PART I: GENERAL PROVISIONS
1.1 In these General Conditions (as defined below), the following capitalized terms shall have the meanings set forth below:
“Affiliate” means, with respect to any specified Party, any company, firm or legal entity with respect to which a Party’s ultimate parent company directly or indirectly holds 50% or more of the nominal value of its issued share capital or of the voting power at its general meetings or has the power to appoint a majority of its directors or otherwise direct its activities, or any other company, firm or legal entity qualifying as a "subsidiary" or part of a "group” as referred to in sections 2:24a and 2:24b of the Dutch Civil Code;
"Agreement" means an agreement for the sale and deliveryof Products by Bunge to Buyer, including any Annexes and Appendices thereto;
"Article" means an article in these General Conditions;
"Bunge" means Bunge Loders Croklaan B.V., a Dutch private company with limited liability, having its statutory seat in Wormerveer, the Netherlands and office address in the Netherlands, Provincialeweg 33, 1506 MA Zaandam, registered in the Trade Register of the Dutch Chamber of Commerce under number 3501126;
"Buyer" means any party or person, legal or natural, that has entered into or wishes to enter into an Agreement with Bunge;
“Change of Law” means a change in applicable laws, regulations, guidelines or industry codes coming into effect after the date of signing of an Agreement, and which could affect Bunge’s performance under an Agreement and/or the Products delivered under an Agreement;
“Confidential" means information provided by the Disclosing Party to the Receiving Party or to which the Receiving Party has access under the Agreement that:
a) has been designated as confidential; and/or
b) whether oral, written, electronic or otherwise, and whether or not designated as confidential, contains or consists of the Disclosing Party's information covering its business activities, including customer lists, customer information, information regarding business planning and business operations, information regarding administrative, financial or marketing activities, employee information, know-how and proprietary information;
"Day" means any day (other than a Saturday or Sunday or a generally accepted public holiday in the Netherlands) on which banks are open for normal banking business in Amsterdam, the Netherlands;
“Disclosing Party” means the Party that discloses Confidential Information to the other Party (“Receiving Party”) under the Agreement;
“Force Majeure” means any circumstances that are beyond a Party’s control, be they foreseen or unforeseen, as a result of which the other Party can no longer reasonably require the Party claiming Force Majeure to comply with the Agreement. Force Majeure shall include, but not be limited to, any act of God, fire, flooding, weather conditions, industrial strikes, epidemics,
quarantine, restriction war (civil or otherwise), terrorism, government measures and interventions of authorities, the absence (temporary or otherwise) of a license, transport bottlenecks, trade embargos and sanctions, labour unrest, power failures and breakdowns, explosions, landslides or earthquakes or any storm, hurricanes, adverse weather conditions; or any war (whether declared or not), revolution, act of civil or military authority, riot, blockade, sabotage, or civil commotion, any scarcity or curtailment, failure or cessation of supplies and/or of labour, energy, service, utility or facility, or raw material, feedstocks or other substances from which such Products are derived at any of Bunge’s sources of supply, failure of or late or incorrect delivery or service from Bunge’s suppliers, any unavailability of or interference with the usual means of transporting the Products to the Bunge supply location; any unplanned shutdown or shutdown in anticipation of a breakdown or malfunction affecting the plant or source of supply of Products; or compliance with any law, regulation or ordinance, or with any order, demand or request of any international, national, port, transportation, local or other authority or agency or of anybody or person purporting to be or to act for such authority or agency or any corporation directly or indirectly controlled by any of them. Parties acknowledge that without prejudice to other cases and without limitation the closure or standstill of production facilities, depots or other delivery facilities of Bunge or the event that Bunge is not (fully) supplied with products by its supplier, as a result of which Buyer can no longer reasonably require Bunge to comply with the Agreement, shall be considered a Force Majeure event. Parties further acknowledge that an inability to pay any sums due or other economic distress shall not be a Force Majeure event.
"General Conditions" means these general terms and conditions of sale and delivery;
“Incoterms” means the latest edition of the INCOTERMS® published by the International Chamber of Commerce;
“Intellectual Property Rights” means all patents, trademarks or trading names and designs (whether or not registered or registrable), utility models, copyright (present and future), applications for any of the foregoing, trade and business names, goodwill in relation to the foregoing, software and database rights, sui generis rights, rights in designs (whether registerable or not), ideas, inventions, discoveries, concepts, improvements to existing technology, processes, know-how (in each case to the fullest extent thereof and for the full period therefor and all related applications, extensions and renewals thereof, and including trade secrets, technology, methods of manufacture, specifications and other information), and rights of the same or similar effect or nature in any part of the world existing now or in the future created, as well as the right to claim damages for past infringements of any or all such rights and all rights having equivalent or similar effect wherever situated;
“Party” means Bunge or Buyer;
“Products” means any product that Bunge sells and delivers to Buyer pursuant to an Agreement;
“Receiving Party” means the Party that receives Confidential Information from the other Party (“Disclosing Party”);
“Sales Order” means a request of Buyer to schedule a delivery for an agreed quantity of Products pursuant to an Agreement on a certain date;
“Sales Order Confirmation” means the written confirmation by Bunge that the Sales Order has been accepted;
“Sanctions Laws” mean all U.S., EU, United Nations, United Kingdom and Swiss economic sanctions laws relating to transactions with restricted countries, persons and entities, including money transfers related to such transactions and restrictions against dealings with blocked/prohibited persons;
“Subcontractors” means contractors, vendors, agents and/or consultants selected and retained by Bunge under a contract (other than under an employment contract) under which such contractor, vendor, agent and/or consultant agrees to provide all or any part of any services to be provided to Buyer by Bunge;
“Third Party” means any entity or person other than Bunge, its Subcontractors, or Buyer.
1.2 Unless explicitly otherwise agreed in writing, the interpretation of a delivery condition used in the General Conditions or the Agreement shall be governed by the Incoterms.
2.1 In these General Conditions:
3.1 In the event of any conflict or ambiguity within the terms of the Agreement, the following order of precedence shall prevail:
4.1 The original version of the General Conditions has been made in English. Should the General Conditions be translated in whole or in part into another language, the original English version shall prevail between the Parties to the fullest extent possible. Notwithstanding the foregoing, Dutch legal concepts which are expressed in English language terms are to be interpreted in accordance with the Dutch legal terms to which they refer.
5.1 The General Conditions shall apply to and be part of all existing and future Agreements, offers, deliveries, services to be provided, and work to be performed, whatsoever their nature and howsoever they are called, between Bunge and Buyer. The General Conditions shall also apply to all pre-contractual and non-contractual relations and situations between Bunge and Buyer and shall override any other terms or conditions put forward by Buyer.
5.2 Buyer's consent (either explicitly or implicitly – e.g. by placing an order which is subsequently accepted by Bunge and/or lifting and/or accepting Products) with the applicability of General Conditions to an Agreement, shall automatically apply to any subsequent Agreements. Any other general terms and conditions put forward by Buyer or any oral arrangement shall not apply, are expressly repudiated and shall not be binding, unless and to the extent that they have been specifically and explicitly accepted by Bunge in writing.
5.3 Bunge has the right to amend the General Conditions. In such case, Bunge shall timely notify Buyer of the amendments. There shall be a period of at least one month between such notification and the entry into force of the amended General Conditions
6. Offers and orders
6.1 All offers of Bunge shall not be binding upon Bunge and can be revoked or changed at any time at the sole discretion of Bunge, regardless of whether it includes a term for acceptance.
6.2 Bunge has no obligation to accept any order from Buyer. No orders are binding on Bunge unless they are confirmed and accepted by Bunge by a written sales confirmation. Bunge is entitled to refuse an order at its sole discretion. Bunge’s order confirmation shall be binding upon the Parties.
6.3 Bunge reserves the right to recover any loss it suffers or extra costs it has to make as a result of Buyer cancelling or amending an order after it has been submitted to and accepted by Bunge.
6.4 Any special requirements with respect to the Products must be agreed upon in writing beforehand, and Buyer must inform Bunge in writing in a timely manner before an Agreement is concluded regarding any special requirements.
7.1 Unless agreed otherwise in writing, prices agreed upon shall be based on delivery Incoterm FCA. Any additional costs, including inrelation to packaging, loading, transport, import duty, excise duty, unloading, installation, insurance and VAT, are solely for Buyer’s account.
7.2 Bunge is entitled to, at its sole discretion, amend the terms of payment, request payment in advance of delivery and/or request security for payment in any form, at reasonable terms to be determined by Bunge.
7.3 Bunge is entitled to annually adjust the prices and rates agreed under an Agreement to the development of its cost base by applying the most recent 12-month increase of the price index as defined in the Agreement compared to a year earlier. The adjusted prices and rates always apply as of January 1st. Bunge will inform Buyer in writing of such price adjustment.
7.4 Bunge is also entitled to adjust the prices and rates agreed under an Agreement if, based on changed circumstances, such as, but not limited to, in the event of an increase in material procurement, packaging, delivery or production costs, taxes (particularly also import and export duties), wage and ancillary wage costs as well as energy costs and the costs from environmental regulations, it is not reasonable to expect Bunge to continue offering the Products and services provided under an Agreement or to offer them at the initially agreed prices and rates. In that case, the Parties will enter into mutual consultation and lay down the amended agreements in writing.
8. Terms of payment
8.1 All payments by Buyer shall be due as per the terms of the Agreement. Should the Agreement not include a payment term, payments shall be due within 14 Days from the date of invoice. Buyer shall be deemed to be in default without any notice being required if it fails to effect payment either within the payment term included in the Agreement, or within 14 Days from the date of invoice, whichever applies.
8.2 Without prejudice to any other rights or remedies available under these General Conditions or an Agreement or by law, Bunge shall be entitled to suspend supply of Products or vary the stipulated method of payment if Buyer breaches any of its obligations under an Agreement.
8.3 Bunge is entitled to, at its sole discretion, amend the terms of payment, request payment in advance of delivery and/or request security for payment in any form, at reasonable terms to be determined by Bunge.
8.4 Payments to Bunge shall be made without any deduction for taxes, imposts, customs, levies or any other withholding or setoff. In the event that Buyer is under a legal obligation to make deductions for tax, the amounts due and payable by Buyer to Bunge shall be increased with such an amount that following the deductions, Bunge receives the same amount as it would have received without the imposition of such tax.
8.5 All costs associated with payment, including banking costs, shall be solely for the account of Buyer.
8.6 If Buyer fails to (timely) pay the amounts due under an Agreement:
The foregoing shall be without prejudice to Bunge’s other statutory and contractual rights, including Bunge’s right to seek full compensation for damages incurred as a result of or in connection with a breach of such payment obligations in addition to any interest.
8.7 Buyer is not entitled to any retention of payment, suspension of payment, set-off or other deduction, also not in the event of an (alleged) claim against Bunge, unless and to the extent that Bunge has accepted liability for such claim in writing.
8.8 Bunge shall at all times be entitled to set-off an amount equal to any amount of money or other liability owed by Buyer or any member of Buyer's group to Bunge against any amount of money or other liability owed by Bunge to Buyer.
8.9 At Bunge’s request, Buyer shall provide all necessary financial documents relating to its business to Bunge in order to enable a credit assessment. Bunge shall, at its sole discretion, decide on any credit terms, which shall be final and binding on Buyer. Also, Bunge may downgrade/alter the credit terms at any time according to its independent assessment. If Buyer fails to meet the requirements of Bunge, Bunge shall be entitled to immediately suspend all supplies without being liable in any manner until such time as any default or situation has been remedied to Bunge’s satisfaction.
9. Delivery and delivery time
9.1 Buyer shall inform Bunge in writing about the intended use of and, if applicable, any special requirements with respect to the Products to be delivered before any delivery of the Products. Buyer indemnifies and holds Bunge harmless from and against any claim for customs duties or other duties that are applicable to the intended use of the Products.
9.2 Unless explicitly agreed otherwise in writing, the Products shall be delivered Incoterm FCA.
9.3 Buyer shall co-operate with the delivery of the Products and shall take delivery of the Products as soon as the Products are presented by (or on behalf of) Bunge.
9.4 If Buyer refuses or fails to take delivery of the Products despite an obligation to do so under an Agreement, the day on which Buyer refuses to take delivery shall be deemed to constitute the day of delivery. Buyer shall i.a. be deemed to have refused delivery, if the Products have been presented for delivery, but delivery has been proved impossible by reasons and/or circumstances attributable to Buyer.
9.5 If Buyer refuses delivery, the Products may be stored for the account and risk of Buyer for a maximum of 5 Days and Bunge will be entitled to payment of (i) storage and handling costs and (ii) the purchase price of the Products as if delivery would have taken place. After these 5 Days, Bunge shall be freely entitled to sell the Products to any other Third Party, without prejudice of the first sentence of this Article 9.5. Buyer indemnifies and holds harmless Bunge from any damage incurred by Bunge in connection with the above.
9.6 Bunge shall deliver the Products with packaging to be determined by Bunge at its sole discretion. If Buyer requires different packaging, Bunge will be entitled to charge additional costs.
9.7 If Bunge performs any additional services, including packaging, loading, transport, importing, unloading, insurance and any other services, such services shall be invoiced at the agreed rates, or if such rates have not been agreed upon at the rate customarily charged by Bunge for such services or at a rate equal to the actual costs Bunge incurs in relation to these services, whichever is higher.
9.8 If Parties have agreed upon the means of transport and these means of transport provided by or requested by Buyer are not available, Bunge is not obliged to deliver the Products. However, Bunge is, at its sole discretion, entitled to arrange for the delivery of the Products with its own or rented means of transport. In this case the Products shall also be transported at the sole cost and risk of Buyer.
9.9 If several Agreements regarding identical Products are in force, Bunge is entitled to determine the order in which the Agreements are performed.
9.10 Defects caused by Buyer or its sub-contractors by not following directions given by Bunge pertaining to location, storage, cooling, testing, assembly, inspection, or maintenance will never be considered defects of Products of Bunge. Any notifications or complaints in that respect will not be dealt with or accepted by Bunge.
9.11 Bunge shall in no case be in breach of an Agreement if Buyer has not fully and/or timely met its obligations to Bunge under any Agreement.
9.12 Bunge is at all times allowed to deliver other products of equal value as the Products, unless explicitly agreed upon otherwise in writing.
9.13 Bunge has the right to select the transport route and the means of transport of the Products. However, Bunge shall make an effort to take Buyer’s requests into account regarding the transport type and the transport route, in which case any extra costs shall be solely at the expense of Buyer. If the transport is delayed at the request of Buyer or if the delay is attributable to Buyer, Bunge shall store the Products at the expense and risk of Buyer. In this case, the Products shall be deemed to have been shipped as soon as Bunge has given a ready-to-deliver notice.
9.14 If the Products are accepted by a Third Party (e.g., shipping company, transport or shipping agent) on behalf of Buyer, the relevant transport documents (bills of lading) shall be provided to Bunge upon first request.
9.15 If and insofar applicable, containers shall be provided to Buyer for an agreed upon rental fee. Buyer shall return the containers freight-free and cleaned at its own expense ultimately within one month after receipt of the Products at the location specified by Bunge. In case the containers are not returned within one month after receipt of the Products, Buyer shall owe Bunge the agreed upon rental fee for each new month that the containers have not been returned. In case the containers are not returned within three months after receipt of the Products, Bunge shall be entitled to refuse to accept the containers and to request an amount equal to the repurchase value of the containers from Buyer as compensation for damages. In each case, Buyer is liable for the loss, damage and/or contamination of the container.
9.16 In case Parties have agreed upon delivery of the Products in tankers or containers of Buyer, Buyer shall be fully responsible for the cleaning of the tanker or container prior to the loading of the Products. Bunge shall in that case never be liable for any contamination of the Products. If the tankers or containers provided by Buyer required for transportation are not available, Bunge shall not be obligated to deliver. Further, Bunge shall be entitled to deliver the Products with its own or rented tankers at the expense of Buyer.
9.17 The delivery of Products shall be made at a time chosen by Bunge at its sole discretion. All discussed and agreed timelines, milestones, planning and delivery dates in the Agreement are non-binding target dates and are only indicative in nature and Bunge shall not incur any liability in the event that such delivery time is exceeded.
9.18. Bunge is at all times entitled to deliver the Products in one or more parts (partial deliveries). Bunge shall determine the size and sequence of each delivery at its sole discretion.
9.19. The agreed period of delivery shall be based on the circumstances as foreseen at the time of conclusion of the Agreement. In the event that delivery is prevented by unforeseen circumstances, Bunge shall be entitled to (i) rescind the Agreement with immediate effect without incurring any liability or (ii) extend the period of delivery for each day such unforeseen circumstance continues. Bunge shall notify Buyer of such impediment as soon as reasonably possible.
9.20. A delivery period shall not begin before Bunge has confirmed an order in writing and all prerequisites to be met by Buyer have been met. If Buyer has requested changes after an order has been placed, a new delivery period shall commence after Bunge has confirmed the changed order in writing.
10. Sales Orders ("Call-offs”)
10.1. In case Parties have agreed upon delivery of a certain quantity of Products spread over a period of time, the provisions of this Article 10 apply.
10.2. Bunge has no obligation to accept any order from Buyer. No orders are binding on Bunge unless they are confirmed and accepted by Bunge by a written sales confirmation. Bunge is entitled to refuse an order at its sole discretion. Bunge’s order confirmation shall be binding upon the Parties.
10.3 Bunge is entitled to acquire the material or the Products for the entire order and to immediately produce the entire amount of ordered Products under an Agreement. Bunge is therefore not obliged to take any change requests by Buyer into account after the Sales Order has been placed, unless explicitly agreed upon in writing.
10.3. If i) acceptance of the Products or the dispatch is delayed for a reason for which Buyer is responsible or which is attributable to Buyer, or ii) if Buyer does not issue Sales Order for Products until the end of the agreed delivery period (for whatever reason), Bunge shall be entitled to, at its sole discretion and without prejudice to other or further rights, either demand immediate payment of the full purchase price for the undelivered Products that Buyer was obliged to order, or to terminate the Agreement with immediate effect (without being liable in any way for any compensation or otherwise), or to refuse performance and to demand compensation for damages instead of the entire performance regardless of other or more extensive rights after a 14-day grace period has been set in writing and has expired. In case Bunge demands payment of the full purchase price, the purchase price shall be payable within 14 Days. In case Bunge demands compensation for damages, the damages to be paid shall be at least 5% of the net delivery price. Bunge reserves the right to prove that the amount of damage is higher.
10.4. Buyer is obliged to issue Sales Orders for and/or take the delivery of the quantity of Products within the specified time(schedule) and of the correct quantity according to the months of delivery and the partial delivery quantities as specified in the Agreement. Should the transport or shipping or the collection of the Products – or also of the partial delivery quantity which is due in one delivery month – be delayed on request of Buyer or due to reasons that are attributable to Buyer, or if Buyer wishes to deviate from the agreed time(schedule) for delivery, Bunge is entitled to store the Products at the sole risk of Buyer starting from the date the Products should have been transported or shipped or should have been collected by Buyer. In addition, Buyer shall also owe Bunge compensation for any possible costs in that context, such as, but not limited to storage costs, costs relating to capacity loss, costs relating to changes in raw material prices, energy costs and refining premiums, holding and the financing costs caused by the storage, which shall be payable within 14 Days.
10.5. In addition, Bunge is entitled to dispose of the contractual Products elsewhere after expiry of the grace period mentioned in Article 10.4 to supply Buyer again within a reasonable period of time.
10.6. In case of a delayed Sales Order by Buyer, Bunge shall be entitled to postpone delivery by the same period of Buyer's arrear plus a reasonable scheduling period of up to two weeks.
10.7. If Buyer does not pick up the Products from Bunge or issue a shipping order after Bunge’s notification that the Products are ready to be dispatched within 5 Days, Bunge may at its sole discretion either terminate the Agreement after a grace period of at least 5 Days and maximum 14 Days has expired without the breach having been resolved or to terminate the Agreement partially for the undelivered Product or to demand compensation of damages instead of performance or immediate full payment for the undelivered Products. The foregoing also applies if Buyer fails to place a dispatch order for Products by the end of the agreed delivery period.
11. Availability and changes
11.1 Bunge reserves the right to withdraw all or any Product and may from time to time change any specification of a Product to comply with any applicable safety or statutory requirements. Bunge may also change any specification of a Product if the changes do not materially affect the quality or fitness for purpose of that Product.
11.2 In the event the Product is not available to Bunge, Bunge may deliver a substitute product of the same grade as the Product ordered provided that the substitute product is in all material respects as suitable for the intended purposes of Buyer as the ordered Product.
11.3 Bunge may make changes to the packaging of Products, including changes to design, size or weight and may cease to make available any Product in bulk.
12. Intellectual Property
12.1 All rights, title and interest in and to any and all Intellectual Property Rights to all analyses, formulas, designs, drawings, models, programs, documents, and products, as well as preparatory material thereto, developed or made available, shall remain exclusively vested in Bunge or its licensors. Bunge will have sole ownership of all right, title and interest in and to any and all derivative Intellectual Property Rights generated or developed by Bunge or in collaboration with Buyer during the course of an Agreement.
12.2 Buyer shall only acquire the rights and powers of use that are explicitly granted to it under an Agreement. Buyer shall not obtain any right, title or interest in the Intellectual Property Rights used, provided or developed by Bunge or obtained by Buyer with Bunge during the court of an Agreement.
13. Infringement of the Intellectual Property Rights of Third Parties
13.1 If a competent court irrevocably decides in a lawsuit against Bunge, that any Products delivered by Bunge infringe the Intellectual Property Rights of a Third Party, Bunge shall, at its own discretion, replace the relevant Product with a product that does not infringe the relevant right, acquire the right of use with respect to that Product, or refund Buyer the amount paid for that Product, minus a reasonable depreciation. In the latter case, Bunge shall have the right to take back the original Products.
13.2 Bunge shall have no obligations with respect to any infringement of the rights of Third Parties other than the obligation described in Article 13.1. In particular, Bunge shall have no liability whatsoever to the extent such claim or suit is based on or resulting from use of any Products delivered by Bunge in connection with or combination with material not supplied by Bunge or agreed between the Parties.
13.3 If an order is carried out on the basis of a formula, design, drawings, specifications, or directions that are provided by or on behalf of Buyer, Buyer shall defend, indemnify and keep Bunge indemnified at its sole expense against any claims made in relation to infringements of the Intellectual Property Rights of Third Parties and Bunge shall not be liable or have any obligations in the event of any infringement under this Article 13 (Infringement of the Intellectual Property Rights of Third Parties).
13.4 The remedies contained in this Article 13 (Infringement of the Intellectual Property Rights of Third Parties) shall be Buyer’s sole remedy with respect to any action, demand or claim by a Third Party that the use or possession of the Products delivered by Bunge infringe the Intellectual Property Rights of said Third Party.
14. Retention of title
14.1 The ownership and/or title to all Products delivered by Bunge to Buyer shall remain exclusively with Bunge until full and final settlement of all amounts payable by Buyer to Bunge arising from or relating to the Agreements, including claims with respect to fines, interest and costs, including costs due to loss in value and/or the return of Products delivered. Until that moment Buyer shall keep the Products delivered by Bunge separate from other goods and store them clearly identified as the property of Bunge, and to insure them and keep them insured properly and to provide Bunge with a copy of the policy schedules for these insurances at first request of Bunge.
14.2. Buyer shall be entitled to use and/or process the Products under the right of retention in the course of its normal business and at its normal terms. In the event that the Products under retention of title are processed, combined and/or mixed with other materials by or on behalf of Buyer, Bunge shall acquire co-ownership of the new product in the ratio of the invoice value of the Products under retention of title to the value of the other materials used. To the extent permitted by law, Buyer hereby grants Bunge a right of pledge on any claims Buyer has or will have on its customers as security for Bunge's claims on Buyer. In any event, Buyer shall immediately create rights of pledge on any claims Buyer has or will have on its customers upon first request of Bunge. Pledges and/or transfers of ownership for the benefit of parties other than Bunge shall not be permitted. Buyer indemnifies and holds harmless Bunge from any damage incurred by Bunge in connection with the above.
14.3. Buyer's entitlement to process the Products ends without prior notice being required, if Buyer defaults on its payment obligations under an Agreement or if Bunge has reasons to expect that Buyer will default on such payment obligations. Further, Buyer is obliged to place the Products delivered under retention of title, or any elements and/or goods newly created therefrom, at the disposal of Bunge at Bunge’s first demand. If Buyer fails to do so, Bunge shall have the right to take possession of the Products delivered without any prior notice of default, for which Buyer hereby gives its unconditional and irrevocable permission to Bunge or a Third Party designated by Bunge to enter the premises where the Products are located and to take them back. The costs of taking back the Products shall be borne by Buyer.
14.4 If Buyer's entitlement to process the Products ends, Buyer must provide Bunge with all information concerning the Products falling under Bunge's right of retention and return the Products to Bunge upon first request. Buyer acknowledges that Bunge has the right to remove the Products to which Bunge retains title.
14.5. In the event of seizure of the Products under retention of title by any Third Party, Buyer shall immediately disclose to such Third Party Bunge's ownership of the Products and notify Bunge thereof accordingly to enable Bunge to assert its ownership rights. To the extent that the Third Party is unable to reimburse Bunge for the legal costs incurred by it in connection with the above, Buyer shall be liable for payment of such costs.
14.6. Despite the retention of title, the Products delivered will be retained by Buyer at its own risk and expense.
15. Inspection, complaints and warranty
15.1. Buyer shall immediately and as thoroughly as possible inspect the Products upon delivery thereof. Buyer will notify Bunge in writing forthwith and ultimately within 24 hours after delivery in the event of any discovered defects. Failure to comply with these obligations (i) shall cause the Products to be deemed in compliance with Buyer's expectations and applicable law, and (ii) will result in forfeiture of all of Buyer's rights against Bunge.
15.2. Solely samples taken by Bunge shall constitute conclusive evidence of the quality and characteristics of the Products and solely the weight determined at Bunge’s plant is decisive. Buyer has the right to be present or to be represented during loading to determine weight or to collect samples.
15.3. If a claim with respect to defects regarding the Products is justified and notified by Buyer in writing and in accordance with Article 15.1, Bunge shall at its sole discretion replace the defective Products or take the Products back and credit Buyer for the purchase price. In such case, Bunge is also entitled to grant Buyer a reduction on the purchase price corresponding to the extent of the justified claim.
15.4. Bunge shall not be in breach of an Agreement if the total quantity delivered to Buyer pursuant to an Agreement falls below the agreed quantity by 5% or less, provided that Bunge does not charge Buyer for the deficit or, if Buyer has already paid the full invoice value, returns a pro rata amount of the invoice value to Buyer.
15.5. Bunge does not make any guarantee or warranty of any kind, express or implied, including any warranty of merchantability or fitness for a particular purpose, or the intended use, with respect to the Products sold, and Bunge shall not have any liability in this regard unless explicitly agreed in writing by Bunge.
15.6. All Products or Service shall (solely) conform to any specification or description set out in the Agreement. Bunge does not guarantee or warrant that the Products are not contaminated or do not contain any impurities. Bunge shall not be in breach if the Products are do not comply with the specifications for 100%.
15.8. The provisions of these General Conditions shall apply instead of all warranties, conditions, terms, representations, statements, undertakings and obligations whether express or implied by statute, common law, custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law. The provisions of these General Conditions shall benefit only Buyer as the direct purchaser of the Products, and not any secondary or remote purchaser.
15.9. If the Products are sold on the basis of samples, the sample shall only serve as an example. Buyer acknowledges that no warranty is given that the Products correspond with the sample.
15.10 Unless agreed otherwise in writing, Bunge does not have an independent testing obligation to determine if the Products can be used for the purpose intended by Buyer.
16.1. Bunge’s liability, regardless of the source of liability (e.g. breach of contract, tort, indemnity, strict liability or otherwise) is limited to compensation of direct damages suffered by Buyer, yet only if, and insofar as these damages are a direct consequence of a demonstrable defect of Products delivered by Bunge and (cumulatively) insofar as these Products do not offer the physical safety that, all circumstances considered, one may have reasonably expected. ‘Direct damages’ are limited to the reasonable expenses incurred by Buyer:
a) to ensure that the Products comply with the Agreement provided that:
(i) Bunge is permanently unable to do so itself;
(ii) a written notice of default as meant in Article 16.9. has remained without effect; and
(iii) Bunge’s inability to perform its obligations is not attributable to Buyer;
b) to determine the nature and scope of the direct damages suffered by Buyer; and
c) to obtain an out-of-court settlement with Bunge.
16.2. Bunge's total liability, due to an attributable failure to perform the Agreement, shall in any case be limited to compensation of the material and direct damage, to an amount not exceeding the net invoice value of the Products involved.
16.3. With regard to the aforementioned damage, Bunge shall moreover not be liable for any damages against which it is not insured or should not be insured in accordance with common practice in the industry.
16.4. For the avoidance of doubt: Bunge shall never be liable for consequential losses, which shall also be understood to include, but not be limited to, loss of turnover, loss of profits, lost savings, damaged or reduced goodwill, loss of business or business opportunities, reputational damage, consequential damages, recalls, loss as a result of claims from customers of Buyer, nor for any other damages that do not qualify as direct damages.
16.5. Any and all claims against Bunge, shall expire on account of the mere expiration of a period of twelve months after the date on which the after Buyer became aware, or should reasonably have become aware, of the damaging event on which that claim is based.
16.6. Buyer shall indemnify and keep Bunge indemnified against all claims from Third Parties for liability due to a defect in a Product delivered by Buyer to a Third Party which included Products supplied by Bunge, except if, and insofar as, Buyer proves beyond doubt that the damage was caused solely by the Products supplied by Bunge. Buyer shall also indemnify, defend, and hold harmless Bunge, its Affiliates, directors and employees, against any liability for any claim, loss, damage, cost, and/or expense and other costs of litigation on account of any injury, disease or death of persons (including Buyer's employees) or damage to property (including Buyer's property) or the environment arising out of or in connection with:
(a) Buyer's handling unloading, storage, use or disposal of the Products, except to the extent caused by Bunge's negligence; and/or
(b) Buyer’s negligence or any failure by Buyer to comply with any of its obligations under an Agreement.
16.7 Buyer shall comply with all legislation and governmental measures, such as those regarding food safety, traceability, and recall. Buyer shall immediately inform Bunge of any claim by a Third Party, (possible) product liability, and recall issues and shall cooperate with Bunge and relevant authorities in order to avoid or minimize damages.
16.8. Bunge shall not be liable for any default or delay in the performance of its obligations caused by events beyond the control of Bunge, including but not limited to the circumstance that Bunge is not (fully) supplied with products by its supplier(s).
16.9. Unless Bunge is permanently unable to perform an obligation under the Agreement, Bunge’s liability for breach will only arise (and compensation can only be claimed by Buyer) if Buyer – after becoming aware thereof – gives Bunge written notice of default by means of a registered letter as soon as possible, setting a reasonable term for remedy of that breach (of at least 30 Days), and Bunge fails to remedy that breach within that term. The notice of default shall contain a description of the breach that is as complete and detailed as possible, so that Bunge is given the opportunity to respond adequately. Correspondence that has not been sent by registered mail, such as general e-mail correspondence, does not count as (proof of) a notice of default.
16.10. Nothing in the Agreement excludes or limits either Party's liability to the other Party for:
(i) death or personal injury resulting from any negligence of such Party or its officers, employees or subcontractors;
(ii) intent or willful recklessness of a Party's management;
(iii) any other form of liability which under mandatory law cannot be limited or excluded by Parties.
17. Third Party claims
17.1. If Bunge is confronted with a claim from a Third Party that is in any way connected with the processing by Buyer of the Products, or the incorporation of the Products in another product, Buyer shall, at its own expense, (i) assist Bunge in the preparation of the defense against such Third Party, and (ii) provide Bunge with such information as Bunge deems necessary in this regard.
17.2. If Buyer is confronted with a claim from a Third Party that is in any way connected with the processing by Buyer of the Products, or the incorporation of the Products in another product, Buyer shall immediately inform Bunge in writing of such claim stating all relevant particulars, and Bunge shall be entitled (but not obliged) to take over or assist Buyer in the defense against such Third Party. Buyer shall not accept liability or settle any such claim without the prior explicit written approval of Bunge.
18.1. The Parties undertake to ensure the confidentiality of the Confidential Information and agree that the following requirements apply when the Disclosing Party discloses Confidential Information to the Receiving Party under an Agreement.
18.2. The Receiving Party shall:
a) keep secret the confidentiality of all Confidential Information disclosed by the Disclosing Party;
b) at least use the same care to avoid disclosure or dissemination of the Disclosing Party’s Confidential Information as the Receiving Party uses with its own similar information that it does not wish to disclose or disseminate;
c) use the Disclosing Party’s Confidential Information only for the purpose for which it was disclosed under the Agreement;
d) ensure that the personnel and subcontractors of the Receiving Party who are involved in (the execution of) the Agreement are bound by an obligation of confidentiality at least equivalent to this Article 18 (Confidentiality). In this case, Buyer will remain liable for any damage suffered by Bunge as a result of the actions or omissions of the parties mentioned in this Article 18.2 (d); and
e) limit access to Confidential Information to employees, professional advisers who reasonably need to know this information to provide the Services.
18.3. The Receiving Party may disclose Confidential Information to:
b) Subcontractors engaged to provide services under the Agreement; and
c) any Third Party, provided the Receiving Party obtains the Disclosing Party's prior, written and express consent.
Prior to such disclosure, the Receiving Party shall obtain the Third Party’s written agreement to be bound by an obligation of confidentiality at least equivalent to this Article 18 (Confidentiality).
18.4. The Receiving Party shall protect Confidential Information as set forth in this Article 18 (Confidentiality) for a period of 10 years after termination or expiry of the Agreement, unless otherwise provided by law, whichever is longer.
18.5. At the request of the Disclosing Party, the Receiving Party shall promptly destroy or return to the Disclosing Party all the Disclosing Party’s Confidential Information having come into the Receiving Party's possession, including originals and any copies thereof.
18.6. This Article 18 (Confidentiality) shall not apply to any information with regard to which the Receiving Party provides evidence that:
a) it is generally available to the public other than as a result of a breach of this Article 18 (Confidentiality);
b) has been received by the Receiving Party from a Third Party not affiliated to the Disclosing Party without that Third Party having breached an obligation of confidentiality;
c) it has been independently developed by the Receiving Party without using the Disclosing Party's Confidential Information;
d) it is already known by the Receiving Party at the time of its receipt;
e) the Receiving Party is required by law to disclose, provided that, to the extent reasonably practicable and subject to the law, Receiving Party shall notify Providing Party of such requirements prior to such disclosure and provide Providing Party with a reasonable opportunity to contest the obligation to disclose or limit the scope of disclosure; or
f) it is necessary to disclose information in legal proceedings between the Parties.
19. Force Majeure
19.1 Any obligation which Bunge has to comply with under the Agreement shall be suspended for as long as it is impossible for it to do so or to do so properly due to Force Majeure.
19.2 Neither Party shall be liable to the other Party for failure to comply with the Agreement (other than the payment of money) to the extent caused by any Force Majeure event.
19.3. In the event that compliance is suspended for longer than three months or as soon as it is certain that this will be the case for at least three months, either Party may request by means of a registered letter that the Agreement concerned either be amended in accordance with the circumstances or that the relevant part of it be cancelled with immediate effect. Buyer shall in this event not be entitled to any compensation.
19.4. Should Bunge have already fulfilled part of its obligation as agreed when the Force Majeure situation commences, it shall be entitled to payment for the Products and/or services it has already performed.
20. Term and termination
20.1 Bunge may terminate any and all Agreements, wholly or partly, at any time, with immediate effect and without incurring any liability, on written notice to Buyer if:
20.2 Buyer is in breach of one or more Agreements and such breach is not cured by Buyer within 10 Days after written notification by Bunge; or
20.3 Buyer stops or suspends or threatens to stop or suspend payment of all or a material part of its debts or is unable to pay its debts as they fall due, or
20.4 Buyer is declared bankrupt or is otherwise insolvent, enters into liquidation (except for the purposes of a legal merger or restructuring), enters into an arrangement with its creditors, has a trustee appointed; or ceases or threatens to cease its operations, or if any step is taken to enforce security over or a distress, execution or other similar process is levied or served against all or substantially all of the assets or undertaking of Buyer, or any event or circumstance occurs which under the law of any relevant jurisdiction has an analogous or equivalent effect to any of the events listed above; or
20.5 Buyer's company is transferred to a direct or indirect competitor of Bunge; or
20.6 Buyer’s credit rating fails to meet the minimum requirements of Bunge’s credit requirements.
20.7 In case of termination in accordance with the above, all claims of Bunge and/or its Affiliates against Buyer shall become immediately due. In addition, Bunge has the right to demand the return of the Products under retention of title and/or be entitled to recover and resell these Products and for that purpose enter Buyer's premises. Any order for Product accepted by Bunge which remains to be fulfilled may be cancelled at Bunge’s option without any liability on Bunge’s part.
20.8 Termination, regardless of cause and ground, is never retroactive, and no obligations to undo for Bunge shall arise.
21. Change of law
21.1 In the event of a Change of Law:
a) if Bunge suffers (or will suffer) any delay in performing its obligations under an Agreement and/ or incurs any additional costs as a result of a Change of Law, then Bunge will send a written notice to Buyer and the Parties will re-negotiate in good faith the delivery periods and/or the prices under the Agreement; and
b) in the event that no agreement in writing is reached between Bunge and Buyer on the new prices under the Agreement or delivery periods (as the case may be) within a reasonable period of time, either Party may seek to have the matter determined in accordance with the then current NOFOTA rules, Article 25.
22. Sanctions, Antiboycott and Anti-Bribery
22.1 The Parties shall comply with all Sanctions Laws in the performance of an Agreement.
22.2 Bunge will not cooperate with, agree to, or comply with any terms or requests, including documentary requests, which contravene or are prohibited or penalized under U.S. Antiboycott laws or regulations.
22.3 Both Parties understand that the performance of the Agreement is subject to the United States Foreign Corrupt Practices Act (“FCPA”) and all applicable local anti–corruption laws. Both Parties represent and warrant that it has not paid or given, offered or promised to pay or give or authorized a payment or giving of money or anything else of value, directly or indirectly, to any Government Official in order to influence any act or decision by any such person for the purpose of obtaining, retaining or directing any business or to secure any improper business or regulatory advantage for or on behalf of either party or in connection with their performance in furtherance of this Agreement. Both Parties understand and accept that the other party and its affiliates are committed to complying with the FCPA and all other applicable anti–corruption laws and both Parties hereby declare their commitment to comply with such laws. Both Parties shall cooperate fully with the other party to provide such information and certifications as the other party may reasonably requests from time to time in connection with their efforts to confirm compliance with such laws. For purposes of this provision, “Government Official” means any: (i) officer or employee of any wholly or partially state–owned enterprise or government ministry, agency or similar body exercising any executive, judicial, arbitral, regulatory or administrative functions of or pertaining to government, or a member of a royal family; (ii) political party, political party official or candidate for political office; (iii) employee of a public international organization (including, without limitation, the World Bank, United Nations and the European Union); or (iv) person acting on behalf of any such governmental authority or instrumentality thereof.
23. Applicable law and jurisdiction
23.1 Dutch law is exclusively applicable to the entire relationship between Buyer and Bunge, including the General Conditions.
23.2 Parties will first attempt to settle any dispute that arises with respect to the Agreement amicably. Should Parties not be able to resolve the dispute amicably, all disputes will be resolved All dispute arising out of or in connection with the relationship between Buyer and Bunge, including the General Conditions and all offers and Agreements to which the General Conditions apply and any pre-contractual and non-contractual disputes, shall be submitted exclusively to the Dutch court.in the district of Noord-Holland.
23.3 In case Buyer is domiciled outside Europe, all disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or “NCC District Court”), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC's Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCCA”). The NCC Rules of Procedure apply.
24.1 Bunge may subcontract any of its rights and obligations under the Agreement or make any material modification to any subcontract without Buyer’s prior written consent.
24.2 During the term of the Agreement and for one (1) year thereafter, the Buyer shall not solicit, attempt to solicit or endeavor to entice away from Bunge any person who i or have been involved in the performance of the Agreement without the prior written consent of Bunge. Such permission may be subject to conditions, including the payment of reasonable compensation
24.3 Neither Party shall assign, transfer or novate any of its rights, liabilities or obligations under the Agreement without the other Party’s prior written consent, which shall not be unreasonably withheld.
24.4 The provisions in these General Conditions headed Confidentiality, Intellectual Property, Liability, Third Party claims and Applicable Law, shall survive any termination of an Agreement.
24.5 The applicability of the 1980 United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention) is excluded.
24.6 If any provision of the Agreement is held to be invalid, illegal or unenforceable, the remaining provisions of the Agreement will not in any way be affected or impaired, and the Parties shall negotiate a replacement to the invalid, illegal or unenforceable provision in a way to reflect their original intentions to the fullest extent legally possible.
24.7 Bunge will process personal data of Buyer as a data controller mainly for the purposes of performance of the Agreement and for legitimate interests. For further information on how data subjects may exercise their rights and for further information about our data protection practices please refer to the Bunge Europe EU Customer Business Partner Data Protection Notice at https://www.bunge.com/eu-customer-and-business-partner-data-protection-notice.