use the Goods and/or the Services.
Supplier represents that it has fully investigated all Specifications and, based upon such investigations and its past experience and superior knowledge with respect to the Goods and/or the Services, Supplier has determined that the production thereof in accordance with such Specifications or the use or exploitation thereof will not infringe any IPR of any third party.
Supplier will indemnify and hold Purchaser and its stockholders, Affiliates, officers, directors, agents and employees (the Purchaser Indemnities) harmless from any of all claims, demands, costs and liabilities, including attorney’s fees and legal expenses, arising out of any infringement or claim of infringement of third party IPR. If Purchaser at its own discretion so requires, Supplier will assume, at Supplier’s cost, the defense of Purchaser and Purchaser Indemnities. In no event will Purchaser or its Affiliates be liable to Supplier for any IPR infringement or claim thereof; and, in the event Purchaser or its Affiliates is or are enjoined from the operation, use or sale of the Goods and/or the Services pertaining there to or to any part thereof covered by this Contract, Supplier will, at its sole expense, take all responsible steps possible to procure for Purchase and its Affiliates the right to operate, use and sell the Goods and/or the Services referred above, regardless of whether or not such injunction or action for compensation is actually sought or initiated against Purchaser by any third party. If supplier cannot so procure the aforesaid rights within a reasonable time, Supplier will then promptly, at Supplier’s sole expense: (i) modify said Goods and/or Services, or any part thereof, so as to avoid infringement of any IPR; or (ii) replace said Goods and/or Services or any part thereof with Goods or Services which do not infringe or violate any such IPR; or (iii) remove said Goods and/or Services of any part thereof, and refund any payment made by Purchaser to Supplier and any transportation costs and other expenses that may have been paid or incurred by Purchaser in connection with the Goods and/or the Services, or any part thereof, so remove. In the case where it would not be possible, Purchaser may terminate the Contract, without prejudice to the rights previously acquired and to the damages and interests to which Purchaser and Purchaser Indemnitees could be entitled to.
Supplier will ensure that rejected, waste and scrap materials that bear any Purchaser’s IPR (including packaging) will be destroyed and disposed of according to Purchaser’s instructions, in a manner which will absolutely preclude re-use. Supplier will not sell packaging materials bearing the Purchaser’s IPR to third parties or use them for any purpose other than the performance of its obligations under this Contract. Unauthorized sales or use of said packaging material is expressly forbidden.
18. Term and Termination
This Contract will be valid and effective during the term set forth in the face of this Contract. In addition to other causes mentioned in this Contract, Purchaser will have the right to terminate this Contract and any or all other Contracts between Purchaser and Supplier for any of the following specific reasons: (i) insolvency or bankruptcy of Supplier; (ii) failure of Supplier to perform or comply with any provision of this Contract including a breach of any of the warranties set forth in this Contract which is incapable of remedy or which, if capable of remedy, has not been remedied within 15 working days of service of a written notice from Purchaser specifying the breach and requiring it to be remedied; (iii) if in Purchaser’s opinion, Supplier damages or may damage Purchaser’s brands, goodwill or reputation or should Purchaser be dissatisfied on reasonable grounds with the way the Supplier is handling its business and if Supplier does not take in Purchaser’s sole opinion, steps necessary to remedy such situation with the designated period of time after notice thereof Is given by Purchaser in writing; (iv) If Purchaser decides to modify its sourcing strategy, business model or requirements, or (v) If Supplier disposes in whole or in part of its business (other than to its affiliate) or if there is a publicity announced proposed or already consummated direct or indirect change of control of the legal or beneficial ownership of Supplier. This Contract may also be terminated by Purchaser, for inconvenience and without cause upon giving Supplier at least 30 days prior written notice. Purchaser will have no liability or obligation whatsoever to Supplier by reason of or resulting from such termination; but, at Purchaser’s sole discretion, Purchaser may pay Supplier its actual direct out-of- pocket costs of performance hereunder to the date of such termination, as approval by Purchaser, will safely hold the same for a reasonable period of time subject to receipt of Purchaser’s written shipping or other disposition instructions. The rights of termination mentioned above will be in addition to Purchaser’s other legal rights and resources whether set forth in this Contract or not, including those established in the Master Agreement (if existing).
In the event of termination of the Contract, regardless of its cause, Supplier will provide such assistance as Purchaser reasonably requires to allow any successor appointment by Purchaser to take over Suppliers obligations under this Contract. The termination of this Contract, regardless of its cause, will be without prejudice to the rights and duties of Purchaser accrued prior to termination. The provision of this Contract which expressly or implicitly have effect after termination will continue to be enforceable not withstanding termination or expiration.
Any provisions of this Contract that by their nature extend beyond termination of this Contract will survive such termination. Upon termination of this Contract all the related POs will be considered automatically terminated. However, the termination of a particular PO will not affect the validity of this Contract.
19. Indemnity
Supplier will indemnify and hold Purchaser and Purchaser Indemnities harmless from any and all claims (including of federal, national, state, provincial or local governments of any agencies of subdivisions thereof), demands, causes of action, losses, damages, liabilities, expenses, reasonable attorney fees or obligations of any kind whatsoever including, but not limited to, damage or destruction of property, injury or death, for loss of profits, loss of production, production interruptions and contract penalties, resulting from of connected with, directly or indirectly, in whole or in part. Supplier’s performance under this Contract of resulting from any default or other breach by Supplier (by action or omission) of its obligations or warranties under this Contract. If Purchaser so requires at its own discretion, Supplier will assume, at Supplier’s cost, the defense of Purchaser and Purchaser Indemnitees.
20. Insurance
Supplier will maintain, throughout the term of Supplier’s performance under this Contract, general liability insurance, including product liability insurance, other insurance adequately covering Supplier’s liability under this Contract, or as provided on the face of this Contract, as well as any insurance required by the Applicable Laws. All insurance must be obtained by Supplier from reputable and solvent insurance companies. Upon request by Purchaser, Supplier will promptly provide Purchaser with the applicable certificates of insurance, as well as with proof of payment of the premiums. No insurance coverage will release Supplier from its liabilities, nor be considered construed as limitations of such liabilities.
21. Force Majeure Contingency planning
Neither Purchaser Not Supplier will be liable for the failure to perform or delay in the performance of its obligations under this Contract, to the extent such failure or delay is caused by or results from a Force Majeure Event. The party affected by the Force Majeure Event, immediately notify the other party using the fastest possible means of communication available to it, describing the circumstances of the Force Majeure Event, and will promptly notify the other party when the Force Majeure Event (or its impact on such party) has been abated. The affected party will not be held liable by the other party for such non-performance or delay as long as the fact of the occurrence of such Force Majeure Event(s) is duly proven or is reasonably provable. If Supplier’s performance is delayed or hindered due to a Force Majeure Event, Purchaser will not be obligated to pay any price to Supplier in respect of any Goods and/or Services not actually supplied or rendered. In case of a Force Majeure Event, Purchaser will have the right to defer the date of delivery of the Goods and/or the Services or to cancel this Contract or reduce the volume of Goods or amount of Services. Purchaser will not be liable to Supplier for any costs of expenses incurred by Supplier as a result of any Force Majeure Event. However, if the delay in performance exceeds thirty (30) days, the party awaiting performance will be permitted to terminate this Contract upon five (5) days prior written notice to the other party, with no further obligation to the party claiming excusable delay.
The failure, default or delay will not be excused if: (i) the prevention of the same is an obligation under this Contract; (ii) the non-performing party of its personnel are at fault in causing the delay or failure to perform; (iii) the default of delay could have been anticipated, prepared for, or prevented by the use of reasonable precautions commonly employed by persons and entities in the business of the affected party; and (iv) the delay or failure to perform can be reasonably circumvented by the non-performing party through the use of alternate sources, workaround plans or other means.
22. Personnel
Supplier will be exclusively liable for all legal and labour obligations related to the engagement of its own personnel and its subcontractor’s personnel, and such personnel will have no relationship whatsoever with Purchaser or its representatives. Supplier assumes fully and exclusively the liability in case any of its employees or its subcontractor’s employees files a claim, accusation or lawsuit related to labour, civil or any other kind or matter against Purchaser or Purchaser Indemnities. Additionally, Supplier acknowledges specifically that Purchaser and Purchaser Indemnities will not be liable for any accidents of any kind, nor for damages, professional diseases or death of the personnel of Supplier or its subcontractor’s appointment to carry out the activities related to the performance of this Contract. Where specific Supplier personnel has been designated in the Contract to perform the Services, such individuals may not be substituted by Supplier without the prior written approval of Purchaser.
23. Confidentiality
Supplier acknowledges that in the course of providing the Goods and/or the Services hereunder, it may be exposed to or receive certain information deemed to be confidential or proprietary by Purchaser or its Affiliates (or their suppliers or consultants), including but not limited to the Specifications, information relating to Purchaser’s manufacturing processes, equipment and know-how, technologies, ingredients, recipes, procedures and standards, information concerning the production and packaging of Purchaser’s products or other information (hereinafter collectively referred to as “Confidential Information”). Supplier agrees that all such Confidential Information will be retained by Supplier and its personnel, agents and representatives as strictly confidential not disclosed to any third party and will only be used in connection with the performance of this Contract. Supplier will ensure that such personnel, agents, representatives or subcontractors are subject to the same obligations or confidentiality. Supplier will not disclose to anyone not connected with Purchaser any Confidential Information obtained by it while serving as a supplier to Purchaser, unless and only to the extent compelled by order of a court or regulatory body of competent jurisdiction. Supplier will promptly notify Purchaser of any such order to allow Purchaser an opportunity to interpose any objections it may have to such disclosure. Supplier will restrict the disclosure of the Confidential information within its own organization to those persons who are directly concerned therewith and who have been informed of Supplier’s obligations hereunder. Supplier agrees that upon ceasing to serve as a supplier to Purchaser, or when requested by Purchaser, Supplier will return to Purchaser and not retain any memoranda of Confidential Information, or any drawings, blue prints, or other such reproductions. In the absence of written authorization from Purchaser, Supplier must nor mention its business relations with Purchaser or use Purchaser’s IPR or Purchaser’s name in any advertising promotion video, website, leaflet or publication, or in any other form. Supplier’s and its employees will maintain the confidentiality of passwords, if any, for information system access provided to them by Purchaser. The sharing of passwords is strictly prohibited. Supplier will not allow any photographs, negatives, cine films, video recordings, copies, sketches or notes to be made of Purchaser’s plant, equipment, products or processes or any part thereof, the provisions of this Article will survive the expiration or termination of this Contract.
24. Data Protection
Supplier will comply at all times with all applicable data protection Laws, and in particular will implement appropriate technical and organizational measures and adequate security programs and procedures to protect any personal data provided by Purchaser against accidental, unauthorized or unlawful loss, alteration, disclosure, access or processing. Supplier will be liable in case of a breach of this obligation, in accordance with Article 19.
25. Audit Rights
Purchaser will be entitled on reasonable notice to Supplier to access by itself or its representatives (including authorized third party) relevant Supplier sites where Goods are being processed, produced or packaged, or Services are being performed, for the purpose of ensuring Supplier’s compliance with this Contract, the applicable Laws and the Froneri policies mentioned in Article 26. Supplier will make available on such occasions its applicable written records, grant Purchaser access to relevant raw materials, packaging materials, supplies and associated and warehousing facilities. Purchaser and its representatives will be entitled to monitor production procedures during working hours and to take samples. The audits will in no way release Supplier from its obligations or liabilities. Prior notice will not be necessary when public health or food safety are at risk. If an audit reveals that Supplier has not met its obligations, duties, warranties or undertakings, Purchaser may, at its sole discretion; (i) cancel this Contract with immediate effect, or (ii) grant Suppliers reasonable grace period to rectify the findings. In the latter case, if Supplier fails to rectify the findings within the provided period, Purchaser will be entitled to terminate with cause the Contract, with immediate effect, in addition to any other available remedies.
For purposes of protecting the Purchaser’s IPR. Purchaser will have the right to monitor the status of packaging materials bearing such intellectual property, designs and printing tools in the possession of Supplier or its subcontractors. Supplier acknowledges Purchaser’s right to enter and audit Supplier’s and its subcontractor’s facilities and premises without prior notice, for the purpose mentioned above.
26. Froneri Policies
Supplier warrants that it has carefully reviewed and understood, and will fully comply at all times the latest version of the Froneri Supplier Code, as well as any other policy informed by Purchaser to Supplier from time to time. Supplier will ensure that all of its suppliers comply with the policies mentioned above. Supplier will complete, sign and return to Purchaser a copy of the Froneri Supplier Code.
27. Compliance with Law
Supplier will comply with any and all laws and regulations applicable in the countries in which it operates, including without limitation, local, national laws and regulations as well as applicable international treaties. Supplier will pursue an environmentally sound business practice and observe all laws and regulations on environmental protection. Supplier will comply with all the provisions of the Labor Code of the Philippines and all other labour laws, as the same may be amended from time to time, such as but limited to the Minimum Wage Law, Social Security Act, National Health Insurance Act and Department Order No. 18-A Series of 2011 of the Department of Labour and Employment (#D.O. No. 18-A#) on safe and healthful working conditions; labour standards such as service, incentive leaves, rest days, overtime pay, 13th moth pay; retirement benefits, contribution and remittance of SSS, PHILHEALTH, PAG-IBIG Fund and all other welfare benefits; the right to self-organization, collective bargaining and peaceful concerted action and the right to security of tenure. Supplier further warrants that it has the Net Financial Contracting Capacity required under D.O.No. 18-A. Supplier shall comply with all applicable law, including but not limited to all laws relating to bribery, corruption, modern slavery, tax evasion and financial crime applicable to the Supplier’s performance of this Contract. Supplier shall comply with any export control and economic sanctions laws in any part of the UK, EU, USA and any territory from which the Supplier conducts its business. Supplier shall have in place and maintain policies and procedures to ensure compliance with this clause 27. Supplier shall procure that its personnel (including all of its employees, agents, contractors, representatives and subcontractors) comply with this clause 27 and shall remain directly liable for any breach of this clause 27 by those personnel. Supplier shall immediately notify Purchaser of any breaches of this clause 27. Any breach of this clause 27 shall be a material breach of this Contract entitling (but not obligating) Purchaser to terminate immediately without further liability to Supplier.
28. Charges
Purchaser will have the right to make changes in this Contract in any one or more of the following; (i) Specifications; (ii) method of shipping or packing; (iii) place of inspection, acceptance or point of delivery, and (iv) delivery schedule. Supplier will notify Purchaser in writing within seven (7) days of receipt of such change notice if Supplier desires any adjustment in the price or time of performance of this Contract on account of said change notice, and such adjustment in price or time of performance will be binding only upon the written agreement by Purchaser. Failure of Supplier to give such notice will constitute acceptance by Supplier of the terms of the change notice and Supplier’s agreement to complete the Contract as changed without adjustment in price or delivery dates to be bound by all other obligations of this Contract.
29. Taxes
Unless otherwise agreed in writing by Purchaser the prices in this Contract will be exclusive of Valued-Added Tax (VAT) but inclusive of all other charges and taxes. Inclusion or exclusion of customs duties will depend on the applicable Incoterm. Supplier will provide Purchaser with a VAT valid and formally correct invoice to enable Purchaser to claim back VAT, if legally possible. Purchaser will use reasonable efforts to make sure that any taxes withheld are minimized to the extent possible under the applicable Laws and will provide all the necessary documents to enable Supplier to claim, if legally possible, the withholding tax refund under the applicable tax treaty. Supplier will bear the loss for any withholding tax that is unable to recover. For the purposes of this paragraph, withholding taxes are defined as any withholding tax or other deductions and obligations imposed by any legal, governmental or other authority on payments made by Purchaser to Supplier.
30. Notices
Any notice or other communication required or permitted to be given pursuant to this Contract will be deemed to have been sufficiently given if in writing and addressed to the domiciles indicated on the face of this Contract. Purchaser and Supplier may, by notice as aforesaid, designate a different address for notices or other communication intended for it.
31. Applicable law
Dispute resolution and jurisdiction. This Contract will be governed by and construed in accordance with the laws of the Republic of the Philippines, excluding its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Contract.
In the event of any issue or dispute arising out of or in connection with this Contract, the Parties will, in all cases, endeavor to settle the issue or dispute amicably. In case the Master Agreement mentioned in Article 1 has been signed Affiliates of both Purchaser and Supplier, or by Supplier and Affiliates of Purchaser, or by Purchaser and Affiliates of Supplier, any dispute between Purchaser and Supplier will be escalated to the respective Affiliates before initiating the procedures mentioned in the following paragraph, and will only initiate those procedures in case no agreement is reached through direct negotiation between the referred Affiliates.
Other than what is set forth in the paragraph above, nothing herein will prevent the Parties from submitting any issue or dispute to preventive mediation or arbitration, as the case may be, under the Rules of Philippine Dispute Resolution Center, Inc. Should a party initiate arbitration to receive dispute, the following will apply: (a) Philippine law will govern the process of arbitration; (b) The dispute will be decided by a single arbitrator if the Parties agree to the choice of one arbitrator within 60 days of submission of the dispute for arbitration, otherwise by a panel of three arbitrators, wherein the Parties will each choose one arbitrator , and the two chosen arbitrators will choose a third one who will chair the panel; (c) The arbitration venue will be Makati City, Philippines, and English will be the language of arbitration.
Nothing herein will prevent either of the Parties from resorting to appropriate judicial action/s to resolve a dispute, provided no notice of arbitration has as yet been filed. The venue for any dispute arising out of or in connection with this Contract will be exclusively with the competent courts in Makati City. The prevailing party in any dispute will be entitled to reasonable attorney’s fees and court and mediation costs.
32. Miscellanea
(i) This Contract may be modified only if agreed to in writing by both Purchaser and Supplier. In the event there is a conflict between the terms and conditions on the face of the Contract and those on this document, the terms on the face will control. In the event of conflict between a PO and this Contract (or their respective terms and conditions) the PO will control; (ii) the invalidity in, whole or in part, of any provision of this Contract will not affect the validity or enforceability of any order or its provisions; (iii) Nothing in this Contract in intended or will be deemed to established any partnership or joint venture between Purchaser and Supplier, constitute Supplier the agent of Purchaser or its Affiliates, nor authorize Supplier to make or enter into any commitments for or on behalf of Purchaser; (iv) The waiver by Purchaser of any term, condition or provision herein stated will not be construed to be a waiver of any other term, condition or provision hereof, nor will such waiver be deemed a waiver of subsequent breach of the same term, condition or provision, nor will it be deemed a waiver of any provision in any subsequent order; (v) Supplier will not delegate any duties, or assign or transfer any rights or claims under the Contract without the prior written consent or Purchaser, and any such delegation, assignment or transfer without such prior written consent will be null and void. Any consent from Purchaser to such transfer will in no way relieve Supplier or its responsibilities. Purchaser may assign, transfer or delegate its rights and obligations under this Contract, including this proprietary rights, in whole or part, as well as its position as a party, to any of its Affiliates, now or hereinafter existing , with previous notice to Supplier; (vi) Supplier will at all times be solely responsible for the act or omissions of its agents, subcontractors and sub-tier supplies and will assume sole responsibility for their performance, included everything related to Goods and Services quality, according to Article 11. Supplier will manage its agent subcontractors and sub-tier suppliers, enforce their compliance with Purchaser’s standards and purchase materials, pay, and resolve all disputes with them; (vii) For work on Purchaser’s premises, Supplier will abide by Purchaser’s safety and security rules and regulations then in effect for said premises. Any failure by Supplier’s personnel to do so may result in Purchaser instructing Supplier immediately to stop the work or remove such personnel from Purchaser’s premises and Supplier will provide a suitable replacement at no extra cost to Purchaser. Supplier will not make the time lost due to this subject of a claim for extension of time or for additional costs or damages by Supplier. Supplier will keep the premises and work free and clear of all liens, and the work will remain at Supplier’s risk prior to written acceptance by Purchaser; (viii) Purchaser hereby reserves all its other legal or equitable rights and remedies and waives none of them; (ix) If Supplier is part of a partnership or comprise more than one entity, Supplier’s liabilities hereunder will be joint and several among those entities.
Any notice served on one will be binding on them all; (x) Supplier warrants that there are no commitments or other circumstances that will inhabit it from providing Services or delivering the Goods to Purchaser (including any conflicts of interest) as set out herein. Supplier will notify Purchaser, in writing immediately upon becoming aware of the existence or possibility, of a conflict of interest. Purchaser will decide, at its sole discretion, the course of action after said notice; (xi) Supplier will inform Purchaser in writing of, a) any breach or incident related to environmental protection, occurred during the performance of this Contract, b) any inspection or administrative procedure related to Supplier’s activity or its impact to the environment, which may have any effect or consequence on the execution of this Contract, and c) any present or foreseen breach of law or regulations that would impact the Goods and/or Services covered by this Contract; (xii) Nothing herein will be construed as granting exclusivity to Supplier in the supply of Goods and/or Services.
